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H.R. 3094, THE WORKFORCE 

DEMOCRACY AND FAIRNESS ACT 

HEARING 

BEFORE THE

COMMITTEE ON EDUCATION 

AND THE WORKFORCE 

U.S. HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

HEARING HELD IN WASHINGTON, DC, OCTOBER 12, 2011 

Serial No. 112–43 

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 
(II) 

COMMITTEE ON EDUCATION AND THE WORKFORCE 

JOHN KLINE, Minnesota, Chairman 

Thomas E. Petri, Wisconsin 

Howard P. ‘‘Buck’’ McKeon, California 

Judy Biggert, Illinois 

Todd Russell Platts, Pennsylvania 

Joe Wilson, South Carolina 

Virginia Foxx, North Carolina 

Bob Goodlatte, Virginia 

Duncan Hunter, California 

David P. Roe, Tennessee 

Glenn Thompson, Pennsylvania 

Tim Walberg, Michigan 

Scott DesJarlais, Tennessee 

Richard L. Hanna, New York 

Todd Rokita, Indiana 

Larry Bucshon, Indiana 

Trey Gowdy, South Carolina 

Lou Barletta, Pennsylvania 

Kristi L. Noem, South Dakota 

Martha Roby, Alabama 

Joseph J. Heck, Nevada 

Dennis A. Ross, Florida 

Mike Kelly, Pennsylvania 

George Miller, California, 

Senior Democratic Member 

Dale E. Kildee, Michigan 

Donald M. Payne, New Jersey 

Robert E. Andrews, New Jersey 

Robert C. ‘‘Bobby’’ Scott, Virginia 

Lynn C. Woolsey, California 

Rube ́n Hinojosa, Texas 

Carolyn McCarthy, New York 

John F. Tierney, Massachusetts 

Dennis J. Kucinich, Ohio 

Rush D. Holt, New Jersey 

Susan A. Davis, California 

Rau ́l M. Grijalva, Arizona 

Timothy H. Bishop, New York 

David Loebsack, Iowa 

Mazie K. Hirono, Hawaii 

Jason Altmire, Pennsylvania 

Barrett Karr, Staff Director 

Jody Calemine, Minority Staff Director 
(III) 

C O N T E N T S 

Page 

Hearing held on October 12, 2011 .......................................................................... 1 

Statement of Members: 

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

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

Kucinich, Hon. Dennis J., a Representative in Congress from the State 

of Ohio, prepared statement of .................................................................... 111 

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

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

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

Statement of Witnesses: 

Cohen, Charles I., senior counsel, Morgan, Lewis & Bockius LLP .............. 8 

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

Hunter, Michael J., partner, Hunter, Carnahan, Shoub, Byard & 

Harshman ...................................................................................................... 22 

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

Sullivan, Robert G., on behalf of the Retail Industry Leaders Association 

(RILA) ............................................................................................................ 16 

Prepared statement of ............................................................................... 17 

Russell, Phillip B., shareholder, Ogletree, Deakins, Nash, Smoak & Stewart, P.C. .......................................................................................................... 29 

Prepared statement of ............................................................................... 31 

Additional Submissions: 

Chairman Kline: 

Letters of support: 

Stevens, Corinne M., senior director, legislative affairs, Associated Builders and Contractors (ABC) ........................................... 68 

Coalition for a Democratic Workplace .............................................. 70 

Trauger, Joe, vice president, human resources policy, National 

Association of Manufacturers (NAM) ............................................ 74 

Yager, Daniel V., chief policy officer & general counsel, HR Policy Association ................................................................................ 75 

H.R. 3094, the Workforce Democracy and Fairness Act ........................ 112 

Mr. Miller: 

Grant, Chris, Schuchat, Cook & Werner, prepared statement of ......... 80 

‘‘Staying Union-free in a Pro-union World,’’ slide presentation ............ 82 

(1) 

H.R. 3094, THE WORKFORCE 

DEMOCRACY AND FAIRNESS ACT 

Wednesday, October 12, 2011 

U.S. House of Representatives 

Committee on Education and the Workforce 

Washington, DC 

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, Petri, Biggert, Goodlatte, Roe, 

Thompson, Walberg, DesJarlais, Rokita, Bucshon, Gowdy, Barletta, 

Roby, Heck, Ross, Miller, Kildee, Payne, Andrews, Woolsey, Hinojosa, McCarthy, Kucinich, Holt, Bishop, Loebsack, Hirono and Tierney. 

Staff present: Katherine Bathgate, Press Assistant/New Media 

Coordinator; Casey Buboltz, Coalitions and Member Services Coordinator; Ed Gilroy, Director of Workforce Policy; Benjamin Hoog, 

Legislative Assistant; Marvin Kaplan, Workforce Policy Counsel; 

Barrett Karr, Staff Director; Ryan Kearney, Legislative Assistant; 

Brian Newell, Deputy Communications Director; Krisann Pearce, 

General Counsel; Todd Spangler, Senior Health Policy Advisor; 

Linda Stevens, Chief Clerk/Assistant to the General Counsel; 

Alissa Strawcutter, Deputy Clerk; Loren Sweatt, Senior Policy Advisor; Kate Ahlgren, Investigative Counsel; Aaron Albright, Communications Director for Labor; Daniel Brown, Junior Legislative 

Assistant; Jody Calemine, Staff Director; Brian Levin, New Media 

Press Assistant; Celine McNicholas, Labor Counsel; Richard Miller, 

Senior Labor Policy Advisor; Michele Varnhagen, Chief Policy Advisor/Labor Policy Director; and Michael Zola, Senior Counsel. 

Chairman KLINE. A quorum being present, the committee will 

come to order. Good morning. Welcome to the committee’s legislative hearing on H.R. 3094, the Workforce Democracy and Fairness 

Act. 

I would like to thank our witnesses, all four, for joining us today. 

We are here today for one simple reason. The National Labor Relations Board is wreaking havoc on the nation’s workforce, and it 

must be stopped. In recent months, the NLRB has taken a number 

of steps that move federal labor policy in a radically new direction. 

Under the board’s ambush elections proposal, employers will 

have just 7 days to find legal representation and prepare the case 

they must present before an NLRB election officer. If they fail to 

raise an issue before the start of a preelection hearing, with few 
2 

exceptions employers lose the ability to address a concern during 

the hearing process. 

Let me just raise this little tome right here. This is what an employer is supposed to be able to navigate—‘‘How to Take a Case Before the NLRB,’’ 8th Edition. Seven days. Workers will also be 

harmed by this troubling change in policy. The board’s proposal 

would leave employees with as little as 10 days to consider all the 

consequences of joining the union before casting a ballot. 

Additionally, the board’s plan would delay answers to questions 

often critical to an employee’s decision, and undermine employer 

access to a fair hearing. When coupled with its Specialty 

Healthcare decision, which enables union leaders to manipulate the 

workplace for their own gain, it becomes clear the board is promoting unionization by stifling employers’ free speech and crippling 

workers’ free choice. 

I am open to ideas that will modernize the election process, but 

those efforts should never undermine the fundamental rights of 

employees and employers. Expansive changes to workforce policy 

should be vetted by the people’s elected representatives, first by 

this committee and then by the full Congress. 

Hundreds of millions of workers and employers will be forced to 

live with the consequences of these dramatic changes, and they deserve a congressional response. The legislation before us today will 

require the NLRB to change course and reaffirm key protections 

workers and employers have received for decades. 

The Workforce Democracy and Fairness Act provides employers 

at least 14 days to prepare for the election hearing, thereby ensuring access to a full and fair hearing. This provision removes an arbitrary deadline and restores board discretion over the election 

process. By affording workers at least 35 days to hear both sides 

of the debate before casting their ballot, the legislation guarantees 

their ability to make an informed decision. 

In addition to these workforce protections, H.R. 3094 also reinstates the traditional stand for determining which employees will 

participate in union representation and an individual’s ability to 

request board review before the election takes place. 

Finally, the bill safeguards privacy by empowering workers to determine the personal information provided to the union. As we saw 

with the release of the latest employment data last week, our nation is still struggling to create the jobs we so desperately need. 

The American people have asked Congress to do everything possible to encourage economic growth and investment. 

While some may insist this can only come through more temporary stimulus spending and permanent tax increases, my colleagues and I know the one thing business owners and entrepreneurs need right now is certainty. The policies advanced by the 

NLRB are dramatically increasing the pressure and uncertainty 

facing business owners, making it more difficult to create jobs and 

plan for the future. 

One employer in particular has voiced his concern about the 

board’s actions and the implication it bears on the economy. Michael Whalen is the founder of Heart of America Group, a business 

that operates hotels and restaurants throughout the Midwest and 

employees 3,000 workers. 
3 

In the days before the release of the board’s ambush election proposal, he wrote, quote—‘‘The impact of this decision is clear. American businesses will have yet another reason to invest elsewhere 

rather than creating new jobs here at home.’’ Rather than doubling 

down on the failed policies of the past, we have a responsibility to 

remove the regulatory hurdles facing employers. 

Congress can either support an activist agenda, or listen to the 

voices of employers like Michael Whalen, who strive every day to 

grow their businesses and create new opportunities for America’s 

workers. 

I look forward to the hearing this morning, hearing the views of 

our excellent panel of witnesses, and will now yield to the senior 

Democratic member of the committee, Mr. Miller, the gentleman 

from California, for his opening remarks. 

[The statement of Mr. Kline follows:] 

Prepared Statement of Hon. John Kline, Chairman, 

Committee on Education and the Workforce 

Good morning, and welcome to the committee’s legislative hearing on H.R. 3094, 

the Workforce Democracy and Fairness Act. I would like to thank our witnesses for 

joining us. 

We are here today for one simple reason: the National Labor Relations Board is 

wreaking havoc on the nation’s workforce and it must be stopped. In recent months, 

the NLRB has taken a number of steps that move federal labor policy in a radically 

new direction. 

Under the board’s ambush elections proposal, employers will have just seven days 

to find legal representation and prepare the case they must present before an NLRB 

election officer. If they fail to raise an issue before the start of a pre-election hearing, with few exceptions employers lose the ability to address the concern during 

the hearing process. 

Workers will also be harmed by this troubling change in policy. The board’s proposal would leave employees with as little as 10 days to consider all the consequences of joining a union before casting a ballot. Additionally, the board’s plan 

would delay answers to questions often critical to an employee’s decision and undermine employer access to a fair hearing. When coupled with its Specialty Healthcare 

decision, which enables union leaders to manipulate the workplace for their own 

gain, it becomes clear the board is promoting unionization by stifling employers’ free 

speech and crippling workers’ free choice. 

I am open to ideas that will modernize the election process, but those efforts 

should never undermine the fundamental rights of employees and employers. Expansive changes to workforce policy should be vetted by the people’s elected representatives—first by this committee, and then by the full Congress. Hundreds of 

millions of workers and employers will be forced to live with the consequences of 

these dramatic changes and they deserve a Congressional response. 

The legislation before us today will require the NLRB to change course and reaffirm key protections workers and employers have received for decades. The Workforce Democracy and Fairness Act provides employers at least 14 days to prepare 

for the election hearing, thereby ensuring access to a full and fair hearing. This provision removes an arbitrary deadline and restores board discretion over the election 

process. By affording workers at least 35 days to hear both sides of the debate before casting their ballot, the legislation guarantees their ability to make an informed 

decision. 

In addition to these workforce protections, H.R. 3094 also reinstates the traditional standard for determining which employees will participate in union representation and an individual’s ability to request board review before the election takes 

place. Finally, the bill safeguards privacy by empowering workers to determine the 

personal information provided to the union. 

As we saw with the release of the latest employment data last week, our nation 

is still struggling to create the jobs we so desperately need. The American people 

have asked Congress to do everything possible to encourage economic growth and 

investment. While some may insist this can only come through more temporary 

stimulus spending and permanent tax increases, my Republican colleagues and I 

know the one thing business owners and entrepreneurs need right now is certainty. 
4 

The policies advanced by the NLRB are dramatically increasing the pressure and 

uncertainty facing business owners, making it more difficult to create jobs and plan 

for the future. One employer in particular has voiced his concerns about the board’s 

actions and the implications it bears on the economy. 

Michael Whalen is the founder of Heart of America Group, a business that operates hotels and restaurants throughout the Midwest and employs 3,000 workers. In 

the days following the release of the board’s ambush election proposal, he wrote, 

‘‘The impact of this decision is clear: American businesses will have yet another reason to invest elsewhere rather than in creating new jobs here at home.’’ 

Rather than doubling-down on the failed policies of the past, we have a responsibility to remove the regulatory hurdles facing employers. Congress can either support an activist agenda or listen to the voices of employers like Michael Whalen, 

who strive every day to grow their businesses and create new opportunities for 

America’s workers. 

I look forward to hearing the views of our excellent panel of witnesses, and will 

now yield to the Senior Democratic Member of the committee, Mr. Miller, for his 

opening remarks. 

Mr. MILLER. Thank you very much, Mr. Chairman. Today this 

committee meets for the fifth time this year on the issues relating 

to the National Labor Relations Board. Rather than focusing on 

getting Americans back to work, the majority is stubbornly continuing their ideological war against workers and their unions, 

with the majority’s laser-like focus on the special interest battle, 

one could be led to think that our economic problems are the American, and his or her rights at work. 

That the worker who exercises his or her right to bargain for a 

better life is bringing America’s business to its needs. That a group 

of employees who ask for safe working conditions have created high 

unemployment. Or that a massive economic uncertainty is ensuing 

because employers may have to put up a poster outlining the rights 

under the National Labor Relations Act. 

Of course, this is complete nonsense. Our nation’s workers exercising their rights did not cause the current economic problems. We 

all know what did. By exercising their rights, they help build the 

middle class. These rights have been on the books for more than 

75 years, and are not now all of a sudden causing this uncertainty. 

We should, however, be certain about one thing. Working families are hurting through no fault of their own, and need this Congress to take action to create jobs. Instead of addressing their concerns, we are discussing a bill that should be even more appropriately named the ‘‘Election Prevention Act’’ because it does just 

that. 

Its singular goal is to delay, and openly prevent, union representation elections. This legislation with regard to elections is a little 

bit like that cab in Compton. It is always coming, but it never arrives. And the idea is to deny workers’ opportunity and their voice 

at work. 

The Election Prevention Act does this in three key ways. First, 

rather than minimizing undue delay in elections, a long-standing 

problem because of the current law’s loopholes, the Republican bill 

mandates delays. In provision after provision, the bill’s overarching 

concern is that workers’ choice be postponed with mandatory waiting periods. 

Second, rather than discovering frivolous litigation, the Election 

Prevention Act encourages it. Unscrupulous employers will have an 

incentive to appeal all preelection decisions regardless of merit be-
5 

cause no election could proceed until all appeals, frivolous or not, 

are reviewed. They and their union-busting consultants know that 

the delay gives them more time to use any means legal or illegal 

to overcome employee interest in forming a union. 

These appeals will create a massive, wasteful backlog on the taxpayer’s dime, and a mountain of frivolous litigation. As a result, 

workers will increasingly have to wait months or years for an election. And as the months and years tick by, this bill clearly hopes 

that those workers will simply give up. 

Third, the bill manipulates the procedure for deciding who is in 

a bargaining unit. Employers will have a larger role in determining 

who can potentially be part of the union, rather than the workers 

and the union that they seek to join. The practical impact of this 

change is that employers are going to find it much easier to gerrymander elections. 

It will increase the changes of an election ultimately never being 

ordered, and employers will stuff the ballot box with voters who 

were never engaged by the organizing drive. In summary, by favoring delay at every turn this bill denies workers their rights to a 

free and fair election. It is a cynical bill, it takes time away from 

what we should be doing. 

We should be acting on America’s most urgent priority of creating jobs, instead of undermining workplace democracy. This bill 

does not help a single laid off worker get retained in a new career, 

and it does not create a single construction job or an education job. 

It does create a lot of work for union-busting law firms. They get 

to file frivolous appeals on the taxpayer dime. It does make it harder for workers to have a voice at work. It does make it harder for 

working people to rebuild the middle class. Cynical misnamed bills 

like this only increase discontent among those who sent us here. 

They see a special interest bill getting the time of day, while they 

struggle to keep a roof over their heads. Is it any wonder Congress 

has such a historical low approval rate? It is well past the time to 

get back on track and work on the side of middle class Americas. 

That is precisely why I asked this committee to take immediate 

action on President Obama’s job bill nearly a month ago. It is the 

only comprehensive bill that will immediately create jobs, that will 

lay a foundation for future economic growth. And it is fully paid 

for. 

But the majority has done nothing, and that is why I have asked 

Americas to write and tell us how the economy is impacting them. 

Over 2 weeks, more than 700 people throughout the country wrote 

in. Reading their responses, there is no lack of motivation on the 

part of the unemployed Americas. They want us to act on jobs now 

so that they can start earning a paycheck. 

But the time is running short. The longer we ignore the millions 

of Americas struggling in this economy the worse that economy will 

get—more foreclosures, more layoffs, and higher deficits. This committee should be doing everything we can to get Americas back to 

work, not taking away their rights at work. 

[The statement of Mr. Miller follows:] 
6 

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

Committee on Education and the Workforce 

Good morning, Chairman Kline. 

Today, this committee meets for the fifth time this year on issues relating to the 

National Labor Relations Board. Rather than focusing on getting Americans back 

to work, the majority is stubbornly continuing their ideological war against workers 

and their unions. 

With the majority’s laser-like focus on this special interest battle, one could be 

led to think our economic problems are the American worker and his or her rights: 

• That a worker who exercises his or her right to bargain for a better life is bringing American business to its knees. 

• That a group of employees who ask for safer working conditions have created 

high unemployment. 

• Or, that massive economic uncertainty is ensuing because employers may have 

to put up a poster outlining rights under the National Labor Relations Act. 

Of course, this is complete nonsense. Our nation’s workers exercising their rights 

did not cause our current economic problems. By exercising their rights, they helped 

build the middle class. 

These rights that have been on the books for more than 75 years are not now all 

of a sudden causing ‘uncertainty’. 

We should, however, be certain about one thing: Working families are hurting 

through no fault of their own and need this Congress to start paying attention. Instead of addressing their concerns, we are discussing a bill that should be more appropriately named the ‘Election Prevention Act’ because it does just that. 

Its singular goal is to delay and ultimately prevent union representation elections. 

Its aim is to deny workers the opportunity for a voice at work. 

The ‘Election Prevention Act’ does this in three key ways. 

First, rather than minimizing undue delay in elections, a long-standing problem 

because of the current law’s loopholes, the Republican bill mandates delay. In provision after provision, the bill’s overarching concern is that workers’ choice be postponed with mandatory waiting periods. 

Second, rather than discouraging frivolous litigation, the Election Prevention Act 

encourages it. Unscrupulous employers will have an incentive to appeal all pre-election decisions, regardless of merit, because no election could proceed until all appeals, frivolous or not, are reviewed. 

They and their unionbusting consultants know that delay gives them more time 

to use any means, legal or illegal, to overcome employee interest in forming a union. 

These appeals will create a massive, wasteful backlog on the taxpayer’s dime and 

a mountain of frivolous litigation. As a result, workers will increasingly have to wait 

months or years for an election. And as the months and years tick by, this bill clearly hopes that those workers will just give up. 

Third, the bill manipulates the procedure for deciding who is in a bargaining unit. 

Employers will have a larger role in determining who can potentially be a part of 

a union, rather than the workers and the union they seek to join. 

The practical impact of this change is that employers are going to find it much 

easier to gerrymander elections. It will increase the chances that an election is ultimately never ordered, and employers will stuff the ballot boxes with voters who 

were never engaged by the organizing drive. 

In summary, by favoring delay at every turn, this bill denies workers their right 

to a free and fair election. It’s a cynical bill that takes time away from what we 

should be doing. 

We should be acting on America’s most urgent priority of creating jobs, instead 

of undermining workplace democracy. This bill doesn’t help a single laid off worker 

get retrained for a new career. It doesn’t create a single construction job or education job. 

It does create a lot of work for unionbusting law firms. They get to file frivolous 

appeals on the taxpayer dime. It does make it harder for workers to have a voice 

at work. And it does make it harder for working people to rebuild the middle class. 

Cynical, misnamed bills like this only increase discontent among those who send 

us here. They see special interest bills getting the time of day, while they struggle 

to keep a roof over their heads. Is it any wonder Congress has such a historically 

low approval rating? 

It’s well past time to get back on track and work on the side of middle class Americans. 

That’s precisely why I asked that the committee take immediate action on President Obama’s jobs bill nearly a month ago. It’s the only comprehensive bill that will 
7 

immediately create jobs and will lay the foundation for future economic growth. 

And, it’s fully paid for. 

But, the majority has done nothing. 

That’s why I asked Americans to write in and tell us how the economy is impacting them. Over two weeks, more than 700 people from throughout the country wrote 

in. Reading the responses, there’s not a lack of motivation on the part of unemployed Americans. They want us to act on jobs now so they can start earning a paycheck, not a handout. 

But, time is running short. The longer we ignore the millions of Americans struggling in this economy, the worse it will get. More foreclosures, more layoffs and 

higher deficits. 

This committee should be doing everything we can to help get Americans back to 

work, not taking away their rights. 

Chairman KLINE. I thank the gentleman. 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, Charles I. Cohen is currently senior counsel at Morgan Lewis. From 1994 to 1996, Mr. Cohen served as a member of 

the National Labor Relations Board. Prior to being appointed by 

President Clinton, he held executive and staff labor law positions 

with the NLRB as well as in private practice. 

Bob Sullivan is president of RG Sullivan Consulting. Prior to 

forming his own consulting group in 2009, Mr. Sullivan was vice 

president and associate general counsel for one of the nation’s largest privately-held companies. 

Michael Hunter is a partner with Hunter, Carnahan, Shoub, 

Byard & Harshman. After working as a union organizer and local 

union president, Mr. Hunter began practicing union-side labor law 

in 1985. He represents unions in the private and public sector. 

And now let me turn to my colleague from Florida, Mr. Ross, to 

introduce our final witness. Mr. Ross? 

Mr. ROSS. Thank you, Mr. Chairman. I am happy to introduce 

a fellow Floridian, Mr. Phillip Russell. Phil is a shareholder at 

Ogletree Deakins, a law firm which was founded in 1977 and has 

offices in 23 states. Phil had been designated an employment 

super-lawyer for the past 2 years, a distinction which places him 

among the top 5 percent of all attorneys in his field. 

He also maintains an AV peer review rating from MartindaleHubbell, the highest rating possible. Phil believes in protecting employers’ investments in their people, and has earned a reputation 

as one of the leading labor attorneys in Florida. I very much appreciate his willingness to testify before us today, and am happy to 

welcome him here. 

I yield back. 

Chairman KLINE. Thank the gentleman. Welcome to all of you. 

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

again briefly explain our lighting system. You will each have 5 

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. And when your time has expired the light will turn 
8 

red, at which point I would ask you to wrap up your remarks as 

best that you are able. 

After everyone has testified, members will each have 5 minutes 

to ask questions of the panel. You will find that I am reluctant to 

drop the gavel while you are still speaking. I will be less reluctant 

with my colleagues on both sides of the aisle. But I would encourage you, when you see that light go red to try to move quickly to 

wrap up that testimony. 

Let us start with Mr. Cohen. 

STATEMENT OF CHARLES COHEN, SENIOR COUNSEL, MORGAN, LEWIS & BOCKIUS, LLP, FORMER MEMBER, NATIONAL 

LABOR RELATIONS BOARD 

Mr. COHEN. Chairman Kline, Ranking Member Miller, and members of the committee, thank you for your invitation to participate 

in this hearing. I am honored to appear before you today. 

The Workplace Democracy and Fairness Act would restore the 

critical role that Congress should play in formulating our national 

labor and employment policy. The legislation constitutes a measured response to actions by a majority of the NLRB members, especially over the past 4 months, that would substantially change our 

federal laws without an appropriate mandate from Congress. 

In my testimony today, I will describe why congressional action 

is needed to restore the law, and procedures guaranteed by the 

NLRA. On June 22 of this year the NLRB published an extensive 

proposed rule regarding union elections that would, among other 

things, dramatically shorten the period of time between a union filing and election petition with the board and the actual holding of 

the election. 

The proposed rule would also effectively gut an employer’s ability 

to mount a lawful, effective information dialogue with its employees on whether or not to select union representation. What has the 

board come up with in these proposed rules? 

It has proffered the gimmick of an emasculated hearing, summary judgment standards, offers of proof, preclusive rules to limit 

issues, regional director decisions devoid of explanation at time of 

issuance, and frenetic time deadlines that disregard other obligations of employers and their counsel—all in an attempt to get to 

that election as soon as humanly possible and without giving the 

employer time to communicate with its employees. 

Boardmember Brian Hayes, dissenting from the issuance of the 

proposed rules, wrote, quote—‘‘Make no mistake. The principle purpose of this radical manipulation of our election process is to minimize, or rather to effectively eviscerate, an employer’s legitimate 

opportunity to express its views about collective bargaining.’’ 

By definition, this is a quickie election, as that term was used 

liberally throughout the debate over the Employee Free Choice Act 

and potential alternative legislation in the 111th Congress. Nor is 

the election process too slow. Over the past decade, as noted in the 

proposed rule, elections have occurred within a median time of 38 

days after the filing of a petition. 

And in fiscal year 2010, the average time from petition to an 

election was 31 days. Because employers exercise no control over 

pre-petition union activities, because unions always have only 
9 

needed to select an appropriate unit rather than the most appropriate unit, and often because employers have no knowledge of 

union organizing attempts that occur employers exclusively bear 

the burdens and limitations resulting from this proposed shorter 

election period. 

This renders disingenuous the proposed rule statement that its 

changes would apply equally to all parties, and do not impose any 

limitations on the election-related speech of any party. Turning 

now to Specialty Healthcare, the board’s June 22 rule is not the 

only problematic issue that I believe brings us here today. 

As representatives who stand for election, you instinctively know 

that if you control who comprises the electorate, including reducing 

the size of the electorate to artificially low numbers, you will have 

a key to winning an election. That is what the NLRB has done for 

unions. On August 26 this year, in Specialty Healthcare, the board 

announced a new standard for determining whether a petition for 

unit of employees is appropriate for collective bargaining. 

For decades, when determining if an exclusion is appropriate, the 

board has examined whether the excluded group of employees is 

sufficiency distinct to warrant their exclusion. The board’s new 

standard in Specialty Healthcare, however, reverses that inquiry so 

that employers will have the burden of proving that the excluded 

employees share an overwhelming community of interest with the 

employees included in the union’s petition. 

The board’s new standard, predictably, will facilitate union organizing by rendering appropriate extremely small bargaining units, 

even though employees perform work functions and are managed 

in a manner that logically connects them to the larger group. 

This measured legislative proposal is needed to restore the proper functioning of the NLRB’s election procedures and to reaffirm 

that Congress is responsible, in the first instance, for establishing 

and making any fundamental changes in our national employment 

labor law policy. 

Based on my review, the Workplace Democracy and Fairness Act 

essentially seeks a return to the status quo of the long-standing 

and effective election procedures that have been in place at the 

NLRB. The legislation introduced would codify a reasonable time 

framework for conducting NLRB elections—reasonable for employers, employees, and unions. 

Under this language, the required pre-election hearings may not 

be held until at least 14 days after the filing of the petition, which 

ensures that all parties have at least some time to analyze the 

issues involved, and prepare for the potential hearing. The election 

could not take place within 35 days, also a reasonable period of 

time. 

This concludes my prepared testimony. Thank you again for the 

invitation to appear today. I would be happy to answer any questions that members of the committee have. 

[The statement of Mr. Cohen follows:] 

Prepared Statement of Charles I. Cohen, Senior Counsel, 

Morgan, Lewis & Bockius LLP 

Chairman Kline, Ranking Member Miller, and Members of the Committee, thank 

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

you today. 
10 

By way of introduction, I am a senior counsel in the law firm of Morgan, Lewis 

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

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

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

The Workforce Democracy and Fairness Act (H.R. 3094) would restore the critical 

role that Congress should play formulating our national labor and employment policy. The legislation constitutes a measured response to actions by a majority of 

NLRB Members, especially over the past four months, that would substantially 

change our federal labor laws without an appropriate mandate from Congress. In 

my testimony today, I will describe why Congressional action is needed to restore 

the law and procedures guaranteed by the NLRA. 

A. NLRB’s Attempt to Pass Labor Law Reform Through New Regulations 

On June 22, 2011, the NLRB published an extensive Proposed Rule regarding 

union elections (‘‘Proposed Rule’’) that would, among many things, dramatically 

shorten the period of time between a union filing an election petition with the Board 

and the actual holding of the election.2 The Proposed Rule also would effectively gut 

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

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

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

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

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

in favor of ‘‘card check’’ recognition. 

In greater detail, the Board’s Proposed Rule would result in an array of changes 

to decades-old representation procedures under the NLRA. These are not merely 

technical changes—they would dramatically shorten the time for employees to decide whether or not to vote for union representation, and would severely prejudice 

employers by imposing unrealistic deadlines and limiting employer speech (even 

though it is explicitly protected in the statute). Among other things, the Proposed 

Rule would: 

• Require that all pre-election hearings take place seven days after the filing of 

a petition (absent special circumstances), eliminate all pre-election review by the 

Board, and require that the election date be set at ‘‘the earliest date practicable.’’ 3

• Require employers to provide unions, within seven days of the filing of a petition, with a list of employee names, work locations, shifts, and job classifications, 

and to provide, within two days of a direction of election, employee addresses, telephone numbers, and email addresses (to the extent available).4

• Require employers to file a ‘‘Statement of Position’’—a new form—that must be 

filed no later than the seven day hearing date. It must set forth the employer’s position on a host of legal issues. Any issues not identified in the Statement would be 

forever waived.5

• Significantly limit the scope of issues and the type of evidence that may be litigated before an election, including most questions regarding the eligibility of particular individuals or groups of potential voters, and dispense with post-hearing 

briefs unless permission is obtained from the hearing officer.6

• Permit the Board to decline to review many of the Regional Directors’ decisions, 

substantially limiting the review options available to employers.7

• Permit electronic filing of election petitions, and potentially allow the use of 

electronic signatures to support the ‘‘showing of interest’’—in other words, possibly 

allow employees to sign union authorization cards electronically via the Internet or 

email.8

Board Member Brian Hayes, dissenting from the issuance of the proposed rules, 

wrote that it is ‘‘certain’’ that the proposed rules would ‘‘substantially shorten’’ the 

time period from petition filing to election date, suggesting that under the proposed 

rules elections would be held ‘‘in 10 to 21 days from the filing of the petition.’’ 9

Member Hayes also stated in dissent: ‘‘Make no mistake, the principal purpose of 

this radical manipulation of our election process is to minimize, or rather, to effectively eviscerate an employer’s legitimate opportunity to express its views about collective bargaining.’’ 10 By definition, this is a ‘‘quickie’’ election, as that term was 

used liberally throughout the debate over EFCA and potential alternative legislation 

in the 111th Congress. And as outlined below, the Proposed Rule suffers from a 

number of substantive, fatal flaws that require an appropriate Congressional response. 

‘‘Speed’’ Over All Other NLRA Goals. The first flaw is the incorrect premise that 

the current procedures for conducting secret-ballot elections ‘‘take too long’’ or are 

‘‘broken,’’ and that this delay causes unions to lose more elections. Unions already 
11 

win far more elections than they lose. While union members currently comprise only 

6.9 percent of private sector employees,11 unions have prevailed in a majority of 

elections (where there was no incumbent union) every year from fiscal year 1997 

to the present. And the margin by which unions prevailed in these elections has increased from 50.4 percent (in fiscal 1997) to 64.8 percent (in fiscal year 2010).12

Even if these numbers were lower, the Board in its neutral role has no business 

‘‘taking sides’’ on how often unions prevail in elections. 

Nor is the election process too slow. Over the past decade, as noted in the Proposed Rule, elections have occurred within a median time of 38 days after the filing 

of a petition. And in fiscal year 2010, the average time from petition to an election 

was 31 days.13 Those numbers include cases in which a pre-election hearing is held. 

In Fiscal Year 2010, NLRB Regional Offices conducted 1,790 representation elections. Of those, 1,648 cases or 92.1 percent were held without either party exercising 

their right to a hearing.14 And even among the small number of cases in which a 

hearing was held (142 cases or 7.9 percent), the median number of days from the 

filing of a petition to a Regional Director decision was 37 days in 2010, significantly 

shorter the Agency’s ‘‘ambitious’’ target of 45 days.15 This time frame has been consistent for the last several years, with the median number of days from petition to 

Regional Director decision in contested cases at 34 days in 2009, 36 days in 2008, 

and 36 days in 2007.16 In spite of these figures—which demonstrate the great majority of elections already take place quickly—a selective emphasis of ‘‘speeding up’’ 

elections is pervasive throughout the Proposed Rule.17

The solitary focus on speed constitutes a fundamental distortion of the Act’s primary election objective stated in Sections 1 and 7, which is protecting ‘‘the exercise 

by workers of full freedom of association’’ encompassing employee rights to ‘‘self-organization’’ by having ‘‘representatives of their own choosing,’’ with an equivalent 

right ‘‘to refrain from any or all of such activities.’’ 18 Employers and unions also 

have important rights and obligations including those set forth in Sections 8(a) and 

8(b), which enumerate employer and union unfair labor practices; plus the employer’s right of free speech set forth in Section 8(c). And there is a complex assortment 

of employee, union and employer rights incorporated into the Act’s statutory provisions regarding elections, set forth in Section 9. Most significantly, Section 9(b) 

states that the ‘‘Board shall decide in each case’’ what constitutes the appropriate 

bargaining unit, which is designed ‘‘to assure to employees the fullest freedom in 

exercising the rights guaranteed by this [Act].’’ 19 Nowhere does the NLRA contain 

a mandate from Congress giving speed paramount importance at the expense of the 

other objectives explicitly referenced in the statute. Speed alone cannot be 

trumpeted while other statutory goals and obligations are trampled upon. 

Employer Free Speech Undermined. Another flaw in the Proposed Rule is the unprecedented impact on employer free speech rights. The Proposed Rule’s shortening 

of the election time period inevitably will undermine the ability of employers—after 

a petition is filed—to engage in speech protected by Section 8(c) of the Act. Section 

8(c) states: 

The expressing of any views, argument, or opinion, or the dissemination thereof, 

whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this [Act], if such 

expression contains no threat of reprisal or force or promise of benefit.20

Because employers exercise no control over pre-petition union activities—and 

often have no knowledge of union organizing—employers exclusively bear the burdens and limitations resulting from a shorter election period. This renders disingenuous the Proposed Rule’s statement that its changes ‘‘would apply equally to all parties’’ and ‘‘do not impose any limitations on the election-related speech of any 

party.’’ 21 Invariably, the Proposed Rule’s impact on the timing of elections will diminish the employer’s right to express views under Section 8(c). As noted by Member Hayes, shortening the election period ‘‘broadly limits all employer speech and 

thereby impermissibly trenches upon protections that Congress specifically affirmed 

for the debate of labor issues when it enacted Section 8(c) in 1947.’’ 22

Lack of Due Process and Employer ‘‘Waiver’’ of Rights. Under the Proposed Rule, 

it is highly likely that a great number of employers will be forced to waive many 

substantive legal arguments and positions based on the abbreviated timeframe in 

which employers are required to enumerate them in the ‘‘Statement of Position.’’ 

But, for the litigious employer, there will be an incentive—when confronted by such 

an onerous timetable—to exhaustively identify every potential alternative bargaining unit, argument and position that could conceivably have compromised employee rights. Like so many other areas governed by the Proposed Rule, the predictable outcome would be a proliferation of additional issues, more litigation, and a 

longer overall timeframe for representation issues to be resolved. Ironically, these 
12 

‘‘shortcuts’’ are being advanced at a time when we are at historic percentage lows 

in federal court challenges to union certifications. 

Employee Rights Negatively Impacted. The Proposed Rule negatively impacts employee rights under the NLRA by making the election period so short that it would 

deprive most employees of the time needed to reasonably understand the potential 

benefits or consequences of union representation. As noted previously, NLRB elections currently involve a median election time period of 38 days, and an average 

time period of 31 days.23 There is no reasonable justification for reducing this period 

further, given that the NLRA states employees ‘‘in each case’’ should be ‘‘assure[d] 

* * * the fullest freedom’’ to make their own choice about union representation.24

Employee decision-making about union representation involves a multiplicity of 

more significant complex rights and obligations that take time to fully understand. 

Regardless of whether or not a particular employee group ultimately favors or opposes union representation, such a decision unquestionably produces substantial 

long-term and day-to-day consequences, including: • the potential conferral of ‘‘exclusive representative’’ status of a labor organization regarding all matters of wages, benefits, hours and terms and conditions of employment, whether or not the individual employee so chooses,25

• the loss of individual rights to deal with the employer in relation to those same 

subjects,26

• uncertainty associated with the consequences of collective bargaining,27

• possible resort by the union or employer to economic weapons like strikes, slowdowns, lockouts and possible temporary or permanent replacements,28

• financial and other obligations and restrictions—including fees, dues, fines and 

assessments—that unions may lawfully impose on employees, consistent with union 

constitutions and by-laws,29

• and complex rules regarding how collective bargaining works, and significant 

restrictions on union decertification if employees later become dissatisfied with 

union representation and the outcome of bargaining. 

The Proposed Rule’s adverse impact on informed employee decision-making is 

made worse by the Rule’s additional provisions which, among other things, would 

curtail pre-election hearings and defer the resolution of many unit issues, including 

basic eligibility and scope questions, until after the election takes place. Consequently, not only would the Proposed Rule impair employee free choice by requiring an election much more quickly with little time for consideration, the Proposed 

Rule would deprive employees of important information, including whether they are 

even eligible voters, substantially increasing the number of employees who may cast 

votes based on incorrect assumptions. This subverts employee free choice. 

Mandated Disclosure of Employee Phone Numbers and Email Addresses. Moreover, the Proposed Rule would impose a new requirement on employers to disclose 

‘‘available email addresses’’ and ‘‘available telephone numbers’’ of bargaining unit 

employees on every voter eligibility list.30 The Proposed Rule identifies no statutory 

mandate warranting an expansion beyond existing Excelsior list home address requirements, and Congress has never sought to change or expand the Excelsior list 

disclosures. There is no rationale provided in the Proposed Rule except for the 

Board’s observation that an ‘‘evolution’’ towards electronic communications is taking 

place in ‘‘pre-election campaign communication.’’ 31 The existence of various avenues 

for employer-employee communication has never been interpreted by Congress or 

the Board to require equal access by union organizers to the identical vehicles for 

communication. This aspect of the Proposed Rule would constitute a significant intrusion into privacy rights of employees and their families. Email addresses and 

phone numbers are not essential to ‘‘an informed employee choice for or against representation’’ 32 given that the existing Excelsior requirements provide for disclosure 

of every eligible employee-voter’s most reliable and near-universal point of contact, 

the home address. 

Statutory Hearing Obligations Ignored. The Proposed Rule would grant Regional 

Directors and Hearing Officers the authority to deny employers the right to a prehearing election where a dispute over the appropriate scope of the petitioned-for 

unit concerns less than 20 percent of the bargaining unit (if the disputed individuals 

were found eligible to vote). This portion of the Proposed Rule violates Section 9(c) 

of the Act and is misguided as a matter of policy. 

The Board and the courts have long held that Section 9(c) ‘‘makes mandatory a 

preelection hearing.’’ 33 During my tenure on the NLRB, the Board responded to a 

call for more ‘‘rapid’’ elections and changes to the existing procedures. However, 

after considering this request, the Board concluded that the statutory requirement 

of a pre-election hearing prevented the Board from having an unfettered right to 

accelerate the election process. In Angelica Healthcare Services, the Regional Director directed an election without addressing the request for a hearing. Citing the 
13 

plain language of Section 9(c), the Democrat-controlled Board held that the Regional 

Director must provide the ‘‘appropriate hearing’’ referenced in Section 9(c) of the Act 

‘‘prior to finding that a question concerning representation existed and directing an 

election.’’ 34 Based on Taft-Hartley’s enactment, parties have the right under Section 

9(c) to present evidence in a pre-election hearing. The Proposed Rule’s limitation on 

pre-election hearings violates Section 9(c) of the Act, and this limitation should not 

be adopted by the Board. It constitutes misguided policy for the Proposed Rule to 

eliminate or dramatically reduce the role played by the pre-election hearing. 

B. Smaller Bargaining Units That Unions Can Organize More Easily: Specialty 

Healthcare 

The Board’s June 22, 2011 Proposed Rule is by no means the only example of the 

Board’s recent activity to stack the deck in favor of unions during the election process. As Representatives who stand for election, you instinctively know that if you 

control who comprises the electorate—including reducing the size of the electorate 

to artificially low numbers—you will have a key to winning an election. That is 

what the NLRB has done for unions. On August 26, 2011, in Specialty Healthcare 

& Rehabilitation Center of Mobile, the Board announced a new standard for determining whether a petitioned-for unit of employees is appropriate for collective bargaining.35 The case nominally involved the issue of appropriate bargaining units in 

non-acute care healthcare facilities, which in this case was a unit of Certified Nursing Assistants.36 However, the Board’s decision went far beyond this rather narrow 

issue and articulated a new standard for determining whether unions in other industries may petition for an election among a small group of employees over an employer’s objection that the union has inappropriately excluded other related groups 

of employees from the prospective unit.37

For decades, when determining if such an exclusion is appropriate, the Board has 

examined whether the excluded group of employees is ‘‘sufficiently distinct’’ to warrant their exclusion.38 The Board’s new standard in Specialty Healthcare, however, 

reverses that inquiry, so that employers will have the burden of proving that the 

excluded employees share an ‘‘overwhelming community of interest’’ with the employees included in the union’s petition.39 The Board’s new standard predictably will 

facilitate union organizing by rendering ‘‘appropriate’’ extremely small bargaining 

units even though the employees perform work functions and are managed in a 

manner that logically connects them to a larger group. As noted by dissenting Board 

Member Brian Hayes, the ‘‘overwhelming community of interest’’ test has ‘‘vast 

practical ramifications * * * [because it] obviously encourages unions to engage in 

incremental organizing in the smallest units possible.’’ 40 The recent decision therefore allows unions the right to petition for inappropriately small units, for example, 

a unit of employees with the same job title or description, and then places a stringent burden on an employer to prove an ‘‘overwhelming’’ community of interest with 

other employees during an abbreviated and summary pre-election process under the 

Proposed Rule.41

Changing the unit determination standard in this manner not only will predictably lead to increased union organizing in the short term, it is likely to cause greater problems in new bargaining relationships. Bargaining with a small unit of employees, which excludes many other employees who share a substantial community 

of interest (and who may be unrepresented or organized by a different union), will 

impose significant costs on employers, and undermine employment stability by causing increased workforce fragmentation (at a time when it is all the more important 

for employers to manage employees in ways that are more efficient, with employees 

identifying to a more significant degree with the business as a whole). Ultimately, 

the Board has a statutory responsibility to approve bargaining units that are not 

only appropriate for union organizing, but which also are calculated to foster stable 

bargaining relationships and be consistent with effective business operations. These 

considerations are undermined, not furthered, by the new Specialty Healthcare 

standards. 

C. Proposed Legislation Is Reasonable and Balanced Approach for Effective NLRB 

Secret-Ballot Elections and Collective Bargaining 

The measured legislation proposed, H.R. 3094, is needed to restore the proper 

functioning of the NLRB’s election procedures, and to reaffirm that Congress is responsible, in the first instance, for establishing and making any fundamental 

changes in our national employment and labor law policy. Based on my review, the 

Workforce Democracy and Fairness Act seeks a return to the status quo of the longstanding and effective election procedures that have been in place at the NLRB, and 

the legislation would codify those rules and procedures into law and restrict this 
14 

NLRB—or any future NLRB—from attempting to violate the mandates of the NLRA 

and circumvent Congress with regard to election procedures. 

The major provisions of this legislation that would restore the status quo to the 

NLRB’s election process include a specific mandate that ‘‘in each case’’ the Board 

would, ‘‘prior to an election,’’ hold a meaningful hearing to determine the unit appropriate for the purposes of collective bargaining. These hearings would expressly 

incorporate the Board’s standard ‘‘community of interest’’ factors to ensure that the 

unit is of appropriate scope and composition to balance employee choice with effective collective bargaining. The list of eight enumerated factors that comprise the 

community of interest test are drawn from the Board’s existing case law precedent. 

Review of action of Regional Directors by the Board would be assured. 

In response to the Board’s Specialty Healthcare decision, the legislation dispenses 

with the Board’s recent embrace of so-called ‘‘micro-units’’ by returning the law to 

its pre-Specialty Healthcare state, whereby a union’s petition that seeks to exclude 

certain employees would only be processed if the petitioned-for group had interests 

‘‘sufficiently distinct’’ from other employees.42 Specialty Healthcare’s use of the 

‘‘overwhelming community of interest’’ test to promote the expansion of small bargaining units, would, under the proposed legislation, be a test appropriately limited 

to the Board’s ‘‘accretion’’ cases whereby an employee group is added to an existing 

unionized employee group without a secret-ballot election.43

The legislation introduced also would codify a reasonable time framework for conducting NLRB elections—reasonable for employers, employees, and unions. Under 

this language, the required pre-election hearings may not be held until at least 14 

days after the filing of a petition, which ensures that all parties have at least some 

time to analyze the legal issues involved and prepare for the potential hearing, including the preparation of necessary witness and evidentiary support. The actual secret-ballot election may not be held until at least 35 days after the filing of the petition, which ensures an opportunity for communication by the employer, the employees, and the union on the relevant issues associated with employees selecting or rejecting union representation. 

Finally, employee privacy rights are adequately protected in the legislation by 

granting employees the choice of how union representatives may personally contact 

them—through either a telephone number, email, or home address—rather than 

have the Board mandate through regulation that all of the above, or more, of these 

methods to contact employees must be provided to union representatives. The proposed language reflects the spirit of Excelsior and more than adequately provides 

unions the ability to unilaterally contact all eligible voters to provide election-related communications. 

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

ENDNOTES

1 I am not speaking on behalf of Morgan, Lewis & Bockius, the National Labor Relations 

Board, or any other specific organization, and my testimony should not be attributed to any of 

these or other organizations. My testimony reflects my own personal views, although I wish to 

thank David R. Broderdorf for his efforts in helping me to prepare this testimony. 2 76 Fed. Reg. 36,812-36,847 (June 22, 2011). 

3 76 Fed. Reg. at 36,825. 

4 Id. at 36,820; 36,838; 36,843. 

5 Id. at 36,821-23. 

6 Id. at 36,824-25. 

7 Id. at 36,827. 

8 Id. at 36,846. 

9 Id. at 36,831 (Member Hayes, dissenting). 

10 Id. 11See U.S. Dep’t of Labor Bureau of Labor Statistics, Economic News Release, Union Members Summary (2011) (http://www.bls.gov/news.release/union2.nr0.htm). 12See NLRB Election Report (Oct. 19, 2010) at 10. Member Hayes indicates unions prevailed 

in 68.7 and 67.6 percent of all elections held in calendar years 2009 and 2010, respectively. See 

76 Fed. Reg. at 36,832 (Member Hayes, dissenting). 13See Gen. Counsel Mem. 11-09, at 18 (March 16, 2011), cited in 76 Fed. Reg. at 36,831 n.75 

(Member Hayes, dissenting). 14See Gen. Counsel Mem. 11-03, at 5 (Jan. 10, 2011). 15 Id. 16 Id.; Gen. Counsel Mem. 09-03, at 6 (Oct. 29, 2008). 17The Proposed Rule refers to the ‘‘expeditious resolution of questions concerning representation’’ (76 Fed. Reg. at 36,812); allowing the Board ‘‘to more promptly determine if there is a 

question concerning representation and, if so, to resolve it by conducting a secret ballot election’’ 

(id.); ‘‘Expeditious resolution of questions concerning representation is central to the statutory 

design’’ (id. at 36,813); ‘‘expeditious processing of representation petitions’’ (id.); ‘‘delays in the 
15 

regional offices’ transmission of the eligibility list to the parties’’ (id. at 36,816); ‘‘expeditious resolution of questions concerning representation’’ (id. at 36,817); ‘‘The proposed amendments 

would also shorten the time for production of the eligibility list’’ (id. at 36,821); ‘‘progression of 

reforms to reduce the amount of time required to ultimately resolve questions concerning representation’’ (id. at 36,829). 18 NLRA §§ 1, 7, 29 U.S.C. §§ 151, 157 (emphasis added). 19 Id. § 159(b) (emphasis added). 20 NLRA § 8(c), 29 U.S.C. § 158(c) (emphasis added). Obviously, important free speech guarantees also are afforded by the First Amendment to the U.S. Constitution. As the Supreme Court 

has recognized, Section 8(c) ‘‘merely implements the First Amendment’’ and ‘‘an employer’s free 

speech right to communicate his views to his employees is firmly established and cannot be infringed by a union or the Board.’’ NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969). 21 76 Fed. Reg. at 36,829. 22 Id. at 36,832 (Member Hayes, dissenting), citing Chamber of Commerce v. Brown, 554 U.S. 

60, 67-68 (2008) (other citations omitted). In Brown, the Supreme Court stated that Section 

8(c)’s enactment ‘‘manifested a ‘congressional intent to encourage free debate on issues dividing 

labor and management’ ’’ and reflects a ‘‘policy judgment, which suffuses the NLRA as a whole, 

as ‘favoring uninhibited, robust, and wide-open debate in labor disputes’’ because ‘‘freewheeling 

use of the written and spoken word * * * has been expressly fostered by Congress and approved 

by the NLRB. Id., quoting Linn v. Plant Guard Workers, 383 U.S. 53, 62 (1966) and Letter Carriers v. Austin, 418 U.S. 264, 272-73 (1974). 23 Id. at 36,814; Gen. Counsel Mem. 11-09, at 18-19 (March 16, 2011). 24 NLRA § 9(b), 29 U.S.C. § 159(b) (emphasis added). 25 NLRA § 9(a), 29 U.S.C. § 159(a). 26 An employer’s obligation to bargain under Section 8(a)(5) makes it unlawful for the employer to engage in individual bargaining or direct dealing with employees regarding wages, 

hours, and other terms and conditions of employment and to implement unilateral changes in 

mandatory bargaining subjects. See, e.g., Gen. Elec. Co., 150 NLRB 192, 194 (1964), enforced, 

418 F.2d 736 (2d Cir. 1969), cert. denied, 397 U.S. 965 (1970); NLRB v. Katz, 369 U.S. 736, 

743 (1962). 27See, e.g., Midwestern Instruments, Inc., 133 NLRB 1132 (1961). 28See, e.g., NLRB v. Mackay Radio & Tel. Co., 304 U.S. 333 (1938); The Laidlaw Corp., 171 

NLRB 1366 (1968), enforced, 414 F.2d 99 (7th Cir. 1969), cert. denied, 397 U.S. 920 (1970). 29See, e.g., Scofield v. NLRB, 394 U.S. 423 (1969) (union could lawfully maintain and enforce 

rule providing for fines, suspensions or expulsion of union members who exceed work production 

ceilings established by the union). 30 Id. The Proposed Rule would impose a similar ‘‘available email addresses’’ and ‘‘available 

telephone numbers’’ disclosure requirement on the ‘‘lists filed with the regional director’’ (but 

‘‘not served on any other party’’) as part of the new Statement of Position that the Board would 

require from employers. 76 Fed. Reg. at 36,838, Proposed § 102.63(b)(1)(iv). 31 Id. 32 Excelsior Underwear, Inc., 156 NLRB at 1236, 1241-42 (1966). 33 NLRB v. S.W. Evans & Son, 181 F.2d 427, 429 (3d Cir. 1950). 34 315 NLRB 1320, 1321 (1995). See also Barre National, Inc., 316 NLRB 877 (1995). 35Specialty Healthcare, 357 N.L.R.B No. 83, at *1. 36 Id. 37 Id. at 8. 38See, e.g., NLRB v. Action Automotive, Inc., 469 U.S. 490 (1985). 39Specialty Healthcare, 357 N.L.R.B No. 83, at *16. 40 Id. at *27 (Hayes, B., dissenting). 41 A related problem with the Specialty Healthcare decision is the lack of clarity regarding 

how the decision interacts with preexisting ‘‘industry-specific’’ rules and standards which the 

Board majority stated it did not intend to change. Id. at *20. 42Prior to Specialty Healthcare, the Board looked with disfavor upon fractured units, i.e., a 

group that is ‘‘too narrow in scope.’’ Colorado Nat’l Bank of Denver, 204 NLRB 243, 243 (1973). 

Where ‘‘the petitioned-for employees do not share a sufficiently distinct community of interest 

from other employees to warrant a separate unit,’’ the unit petitioned-for is inappropriate for 

collective bargaining purposes.’’ Seaboard Marine, Ltd., 327 NLRB 556, 556 (1999). The legislation essentially codifies this standard into the statute. 43The Board in accretion cases can add unrepresented employees to an existing bargaining 

unit, without any election, based on the overwhelming extent of employee interchange, working 

conditions, common management, functional integration, bargaining history, and other factors. 

See, e.g., Safeway Stores, Inc., 256 NLRB 918 (1981); United Parcel Service, 325 NLRB 37 

(1997); NLRB v. Sweet Lumber Co., 515 F.2d 785, 794 (10th Cir. 1975), cert. denied, 423 U.S. 

986 (1975). That standard has no relevance to secret ballot elections. 

Chairman KLINE. Thank you, sir. 

Mr. SULLIVAN, you are recognized for 5 minutes. 
16 

STATEMENT OF ROBERT SULLIVAN, PRESIDENT, RG SULLIVAN CONSULTING, TESTIFYING ON BEHALF OF THE RETAIL INDUSTRY LEADERS ASSOCIATION 

Mr. SULLIVAN. Chairman Kline, Ranking Member Miller, members of the committee, thank you for inviting he here this morning 

to testify. I am honored to be here. 

My name is Bob Sullivan. I am here to represent the Retail Industry Leaders Association. RELA is a trade association with over 

200 members, whose combined annual revenue is over $1.5 trillion. 

RELA’s members provide millions of American jobs and operate 

over 100,000 stores, manufacturing facilities, and distribution centers. 

I have been a management-side labor and employment lawyer for 

almost 20 years—the first 10 years in private practice, and the 

next 7 years as vice president and associate general counsel with 

one of the nation’s largest grocery wholesalers. My company ran 

distribution centers all around the United States, and retail grocery stores in the northeast and in the southeast. 

In my time as in-house counsel, I was responsible for the ongoing 

administration and negotiation of over 40 union contracts. I also 

handled numerous union organizing campaigns and representation 

elections. I handled such matters throughout my legal career. 

Since the beginning of 2009, I have operated RG Sullivan consulting, where I provide consulting services in the areas of labor 

and employee relations, legislative matters, and regulatory matters. The committee has asked me to testify on the Workplace Democracy and Fairness Act. 

I am here to testify with input from RELA’s members and based 

on my own experiences. I would like to concentrate on the practical 

aspects of the board’s decision in Specialty Healthcare. The greatest concern for retailers and for other employers is that under Specialty Healthcare micro unions will be organized. 

And what I mean by that is that unions will organize employees 

in single departments within organizations, or employees on a single shift, but perhaps not on other shifts. This will represent a big 

problem for retailers and other employers. Retail is a fast-paced 

business. Volume changes, particularly over the holidays where it 

changes immensely, there are late loads for many different reasons. 

The key to handling these issues is flexibility. A typical retailer 

has five, to 20 or more departments. To respond to challenges, they 

draw from employees in many different departments to go where 

they are needed to solve problems. They change schedules, if necessary. They draw on supervisors. 

All of these things would be problematic with separately-organized departments. Having employees move between departments 

is also very beneficial for the employees. They learn more about different parts of the company, they earn more by being able to cover 

shifts in other departments, and they open up opportunities for advancement. Because by learning more about the business, they are 

able to progress in a company if they choose to do that. 

RELA’s membership has many executives who started their careers on the floor of a retail establishment. They have progressed 

because of the breadth of their knowledge. And they are disturbed 

that under Specialty Healthcare the opportunities available to 
17 

them would be denied by employees who would not be able to learn 

the full extent of the business. 

Customers are also better served when employees know all departments under the roof of a store, and are able to respond to 

their needs in any department without fear of violating rules. All 

of these things would be compromised by Specialty Healthcare and 

separately organized departments. 

The Workplace Democracy and Fairness Act can fix the problem 

by restoring the rules that existed before Specialty Healthcare. 

This will bring businesses back to focusing on growing their businesses and creating jobs. That concludes my opening statement, or 

I should say my testimony. Old habits die hard. 

I would be glad to take questions at the appropriate time. Thank 

you. 

[The statement of Mr. Sullivan follows:] 

Prepared Statement of Robert G. Sullivan, on Behalf of the 

Retail Industry Leaders Association (RILA) 

Chairman Kline, Ranking Member Miller, and Members of the Committee, thank 

you for your invitation to testify at this hearing. I am honored to be here today. 

My name is Bob Sullivan. I am here representing the Retail Industry Leaders Association (RILA). RILA is the trade association of the world’s largest and most innovative retail companies. RILA promotes consumer choice and economic freedom 

through public policy and industry operational excellence. Its members include more 

than 200 retailers, product manufacturers and service suppliers, which together account for more than $1.5 trillion in annual sales, millions of American jobs and operate more than 100,000 stores, manufacturing facilities and distribution centers domestically and abroad. 

By way of background, I have been a management-side labor and employment 

lawyer for nearly twenty years. For the first ten years of my career, I practiced at 

two separate law firms in Providence, Rhode Island, where I represented a wide 

range of public and private sector employers in matters that included collective bargaining, union organizing and National Labor Relations Board (NLRB or Board) 

elections, and a wide range of labor matters before the NLRB, state labor boards 

and the courts. 

From 2002 through 2009, I served as Vice President and Associate General Counsel for Labor and Employment with one of the country’s largest grocery wholesalers 

with warehouses throughout the country, as well as affiliated companies that operated retail grocery chains in the Northeast and Southeast United States. As an inhouse lawyer, I was responsible for all aspects of labor and employee relations, including the negotiation and administration of over forty union contracts and the 

handling of numerous organizing campaigns and union elections. 

Since 2009 I have operated RG Sullivan Consulting, LLC, a firm that provides 

consulting and training services in the areas of labor and employee relations, litigation, legislative and regulatory matters.1

The Committee has asked me to testify on the Workforce Democracy and Fairness 

Act, which would amend the National Labor Relations Act (NLRA) to effectively 

overrule the NLRB’s recent decision in Specialty Healthcare,2 and to address issues 

raised in the Board’s June 22 proposed rulemaking, in which the Board proposes 

to radically overhaul union election procedures and force elections in as little as ten 

days after the filing of a representation petition.3

I have the benefit of input from RILA’s membership as well as my own experience. With the Committee’s indulgence, I would like to focus on practical concerns 

associated with the Board’s recent actions and the need for legislative action to protect the secret ballot election and the election process itself. The changes in bargaining unit determinations under Specialty Healthcare, if allowed to stand, and the 

proposed election rule change, if implemented, would impose severe administrative 

burdens on employers; lead to operational problems caused by fractured bargaining 

units; be detrimental to employee interests; and, for retailers, ultimately result in 

poor customer service. 

• Micro Unions 

Specialty Healthcare dealt with a nursing home and a union’s petition to represent certified nursing assistants as a discrete group, versus a larger unit proposed 
18 

by the employer that would have included other non-professional employees. The 

Board ruled in favor of the union’s proposed unit, and cast its ruling broadly. Under 

the rule announced in the case, a party seeking to expand a proposed unit in any 

industry must now show that the employees it wants included in the unit have an 

‘‘overwhelming’’ community of interest with the employees in the proposed unit.4

The most striking negative effect of Specialty Healthcare is the extent to which 

it allows for what many have termed ‘‘micro unions,’’ or bargaining units composed 

of small groups of employees who formerly would have been found to have a sufficient community of interest with other employees to require that a proposed unit 

include the larger group (these micro-unions also have been referred to over the 

years as fractured units). This represents a drastic change to existing law, as recently discussed in the Board’s August 27, 2010 decision in Wheeling Island Gaming, where the majority applied the community of interest standard—without the 

‘‘overwhelming’’ component—and then stated that ‘‘[o]ur inquiry—though perhaps 

not articulated in every case—necessarily proceeds to a further determination 

whether the interests of the group sought are sufficiently distinct from those of 

other employees to warrant the establishment of a separate unit.’’ 

While Specialty Healthcare involved a nursing home, the impact of the case is 

much broader, including a significant negative impact on the retail industry. I’d like 

to discuss some of these concerns. 

Under Specialty Healthcare, organizers can isolate small groups of employees 

where they have support. As the courts have acknowledged, unions will propose the 

group they have organized.6 If organizers have support from employees working in 

just one department, for example, accessories, they can seek to represent only clerks 

in that department. As Member Hayes noted in his dissent in Specialty Healthcare, 

the ruling ‘‘will in most instances encourage union organizing in units as small as 

possible. * * *’’ 7

When retail settings are unionized, they most often have what is referred to as 

‘‘wall-to-wall’’ bargaining units, where one unit includes essentially all union-eligible 

employees (that is, excluding supervisors and management). In many cases, a wallto-wall unit is the only appropriate one given the commonality of interests within 

a single retail location and the frequency of staffing across departments. 

When all workers in a retail establishment are in the same unit, covered by the 

same contract, there are mechanisms for cross-training, for covering absences between departments or in nearby stores—in other words, for employees to expand 

their horizons, earn extra money by picking up additional shifts—and for continuity 

of operations and enhanced customer service. The employer and union need to administer and negotiate just one contract, minimizing confusion, administrative burden and usually limiting negotiations to once every few years. 

These issues are particularly important in retail. Retailers encourage employees 

to learn about their business by working in different departments. They recognize 

the value to employees and customers alike when a customer can ask almost any 

store employee for help, and get effective assistance throughout the store. Employees also appreciate the variety and in the present economy many are looking for additional shifts, which are more available with free movement between departments. 

Among the executive ranks of RILA’s members are many who started their careers working on the floor of a store. They are gravely concerned that micro-unions 

would prevent employees from developing their knowledge base and advancing their 

careers, allowing for better employee retention and a better connection between senior management and the employees in their stores. 

Retailers typically have from five to over twenty departments. With the potential 

for each department, or each shift, to become a separate bargaining unit, managing 

the store would become a nightmare. Employees themselves would lose the opportunity to cover for absent workers and to learn about other departments, making 

advancement into management much less likely. Employees in smaller stores tend 

to move around a great deal, and drawing lines between departments would impact 

both customers and employees even more acutely there than in larger operations. 

Worse yet, while my experience includes many responsible, customer-oriented 

union officials and employees, separately represented departments would inevitably 

lead to at least some degree of ‘‘not my job’’ responses to customer requests. Obviously, such customer relations would be detrimental to business, which in turn 

would be detrimental to all employees of the business. 

Many RILA members run their own distribution centers and are quite concerned 

that having small groups of warehouse workers organized would prevent them from 

moving product in and out efficiently. They use the term ‘‘just in time product’’ to 

describe the fast pace and tight delivery windows common across retail operations. 

The issue is especially crucial around the holidays when retail business surges. 
19 

In a distribution center, if receiving is disrupted, product can build up on the dock 

before being stored in the racks. This is known as being ‘‘in default,’’ and the effect 

is to back up inbound trucks, which miss their scheduled drop-offs times, triggering 

a succession of back-ups in the supply chain. 

In stores, shelves are generally replenished overnight. When deliveries to the 

store are late, or when store personnel are unable to get product on the shelves in 

time, the impact goes straight to the customer, who may be greeted by pallets on 

the floor or products missing from the shelves. And I’m sure that although we have 

all seen Halloween decorations going up in stores, most of us probably haven’t 

thought about what has to be done Halloween night so that customers walk into 

a transformed store the next day. 

On both the distribution and retail sides, the answer to seamlessly keeping product on the shelves is meeting schedules and, in times of heavy volume or late deliveries, the ability to have employees pitch in on whatever needs to be done, including 

drawing across departments and shifting schedules. Micro unions would be an impediment to responding to changing needs, an impediment that would be felt most 

during the holidays. 

With multiple bargaining units and multiple unions, contract negotiations themselves carry a significantly higher risk of a strike disrupting operations and hurting 

customers. With multiple unions and bargaining units in the same facility, it is possible to reach agreement with all but one bargaining unit, only to have the last 

group go on strike and shut down the entire operation. 

Representation by different unions in the same setting can also have adverse effects on employee morale and job satisfaction. Two similar groups represented by 

different unions might not only end up with different pay scales, they would quite 

likely have different health and retirement plans. A union representing back room 

workers might have a high-end health plan and put less emphasis on retirement. 

A union representing greeters or cashiers might have an opposite approach. Further, contracts negotiated in different economic climates may be more or less generous than contracts negotiated at different times. The result can be employees unhappy with some aspect of their benefits who feel slighted and resentful. The team 

atmosphere that most employers foster and most employees appreciate would suffer, 

and customers notice unhappy employees. 

Finally, at a time of universal discussion about the need to grow our economy, 

we look for expansion by our successful businesses, and opportunities to help ones 

that are struggling. Specialty Healthcare is a clear disincentive to both. At a minimum, healthy companies will wait to see what effects develop in their existing operations before investing in expansion—given the limited avenues of appeal for the 

Specialty Healthcare ruling this could take years.8 Struggling companies will not 

fare well with small groups of employees being organized, making them less likely 

to succeed and less attractive prospects for takeover. The end result will be fewer 

jobs. 

• Proposed Election Rule Changes 

In addition to addressing the problems created by Specialty Healthcare, the Workforce Democracy and Fairness Act would prevent the NLRB from drastically changing union election rules by regulation in ways that would shift the Board away from 

its historic position of neutrality. The June 22 Notice of Proposed Rulemaking would 

bring a vast number of changes to an election system that not only has worked well 

for decades, but already results in union wins in nearly seventy percent of elections.9

In the interest of brevity and my intention to focus on practical matters, as well 

as the fact that others are here to discuss the proposed rulemaking in more detail, 

I will limit my comments to the effects on employees, and to the considerable burdens placed on employers by the proposed changes to what they would be required 

to accomplish in just the first week after the filing of a representation petition and 

the unnecessary increase in litigation this change will bring. 

Under current practice, when a union files a petition, the Board serves it on an 

employer, along with a questionnaire about the employer’s commerce information 

(relevant to the Board’s jurisdiction), a request for a list of names and classifications 

for the employees sought to be represented, a reference to a hearing which may not 

have an actual scheduled date, and a request for the employer to comment on the 

appropriateness of the proposed unit. 

As even the Board’s majority as acknowledged in the Notice of Proposed Rulemaking,10 the vast majority of representation cases proceed to election under some 

form of agreement rather than after a hearing. This process is helped by the function of Board Agents, who are charged with the task of determining whether there 

is a question concerning representation, and if there is a hearing, developing a com-
20 

plete record using a fact-finding, non-adversarial process.11 In my experience, Board 

Agents are not only expert in this process, but efficient, thorough, and of great value 

in helping the parties to a representation case understand the issues and reach 

agreement if possible rather than proceeding to hearing. While Board Agents are 

not advocates for employers and therefore no substitute for counsel, the Board’s proposed rule changes would remove them from the process and result in far fewer 

elections by agreement. 

Despite the fact that this stage of the process lacks hard-and-fast time limits and 

is left in large part to the discretion of the Board’s Regional Directors, on average 

elections take place in barely over thirty days from the filing of a petition.12 This 

time frame affords employers not only the time to comply with the Board’s election 

procedures, it allows a reasonable period of time for communication with employees. 

As an election approaches, employees often have questions for the employer about 

everything from current benefits to what happens on election day. 

The law specifically protects an employer’s right to engage in non-threatening, 

non-coercive discussion with employees about bargaining issues.13 The Supreme 

Court has acknowledged the desirable Congressional policy of ‘‘favoring uninhibited, 

robust, and wide-open debate’’ on matters relating to unionization, so long as that 

does not include unlawful speech or conduct.14

The Board’s proposed rule changes would require elections in as little as ten 

days,15 during which, as explained below, the employer would face a monumental 

task in trying to provide a greatly increased volume of information to the Board, 

at the risk of permanent forfeiture of its right to challenge the proposed bargaining 

unit. With such a short time table, employers will have difficulty getting adequate 

legal advice, especially about how to discuss the issues with employees. 

The result for employees would be two-fold: Far less ability to learn about the 

issues and hear the employer’s perspective; and a higher likelihood that a wellmeaning but unprepared employer would inadvertently violate employee rights by 

making improper statements. 

As to the process itself, the Board’s proposed rule changes would do two things 

that are momentous, one more obvious than the other. First and most obviously, a 

hearing would be scheduled for seven days after the filing of a petition, and employers would be required to provide far more comprehensive, detailed, and crucially important information within that time frame than ever before. 

In seven days, an employer would need to file a Statement of Position, in which 

it must state whether it agrees with the proposed unit. If it does not, the employer 

would have to provide in extreme detail information about its position on all employees it contends should not be included, and on any it contends should be included, including not only name and classification, but also work location and shift, 

phone numbers, e-mail addresses and home addresses, for all employees in the unit 

that it believed appropriate.16 The Statement of Position must include the employer’s position in detail on ‘‘type, dates, times, and location of the election and the eligibility period; and describe all other issues the employer intends to raise at the 

hearing.’’ 17 An employer that fails to provide the required information in a timely 

fashion (i.e., within seven days) would be precluded from contesting unit appropriateness, presenting evidence, or even cross-examining witnesses.18

Requiring such comprehensive and detailed information, including essentially all 

legal and factual challenges to the proposed unit and in favor of an alternate unit, 

under threat of complete forfeiture of the right to challenge the proposed unit, 

stands in stark contrast to the current burden an employer faces, which is to provide relatively easily obtainable basic information, without the need to formulate a 

complete factual and legal strategy within seven days (during which most, especially 

small, employers will have to find and retain experienced labor counsel). 

The less obvious of the proposed changes—but perhaps far more significant for 

small employers—is the fact that the Board wants to remove its Board Agents from 

the role of developing a record on the representation issue. 

The proposed rules will wreak similar havoc with small and large employers, for 

reasons that differ in direct proportion to their size. 

Small employers in many cases may be able to access factual information about 

a proposed bargaining unit better than larger firms, but they will have no in-house 

experts to help them evaluate the facts in light of legal issues, and almost certainly 

no relationship with an outside labor specialist who might have some hope of figuring out the legal and factual issues and helping to prepare the required Statement of Position within seven days. With Board Agents no longer developing a 

record, up against professional union organizers, and virtually on their own, small 

employers will not stand a chance of complying with the Board’s requirements, let 

alone communicating effectively and lawfully with a group of employees about to 

make perhaps the most important decision of their working lives, with little or no 
21 

input from their employers, and most likely only a vague understanding of who 

would be in their own bargaining unit. 

Large employers will face a different array of intractable challenges. They will 

have the advantage of either in-house labor staff, or relationships with outside labor 

experts, or both. But while their size and resources will help in guidance, they will 

hinder fact-finding. Labor experts in a large corporate environment will generally 

be found in a central headquarters. Often they will oversee matters in many subsidiaries and affiliates. Faced with a petition seeking to organize a group of employees, their first task will be to examine the correct employing entity, then determine 

the organizational structure and find the right management officials with first-hand 

knowledge about the proposed unit, and then consider whether there are other employees who should be included in the unit. With more capability but vastly more 

complicated facts, large employers would be hard pressed to meet the proposed filing 

deadline without missing factual and legal issues. With greater resources than 

small employers, and given the significant burdens imposed by the Board’s changes, 

they would also be quite likely to litigate more representation cases. 

Perhaps the most striking aspect of the Board’s draconian proposal to preclude 

employers from raising any issue not included in the Statement of Position would 

be its effect on the employees themselves. It is easy to lose sight of the fact that 

the crucial phrase ‘‘community of interest’’ relates to the interests of the employees. 

It is their livelihoods that are at stake. With today’s non-adversarial fact determination, the process moves forward toward either an agreement or a hearing based on 

the facts bearing on unit appropriateness. The Board’s proposal shows a lack of concern for accurate facts, and intent to let arbitrary procedural issues drive outcomes. 

This would do a disservice to the employees whose rights the Board is charged with 

guarding. 

• Overall Effects 

In order for our economy to function, recover, and provide more jobs, retailers 

need to sell, builders need to build, and manufacturers need to manufacture. The 

NLRB’s recent actions and proposed rulemaking will have them dealing with multiple small-group organizing campaigns, litigation, and fragmented workplaces with 

greatly reduced flexibility. At a time when President Obama has stated that his administration is ‘‘reviewing government regulations so that we can fix any rules in 

place that are an unnecessary burden on businesses,’’ 19 the Board is doing the exact 

opposite. The Workforce Democracy and Fairness Act will bring reason back to the 

representation process, put the NLRB back on the course that the President has 

laid out, and let employers get back to business. More importantly, it will remove 

the most glaring of the Board’s recent decisional and regulatory threats to economic 

progress, and bring back a climate where business leaders can focus on growing the 

economy and creating jobs. 

• Conclusion 

I have only scratched the surface of the issues raised by the Board’s recent decisions and proposed rulemaking. Hopefully, though, I have explained some of the 

more significant practical concerns with the Board’s recent actions, particularly as 

they relate to retailers. Thank you again for inviting me to testify. I would be happy 

to answer any questions from Members of the Committee related to my testimony. 

ENDNOTES

1My testimony here today is on behalf of RILA and reflects my own personal experience. My 

views should not be attributed to my pervious employers or current or prior clients. 2Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB No. 83 (August 26, 

2011). 3 Representation—Case Procedures, 76 FR 36,812 (June 22, 2011); see dissent of Member 

Hayes, 76 FR at 36,831. 4Specialty Healthcare, 357 NLRB at 12. 

5Wheeling Island Gaming, 355 NLRB No. 127, n.2. (August 27, 2010). 

6Laidlaw Waste Systems, Inc. v. NLRB934 F.2d 898, 900 (7th Cir. 1991). Despite the majority’s views in Specialty Healthcare, the ruling improperly imposes such a high standard on a 

party—usually the employer—opposing a proposed unit (requiring an ‘‘overwhelming’’ community of interest between the proposed unit and other employees sought to be added to it) that 

it is virtually impossible to alter the proposed unit, thus violating section 9(c)(5) of the act, 

which provides that in determining unit appropriateness ‘‘the extent to which the employees 

have organized shall not be controlling.’’ Specialty Healthcare, 357 NLRB at 9; 29 U.S.C. 

§159(c)(5). 7Specialty Healthcare, 357 NLRB at 19. 

8 As a representation case rather than an unfair labor practice case, Specialty Healthcare is 

not subject to direct judicial review. Only ‘‘final orders’’ of the Board may be appealed directly, 

and the courts long ago determined that decisions in representation cases are not considered 
22 

final orders. 29 U.S.C. § 159(f); see American Fed’n of Labor v. NLRB, 308 U.S. 401 (1940). To 

appeal, the employer must refuse to bargain, go through unfair labor practice proceedings in 

which the employer can challenge the findings in the representation process. If the employer 

loses before the Board, the resulting decision is a final order and may be appealed in court. 29 

U.S.C. § 159(f). 9 Unions won 67.6% of elections in calendar year 2010. ‘‘Number of NLRB Elections Held in 

2010 Increased Substantially from Previous Year,’’ Daily Lab. Rep. (BNA), No. 85, at B-1 May 

3, 2011. 10 Representation—Case Procedures, 76 FR 36,812 (June 22, 2011). 11See Mariah, Inc. 322 NLRB 586 n.1 (1996). 12 76 FR at 36,831. 13Section 8(c) of the National Labor Relations Act provides: ‘‘The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual 

form, shall not constitute or be evidence of an unfair labor practice under any of the provisions 

of this Act [subchapter], if such expression contains no threat of reprisal or force or promise 

of benefit.’’ 29 USC §158 (c). 14 Chamber of Commerce v. Brown, 554 U.S. 60, 67-68 (2008). 15 76 FR at 36,831. 16 76 FR at 36,838. 17 76 FR at 36,838. 18 76 FR at 36,839. 19 June 29, 2011 press conference. 

Chairman KLINE. Thank you, sir. 

Mr. HUNTER, you are recognized. 

STATEMENT OF MICHAEL J. HUNTER, PARTNER, 

HUNTER, CARNAHAN, SHOUB, BYARD & HARSHMAN 

Mr. HUNTER. Thank you. Chairman Kline, Ranking Member Miller, and members of the committee, I thank you, as well, for the 

opportunity to appear here. I am honored to be here. 

My perspective I bring to this is that I am a union-side lawyer 

based in Columbus, Ohio, and I have been in the labor movement 

for over 40 years. This bill that is before you is entitled the Workplace Democracy and Fairness Act. 

In my judgment, the proposed legislation promotes neither fairness nor democracy, and is not aimed at helping the workforce, but 

those who, without the intervention of labor unions and legislation 

that supports workers’ rights, would be subject to the unfettered 

control of corporations. 

The bill proposes to amend the National Labor Relations Act by 

adding four broad mandates. One, the total uprooting of the current methodology for determining permissible bargaining units. 

Two, the timing, and a vastly increased scope, of a representation 

hearing. Three, the timing of an election, and a requirement that 

every conceivable issue be resolved on board review before an election can even be scheduled. 

And four, the timing content and provision to a petitioning union 

of lists of eligible employees so there can be some fairness in the 

ability to contact people. As the Supreme Court had noted in regard to bargaining unit determination—and I believe that Mr. 

Cohen indicated this, as well, in his opening testimony—that for 

years it has been the case that a union is not required to seek the 

‘‘most’’ appropriate bargaining unit, if such a thing even exists, but 

rather ‘‘an’’ appropriate unit. 

As the Supreme Court noted in regard to section 9-A of the act, 

this section read in light of the policy of the act implies that the 

initiative in selecting an appropriate unit resides with the employees. Moreover, the language suggests that employees may seek to 
23 

organize a unit that is appropriate, not necessarily the single most 

appropriate unit. 

The legislation that is being proposed here would result in the 

wholesale disruption of 75 years of board experience in configuring 

bargaining units. And the purported reason for that is a single case 

changing an arcane bargaining unit standard in a discrete industry 

that would have no practical effect whatsoever in greater industry. 

It would eviscerate the board’s Healthcare bargaining units that 

currently exist, and that the parties, both employers and employees, have relied on for over 20 years. The timing and scope of a representation hearing, I would just hit on the scope of the hearing. 

The scope of the hearing would now include any issue which may 

reasonably be expected to impact on the election’s outcome. 

Any issue that could affect the election’s outcome could be litigated. And beyond that, parties could raise, independently, any 

issue whatsoever that they wished. And yet the prefatory language 

of that section states that it should be a non-adversarial hearing, 

subjecting that hearing in which anything could be litigated to serious constitutional infirmities. 

The bill also requires that review be granted as a matter of right, 

and that no election could be mandated until review was granted. 

And takes away what has already been provided to unions, in regard to employee contact information, for 50 years. 

In conclusion, the Workplace Democracy and Fairness Act is 

anti-democratic and grossly unfair. It is an attack on workers’ 

rights and should be rejected in its entirety. Thank you. 

[The statement of Mr. Hunter follows:] 

Prepared Statement of Michael J. Hunter, Partner, 

Hunter, Carnahan, Shoub, Byard & Harshman 

Chairman Kline, Ranking Member Miller and Members of the Committee, thank 

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

you today. My name is Michael Hunter. I am a partner in the Columbus, Ohio based 

law firm of Hunter, Carnahan, Shoub, Byard & Harshman. My law practice consists 

almost exclusively in representing unions and workers. A significant part of that 

representation involves representing unions assisting workers to gain collective bargaining rights through proceedings before the National Labor Relations Board and 

a number of its regions. 

I began practicing union side labor law after graduating from Capital University 

Law School in 1985. Prior to that time, I worked as a union organizer from 1977- 

1982. I first became a member of a union in 1970. I participated in my first representation case hearing before the NLRB in 1978. 

H.R. 3094, the matter subject to today’s hearing, is entitled the ‘‘Workforce Democracy and Fairness Act.’’ In my judgment, the proposed legislation promotes neither fairness nor democracy, and is aimed at aiding not the workforce but those 

who, without the presence of union representation, exercise largely unfettered control over it. 

The Bill proposes to amend the National Labor Relations Act by adding four broad 

mandates: 1) the total uprooting of the current methodology of determining the permissible composition of bargaining units; 2) the timing and scope of a representation 

hearing; 3) the timing of an election and the requirement that every conceivable 

issue be resolved before an election is held; and 4) the timing, content and provision 

to the petitioning union of lists of eligible voters through which workers have access 

to information about collective bargaining and union representation. 

The first proposal is apparently in reaction to a single Board decision that constitutes one of those periodic incremental adjustments to the methodology for determining bargaining units under the Act. The other three are in apparent reaction 

to proposed amendments to the Board’s rules for which thousands of comments have 

been received, which have not been implemented, and for which there is no current 
24 

information available as to when, in what form, or even whether such rules will be 

implemented. 

1. Bargaining Unit Determination 

As noted by the Supreme Court, when Congress enacted Section 9(a) of the Act, 

it granted workers the right to take the initiative in organizing themselves into a 

unit. It hardly promotes workforce ‘‘democracy and fairness’’ to take that right away 

from workers. 

In American Hospital Association v. NLRB, 499 US 606, 610 (1991), the Supreme 

Court, noted: 

Section 9(a) of the Act provides that the representative ‘‘designated or selected for 

the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes’’ shall be the exclusive bargaining representative for all 

the employees in that unit. § 159(a). This section, read in light of the policy of the 

Act, implies that the initiative in selecting an appropriate unit resides with the employees. Moreover, the language suggests that employees may seek to organize ‘‘a 

unit’’ that is ‘‘appropriate’’—not necessarily the single most appropriate unit. (Emphasis in original). 

In addition to taking away this important worker right, the proposed Bill will result in the the wholesale disruption of 75 years of Board experience in configuring 

appropriate bargaining units. This all comes about in apparent response to the August 26, 2011 decision of the Board in Specialty Healthcare, 357 NLRB No. 83 

(2011). The Specialty Healthcare decision involved whether non-acute healthcare facilities such as nursing homes, which are not subject to the bargaining unit rules 

adopted by the Board for acute-care facilities, should be subject to the same standards for evaluating appropriate bargaining units that apply to all other industries, 

or whether they should continue to be governed by an arcane and confusing ‘‘empirical community of interest’’ test that had been established by the Board for nonacute healthcare facilities in Park Manor Care Center, 305 NLRB 872 (1991). 

In Specialty Healthcare, the Board overruled its 1991 Park Manor Care Center 

standard and decided to apply to non-acute healthcare facilities the same community of interest standards that it applies in determining the appropriateness of bargaining units in other industries. In the Specialty Healthcare case, the Board found 

that a unit of certified nursing assistants (CNA’s) constituted an appropriate unit. 

It noted that once it is established that a petitioned-for unit consists of a readily 

identifiable group of employees who share a community of interest, the burden 

shifts to the employer to demonstrate that excluded employees that it claims should 

be included share an overwhelming community of interest with the employees for 

whom a union has petitioned. This analytical framework for ascertaining an appropriate unit is the same as that applied by the Board in a non-healthcare context 

and which was endorsed by the D.C. Circuit in Blue Man Vegas v. NLRB, 529 F3d 

417 (D.C.Cir. 2008). 

In apparent response to this adjustment eliminating an arcane test that applied 

to a discreet portion of the employer community, and moving it into the mainstream, the Bill proposes to turn on its ear 75 years of experience and stability in 

the determination of bargaining units. 

In the first instance, the Bill proposes to eliminate the following language which 

has been included in subsection 9(b) of the Act, 29 USC § 159(b) since its inception 

in 1935: 

The Board shall decide in each case whether, in order to assure to employees the 

fullest freedom in exercising the rights guaranteed by this Act the unit appropriate 

for the purposes of collective bargaining shall be the employer unit, craft unit, plant 

unit, or subdivision thereof: (Emphasis added).1

The Bill then goes on to mandate a set-in-stone, one size fits all test for determining whether employees in a proposed unit share a community of interest: 

In determining whether employees share a sufficient community of interest, the 

Board shall consider (1) similarity of wages, benefits, and working conditions; (2) 

similarity of skills and training (3) centrality of management and common supervision; (4) extent of interchange and frequency of contact between employees; (5) integration of the work flow and interrelationship of the production process; (6) the 

consistency of the unit with the employer’s organizational structure; (7) similarity 

of job functions and work; and (8) the bargaining history in the particular unit and 

the industry. (Bill, p.2. lines 10-20). 

While items listed in the above formulation have certainly been among the useful 

tools utilized in evaluating the appropriateness of bargaining units, it is unclear 

whether this precise formulation has even been used in determining a community 

of interest. 
25 

Limiting the analytical tools that can be used in evaluating an appropriate bargaining unit makes no more sense than establishing a set number of tools that can 

be used in approaching any job. One does not change a tire with a screwdriver or 

adjust a carburetor with a shovel. As noted in the Developing Labor Law, (5th Ed. 

BNA), a compendium developed by the ABA’s Committee on the Development of 

Labor Law: 

Community of interest is not susceptible to precise definition or to mechanical application. As illustrated by the cases discussed throughout this chapter, the ultimate 

determination much more often depends on detailed factual analysis on a case-bycase basis than on the application of rules of law. 

Id. at 643-644. Numerous other analytical tools have been used in analyzing the 

appropriateness of a bargaining unit depending on the nature of the industry. A few 

examples include similarities or differences in product,2 geographical proximity,3 desires of employees,4 area bargaining patterns and practices,5 and, while not by itself 

controlling, extent of organization.6

Adoption of the unit determination formula set forth in the Bill would wreak 

havoc on labor relations stability. For example, for twenty years, employers and 

unions in the acute care hospital industry have relied upon the certainty that organizing in that industry would involve the units established by the rulemaking process and set out at Section 103.30 of the Board’s Rules.7 It is clear, however, that 

those Rules were not adopted pursuant to the standard that would be dictated by 

the Bill. The standards and considerations taken into account in promulgating the 

Rule are set out in 53 FR No. 170, at 33900-33935. 

As those Rules were not adopted pursuant to the standard required by the Bill, 

its enactment into law would again require a case by case adjudication from scratch 

as to the appropriateness of any new unit in the acute care hospital industry, depriving the parties of the stability, certainty and predictability that they have enjoyed for twenty years. 

While the Bill would leave intact the proviso to Section 9(b) of the Act that indicates that a prior determination that a larger unit was appropriate is not in itself 

a ground for deciding that a craft unit is inappropriate, its dictates as to the factors 

to be taken into consideration in determining a bargaining unit will deprive the 

Board of the analytical tools that it has used for over 40 years in evaluating the 

appropriateness of craft severance.8

The Bill continues with provisions that result, as a practical matter, in a dictate 

that there can be only one appropriate unit for any category of employees. The Bill 

states, commencing at line 21 of page 2, that: 

To avoid the proliferation of fragmentation of bargaining units, employees shall 

not be excluded from the unit unless the interests of the group sought are sufficiently distinct from those of other employees to warrant the establishment of a separate unit. 

Avoidance of ‘‘proliferation’’ of bargaining units has never been a factor in the 

general field of NLRB jurisprudence. In the passage of the 1974 healthcare amendments to the Act, reference was made in the House and Senate Reports regarding 

due consideration of preventing the proliferation of bargaining units in the health 

care industry.9 Two circuits, the Ninth and the Tenth, found that the legislative history of the health care amendments required application of a ‘‘disparity of interest’’ 

analysis of units in the acute health care industry,10 while other circuits specifically 

rejected this test.11 Any application of that test was superseded by the promulgation 

of the Board’s acute care bargaining unit rules and their subsequent approval by 

the Supreme Court in American Hospital Association v. NLRB, supra. The Bill 

would now enshrine a test required by only two federal Circuit courts 20 years ago 

for the acute-care hospital industry into the statute and apply it to all industries. 

It then goes a step further by permitting an employer to add to a proposed bargaining unit any category of employees who share a community of interest with the 

unit proposed by a petitioning union. Beginning at line 2 of page 3, the Bill provides 

that: 

Whether additional employees should be included in a proposed unit shall be 

based on whether such additional employees and proposed unit members share a 

sufficient community of interest. 

This runs contrary to 75 years of NLRB jurisprudence, and essentially mandates 

that there can be only one appropriate bargaining unit for any category of employee. 

Again, as emphasized by the Supreme Court in American Hospital Association v. 

NLRB, supra: 

[Section 9(a) of the Act] implies that the initiative in selecting an appropriate unit 

resides with the employees. Moreover, the language suggests that employees may 

seek to organize ‘‘a unit’’ that is ‘‘appropriate’’—not necessarily the single most appropriate unit. 
26 

Id. at 610. (Bolded emphasis added; italics in original). It has always been the 

case that in a petition filed with the NLRB on behalf of workers is not required to 

seek representation in the most comprehensive appropriate grouping unless an appropriate unit compatible with the one requested does not exist.12

As emphasized by the Supreme Court, when Congress enacted Section 9(a) of the 

Act, it granted workers the right to take the initiative in organizing themselves into 

a unit. It hardly promotes workforce ‘‘democracy and fairness’’ to take that initiative 

away from workers. It is respectfully submitted that the Bill’s proposed changes to 

subsection 9(b) of the Act should be rejected. 

2. Timing and Scope of Representation Hearings 

The Bill’s provisions in regard to the timing and scope of representation hearings 

are in apparent reaction to the Board’s Notice of Proposed Rulemaking contained 

at 76 FR No. 20 at 36812 et., seq. 

The proposed rule amendments would provide at Rule 102.63(a) that a regional 

director would ordinarily, absent special circumstances, set a representation hearing 

to commence seven days after the notice of hearing.13

The comments to the proposed rule amendments note that this is already the current practice in some regions, and one which the Board wishes to make uniform. 

76 F.R. No. 20 at 36821. Back in 1998 ‘‘best practices’’ provided for a hearing within 

ten to fourteen14 days. With modern access to relevant unit information through 

computers and with advances in communication technology, including electronic 

mail and overnight/express mail, it is not surprising that the Board, in many of its 

regions, has achieved hearings after seven days. 

It is in apparent reaction to the potential memorialization by rule of the seven 

day timeframe currently in effect in many regions that the Bill proposes to enshrine 

in the statute a requirement that a representation hearing may in no circumstances 

‘‘take place less than 14 days after the filing of a petition.’’ Bill, page 3, lines 14- 

16. It is respectfully submitted that this is the sort of matter that, under Section 

6 of the Act, is appropriately addressed by Rule so that evolving circumstances and 

changes in the workplace and workforce can be examined and adapted to. 

The Board’s proposed rule amendments propose a methodology for early and thorough identification of issues in representation case matters, and for devoting the resources of the Agency and the parties to those issues which are material and which 

are in dispute. Proposed Rules, Sections 102.63; 102.64. There are currently, as will 

be noted below, limitations on what can properly be presented in a representation 

hearing. In apparent reaction to the proposed rule amendments that would further 

promote issue-identification and avoid needless and costly proceedings while still 

promoting the development of a full record on all material issues, the Bill proposes 

the addition of the following language in subsection (c)(1) of the Act: 

An Appropriate hearing shall be one that is nonadversarial with the hearing officer charged, in collaboration with the parties, with the responsibility of identifying 

any pre-election issues and thereafter making a full record thereon. Pre-election 

issues shall include, in addition to unit appropriateness, the Board’s jurisdiction and 

any other issue the resolution of which may make an election unnecessary or which 

may reasonably be expected to impact the election’s outcome. Parties may raise 

independently any issue or assert any position at any time prior to the close of the 

hearing. (Bill, page 3 line 18 through page 4 line 5). 

This language would allow virtually any issue to be litigated in a representation 

case proceeding. Hearings could literally be marathon endeavors, with randomly 

changing positions, new issues inserted at various stages along the way, and no concern for the resulting extraordinary costs to the Agency. 

It should be noted that under the current state of the law, there are limitations 

upon what may be introduced at a representation case hearing. Thus, for example, 

in Bennett Industries, 313 NLRB 1363 (1994) a unanimous Board found that a 

party that refuses to take a position regarding the supervisory status of employees 

or employee classifications is precluded from presenting testimony about the matter. 

It has always been the case that unfair labor practice issues may not be litigated 

in a representation case hearing.15 The same is the case with a petitioner’s showing 

of interest which is considered confidential.16 When parties are free to raise not only 

any issue which may affect an election’s outcome, but to raise any issue or assert 

any position in a non-adversarial proceeding, such a proceeding is subject to precisely the type of constitutional infirmity that was found not to exist when the hearing is limited to determining whether a question of representation exists.17 Allowing 

introduction in a representation case proceeding of evidence regarding any issue 

that could ‘‘affect the outcome’’ of any election would reduce the proceeding to a carnival atmosphere, and allowing parties to additionally introduce anything else whatsoever would reduce to the hearing to absurdity. 
27 

As a consequence, it is respectfully submitted that the Bill’s proposed strictures 

regarding the time and scope of a representation case hearing should be rejected. 

3. Timing of Elections 

In apparent response to the Board’s proposed rule that would eliminate the current discretionary pre-election review by the Board18 the Bill proposes, at lines 7 

and 8 of page 4, to make pre-election review mandatory and to require that no election be held until such a review is made. 

Section 3(b) of the Act authorizes the Board to delegate to the regional directors 

its power under Section 9 to determine appropriate units, to hold hearings, to determine if a question of representation exists, and to direct an election. It provides that 

the Board may review any action of a regional director, but that such action, unless 

ordered by the Board, will not stay an action of the regional director. Since 1961, 

the Board’s rules have made such review discretionary,19 and that procedure was 

subsequently upheld by the Supreme Court.20

The language proposed in lines 7-9 of page 4 of the Bill would result in the last 

sentence of subsection 9(c) (1) of the Act reading in pertinent part as follows: 

If the Board finds upon the record of such hearing and a review of post-hearing 

appeals that such a question of representation exists, it shall direct an election 

* * * (Emphasis added). 

The language that would be added by the Bill forbids a direction of election until 

a review is completed of post-hearing appeals. As a consequence, the language in 

Section 3(b) of the Act which provides that Board review of a regional director’s actions does not act as a stay would become irrelevant to the timing of an election 

because, under the Bill, a direction of election cannot issue at all until a review has 

been made of any appeal. 

As a consequence, elections could be held up for years based upon the most frivolous appeal for review. Because the Board will lose its discretion and will be required to conduct a review in all cases, its processes would be even slower. 

Unlike the current process in which pre-election Board review is discretionary, 

and unlike the proposed rules under which Board review would consolidated into 

one post-election review process, the Bill would mandate pre-election Board in every 

case, regardless of relevance, materiality, or merit. The Board’s caseload would dramatically increase and its timelines would correspondingly lengthen. 

The end result would be to deny to employees indefinitely the ‘‘fairness and democracy’’ they seek when attempting to organize. They would file a petition to have 

an election to choose whether to have union representation and watch their efforts 

evaporate in a morass of legalese and litigation. 

Lines 10 through 14 of page four of the Bill would mandate that no election could 

take place in less than 35 calendar days following the filing of a petition. 

This would apply even where the union and employer are willing to stipulate to 

an earlier date. Other than facilitating an employer in ramping up an anti-union 

campaign, it does not appear to have any meaningful purpose. 

It is respectfully submitted that these provisions of the Bill should be rejected. 

4. Lists of Eligible Voters 

The initial requirement of a list of eligible voters was established in 1966 through 

Board adjudication in Excelsior Underwear Inc.,21 where the Board established a 

prospective requirement that within seven days after direction of an election or approval of an election agreement, the employer must file with the Regional Director, 

‘‘an election eligibility list, containing the names and addresses of all the eligible 

voters.’’ The Board, in Excelsior, recognized that rules governing elections cannot remain in stasis, but should change with times: 

The rules governing representation elections are not, however, ‘‘fixed and immutable. They have been changed and refined, generally in the direction of higher 

standards.’’ 22

Id. at 767. The Supreme Court upheld the authority of the Board to require such 

information, in NLRB v. Wyman Gordon Company, 394 US 759 (1969). Therein, the 

Court noted: 

We have held in a number of cases that Congress granted the Board a wide discretion to ensure the fair and free choice of bargaining representatives. [citations 

omitted] The disclosure requirement furthers this objective by an informed employee 

electorate and by allowing unions the right of access to employees that management 

already possess. It is for the Board and not for this Court to weigh against this interest the asserted interest of employees in avoiding the problems that union solicitation may present. 

The same privacy and similar arguments as were presented over 50 years ago are 

still being raised in response to the Board’s proposed rule amendments. The pro-
28 

posed rules would change the procedures with respect to production of voter lists 

by requiring that the list contain available telephone numbers and e-mail addresses 

for each voter. 76 Fed. Reg. at 36820, § 102.67(j). 

In apparent response to the Board’s proposed rule amendments; the Bill proposes, 

at lines 15 to 24 of page 4, to insert the following language into the statute: 

‘‘Not earlier than 7 days after final determination by the Board of the appropriate 

bargaining unit, the Board shall acquire from the employer a list of all eligible voters to be made available to all parties, which shall include the employee names, and 

one additional form of personal employee contact information (such as telephone 

number, email address or mailing address) chosen by the employee in writing.’’ 

This provision requires a giant leap backward from what has been the state of 

Board procedure for over 50 years. It provides that ‘‘not earlier’’ than seven days 

after a final determination of a bargaining unit by the Board, an employer will provide to the Board one form of employee contact authorized in writing by the employee. 

The Bill does not even require that this truncated information be in turn provided 

to a petitioning union. It requires that this information never be provided so long 

as there remains outstanding a question of the inclusion of even a single employee 

in a bargaining unit. 

Employers have access to all of this information with which to bombard employees 

with anti-union propaganda on top of their full-time, in-person access to employees 

in the worksite. 

There can be little argument that providing an effective means of communicating 

with workers would enable information-sharing and a more informed electorate. Yet, 

the Bill is aimed at less communication, and particularly at less worker-union communication. Workers are denied the ability to obtain information from the union 

while at work and the union has no independent means of learning workers’ addresses, phone numbers or emails. 

It is also remarkably telling what the Bill does not mandate. It does require the 

‘‘contact information * * * chosen by the employee in writing’’ be made private and 

remain confidential from their supervisors and employers. It does not provide employees with a means to limit communications from the employer. It does not protect employees from being required, under pain of discharge, from attending and listening to all manner of employer communications at any time during their workday. 

Almost 90% of companies in which workers want to form a union require workers 

to attend such captive audience meetings.23 Workers who presumably are being protected from union communications are still being forced to give attention to mandatory employer communications or be fired. 

The language of the Bill in this regard is not comprehensible in the context of 

workforce fairness and democracy. 

Conclusion 

It is respectfully submitted that the so-called ‘‘Workplace Democracy and Fairness 

Act’’ is anti-democratic and grossly unfair. It is another attack on workers’ rights. 

It should be rejected in its entirety. 

ENDNOTES

1This analysis assumes that the drafters of the Bill considered the ‘‘first sentence’’ of 9(b) to 

end with the colon preceding its proviso, and does not intend to eliminate the proviso language. 2General Electric Co., 170 NLRB 1272 (1968); Bedford Shoe Co., 117 NLRB 259 (1957). 

3Pacific Maritime Assn., 185 NLRB 780 (1970). 

4 NLRB v. Ideal Laundry & Dry Cleaning, 330 F2d. 712 (10th Cir. 1964). 

5 RN Market, Inc., 190 NLRB 292 (1971). 

6 NLRB v. Metropolitan Life Ins. Co., 380 US. 438 (1965). 

7The Board’s authority to promulgate those rules was challenged and ultimately upheld in 

American Hospital Association, supra. 8Mallinckrodt Chemical Works, 162 NLRB 387 (1967). 

9S. Rep. No. 766, 93rd Cong., 2d Sess. 5 (1974); H.R. Rep. No. 1051, 93rd Cong., 2d Sess. 

7 (1974). 10 NLRB v. HMO International, 678 F2d 806 (9th Cir. 1982); Southwest Community Health 

Services v. NLRB, 726 F2d. 611 (10th Cir. 1984). 11 IBEW Local 474 v. NLRB, 814 F2d 697 (D.C. Cir. 1987). 12P. Ballantine & Sons, 141 NLRB 1103 (1963). 13 Almost a decade ago, in Croft Metal, Inc., 337 NLRB 688, 688 (2002), the Board held that 

a hearing should be conducted ‘‘not less than 5 days’’ after notice of the hearing ‘‘absent unusual 

circumstances.’’ 14 ‘‘Representation Cases Best Practices Report,’’ Gen. Couns. Mem. 98-1, at 2 (Jan. 26, 1998). 15Guide for Hearing Offices in NLRB Representation Proceedings at 27. 16 Id. 17 Utica Mutual Ins. Co. v. Vincent, Regional Director, 375 F2d. 129 (2d. Cir. 1967). 18Proposed Rule 102.67. 
29 

19 29 CFR 102.67 (1961). 20Magnesium Casting Co. v. NLRB, 401 US 137 (1971). 21 156 NLRB 1236 (1966). 22 156 NLRB at 1239, quoting Sewall Mfg. Co., 138 NLRB 66 (1962). 23 Bronfenbrenner, Kate, ‘‘No Holds Barred: The Intensification of Employer Opposition to Organizing,’’ EPPI Briefing Paper #235 (2009); available at: http://epi.3cdn.net/ 

edc3b3dc172dd1094f—0ym6ii96d.pdf 

Chairman KLINE. Thank you, sir. 

Mr. RUSSELL, you are recognized. 

STATEMENT OF PHILLIP RUSSELL, ATTORNEY, 

OGLETREE DEAKINS 

Mr. RUSSELL. Thank you. Mr. Chairman, Ranking Member Miller, Representative Ross, thank you for the introduction, and all 

members of the committee. It is truly an honor and professionally 

to participate in the legislative process. I cannot think of a better 

less for my daughter, Madison, who is here with me today. So 

thank you all very much. We both appreciate it. 

I am also wearing a purple ribbon today just to show my support 

for the Spring of Tampa Bay. This is Domestic Violence Awareness 

Month, so I would like to remind the audience of that, as well. I 

support the Spring, which provides victims safety, hope, and renewal. 

I support this bill. As a practicing labor lawyer and employment 

lawyer for over 16 years, and also as that kid who at 14 years old 

started bagging groceries and stocking shelves for grandparents’ 

grocery store, I will tell you my Mamaw is still the toughest boss 

I have ever had. 

But I have had the opportunity to work with a lot of clients when 

dealing with labor campaigns. And yes, I am a management-side 

lawyer. But I will tell you what that means for me. What it has 

meant for me is that I have focused on employees’ rights. And that 

is why I think this bill should be supported and it should become 

the law of the land. 

Because I believe that what the National Labor Relations Board 

has done is to ignore employees’ rights in favor of union rights, or 

in favor of giving unions greater access. And so I want to focus my 

comments today—and my written material is also focused on—two 

rights, in particular, for employees. And that is the right to vote 

because I believe that everybody in the workplace should have a 

say on whether or not there is going to be a union. 

Not just a handpicked few by union organizers. And that is, what 

Specialty Healthcare essentially allows is, it allows the union to 

come in and organize only one part of a grocery store. And I am 

going to use a grocery store as an example not only because it was 

my family business way back when, but it was also one of my most 

recent campaigns. 

The union, in that case, came in and tried to organize just the 

natural foods employees. And under the law at the time, the board 

ultimately, after we had a hearing, the regional director had to 

make the correct decision that you could not organize just the employees in the natural foods department. That it had to be a wallto-wall unit. 

You had to represent everybody. Because why does that make 

sense? In a grocery store, employees that work in produce, employ-
30 

ees that are baggers, they stock shelves, they work in natural foods 

they have to help each other out. And if you had multiple bargaining units, with multiple unions perhaps representing different 

groups of employees, you are going to have essentially a management nightmare. 

How are you going to allow employees to go from department to 

department to cover absences, for example? How can employees advance in their careers if they want to get out of bagging groceries 

and get into the produce department. Typically, bagging groceries 

is a starting job. You want to move up in the grocery store business, and you want to move into a different department and perhaps into management someday. 

How can you do that if you have got yet another barrier to advancement in the workplace? And that is why I think this dividing 

employers and businesses into subunits gets in the way of employees’ rights. And instead of allowing one small group of employees 

to vote, I think it is better policy and should be the law of the land, 

as it was before Specialty Healthcare, that everybody needs to get 

a right to vote on whether there is a union in the workplace. 

I also believe that there is another reason. And I am going to 

look at this from the perspective of my human resources colleagues, 

my friends at HR Florida and HR Tampa. They are going to have 

multiple policies, multiple hiring processes, multiple disciplinary 

rules, multiple benefit plans to administer. 

You are going to have to hire more employees. This is going to 

cost businesses more money. And in today’s economic climate, the 

more cost to small businesses means less jobs. So I think that it 

is also going to have a negative impact on the economic recovery 

we are trying to work our way through. 

Another reason why I support this bill is the access to information. If you are a union organizer, you do not start your election 

on the day the petition is filed. You target that employer weeks or 

months in advance, you go get the support that you can get, you 

work your way towards getting as many authorization cards signed 

as you possibly can get, and you do not tell the employer. 

You do not go knock on the door and say, ‘‘Mr. Grocery Store 

Manager, I would like to organize your employees. Do you mind if 

I get some names, addresses, and phone numbers?’’ You do not tell 

them. Smart union organizers are going to go do this in people’s 

kitchens, they are going to knock on their doors and they are going 

to ask their friends to introduce them to their friends. And they are 

going to get their cards signed, and they are going to ask them not 

to tell anybody and to keep it quiet until they get enough support. 

Then the petition is filed. And under the board’s proposed rulemaking, the employer may have 10 days in which to respond to the 

union which has had weeks or months? That is not fair, and that 

is where the fairness part comes in to this bill. I think not only everybody should have a right to vote, but everybody should have a 

right to information from both sides. 

So after having heard from the union organizers, full-time professionals, to go out and to get them to support the union I think it 

is fair. And from the employees’ perspective, their right to information will be supported by this bill because they will get better infor-
31 

1 I would like to thank my colleagues, Harold P. Coxson, Jr. and Matthew Levine, for their 

assistance in drafting this written testimony. 

mation before they make their decision. And they will not be forced 

to do so quickly. 

Those are the reasons I support the bill. Thank you again, all, 

very much for having me out today. 

[The statement of Mr. Russell follows:] 

Prepared Statement of Phillip B. Russell, Shareholder, 

Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 

Nothing in this testimony should be construed as legal advice for any particular 

facts or situation. Moreover, this testimony is based on my own personal view and 

not those of Ogletree Deakins or any of its attorneys. 

I. Executive summary1

The Workforce Democracy and Fairness Act, H.R. 3094 (WDFA), addresses the 

National Labor Relations Board’s (NLRB or Board) overreaching decision in Specialty Healthcare, 357 NLRB No. 83 (August 26, 2011), and the Board’s proposed 

changes to election procedures. 

In both Specialty Healthcare and its proposed election procedure changes, the 

NLRB has greatly overstepped its statutory authority and worse, trampled on employees’ rights to vote and to get sufficient information from both union organizers 

and the company before being forced into a quick decision. 

The WDFA has two primary components. First, it will protect the right of all employees in a workplace to vote on whether or not to have a union. Under Specialty 

Healthcare, a union organizer could target, organize, and ultimately fragment the 

workplace into sub-units of employees. The WDFA codifies the ‘‘community of interest’’ test the Board has historically used to determine an appropriate bargaining 

unit: 

(1) similarity of wages, benefits and working conditions; 

(2) similarity of skills and training; 

(3) centrality of management and common supervision; 

(4) extent of interchange and frequency of contact between employees; 

(5) integration of the work flow and interrelationship of the production process; 

(6) the consistency of the unit with the employer’s organizational structure; 

(7) similarity of job functions and work; and 

(8) the bargaining history in the particular unit and the industry. 

In contrast, in Specialty Healthcare, rather than use these time-tested factors, the 

Board wants to presume that a unit composed of employees performing the same 

job at the same facility is presumptively appropriate. Under the WDFA, all employees in a workplace would get to participate in a campaign and have a right to vote 

on a union, not just a select few. 

The second major component of the WDFA is that it will protect employees’ right 

to information before they are forced to vote on whether or not to have a union. In 

June 2011, the Board proposed a series of changes to the election procedures governing elections. One of the most dramatic changes is throwing out the traditional 

42-day election period and reducing it to as little as 10 days. This change will effectively take away employees’ right to get adequate information from their employer 

after having been bombarded with sales pitches by professional union organizers for 

weeks, if not months. 

For these reasons, and the detailed reasons stated below, I support the Workplace 

Democracy and Fairness Act. 

II. Analysis 

A. The WDFA Would Protect Employees’ Right to Vote 

The Workforce Democracy and Fairness Act (WDFA) is designed, in part, to correct the National Labor Relations Board’s over-stepping in Specialty Healthcare, 357 

NLRB No. 83 (2011): 

• The key issue is whether a small group of employees performing the same job 

at a single location constitute an individual bargaining unit. The Board’s decision 

in Specialty Healthcare will affect an estimated six million workplaces covered by 

the National Labor Relations Act. The Board historically has applied a clear set of 

standards in determining a unit appropriate for bargaining, which the Specialty 

Healthcare case turned upside down, without any rational basis. 
32 

• The impact will lead to an explosion of ‘‘micro-unions’’ within an entire workforce or across multiple locations; and will make it easier for unions to cherry-pick 

the unit of employees most likely to support the union and separate it from co-workers, effectively disenfranchising them. 

• For example, a union may choose to organize poker dealers at a casino, rather 

than all dealers, because it knows the poker dealers support the unions, while the 

blackjack, craps, roulette and other dealers may not. Similarly, a union may organize a small group of employees working on one machine rather than all machinists 

in a manufacturing facility, because the majority of machinists do not want union 

representation. Another example is a grocery store. Using Specialty Healthcare, 

multiple labor unions could target and organize different groups of employees, such 

as cashiers, produce employees, baggers, stockers, and others. A single store with 

one entrance, one payroll, one set of policies and practices, one organizational chart, 

could be essentially Balkanized by sub-units of employees. Multiple contracts over 

multiple years covering multiple groups of employees would simply be unmanageable. 

• These fractured units also will greatly limit an employer’s ability to cross-train 

and meet customer and client demands via lean, flexible, staffing as employees 

could not perform work assigned to another unit. The impact on business productivity and competitiveness would be significant. Employees also would suffer from 

reduced job opportunities as promotions and transfers would be hindered by organization-unit barriers. 

While the issue presented in Specialty Healthcare was potentially narrow— 

whether a unit composed solely of certified nursing assistants (‘‘CNAs’’) is an appropriate unit—it now raises broad concerns for employers in all industries, including 

the nonacute healthcare industry in particular. The Board’s decision in Specialty 

Healthcare portends a sweeping change in the standard for unit determinations in 

all industries regulated by the Act. 

The standard used by the Board majority in Specialty Healthcare holds that a 

unit composed of employees performing the same job at the same facility is presumptively appropriate. This standard has serious economic ramifications for the 

non-acute health care industry, at a time when the nation is attempting to provide 

affordable universal healthcare. It would lead to the proliferation of smaller, fragmented units, and therefore increase the likelihood of strikes, jurisdictional disputes, and other disruptions to operations—all of which is contrary to the national 

labor policy in the health care industry. With this standard now being applied in 

the other industries regulated by the Act (based on the broad language of the 

Board’s decision in Specialty Healthcare), it will have the same disruptive and costly 

impact on those industries, many of which are still struggling to recover and create 

new jobs after a prolonged recession. 

Changing the unit determination standard in this manner might lead to increased 

union organizing in the short-term, but it will not result in meaningful collective 

bargaining in the long-term. Bargaining with a small unit of employees, which excludes many other employees who share a substantial community of interest whose 

work is integrated and interdependent, will be more costly and less likely to succeed. Ultimately, the Board has a statutory responsibility to approve bargaining 

units that are not only appropriate for organizing, but also for collective bargaining. 

The WDFA forces the Board to adhere to its longstanding precedent in unit determination cases, which strikes an appropriate balance between the statutory goals 

of allowing employees to exercise their right to organize and bargain collectively, 

while at the same time promoting industrial peace and minimizing interruptions to 

commerce through effective collective bargaining. With an economy showing no immediate signs of recovery and a Board that has lost its way, adoption of the WDFA 

is needed now more than ever before. 

1. THE BOARD SHOULD ADHERE TO ITS LONGSTANDING PRECEDENT CONCERNING THE

SCOPE OF APPROPRIATE BARGAINING UNITS

In Specialty Healthcare, the Board concluded that a bargaining unit should be 

presumptively appropriate, in all industries, if it includes only those employees who 

perform the same job at a single facility. The argument for such a standard is set 

forth in the dissenting opinion of Member Becker in Wheeling Island Gaming, Inc., 

355 NLRB No. 127 (2010). In that case, dissenting Member Becker argued that a 

petitioned-for unit consisting only of poker dealers at a casino is an appropriate 

unit, even though it excludes blackjack dealers and croupiers at the same casino. 

As the majority opinion noted, however, such a unit would be inconsistent with the 

Board’s longstanding precedent, which holds that the interests of the employees in 

the unit sought must be ‘‘sufficiently distinct from those of other employees to war-
33 

2 Academic literature describes the economic reasons for striking an appropriate balance between units that are neither too large nor too small. See Douglas L. Leslie, Labor Bargaining 

Units, 70 VA. LAW REV. 353, 408-09 (1984). 

rant the establishment of a separate unit.’’ Id., slip op. at 1 n.2 (quoting NewtonWellesley Hospital, 250 NLRB 409, 411-12 (1980)). Now, it appears that the Board 

is abandoning that longstanding precedent, in favor of a standard that would find 

a unit appropriate regardless of whether there are other employees who share a 

substantial community of interest with the employees in that unit. 

Reversing longstanding precedent in this manner is contrary to the fundamental 

purposes and polices of the Act. Member Becker has argued that the Board’s precedent in unit determination cases ‘‘have accumulated into complex and uncertain jurisprudence that threatens to thwart employees’ efforts to exercise their right to 

choose a representative.’’ Wheeling Island Gaming, 355 NLRB No. 127, slip op. at 

3. This argument ignores that the Act does not exist simply to facilitate and protect 

organizing in whatever unit a group of employees, or the petitioning labor organization, views to be the most desirable and advantageous, but the intent of the Act is 

also to foster and protect collective bargaining as a means of promoting industrial 

peace. See Fibreboard Paper Prod. Corp. v. NLRB, 379 U.S. 203, 211 (1964) (‘‘One 

of the primary purposes of the Act is to promote the peaceful settlement of industrial disputes by subjecting labor-management controversies to the mediatory influence of negotiation.’’); Local 24, Int’l Bhd. of Teamsters v. Oliver, 358 U.S. 283, 295 

(1959) (‘‘The goal of federal labor policy, as expressed in the Wagner and Taft-Hartley Acts, is the promotion of collective bargaining * * * and thereby to minimize 

industrial strife.’’); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 42 (1937) 

(‘‘A fundamental aim of the National Labor Relations Act is the establishment and 

maintenance of industrial peace to preserve the flow of interstate commerce.’’). 

Section 9(c)(5) of the Act was added to reinforce that the Board should not make 

unit determinations with a singular focus on the desires of the petitioning employees or labor organization. Thus, Section 9(c)(5) provides that ‘‘the extent to which 

the employees have organized shall not be controlling’’ in the Board’s unit determinations. 29 U.S.C. § 159(c)(5) (emphasis added). The Board cannot, as suggested 

by Member Becker in Wheeling Island Gaming, and as implied by Specialty 

Healthcare, comply with Section 9(c)(5) merely by pointing to some community of 

interest factors that are consistent with the extent of the union’s organizing effort. 

Wheeling Island Gaming, 355 NLRB No. 127, slip op. at 3 n.2. The Board has a 

statutory responsibility to ensure that its unit determinations will ultimately promote stable and effective collective bargaining relationships. In the rulemaking for 

acute care hospitals, the Board recognized that its goal ‘‘is to find a middle-ground 

position, to allocate power between labor and management by ‘striking the balance’ 

in the appropriate place, with units that are neither too large or too small.’’ 53 Fed. 

Reg. 33,904 (1988).2

The purposes of the Act are not served by making unit determinations that exclude groups of employees who share ‘‘a substantial community of interest with employees in the unit sought.’’ Colorado Nat’l Bank of Denver, 204 NLRB 243, 243 

(1973). For this reason, the Board historically has not approved of ‘‘fractured 

units’’—units that ‘‘are too narrow in scope or that have no rational basis.’’ Seaboard 

Marine, Ltd., 327 NLRB 556, 556 (1999). Fragmented bargaining units may also effectively disenfranchise certain groups of employees, a result that is also contrary 

to the policy of the Act. 

Member Becker argues that American Cyanamid Co., 131 NLRB 909 (1961), supports a sweeping presumption—one that would apply in all industries—that a unit 

of ‘‘all employees doing the same job and working in the same facility’’ should be 

approved absent ‘‘compelling evidence that such a unit is inappropriate.’’ Wheeling 

Island Gaming, 355 NLRB No. 127, slip op. at 2. No such presumption can be drawn 

from American Cyanamid. To the contrary, in finding a unit of maintenance employees to be appropriate in that case, the Board specifically disavowed any presumption 

in favor of a maintenance-only unit in other cases: ‘‘collective-bargaining units must 

be based upon all the relevant evidence in each individual case.’’ American Cyanamid, 131 NLRB at 911 (emphasis added). Consistent with the statutory mandate 

to foster industrial peace through effective collective bargaining, ‘‘each unit determination must have a direct relevancy to the circumstances within which collective 

bargaining is to take place.’’ Id. 

Thus, the Board’s unit determinations have long considered, and should continue 

to consider, whether the scope of a proposed unit makes sense from the standpoint 

of the collective bargaining that will take place if the union prevails in the election. 

The Board should not, as Member Becker suggests, simply approve the narrowest 

unit sought by the petitioning labor organization and then leave it to the parties 
34 

3 In Wheeling Island Gaming, Member Becker asserted that ‘‘litigation, often protracted litigation, over the scope of the unit occurs prior to almost every contested election.’’ 355 NLRB No. 

127, slip op. at 3. This is a cleverly worded but misleading statement, given that the overwhelming majority of Board elections are not contested. And, of that small minority of cases 

that are contested, many do not involve issues of unit scope. They frequently involve issues of 

unit composition (e.g., exclusion of supervisors) and related issues. 

to reshape the unit if their ‘‘experience with collective bargaining suggests to them 

that bargaining would be more productive in a larger or differently contoured unit. 

* * *’’ Wheeling Island Gaming, 355 NLRB No. 127, slip op. at 2. To do so would 

undermine the stability of the work environment and the various relationships between employees, employers and unions. The Board has a statutory responsibility 

to make that determination in advance, and to withhold approval of bargaining 

units that are not suitable to effective collective bargaining. 

2. THE BOARD SHOULD NOT HAVE, IN THE CONTEXT OF A CASE ARISING IN THE

NONACUTE HEALTHCARE INDUSTRY, REEXAMINED THE STANDARDS APPLIED IN ALL

OTHER INDUSTRIES

Although Specialty Healthcare arose in the nonacute health care industry, the 

Board extended its misinformed ruling to most industries within the Board’s jurisdiction. Specialty Healthcare, 356 NLRB No. 83, slip op. at 20. This is a dangerous 

proposition. It is contrary to the Board’s decision in American Cyanamid, which recognized that appropriate unit determinations are individualized determinations that 

‘‘will vary from industry to industry and from plant to plant.’’ American Cyanamid, 

131 NLRB at 911. The Board’s determination as to the scope of a proposed CNAonly unit in the nonacute healthcare industry should not have given rise to a presumption that would apply in the many other industries regulated by the Act. 

The Board asserts that ‘‘[i]ndustry-specific rules are the exception, not the norm.’’ 

Specialty Healthcare, 356 NLRB No. 56, slip op. at 3. Yet, the healthcare industry 

clearly is one such exception, given the rulemaking and pattern of decision-making 

that formed the backdrop for this case. Unit determination standards developed in 

this industry should not be the vehicle for creating a new presumption for all other 

industries. 

Unit determinations in other industries are based on different considerations and 

patterns of decision-making. In the utility industry, for instance, there is a presumption in favor of system-wide bargaining units. See Alyeska Pipeline Serv. Co., 

348 NLRB 808, 809 (2006); Baltimore Gas & Elec. Co., 206 NLRB 199, 201 (1973); 

Colorado Interstate Gas Co., 202 NLRB 847, 848 (1973); Louisiana Gas Serv. Co., 

126 NLRB 147, 149 (1960). This presumption rests not only on community of interest factors, but also on the fundamental policy objective of the Act—minimizing 

interruptions to commerce resulting from labor disputes. See Alyeska Pipeline, 348 

NLRB at 812 (‘‘The Board’s presumption in favor of a systemwide unit is based, at 

least in part, on the judgment that an increase in the number of units leads to an 

increase in the number of potential labor disputes and work stoppages.’’); Baltimore 

Gas, 206 NLRB at 201 (‘‘That judgment has plainly been impelled by the economic 

reality that the public utility industry is characterized by a high degree of interdependence of its various segments and that the public has an immediate and direct 

interest in the uninterrupted maintenance of the essential services that the public 

utility industry alone can adequately provide.’’). 

There are also unique considerations and patterns of decision-making in other industries that play a major role in the national economy, including the trucking industry, the maritime industry, the hotel industry, the retail food industry, the television and radio industry, the newspaper industry, the construction industry, and 

in higher education. The Board should not have, in the context of a case arising in 

the nonacute healthcare industry, attempted to fashion a new unit determination 

standard that now applies in all of these industries. The standards to be applied 

in any industry should be determined only in a case arising in that particular industry, after full development of the unique facts and circumstances and patterns of 

collective bargaining that exist in that industry. 

The Board suggests that changing the unit determination standard may help prevent litigation over the scope of a proposed bargaining unit. Specialty Healthcare, 

356 NLRB No. 56, slip op. at 3. This is not a sensible reason to upset the unit determination standard in all industries. Under the current standard, litigation concerning the scope of a bargaining unit is rare; over 90% of elections are conducted 

pursuant to a stipulation. See Office of the General Counsel, Summary of Operations (Fiscal Year 2010), Memorandum GC 11-03 (Jan. 10, 2011) (reporting that 

92.1% of representation elections in FY 2010 were conducted pursuant to agreement 

of the parties, compared to a 91.9% election agreement rate in FY 2009).3 Changing 
35 

the unit determination standard will produce more, not less, litigation because wellestablished precedent is now called into question and the parties will have an incentive to litigate in an effort to shape the law under the new standard. For this reason 

as well, the Board should not have engaged in a sweeping revision of its existing 

unit determination standards. 

3. THE WDFA WILL FIX THE PROBLEMS CREATED BY SPECIALTY HEALTHCARE AND

CODIFY THE BOARD’S LONG-STANDING PRECEDENT

The WDFA will address the issues highlighted above in the following manner: 

• Bargaining Unit Determination—To limit proliferation and fragmentation of 

bargaining units, the legislation codifies the test used prior to Specialty Healthcare. 

Bargaining units are made up of employees that share a ‘‘sufficient community of 

interest.’’ In determining whether employees share a ‘‘sufficient community of interest’’ the Board will weigh eight factors, including similarity of wages, working conditions and skills. The Board will not exclude employees from the unit unless the interests of the group sought are sufficiently distinct from those of included employees 

to warrant the establishment of a separate unit. (Section 2(1), starting on page 2 

line 2, ending on page 3 line 1.) • Bargaining Unit Challenges—To ensure employers can dispute union-proposed 

bargaining units, WDFA codifies the test used prior to Specialty Healthcare. Any 

party seeking to enlarge the proposed bargaining unit must demonstrate that employees in the larger unit share a ‘‘sufficient community of interest’’ with those in 

the proposed unit. (Section 2(1), starting on page 3 line 2, ending on page 3 line 

11.) 

B. The WDFA Would Protect Employees’ Right to Make a Fully Informed Decision In an Election 

In addition to the Specialty Healthcare bargaining unit issue, the WDFA also addresses the election rules issues raised by the Board’s recent rulemaking attempt 

to use ‘‘quickie’’ elections and other changes to the Representation Case (or ‘‘R-case’’) 

procedures in union campaigns. The NLRB’s proposed R-case rules would place excessive burdens on all businesses covered under the Act and would be unfair to employees. The WDFA is intended to protect employees and employers alike from such 

harsh consequences. 

Initially, it is highly inappropriate and ill-advised for the NLRB to propose new 

regulatory burdens on the backs of business at a time when the country is struggling to recover from economic recession, stimulate business investment and job 

growth, and reduce unemployment. The NLRB’s proposed historic overhaul of its 

Representation-case rules flies in the face of President Obama’s Executive Order 

13563 and admonition to government agencies not to promulgate new regulations 

unless absolutely necessary, and to review existing regulations which would unduly 

and unnecessarily burden business, especially smaller businesses. 

In fact, the new rule would impose significant cost burdens on smaller businesses 

forced to invest the time and resources necessary to prepare for Representation-case 

hearings within as little at seven calendar days notice (in reality 5 working days), 

prepare a much more detailed ‘‘Excelsior list’’ within two days thereafter, and prepare for an election within as little as ten days from the date of the petition, and 

then prepare for a post-election challenge to unit questions and voter eligibility. The 

employer is likely to be un-counseled and susceptible to inadvertent unfair labor 

practices. 

All of the foregoing nearly eviscerates the ability of the employer to communicate 

with its employees and the ability of employees to obtain all the information necessary to make an informed decision. Just as union organizers are entitled to campaign among employees, employers have an equal right under the Act to express 

their opinion as to how unionization may affect the business, employees and customers. Absent sufficient time for employees to hear and discuss both sides of unionization with employers and fellow employees, the employees will not be adequately 

informed prior to voting, and thus will not have a meaningful opportunity to exercise their right under the Act to support or refrain from supporting a union. 

Americans are not very familiar with unions. Most small businesses, indeed most 

employees, know very little if anything about unions, union organizing, and union 

elections. They are working hard, struggling to survive in a down economy and to 

compete in a global economy which threatens their jobs and their businesses. Until 

recently, when certain Board actions elevated the agency in notoriety, most people 

had not heard of the NLRB, and gave little thought to unions, union organizing, and 

collective bargaining. 

With ‘‘quickie’’ election rules in place, there will be little time to educate employees and prepare a response to a union organizing campaign so that employees will 
36 

4 29 U.S.C. § 158 (c). Section 8(c) provides: 

The expressing of any views, argument, or opinion, or the dissemination thereof, whether in 

written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor 

practice under any of the provisions of this Act, if such expression contains no threat of reprisal 

or force or promise of benefit. 

be fully and fairly informed prior to the election. This is especially true for employees of smaller businesses—the ones whom the NLRB Chairman now certifies as experiencing no significant economic impact. In fact, the real cost for small business— 

the real economic impact—is taking the time and resources away from productive 

endeavors and job creation, and diverting them to preparing for ‘‘quickie’’ elections 

and ‘‘quick snap’’ organizing campaigns even if they never come. 

But the Board Majority simply chooses to ignore the economic impact of the rule 

or offer alternatives for small business under an Initial Regulatory Flexibility Act 

Analysis. Indeed, given the fast-moving train running on the current proposal one 

may wonder whether the final rule has already been written. The more the Board 

rushes to ram these rules through the process, the more one senses that the final 

rule, in the words of dissenting Board Member Brian Hayes, is a ‘‘fait accompli.’’ 

As he said: ‘‘The sense of fait accompli is inescapable.’’ 

1. THE PROPOSED RULES ARE EXCESSIVE AND UNFAIR

The proposed rules are not small changes merely adapting to ‘‘changing patterns 

of industrial life.’’ 76 Fed. Reg. at 36816 (quoting NLRB v. Weingarten, 420 U.S. 

251, 266 (1975)). As stated recently in the public hearings on the proposed Representation-case rule changes before the NLRB by former NLRB member Chuck 

Cohen, I know and to an extent expect each Board appointed by a newly-elected political Administration to push the envelope in deciding cases in one direction or another—liberal/conservative, pro-union/pro-management. But Mr. Cohen stated that 

the regulatory changes proposed here do not push the envelope—they blow up the 

envelope. Statement of Charles I. Cohen before the NLRB Public Meeting, June 18, 

2011. 

The Board’s proposed rule focuses almost exclusively on the timing of the representation election process, referring frequently to ‘‘the expeditious resolution of 

the election process.’’ (See, e.g., 76 Fed. Reg. at 36,812, 36,813, and 36,817). However, the proposed rule appears to be concerned primarily with how rapidly it can 

push the election timetable from the date of the filing of a petition to the election 

itself. It pays less attention to what the Board claims as its priority—the timing 

from the date of the petition until resolution, including post-election procedures. In 

many cases the time saved at one end of the process by deferring pre-election hearings on unit determination and voter eligibility will more than be made up for by 

delays at the other end in post-election litigation. The proposal’s 20 percent rule and 

the rendering Board Review of Regional Director’s Decisions discretionary invite 

mischief as well. 

‘‘Quickie election’’ proposals under the Act are not new. They have been sought 

by organized labor for years to bail out its declining union density. ‘‘Quickie elections’’ were a major part of the 1978 Labor Law Reform Act. Originally, labor sought 

time frames of 45 days. The bill as introduced in the House called for 15-25 days 

depending on complexity. The Senate bill provided for up to 21 days and the Senate 

substitute was 35 days. Barbara Townley, Labor Law Reform in U.S. Industrial Relations. Gower Publishing, 1986 at 124-125. 

More recently organized labor sought to enact legislation that simply would have 

done away with secret ballot elections—there would have been no elections, only 

card check certification under the Employee Free Choice Act (EFCA). See S. 560, 

111th Cong., 1st Sess. (2009); H.R. 1409, 111th Cong. 1st Sess. (2009). What unions 

could not achieve through Congress, either under the 1978 Labor Law Reform Bill 

and more recently through EFCA, they now seek to achieve through rulemaking 

with the help of reliable compatriots in the Administration and at the Board. As 

dissenting Board Member Hayes ruefully predicted, ‘‘by administrative fiat in lieu 

of Congressional action * * * (the proposed rules) will impose organized labor’s 

much sought-after ‘quickie election’ option.’’ 76 Fed. Reg. at 36,831. 

An employer’s free speech rights under Section 8(c) of the Act4 only has meaning 

if there is a realistic opportunity to speak. The United States Supreme Court has 

characterized the Congressional policy as ‘‘favoring uninhibited, robust, and wideopen debate’’ of matters concerning union representation, so long as that does not 

include unlawful speech or conduct. Chamber of Commerce v. Brown, 554 U.S. 60, 

67-68 (2008). Limiting the reasonable opportunity for such uninhibited, robust and 

wide-open speech is the equivalent of denying it altogether. 
37 

5The fact is, however, that most businesses, especially small businesses prefer to focus energy 

and resources on creating a strong working relationship with their employees and developing 

business opportunities. Moreover, these same employers are not sufficiently sophisticated in 

labor matters to be so forward thinking. In fact, it is more likely that small to mid-sized businesses will not know who the NLRB is and what union organizing means to their company until 

a petition for election is received. 6See, e.g., two studies whose release in June 2011 appeared to be coordinated with the 

NLRB’s proposed Representation-Case Rules which were published in the Federal Register as 

a NPRM on June 21. Kate Bronfenbrenner and Dorian Warren, The Empirical Case for Streamlining the NLRB Certification Process: The Role of Date of Unfair Labor Practice Occurrence, 

ISERP Working Paper Series 2011.01 (2011); John Logan, Erin Johansson, and Ryan Lamare, 

New Data: NLRB Process Fails to Ensure a Fair Vote, Univ. of Cal. Berkely Res. Brief (June 

2011). See also, an earlier Bronfenbrenner study entitled No Holds Barred—The Intensification 

of Employer Opposition to Organizing, May 20, 2009, Economic policy Institute Briefing Paper 

#235, in which her questionable collection methodology relied as the primary source of anecdotal 

evidence interviews with the lead organizers involved in the organizing campaigns and elections 

studied. See, Responding to Union Rhetoric: The Reality of the American Workplace—Union 

Studies on Employer Coercion Lack Credibility and Integrity, U.S. Chamber of Commerce White 

Paper (2009). 

Allowing unions to control the timing of an election by campaigning for as long 

as it takes to get sufficient signatures on authorization cards from often harassed, 

brow-beaten employees, then springing an election petition on the employer giving 

the employer only 10—21 days (using dissenting Board Member Hayes’s estimate) 

to respond is hardly labor law equality. Unions will argue that the employer has 

the ability to campaign against unionization from the employees’ first days at work.5

That ignores, however, the fact that what for many employees is only white noise 

when discussed in the abstract, suddenly becomes important when there is a particular union involved. Employees have many questions after that. They want to 

know the union’s record of delivering on promises made during a campaign, its contracts negotiated with other employers, its record of fair treatment of members and 

its exercise of the duty of fair representation in arbitration, its record of corruption, 

embezzlement, money laundering, and the like, and its political contributions and 

other campaign support for political candidates, and so on. 

2. ‘‘QUICKIE’’ ELECTION RULES ARE UNNECESSARY

The irony is that if the goal of the rule change is to give unions more opportunity 

to organize, which apparently it is, there is little empirical evidence the ‘‘quickie’’ 

election rules are even necessary given current record-setting election statistics both 

in terms of timing and results. The only studies linking election deadlines with 

union success are fundamentally flawed and self-serving drawing exclusively on 

statements from union organizers or ignoring other more credible sources.6

In fact, if speed were the only basis for determining fair elections, the Board is 

doing quite well, as demonstrated below and as noted in Board Member Hayes’ dissent at 76 Fed. Reg. at 36,831 n.5. As stated in the proposed rule, over the past 

decade, Board supervised secret ballot union representation elections have taken 

place within the median time of 38 days from the date of the petition; in 2010 that 

statistic was 31 days, far fewer than the Board’s target of 42 days. Contrast that 

with the record in 1960 when the median time was 82 days! See 76 Fed. Reg. at 

36,813-36,814. 

Unions won a majority of elections throughout that same period, with a 68.7 percent win rate in 2009 and 67.6 percent in 2010. See NLRB Election Report (Oct. 

19, 2010) and Board Member Hayes’s dissent at 76 Fed. Reg. at 36,832. It is not 

the function of the NLRB to assure union wins. The proposed rule states that it is 

‘‘unwarranted’’ to assume that the rules changes are designed to ‘‘increase the election success rate of unions.’’ 76 Fed. Reg. at 36,829. While the Board describes that 

goal as ‘‘unpredictable and immaterial’’ (76 Fed. Reg. at 36,829), clearly that is not 

what unions believe. They openly tout these rule changes, just as they touted EFCA, 

as a ‘‘game changer’’ whereby they will increase union density. 

3. THE WDFA GIVES EMPLOYEES AND EMPLOYERS THEIR RIGHTFUL VOICE IN THE

PROCESS

In recent years under both Democratic and Republican Majorities, the Board lost 

credibility simply by going too far. The Board’s proposed Representation-case rules 

do much more than push the envelope slightly in one direction or the other; they 

‘‘blow up the envelope’’ entirely. The WDFA curbs this severe blow and addresses 

the issues highlighted above as follows: 

• Voter Eligibility—To ensure employees know who will be in their bargaining 

unit, know whether the issue of representation affects them personally and avoid 
38 

complications on eligibility, e.g., whether an employee is a supervisor, the Board 

shall determine the appropriate bargaining unit prior to an election. (Section 2(1), 

page 2 line 3.) 

• Scheduling of Pre-Election Hearing—Employers would have at least 14 days to 

hire an attorney, identify issues, and prepare their case for pre-election hearing. 

Employers and unions would have the same 14 days to compromise and agree on 

election issues. (Section 2(2)(A), starting on page 3 line 14, ending on page 3 line 

16.) 

• Identifying Issues in Dispute—Employers and unions could independently raise 

any issue or assert any position at any time prior to the close of the hearing. Employers and unions would be free to raise issues as the hearing record develops, ensuring a fair and effective pre-election hearing. (Section 2(2)(B), starting on page 4 

line 3, ending on page 4 line 5.) 

• Pre-election Board Review—Employers and unions could file post-hearing appeals with the Board, ensuring uniformity in Board decisions and clarity prior to 

the election. (Section 2(2)(C)(i), starting on page 4 line 7, ending on page 4 line 9.) 

• Timing of Election—The Board will conduct an election as soon as practicable, 

but no less than 35 calendar days following the filing of an election petition. Employers will have time to share their opinions with employees, and employees will 

have time to become educated so they may effectively judge whether or not they 

wish to be represented by a union. (Section 2(2)(C)(ii), starting on page 4 line 10, 

ending on page 4 line 14) 

• Excelsior List—Rather than providing names and home addresses, employers 

will be required to provide the union with names and one additional piece of personal information of all employees on the final vote list seven days after the preelection hearing. The additional piece of information, such as a personal phone number, email address, or home address, will be chosen in writing by employees. This 

will ensure employees can choose how to be contacted and protect employee privacy. 

(Section 2(2)(D), starting on page 4 line 15, ending on page 4 line 24.) 

III. Conclusion and recommendation 

Based on the foregoing, I support the Workforce Democracy and Fairness Act as 

a means by which Congress can protect the rights of all employees in a workplace 

to vote on unionization and their right to information from all sides before being 

forced to vote. The WDFA is also good for businesses, especially smaller businesses, 

because it would prevent fragmented workforces in which management would be 

forced to negotiate multiple contracts with multiple groups of employees or have 

fundamentally different sets of policies, pay, and practices for employees who are 

working side-by-side in their jobs. From a macroeconomic perspective, the WDFA 

will also protect jobs because it will avoid the unnecessary costs arising from fragmented workforces. 

Chairman KLINE. Thank you very much. I thank all the witnesses for your testimony. It is clear that we have a panel of experts. All of you heeded my request on timing. This is the most precise in abiding by the green-yellow-red lighting system I think that 

we have seen here. Thank you very much for that. 

We are going to move to questions now. And I will ask my colleagues to please try to limit themselves to 5 minutes. I will drop 

the gavel relatively quickly if we start extending. Okay, I recognize 

myself. 

There is apparently some disagreement here over what ‘‘Specialty’’ means and who it applies to. Clearly, we were addressing 

this in this legislation. So let me start, Mr. Cohen, with your experience with the board. Prior to this Specialty ruling, what standard 

has the board applied to determine corporate union bargaining 

units? 

Mr. COHEN. Thank you very much, Chairman Kline. I think perhaps the best way to describe the community of interest and the 

distinction of interest and the various language pieces that come 

about is with a very practical example, if I could please give it. 

Chairman KLINE. Please. 
39 

Mr. COHEN. There is a case called Wheeling Island Gaming, 

which was the predecessor to our situation here. In Wheeling Island Gaming—that was a casino, obviously—the union sought to 

organize a unit limited to blackjack dealers. The employer said, 

‘‘Hold it. The smallest appropriate unit would have to include poker 

dealers and some related individuals, as well.’’ 

The case went to the board. The board decided that the blackjack 

dealers was too small of a unit. There was a dissent in that case 

by Member Becker, sole dissent. That was then teed up in Specialty Healthcare, which is being palmed off as a health care institution case. In Specialty, the board said, ‘‘We want to consider, for 

all industries, how to change these standards.’’ 

So what did the board do? They issued Specialty Healthcare on 

its facts, but then expanded it to virtually all industries. 

Chairman KLINE. So if I could interrupt. So going back to the casino, following Specialty it is your belief that those blackjack dealers could be formed into a union, and the poker dealers formed into 

a union and the cashiers at the window. I assume you go to a window to cash in your chips or something. I never have any cash-in, 

but something like that. 

So you could have multiple bargaining units inside that casino, 

and that has nothing to do with health care, acute care, or any 

other kind of care. 

Mr. COHEN. That is correct. There is one thing that the employer 

can do is, it can go to a hearing, under Specialty, and say, ‘‘Look, 

there is something called an overwhelming community of interest 

between the poker dealers and the blackjack dealers.’’ And if the 

employer can prove that overwhelming community of interest 

standard, then the smallest unit would have to include both of 

them. 

But we do not know what an overwhelming community of interest is in these circumstances. It is not a concept which has been 

prevalent in representation election questions. It is a different concept. So we have an artificial wall created here, with an opportunity of the employer to try to prove something which would be 

exceptionally hard to prove. 

And in my judgment, a career NLRB regional director would be 

compelled in almost every case to find that a collective bargaining 

unit composed exclusively of the blackjack dealers that would, be 

the order of the day. 

Chairman KLINE. Thank you. And so in Mr. Russell’s example, 

this could apply everywhere. He talked about a grocery store—I 

think it is a terrific example—where you have people in the meat 

department, the grocery department, the baggers, the stockers, the 

cashiers. And all of those could be, and would almost necessarily 

have to be, recognized as a bargaining unit. 

Back to you, Mr. Cohen. This bill that is before us, would that— 

this legislation, the four-page, this four-page bill, I know it is less 

than 1,000 pages so sometimes it is hard for us to face that—would 

that address the concerns that you have just told us about? 

Mr. COHEN. I believe it would. It would, in my judgment, restore 

us to the law before August 26, which is all that that aspect of the 

bill would deal with. And then if we also go back to the proposed 

quickie election rules it would also eliminate those. We have had, 
40 

for decades, very well-oiled machinery in place for determining employer positions, going to hearings if necessary. 

But in over 90 percent of the cases, employers do not even go to 

hearings and elections are held very quickly and unions win substantial numbers of elections, virtually two out of three, but that 

is not enough in the environment we are in now. What this attempt is to do is to gerrymander the unit into something micro, 

and then have an election before there is an opportunity to respond 

to it. 

Chairman KLINE. Thank you. 

Mr. COHEN. So this bill would help very much in restoring the 

situation to where we were. 

Chairman KLINE. Thank you. My time has expired. 

Mr. MILLER, you are recognized. 

Mr. MILLER. Thank you very much, Mr. Chairman. Thank you to 

all of the panel for your testimony. 

Mr. HUNTER, as I dig through this legislation, I do not see how 

you get to an election against a determined—mildly determined 

perhaps, under this legislation—employer? How do you get there? 

Mr. HUNTER. I do not think you get there for years, as a practical 

matter. Because the way this legislation reads, no direction of election can be made until review has been had of any issue in that 

case. And as a—— 

Mr. MILLER. That is not a discretionary decision. 

Mr. HUNTER. It is not a discretionary decision because it is now 

mandatory. Which means instead of the small number of cases for 

which review is actually granted, every single case will have to go 

for review. As a consequence, it is going to cost the board a tremendous amount of money to do that instead of effectuate the other 

purposes of the act. 

And it is going to plug up the procedure, and it is going to take 

years. 

Mr. MILLER. Under current law, those issues are raised at the regional level. Is that correct? 

Mr. HUNTER. Well, under current law those issues, those preelection issues, are raised before a regional director and an employer can seek review. But only if review is granted. 

Mr. MILLER. How many of those, what percentage of those, issues 

raised at the regional level are—— 

Mr. HUNTER. A very small, extremely small, percentage of 

those—— 

Mr. MILLER [continuing]. Forwarded for review? 

Mr. HUNTER [continuing]. Are granted. And in some cases, even 

where review is granted—for example, in some cases review—review will be granted over a discrete question as to whether—— 

Mr. MILLER. Five percent of the cases, 1 percent of the cases? 

Mr. HUNTER. Yes, a certain set of people, or supervisors, or something. Then even when review is granted, those individuals area 

simply allowed to vote under challenge. 

Mr. MILLER. And then the process goes forward. 

Mr. HUNTER. Yes. 

Mr. MILLER. Under the proposed legislation, the process stops 

until there is a review of every one of those—— 

Mr. HUNTER. That is absolutely correct. 
41 

Mr. MILLER [continuing]. Appeals is brought to the board. 

Mr. HUNTER. That is absolutely correct. 

Mr. MILLER. So the incentive is in filing an appeal. 

Mr. HUNTER. That is right. I mean, if an employer does not want 

to have a union they need to simply keep that process going until 

people lose interest, or—— 

Mr. MILLER. You know, we just went through a couple of years 

of investigation and study under mine safety, where clearly a conscious decision was made by the companies to flood the appeal system on enforcement penalties and fines so that effectively all the 

processes of the review board were completely stifled. 

So if you do not want to pay a fine, you do not want to improve 

the workplace, you do not want to make is safer, you just keep 

flooding it with appeals, and your judgment day is put off years 

into the future, if ever. 

Mr. HUNTER. I think that is exactly right, and that is exactly 

what will happen. 

Mr. MILLER. So every issue that you can conceivably raise at the 

regional level, you would then take to an appeal. And I think currently those that are accepted, which is a 1 percent or 2 percent 

of the cases, I think, that are accepted by the board. Those take 

about a year-and-a-half? 

Mr. HUNTER. Yes, they can take a year-and-a-half, 2 years. 

Mr. MILLER. So we have all of this concern of the timelines that 

are set in the proposed regs, and yet there is no concern here with 

the fact that the election can be postponed for years. And we all 

know what that means in an organizing drive is that people leave 

professions, people lose heart. 

The employer never lets up on the drumbeat, never lets up on 

the campaign against the union. We know that an incredible 

amount of illegal intimidation goes on in the workplace against the 

union. So that drumbeat goes on for a year, 2 years, what have 

you, while a group of employees has decided they want to join the 

union lives under that assault. 

And if it is now with 1 percent of the appeals being accepted or 

2 percent of the appeals being accepted, that time frame is over 

500 days. It is effectively—— 

Mr. HUNTER. It denies employees the right to organize. 

Mr. MILLER. There is no reason—— 

Mr. HUNTER. It simply denies it. 

Mr. MILLER. Perfect. Thank you. 

Chairman KLINE. Thank the gentleman. 

Mrs. BIGGERT, you are recognized for 5 minutes. 

Mrs. BIGGERT. Thank you, Mr. Chairman. 

My question would first be for Mr. Russell. And this may be a 

question of the number of days. If we are talking 17 days or we 

are talking 14 days, is that calendar days or is that business days? 

Mr. RUSSELL. Calendar days. 

Mrs. BIGGERT. Calendar days. So if an employer had the 7 days 

to find an attorney and prepare for the pre-election hearing, that 

means that, let us say, they got a petition filed on Thursday or Friday. Then that means that that would include the weekend for 

them do all this. 
42 

Let us add Friday. So really cannot get ahold of an attorney until 

Monday if somebody is not available because the offices are closed. 

Mr. RUSSELL. That is correct. So you will get petitions filed Friday at 5 o’clock. 

Mrs. BIGGERT. So that would count the Friday. 

Mr. RUSSELL. Correct. Well, it would not count the day of the filing. You count from there. We would start with Saturday, Sunday, 

and so forth. 

Mrs. BIGGERT. So then the next Friday they would have to have 

filed, have an attorney, and prepared the case for the pre-election 

hearing. 

Mr. RUSSELL. Correct. I think what troubles me about that is, 

from a small business perspective—and, again, I am going to go 

back to the grocery store and the example that I use—the one that 

I represented in that campaign—they had never dealt with these 

kind of issues before ever. 

Nor had any of the employees that were working for the grocery 

store. And there were about 100 employees. None of them had ever 

had any experiences with unions at all. They did not know what 

they mean, did not know what the realities were of union membership, the good and the bad. 

They simply had no knowledge whatsoever. And today, the private workforce is only organized at about 7 percent. So there is an 

awful lot of employees out there who had never been in a union— 

Generation X, the Millennials, not even their parents. 

Mrs. BIGGERT. So in your experience, how much time do you 

think an employer needs to prepare his staff, to educate his employees about the effects of the unionization? 

Mr. RUSSELL. Well, there is really two parts to that. And think, 

first of all, how much time does the company need at first to hire 

an attorney and figure out the legal issues. I think this bill provides for at least 2 weeks. That, again, really is only 10 business 

days. 

But at least I think that time period is workable, and it is a reasonable compromise. It is definitely not overreaching. And I do not 

believe, as Mr. Hunter says, delays the process inordinately. But 

it does give the employer an opportunity to get the legal team together and to get some advice. 

And as Chairman Kline pointed out, these rules are complicated. 

There is another resource we go to all the time called the Developing Labor Law, which really is the Bible for labor lawyers, unionand management-side. And it is two volumes. 

So in order to get your arms around it, not all campaigns are 

alike. It takes time. Now, the second part you asked about how 

long it takes to educate employees. You know, I think, again, let 

us point to the current data which Mr. Cohen indicated. Thirtyeight days is the median time frame, the average is 31 days. 

I think the bill provides for at least 35 days. That is a reasonable 

time, and a good compromise, in which employees can exercise 

their right to get information before being forced to vote. 

Mrs. BIGGERT. Do you know how many days the NLRB looking 

to have these elections take place? 

Mr. RUSSELL. Yes, they wanted the elections in as few as 10 days 

after the petition was filed. That is simply unworkable. It is unfair 
43 

to the employees. They will not get the information they need, employers will not get the advice and support they need. 

Mrs. BIGGERT. Okay. 

Then thank you very much. Mr. Cohen, in testimony, and I think 

Mr. Russell also talked about this, you highlight the fact that employers would likely be unaware of pre-petition union activities, 

and yet would be forced to prepare themselves for the process, an 

abbreviated time frame. 

Can you give me some of the other pre-petition union activities 

that would place an unfair burden on the employer? 

Mr. COHEN. Well, sure. As Mr. Russell testified, unions, in their 

organizing drives, very rarely go to the employer and say, ‘‘Mr. Employer, I want to organize your employees.’’ They get together a 

group of individuals who they think they have like cause with, and 

they work with them. 

Then they decide, in their own judgment, what the appropriate 

unit is going to be. And then they will proceed to do the organizing 

around that collect course. 

Mrs. BIGGERT. Because I do not have too much time, I just wanted to ask you one other question. 

Mr. COHEN. Sure. 

Mrs. BIGGERT. And that is, what about the right to privacy under 

the proposed rules that would be concerned? 

Mr. COHEN. Right now, there is an obligation to provide what is 

called an ‘‘excelsior list,’’ which is the name and home address of 

employees. A lot of employees resent that. But employers say this 

is what the law requires, and that is it. 

Under the proposed rules, there would have to be given over electronic communication information. It is unclear, under the rules, 

whether it is going to be business e-mails, work e-mails, or personal e-mails, or both. Both of those, I think, severely intrude on 

employee privacy rights. 

And it is not a warranted reason, in my judgment, to have that 

kind of imposition required. 

Chairman KLINE. The gentlelady’s time has expired. 

Mr. Andrews? 

Mr. ANDREWS. Thank you, Mr. Chairman. 

Mr. COHEN, you make the case that speed alone should not be 

the predominant value for NLRB decision-making process. Do you 

think that one of the other values should be careful reasoning and 

accuracy of their decisions? 

Mr. COHEN. Obviously one would tend to think that accuracy is 

a value and, of course, it is. But if I can—— 

Mr. ANDREWS. I only have 5 minutes unless, of course, the chairman gives me another minute and a half. 

Mr. COHEN. But, Mr. Andrews, the law does not require that. 

Unions can misrepresent, and employers can, as well. 

Mr. ANDREWS. Mr. Cohen, let me ask the questions. Would you 

agree that the regional directors are, by and large, quite competent 

in rendering decisions in the present decision-making process? 

Mr. COHEN. I think, by and large, the regional directors do a 

good, conscientious job of applying the law that is before them. 

Mr. ANDREWS. Right, I agree with you. Do you know what percentage of representation cases the National Labor Relations Board 
44 

presently takes? Because it has the discretion to hear them or not 

now. What percentage of cases do they take up in representation 

cases at the full board? 

Mr. COHEN. Very small. Because the review process, which occurs before the election is held—— 

Mr. ANDREWS. Right. 

Mr. COHEN [continuing]. Either determines to grant review, 

which only happens in a very small number of cases—— 

Mr. ANDREWS. The answer—— 

Mr. COHEN [continuing]. Or to decline review. 

Mr. ANDREWS. The answer is 1.3 percent. Now, is it not correct, 

under the bill that is in front of us, they would have to take 100 

percent of the representation cases? 

Mr. COHEN. I believe that that is rather a technical issue with 

the proposed legislation. 

Mr. ANDREWS. No, it is—— 

Mr. COHEN. As I understand it—— 

Mr. ANDREWS. Well, as I read the legislation, it says that every 

representation case must be decided by the full board. Now, what 

do you think that would do in terms of delaying elections? 

Mr. COHEN. I would expect that the numbers would not change 

under the proposed legislation. What would happen—— 

Mr. ANDREWS. Really? 

Mr. COHEN [continuing]. The regional director would issue—— 

Mr. ANDREWS. Please let me ask the questions. If they had to 

take 100 percent of the cases and review them, instead of 1.3 percent, you do not think that would result in more delay. 

Mr. COHEN. They have 100 percent now. 

Mr. ANDREWS. They take 1.3 percent of the cases now on their 

discretionary review. What reason do you think might exist to require them to take 100 percent of the cases for review? 

Mr. COHEN. Again, please, Mr. Andrews. They have 100 percent 

now. The issue, 90-some percent are waived at the initial stage. 

Then there are only a few where reviews are granted. And all that 

takes place before the election, which is occurring in a quick period 

of time. 

Mr. ANDREWS. And as I read this bill, it eliminates the possibility 

of that waiver. It says they have to take up all the bills, and I 

think that would create a major problem. 

Mr. SULLIVAN, you represent the major retailers of the country? 

Mr. SULLIVAN. I represent the Retail Industry Leaders Association. So it is the trade association and not the retailers themselves. 

Mr. ANDREWS. Has your association taken a provision on the 

president’s proposal that would stave off a $1,500 a year tax increase for middle class families if we do not act by December 31st? 

Mr. SULLIVAN. I do not know anything about that, sir. 

Mr. ANDREWS. You have not taken a position on that? 

Mr. SULLIVAN. I do not know. I do not know how to answer your 

question. 

Mr. ANDREWS. You do not know the positions your association 

takes on legislative issues? 

Mr. SULLIVAN. I do know their position on what they have asked 

me to come and testify about, but I do not know what you are asking about. 
45 

Mr. ANDREWS. Okay. I would expect they would support the proposal. I am reading a headline that says ‘‘RILA Congratulates Senate on Swift Passage of Stimulus Proposal.’’ Now, of course, that 

was the stimulus proposal under the Bush administration of February 5, 2008, which put more money in the pockets of consumers. 

Do you think putting more money in the pockets of consumers 

is good for the retail industry? 

Mr. SULLIVAN. I would have to agree that more money in consumers’ pockets is good. Other policy issues you are asking me 

about I am really not prepared to address. 

Mr. ANDREWS. I understand. 

Mr. COHEN, when you talked about the blackjack dealers and the 

poker dealers, and where the board decided that the bargaining 

unit, as I understand it, with just blackjack dealers is not big 

enough. Right? Who had the burden of proving in that case that 

the blackjack-only dealers was not the appropriate bargaining? 

Was it the employer, or was it the people trying to organize the 

union? 

Mr. COHEN. The hearing officer of the board was charged with 

developing a full record. If a position was—— 

Mr. ANDREWS. That is not what I asked you. Who had the burden of proving whether the blackjack-only unit was the right unit? 

Who had the burden of proving that? 

Mr. COHEN. Mr. Andrews, if you do not want to answer the question, then I cannot give you the answer. 

Mr. ANDREWS. Well, I would like you to answer the question I 

asked. Who had the burden of proof in that instance? 

Mr. COHEN. It is not a yes-or-no answer. It is not a one or the 

other answer. 

Mr. ANDREWS. Was it the employer, or the union? Who had the 

burden of proof? 

Mr. COHEN. The NLRB hearing officer. 

Mr. ANDREWS. The judge had the burden of proof? 

Mr. COHEN. But there is a qualifier, if you will give me a chance 

to explain that I would like to explain. 

Mr. ANDREWS. Up to the chairman. He gave the last questioner 

an extra minute and a half. I am sure he will give that to me, as 

well. Is he here? 

No. Please answer the question. 

Mr. COHEN. The answer is, the hearing officer is charged with 

developing a record. If an employer takes a position in a hearing, 

then the burden is then on the employer to make that case. That 

is the Bennett Industries case. 

Mr. ANDREWS. Does the statute change that rule, and put the 

burden on the union? The bill that is before the committee? 

Mr. COHEN. Are we talking about the quickie election rules, or 

are we talking about Specialty Healthcare? 

Mr. ANDREWS. The chairman’s bill. Does it shift the burden to 

the person trying to organize the union? 

Mr. COHEN. I am not certain in a given case. 

Mr. ANDREWS. The answer is yes, it does. Which is, that is truly 

a radical change in labor law. 

Thank you, I—— 
46 

Chairman KLINE. The gentleman’s time has now expired. Thank 

the gentleman. Let us see. 

Dr. Heck? 

Mr. HECK. Thank you, Mr. Chairman. 

Mr. RUSSELL, I appreciate your grocery store analogy. But I 

worked in a hospital emergency department as a physician, and 

look at how many different folks work in a hospital emergency department. You have doctors, nurses, CNAs, clerks, custodial staff. 

And realizing it may be an apples-to-apples comparison because 

of the health care exemptions, but theoretically then each one of 

those particular job classifications could be a separate unit. And 

then if that is the case, what about those same classifications that 

work in other departments? 

So if you work in the emergency department you would have one 

unit, if you work in med surg you could have another, if have a 

CNA in the OR you could have another. Is that possible? 

Mr. RUSSELL. That is entirely possible. In fact, another one of my 

recent campaigns involved a nursing home. So the example of the 

CNAs in the Specialty Healthcare case is something that I paid 

very close attention to. In that case, the union relented. 

We reached agreement on the election. There were not endless 

delays, we did not tie it up forever, and we got to a vote in a reasonable amount of time. I forget the exact days, it may have been 

41, but we got to a vote. And everybody in the nursing home had 

an opportunity to cast a vote and, once they got full and fair opportunity to information. 

Had Specialty Healthcare been in place, we would have an election only involving CNAs, though those jobs are fully integrated 

with everybody else. They all work side-by-side. And they may even 

work different floors on the hospital and the nursing home, but 

they still have to interact with the dietary department, they have 

to interact with the administrative employees, they have to interact 

with housekeeping, many departments. 

So you are correct. 

Mr. HECK. Thank you. And Mr. Sullivan—— 

Mr. HUNTER. Mr. Chairman, if you would indulge me I would 

like to—— 

Chairman KLINE. No, it is Dr. Heck’s time. I am sorry. 

Mr. HECK. Mr. Sullivan, usually in unions the idea is that there 

is strength in numbers. So unionizing these very small groups of 

people, how does that actually benefit the employee? 

Mr. SULLIVAN. How does it benefit the employees? 

Mr. HECK. Right. 

Mr. SULLIVAN. I think it does not benefit the employees. I think 

in—in the example that I gave in my opening testimony of the grocery store, it is very common to move from department to department in—in many retail settings. And that gives the employees the 

benefit of variety in their day, the ability to cover shifts in other 

departments, earn extra money when employees are absent which 

is obviously an important thing these days. 

And it lets them learn the business. And if single departments 

or multiple departments are organized as separate bargaining 

units, the transfer between departments is going to be hindered. 

And that is not going to be good for anyone. 
47 

Mr. HECK. Thank you. 

And Mr. Cohen, lastly—you know, I was brought up with the 

adage ‘‘if it is not broke, do not fix it.’’ What has happened with 

the decades of precedent in labor law recently that is now required, 

this fix to be propagated by the NLRB? 

Mr. COHEN. My own view of it, Congressman, is that with declining union density that—and an inability to change through legislation the NLRA, there has been attempt to go to the NLRB—where 

a majority of the members are of the party of the White House occupant—and change, through rules and regulations without the 

mandate of Congress, whatever can be done to facilitate union organizing. 

Mr. HECK. Thank you. Thank you, Mr. Chair. I yield back. 

Chairman KLINE. I thank the gentleman. 

Ms. HIRONO, you are recognized. 

Ms. HIRONO. Thank you, Mr. Chairman. 

I have questions for Mr. Hunter. Hawaii unions have told me 

that in their organizing efforts they are often prevented from accessing the workers in the workplace. Is it not true that employers 

have unfettered access to their employees at any time of the work 

day to press their views about the union? Of course, not in any 

legal way. 

But they have access. And does anything in this bill change any 

of those kinds of situations? 

Mr. HUNTER. Well, the employer does have unfettered access and 

they have unfettered access at work, where they control the employee’s work life. And importantly, they have that access not from 

the day a union organizing drive starts, but from the day that an 

employee goes to work for that employer. 

And some 90 percent of employers make their views known to 

workers as far as how they feel about labor unions. The employer 

tends to have e-mail addresses for employees. They generally have 

telephone numbers, they have they have that means of communication. 

So, you know, there may be—you know, and I have heard some 

reference to this of while the employer finds out when a petition’s 

filed that there is a union drive going on, there may be somewhere 

a union drive that the employer did not know about until the petition was filed, but I have never seen one. They always know. 

Ms. HIRONO. Yes, we have heard testimony to that effect. I also 

find that hard to believe in a real-life situation. And if we really 

cared about fair elections and fair efforts at organizing, then I 

think that there should be something in this bill that allows for the 

organizers to have access to the employee. 

Another question. It is pretty clear to me, in reading this bill, 

that the question of the filing of the various appeals that the board 

will now have to take up, there will not be discretionary waivers 

and it is going to clog things up. And I am wondering whether— 

since only about 1 percent to 2 percent of the appeals are actually 

dealt with by the board now, are there any sanctions under the 

current NLRA against parties who file frivolous appeals? 

Because I would anticipate that there will be many of those that 

the board will no longer have the discretion to dispense with under 

this bill. 
48 

Mr. HUNTER. No, there are no sanctions for filing frivolous appeals. To my knowledge, the only thing in the nature of sanction 

that the board’s ever had is people engaging in outrageous behavior 

like if I jumped on this table or something during this hearing as 

opposed to the positions I take, and what have you. 

So there are no sanctions. 

Ms. HIRONO. So generally speaking, in other parts of—well, in 

litigation, there are usually sanctions against people who file frivolous kinds of appeals. And I should think that we would want to 

put that kind of provision—it is still, if we really want to be fair 

about things. 

There were some questions relating to the burden shifting to the 

employer or to the organizers with regard to identifying the community of interest. And I just wanted to ask you, Mr. Hunter, in 

this bill once a community of interest group of employees is identified—and, of course, it is the employers who do not want to have 

the organizing effort going on, or succeed. 

They would want to expand that group. They have an incentive 

to do that. So in this bill, an employer who seeks to expand the 

bargaining unit—so that is a—organizers would have to get more 

and more signatures in order to proceed with an election. 

Does the burden shift, in this bill, to the organizers when the 

employer wants to expand the community of interest group? 

Mr. HUNTER. Well, I think as a practical matter it does. In the 

general nature of things, a union would establish that the unit that 

it seeks is a readily—has a readily identifiable community of interest. And then if an employer disputes that, they would have to 

show that that was not the case. 

The difficulty with the standard in this bill is, it essentially provides that, unless the employer does not take the position, in just 

about all cases there is only going to be one appropriate unit. Community of interest is a sliding scale. Everybody who works for an 

employer in a particular plant has one common denominator of 

community of interest. 

Everybody who works for the whole employer has a more common denominator of community of interest. That has never been 

the test. And if this is adopted, so long as an employer can show 

that there is a basic community of interest—in other words, that 

a plant unit, the act, as it reads now, indicates that the union can 

seek an employer unit, a plant unit, or some division thereof. 

If this—that has been taken out of the act in this bill. So that 

essentially, as long as there is some community of interest, if the 

employer can say it would be a viable sufficient community of interest to have all the employees in a particular state organized, 

then essentially that petition’s going to get dismissed. 

Chairman KLINE. The gentlelady’s time has expired. 

Mr. ROSS, you are recognized. 

Mr. ROSS. Thank you, Mr. Chairman. For the last couple of 

months, I have had an opportunity to work on a subcommittee 

issue that I chair. That has to do with the post office, which is a 

public sector union, totally different from what we are talking 

about here. 

But there is an analogy to be made that I think—that is interesting with regard to bargaining units. You see, some of you all 
49 

have been to the post office, and you see there is a bunch of people 

in the back just working away and there is a few people at the 

counter, and there is a long line, and nobody from the back comes 

to the front. 

Because their bargaining agreements prohibit one from crosstraining to the other. And my concern here is—especially with you, 

Mr. Sullivan, when you represent the retail industry, are we not 

seeing what has happened in the postal industry? Where by busboys, or busladies, who have now unionized, will not clear my 

table, and the waitress or waiter cannot clear it because they are 

not cross-training because they are independent bargaining units? 

It seems to me that what we are doing is allowing for an unfair 

competitive advantage to those who do not participate. And I guess 

I would just like your take on this as to whether you think that 

ultimately, if the NLRB rules go through, and Specialty Healthcare 

goes through as it is now, the standing law, are we not looking at 

a situation where we are not going to have a competitive advantage 

in our retail market? 

Mr. SULLIVAN. Well, I think that there is a threat of substantial 

harm to the entire functioning of the retail market. We—before 

this ever became an issue—and historically retailers have placed 

great emphasis on cross-training. And the nature of customer service is such that when we all walk into a store to buy something, 

and we see an employee of that store and ask a question, we do 

not want to be told, ‘‘I am sorry. I do not work in that department.’’ 

We want employees who are familiar with all departments and 

able to work in all departments. And we want them all to support 

each other. 

Mr. ROSS. So, Mr. Sullivan, you hit it on—I think in your opening statement, when you talked about if a bagger at a grocery store 

wanted to move on somewhere they really could not if they were 

part of this—one of these mini unions. And I am—and I go back 

to the founder of Wendy’s, Dave Thomas, who has since passed 

away. 

But his secret to success was, if he had to be there at 8:30 he 

showed up at 8. If he got off at 5, he worked ’til 5:30. But in light 

of many unions, in light of impediments that we are going to prohibit not only the cross-training but the advancement of employees, 

what career service, what career opportunities are there out there 

under circumstances where members of these mini unions now 

must be beholden to their mini unions? 

Mr. SULLIVAN. I do not know. 

Mr. ROSS. Mr. Russell, as a lawyer, what would you say—are 

there instances where you can say—that from a procedural standpoint it is better to shorten the time than to lengthen the time? 

Mr. RUSSELL. Which time period? 

Mr. ROSS. Any time period. I mean, as a lawyer, for procedural 

purposes are there any situations where you feel it is better to 

shorten the time as opposed to lengthen the time? 

Mr. RUSSELL. No. And what troubles me about the shortening of 

the time that the board has proposed here is that you are taking 

away the rights of the employees to get the full information they 

need. And as I said earlier, the union has already been talking to 

them for weeks or months. 
50 

What is wrong with the employer having a reasonable opportunity to get that information to the employees. 

Mr. ROSS. And, Mr. Hunter, why would you object to that? I 

mean, it seems to me that shortening the time really is more— 

doing more of a disservice to the union organizers or the employees 

for not adequately understanding the situation. I mean, why do we 

need to have the shortened period in the first place? 

Mr. HUNTER. As I indicated, first of all I do want to stress here 

that I am talking in terms of a bill, and here we are talking in 

terms of proposed rules that—for which thousands of comments 

have been submitted which we do not know what form, or whether 

they will be adopted in their precise form. Or whether—— 

Mr. ROSS. But we have a pretty good indication, based on the 

history of this NLRB over the last couple of years. 

Mr. HUNTER. The employer has had the opportunity from day 

one to talk to people and let them know their feelings on unions. 

An increase of time to essentially beat on people with—— 

Mr. ROSS. And you are okay with employers disclosing all the 

personal information under the excelsior list? Under—allowing for 

them to have all the—and maybe even opening up that employer 

to privacy suits, violation of privacy suits. 

Mr. HUNTER. I do not think that if an employer—if something becomes the law, and the employer follows the law, I do not believe 

they are going to subject themselves to any—— 

Mr. ROSS. That is your experience? 

Mr. Cohen? 

Mr. COHEN. My experience is that employees very frequently resent having their personal information turned over, and would resent to a greater extent having to turn over a greater amount of 

personal information. 

And in response, if I might, to something that Mr. Hunter said, 

I know of no employer that communicates with its employees at 

home on e-mail dealing with anything like the kinds of topics we 

are dealing with here. 

Chairman KLINE. The gentleman’s time has expired. 

Ms. WOOLSEY, you are recognized. 

Ms. WOOLSEY. Thank you, Mr. Chairman. Just on a little bit different note for just a minute, I want to thank Mr. Russell for wearing his purple ribbon. This is domestic violence month, and I have 

reintroduced legislation that would bring domestic violence victims 

and their families under the FMLA-Family and Medical Leave Act. 

And I introduced it today, so thanks for reminding me to say 

that. Because it falls under the jurisdiction of this committee. 

Mr. HUNTER. Thank you. 

Ms. WOOLSEY. Thank you. 

Okay, I cannot let go of this conversation about smart unions certainly do not let employers know that they are organizing. Well, 

first of all they cannot. They do not have access. I mean, they could 

if they are—but they are not going to. But even if they wanted to, 

they have such restrictions on and lack of accessibility to the workforce. 

So okay, we know that. They can find their way around it. But 

from day one—I was a human resources director. For 20 years, this 

is my field. Employers have access to their workers from the 
51 

minute that worker is hired. I mean, if the employer is any good, 

and smart, smart, smart, you know, is how you would say it, that 

employer has new employee meetings. 

And certainly they let their new workers know where they stand 

on unions, what they believe in as an organization. But more than 

that, day in and day out that employer has the opportunity to 

prove their workforce that they do not need third-party representation. 

That is up to the employer. They can either do it or not. And if 

they wait until the last minute, when they have been taking advantage of their employees or not treating them, you know, the 

way they ought to, then surprise, surprise. They are going to want 

somebody else to come in and represent them instead of the leadership of their company. 

So Mr. Hunter, you have said what you need to say about that 

and, you know, the accessibility. But we have been just making so 

much about how the board’s proposed new rules will hurt employers if we do not change it with this bill by getting in the way of 

their ability to compete. 

Well, I would like to ask you how many jobs do you think the 

so-called Workplace Democracy and Fairness Act is going to create? 

Mr. HUNTER. The only jobs it would create would be for people 

taking care of the warehouse full of paper for all the appeals that 

are going to wind up being filed in order to prevent workers from 

having the opportunity to organize. 

Ms. WOOLSEY. So what do you think? Walk us through just exactly do you think the employers would do if they have more time 

between filing a petition to organize and election? What do these 

employers need to do that they cannot do from day one when they 

hire their employees? 

Mr. HUNTER. Well, I think what they have, if they have additional time after a petition has been filed, it is just like for all of 

you when you are in a—you know, you are in an election race, and 

what have you. Things ramp up. And if things ramp up for an excessive amount of time, where one party has all the power over the 

work life of the persons who are going to vote it tilts the playing 

field. 

Just as it does, each of you, when you conduct political campaigns. You reach out to people by phone, you reach out to them 

at home, you reach out to them through e-mail, and staff. 

Ms. WOOLSEY. So you said something I am getting the gist of 

what you are saying. So employers do reach out to their workers 

during an organizing campaign. 

Mr. HUNTER. Oh, they do more than work. They do more than 

reach out. 

Ms. WOOLSEY. I know, I know. But they can use the e-mail, their 

e-mail list. They can use the personnel files. And they do. 

Mr. HUNTER. Absolutely. 

Ms. WOOLSEY. Well, all right. So this excelsior list that, oh my, 

we might level the playing field by having the—allowing the union 

to have that same list. 

Mr. HUNTER. Well, and keep in mind the union does not even 

have access to that Excelsior list in—until, with its hands bound 

and no access whatsoever, it manages to gather up signatures of 
52 

30 percent of the people, even without that. So it levels the playing 

field at that point, when the campaign begins, that they can at 

least reach out to people for whom the employer has been able to 

reach out from the day they started working. 

Chairman KLINE. The gentlelady’s time has expired. 

Dr. Roe? 

Mr. ROE. Thank you, Mr. Chairman. 

Last night, fairly late, Dr. DesJarlais and I got back from Afghanistan. And our last visit there was a forward operating infantry base not too far from the Pakistan border west of Kandahar. 

Those young people there were protecting our rights to have a free 

and fair election. 

I put on a uniform almost 40 years ago and left this country and 

left a family so that you would have a right to vote. As I have said 

in this committee hearing many times, I was elected by a secret 

election, the president was, the president of the unions are. And 

employees ought to have that same right to a free and fair election. 

And I think the NLRB, it looks to me like, is—should be an impartial referee so that no employer has an advantage nor an employee has an advantage during an election. And I think that is one 

of the things. In 31 years as an employer I never one time mentioned a union to my employees. Never came up. 

We—we talked about how to make our work better and more efficient. And Mr. Sullivan or Mr. Russell, either one of you can answer this. I am a physician, and we had—assisting the doctors, we 

had CNAs, registered nurses, LPNs. I have got venepuncturists, receptionists, imaging people, billing people, scheduling people. 

We have got M.D.s, D.O.s, nurse practitioners. So could any one 

of these—for instance, nursing assistants, LPNs or RNs—be a 

micro unit so that they could not go back and forth? We help each 

other and work together to do what? To provide better care for our 

patients, just as in a grocery store you need to provide services to 

the customer—me, when I come in to buy something. 

So would either one of you answer that, if you could. 

Mr. HUNTER. Well, for the moment I will stay away from employees that may be professional employees. And maybe Mr. Russell 

could follow up a little bit on that. But for the most basic parts of 

your question—I am sorry. My mistake. 

I will stay away from professional employees for the moment, 

and maybe Mr. Russell could follow up on that. For the most basic 

parts of your question, the answer I think is clearly yes. That 

CNAs and related employees are vulnerable to being organized in 

very small blocks. And I do not know whether there are different 

shifts in the practice, but certainly by job classification or department absolutely. 

And not just in different bargaining units, but also potentially by 

different unions. 

Mr. RUSSELL. I agree also with the first statement you made. 

That you never once talked to your employees about unions. Well, 

my grocery store client had no idea what to say. But here is what 

was going on behind the scenes. The union was doing something 

that, under the law, it is allowed to do. 

And that is to make promises. It can make any promises it wants 

to under the moon. It can say we are going to get you a dollar an 
53 

hour increase, we are going to increase your benefits, we are going 

to give you job security. Now, none of those are promises that they 

can necessarily fulfill, but employees do not know that. 

Whenever the petition gets filed, the employer cannot make 

promises. There is a fundamental restriction on what employers 

can say. And that is what I train my clients on whenever this 

comes up, when they know about it. One of the things an employer 

cannot do is to make promises. It is against the law. 

If they say, ‘‘Well, I promise you if you do not vote this union in, 

then I will give you a pay increase’’ they just broke the law. The 

union could say the converse of that, and it is okay. So there is a 

fundamental difference in the communications here. That is why it 

needs to be fair for the employer to have an opportunity to get that 

information to employees. 

Mr. ROE. Mr. Cohen, I want to ask you a question you brought 

up just a minute ago. Right now, when employees have an opportunity to vote, it is occurring, on a median, within 4 to 5 weeks. 

Unions win two-thirds of elections when they talk to employees. 

So this ought to be renamed, ‘‘If It Ain’t Broke, Don’t Fix It 

Law.’’ Because I do not know what problem you are trying to fix. 

To hurry something else, where people can get the information. Am 

I wrong on that? 

Mr. COHEN. No. Dr. Roe, I could not agree with you more. This 

is something which has become a well-oiled machine over decades. 

The general counsel who administers the regional offices has 

preached for years, and the regional offices have complied with, 

cutting back, cutting back, cutting back. 

We have reached a point where all we are left with is reasonable 

time frames. And it works, and it is the dual functions that the 

board has confronted us with in the last 4 months that have created the havoc and the threat of litigation and appeals coming 

forth. It is unnecessary. 

Mr. ROE. Why do you think the board did that? 

Mr. COHEN. I think the board did it because they are trying to 

affect a union density issue. They see that unionization numbers 

are low, and they see the failed attempts that they have had before 

Congress in terms of changing the law. So they are changing the 

procedures instead. 

Chairman KLINE. The gentleman’s time has expired. 

Mr. Payne? 

Mr. PAYNE. Thank you very much. Let me just say that one of 

the last witness has said that companies cannot make promises. I 

guess you are right. However, every time there is a move on the 

part of organized labor to organize, companies may not be making 

promises, as you say. And I am not so sure that they do not whisper out some things. 

One thing, though, that do make clear is that you cannot make 

promises. However, let me make it clear, as they would say, that 

if we are unionized we are probably going to have to reduce our 

workforce. It is going to create problems, we think, in the future 

because there will be demands made for pension considerations, 

wages, et cetera. 

And so conversely, even though they may not have the opportunity to make promises. They certainly have the threat, and that 
54 

is why so many union-organized efforts fail. There is no question 

that at one point they were 38 percent, 29 percent, 30 percent of 

workers in this country we are organized. It is now down to 18 percent, 16 percent, 14 percent, and going down. 

Now there is no way in the world that you would have that reverse if it were not for the power of the companies to have unions 

that are already in—expired, but to win many of the cases where 

organization of labor strength. 

I mean, one large employer in my district, the company had antiunion material that was put into the bulletin boards which was 

locked and changed daily, where there were terrible things that 

were put out. 

Of course the argument was that it was the local workers who 

were opposed to the union that did it and it was not reflective of 

the company, to the point where I had the president of the company. So this is totally unfair. 

Matter of fact, a lot of derogatory stuff, caricatures I guess you 

can make through the computer. You can have caricatures that are 

very demeaning. And so we have seen the power of the company. 

And like I said, my point is that they may not be able to promise, 

but that big stick they have about what is the future once you organize is very, very powerful. 

Mr. RUSSELL. Representative Payne, if I may respond to that, 

there are actually four things that employers cannot do. And it is 

summarized in the acronym TIPS. We keep it very simple for supervisors and managers, and it is very simple. And the T means 

threaten. You cannot Threaten, you cannot Interrogate, you cannot 

make Promises, and you cannot Spy or engage in surveillance. 

Mr. PAYNE. Let me tell you what they do. They threaten, they 

do all four of those things in their own way. Because it is a fierce 

fight, and I have been involved in seeing these fights go on. They 

do intimidate, matter of fact. They are not going to win unless they 

do it, and they do it. 

Mr. RUSSELL. And it results in an unfair labor practice charge, 

which is something that could make a rerun election or overturn 

an election. So there is an incentive not to do it. I have had campaigns where we had no ULPs. 

Mr. PAYNE. Well, they find it to their advantage to do it because 

they have the wherewithal in most instances to have the upper 

hand. 

Let me just ask the questions. And I, too, commend you for your 

ribbon, and I support that, as did Woolsey. 

Mr. RUSSELL. Thank you. 

Mr. PAYNE. Mr. Hunter, in your testimony you discussed how 

H.R. 3094 will result in the disruption of 75 years of board experience in configuring appropriate bargaining units. Can you explain 

how this legislation allows employers to gerrymander bargaining 

units for the purpose of defeating a union election? 

Mr. HUNTER. Yes. At present, the act provides that the board can 

determine whether the appropriate unit is an employer unit, a 

craft unit, a plant unit, or a subdivision thereof. The way that has 

been taken out of the act in this bill, this bill then would have a 

set number of criteria, or tools, that are used to determine a community of interest and none other. 
55 

And therefore, there is no ability for craft severance, which there 

has always been under the act. This would eviscerate the eight hospital units that have been created by rulemaking. And I did want 

to point that out in regard to the response that this would create 

micro units in private hospitals. 

That is absolutely incorrect. The only way that that can be disrupted in this bill, that the hospitals could be disrupted, would be 

if this bill passes and those rules that people have relied on for the 

last 20 years, in that case, would be out the window. 

And we would be back to the races on that, so it would totally 

disrupt the way bargaining units have always been configured. 

Mr. PAYNE. Thank you. 

Mr. ROE [presiding]. Time has expired. 

Dr. Bucshon? 

Mr. BUCSHON. Thank you, Mr. Chairman. 

First of all, I would like to tell you, you know, my dad was a 

United Mine Worker for 37 years so I fully recognize the rights of 

workers under the labor laws of the United States, and have a 

great deal of respect for all workers in this country. 

What we are really talking about here is an overreaching and 

ideologically slanted NLRB. But let’s look at the bigger picture. The 

Obama administration is again trying to put in place their ideological agenda they could not get through a Democratic-controlled 

Congress when they had control of everything. 

They could have changed the laws when they had the chance, 

and they did not do it. So I guess at that time they must have been 

fair. My friends on the other side of the aisle now are here defending the NLRB’s actions, when they themselves would not pass laws 

to change what was in place. 

So the American people should take note again of the administration using unelected officials to change the laws of the land, bypassing your elected representatives in the Congress of the United 

States. 

Mr. HUNTER, you use ‘‘fairness’’ a lot in a lot of your comments. 

And I am going to ask you a couple of yes or no questions. Do you 

think it is fair that after months of secret organizing behind the 

backs of employers, going to people’s homes and getting everybody 

today on the side of a union activist, that the employer—again, 

after months of activity on the union activist side—has only 7 days 

to present their case before the NLRB? 

Do you think that is fair? Yes, or no. 

Mr. HUNTER. Well, Congressman, I cannot answer that yes or no 

because I do not accept the premise that an employer would be unaware that—— 

Mr. BUCSHON. Okay. The other question I have, then. Do you accept the fact that, say, maybe an employee, not the employer—after 

months of union organizing which may not have involved them individually because they may not go the right way according to the 

union organizer—after months of organizing by the union activist, 

that the employee may only have 10 days to get all the facts before 

they have to vote? 

Mr. HUNTER. Again, I cannot answer that for a couple of reasons. 

One, I do not accept the premise that they may only have 10 days. 
56 

Even the board’s rules do not provide anything about when a direction of election issue. So I have no idea when—— 

Mr. BUCSHON. But according to the proposals of the NLRB that 

may be the result, right? You may only have 10 days before you 

have to vote. Is that yes, or no? 

Mr. HUNTER. I cannot answer that because I do not know. 

Mr. BUCSHON. Okay, Mr. Cohen, maybe you can comment on it. 

Or actually, Mr. Sullivan, I would like you to comment on this. 

Do you think it is possible for an employer to get paperwork done 

in 7 days, and present their case in front of the NLRB? I mean 

practically possible. 

Mr. SULLIVAN. I do not think it is possible to do that adequately 

under the proposed rules. I think employers would have varying 

degrees and types of difficulty, depending mostly on their size and 

resources and sophistication. I think a small employer is going to 

have no idea what has hit him and is not going to stand a chance 

of complying with the rules, let alone identifying all legal and factual issues, all employees involved, and putting it all down on 

paper within 7 days, or forever being precluded from raising issues. 

As employers get bigger, their sophistication and resources probably increases. But the complexity of their organizations then 

makes the fact-finding much more difficult. And for RELA, they 

have got many very, very large organizations spread all over the 

United States, huge departments with subsidiaries. And just identifying who the appropriate employing unit is, who the supervisors 

are that know what the employees in question do day-to-day only 

for the proposed unit, let alone figuring out all of the other employees that really needed to be included in that proposed unit. 

I think it is virtually impossible. 

Mr. BUCSHON. Thank you. I am running out a little. Mr. Russell, 

I heard Mr. Cohen’s response to the question why now. 

Why now? Why, after many, many years of labor laws protecting 

employees and employers—— 

Mr. RUSSELL. Well, I agree with former member Cohen. 

Mr. BUCSHON. Why would we change it now? 

Mr. RUSSELL. I apologize. I agree with former member Cohen. It 

really is a matter of union density. It is a question of unions wanting to get some change in the law they think will help them. But 

one thing I want to make clear. There is a difference in the law 

from August 25th of this year to August 26th. 

On August 25th, the law of the land for bargaining units was exactly what are the eight points in this bill. This bill is not changing 

the law of 75 years. It is going back to what it was on August 25. 

What happened on August 26 was that overreaching board favoring 

unions with Specialty Healthcare. 

Chairman KLINE [presiding]. The gentleman’s time has expired. 

Mrs. MCCARTHY, you are recognized. 

Mrs. MCCARTHY. Thank you, Mr. Chairman. And thank you for 

having this hearing. 

It has been interesting listening to this debate but, Mr. Hunter, 

I want to go back to some of the things that I personally find under 

the ruling of the Specialty Healthcare. They were saying that, you 

know, the nursing home owner—I believe Mr. Russell brought that 
57 

case up—wanted to bring all the different units under one unit for 

the vote. 

If you are a nurse, if you are a nurses aide, if you are a specialty 

technician, they all have separate duties. They also work usually 

three shifts. All the others might be part of administration, might 

be part of housecleaning, might be part of food service. Their duties 

are totally different and their responsibilities are totally different. 

They are also trained totally different. So when you talk about— 

and Mr. Russell argued in his testimony—the Specialty Healthcare 

decision, the board abandoned longstanding precedent. However— 

and think about this—that the Specialty decision simply upheld 

the long-standing and additional community of interest. 

Meaning, you had those that were directly doing patient care, 

and then on the other side you had those that were part of the 

team of the hospital and nursing home, but certainly had no technical support as far as taking care of a patient. So is it not true 

that we have always had the community of interest test for determining an appropriate bargaining unit? 

Mr. HUNTER. Well, the board always has had the community of 

interest test to determine appropriate unit. What happened in Specialty Healthcare is, subsequent to the National Labor Relations 

Board adopting rules that define bargaining units in acute care 

hospitals, there was some question as to how does one determine 

bargaining units in the nursing home sector, a discrete sector. 

And there was this rather untenable test that applied essentially 

only to nursing homes called the community of interest test. Or excuse me, called the ‘‘empirical’’ community of interest test, which 

essentially said, look apply community of interest, but keep in 

mind what we talked about and some of the comments we made 

when we did the health care rules. 

And nobody really knew what that meant. And that ‘‘empirical’’ 

community of interest test for nursing homes is essentially what 

was abandoned and overturned in Specialty Healthcare. It really 

has no effect whatsoever on any other industry because every other 

industry has always had a traditional community of interest test. 

And all this fear about micro units and what have you I think 

is just that—it is not going to play that way. There may be different unit configurations made, as there always are. But it is to 

say, for example, that Specialty Healthcare would have made 

Wheeling Island Gaming—which was the case about the poker 

dealers and blackjack dealers treated differently—the only way 

that would have been the case is if Specialty Healthcare said the 

CNAs on 2 North and 3 South can organize without including the 

CNAs on the other wards, and what have you. 

And one other thing I just do want to say in this whole process 

is, when people talk about the agenda of the board and what have 

you, you know, the board does go different ways when different administrations come in and what have you. And I have greatly disagreed with some of the positions that some boardmembers in 

other administrations have come up with. 

But I have already recognized that what they bring to the table 

is their life experience and what they bring to it. And the one thing 

that I never did is challenge the integrity of what they were doing 

when they made those determinations. 
58 

And I do not think that we are going to do a very good job of 

having people being willing to commit to public service if we determine that if what they bring from their life experience to an administrative adjudication somehow should subject them to attack 

as if there were some sort of a moral issue involved in what they 

are doing, or that they are simply carrying water. I just—— 

Chairman KLINE. The gentlelady’s time has expired. 

Mr. ROKITA, you are recognized. 

Mr. ROKITA. Thank you, Mr. Chairman. For the record, I just 

want to say that as a new member I am a little bit disturbed at 

the tone that this hearing has been taking, specifically with respect 

to a set of questions that was asked of Mr. Cohen. 

You know, my understanding is, this is not a trial. It is not a 

trial court. We are having this hearing so that we can be enlightened and learn something so that we hopefully have a better piece 

of legislation, or no legislation, that will help the people of this 

country. I mean, we should not be asking questions that we already 

know the answer to, Mr. Chairman. 

We should ask questions about subjects and topics to which we 

do not know the answer. To that extent, I would like to ask Mr. 

Cohen if he can elaborate on your earlier statement that 100 percent of pre-election issues are reviewable by the board. 

Mr. COHEN. Yes. Congressman, under the system right now there 

is an opportunity to go to a hearing or to waive that right. In 92 

percent of the cases, employers waive that right. If they do not 

waive that right, they have the right to go to a hearing. There can 

at least be a request for review filed of the regional director’s decisions. 

Mr. ROKITA. Okay. 

Mr. COHEN. That whole appeal period occurs very quickly and 

before the election is held. So any employer that wants to bring the 

matter to the board now has an opportunity to do that. Instead, 

what the quickie election rules would do would be to change that 

system dramatically and not have that kind of review. 

Mr. ROKITA. How often does the time between the petition and 

the election exceed the 2 months? I just want to make sure that 

is clear on the record. 

Mr. COHEN. Sure. And there is some detailed statistics in my my 

testimony that I have furnished. But basically, pre-election waivers 

of hearing occur in 92.1 percent of the cases. In those where a 

hearing was held, the 7.9 percent—that was 37 days from the filing 

of the petition until the regional director’s decision—then we would 

have that review process, which is 25 days to 30 days thereafter. 

So in the small number of cases we get up around the 60-day period of time. And in terms of the board actually passing on this— 

and I served on the board, as you probably know—alerts come. And 

as the election is coming, in virtually all cases the board takes a 

position on the request for review. 

Mr. ROKITA. So 35 days is reasonable, or unreasonable? 

Mr. COHEN. I think it is imminently reasonable. 

Mr. ROKITA. Okay. I heard some, during some questioning earlier, there is, quote—‘‘unfettered access’’ from employers’ access to 

employees. But, quote—‘‘Of course, that has to be done in a legal 
59 

way.’’ And then I heard, quote—‘‘access from day one’’ in the questions. 

I want to know if Mr. Sullivan and Mr. Russell want to elaborate 

on that. Do you think those are accurate statements or accurate 

comments, Mr. Sullivan? 

Mr. SULLIVAN. Congressman, not in my experience. When employees come to work day one, of course they receive an orientation. 

And that consists of forms and getting them prepared to start 

doing their jobs. I have never, in almost 20 years, encountered an 

employer that brought up its own views on unionization right at 

the get-go. I have just never seen that. 

Mr. ROKITA. Okay, thank you. 

Mr. Russell? 

Mr. RUSSELL. I agree. And also just one comment, if you do not 

mind. The questioning about the board’s motivations is not a personal attack. When you look at Member Becker and Former Chair 

Leibman, they have stated that they believe the purpose of the National Labor Relations Act is to encourage unionization. What is 

troubling to me as a labor lawyer, as a labor professional, is if you 

read section 7 of the act it says that employees, citizens, have a 

right to either engage in those activities or not to engage in those 

activities. 

So I think it is very troubling, when we have someone sitting on 

that unelected board, the picks a side. 

Ms. WOOLSEY. Would the gentleman yield? 

Mr. ROKITA. No. 

Mr. ROKITA. Were you done? I have been enlightened enough. 

Mr. RUSSELL. I was done. 

Mr. ROKITA. Thank you. I yield back. 

Chairman KLINE. The gentleman yields back. 

Mr. Hinojosa? 

Mr. HINOJOSA. Chairman Kline and Ranking Member Miller, as 

a former businessman for 34 years, it seems to me that American 

workers need strong labor laws that protect their collective bargaining rights and encourage unscrupulous employers to create 

family-sustaining jobs in our economy. 

I am afraid that H.R. 3094 moves us in the wrong direction. I 

would like to ask my first question to Mr. Hunter. In your testimony, you discussed how H.R. 3094 will lead to elections being delayed for years, based on frivolous appeals for review. Can you explain how the prohibition on directing an election until a review is 

completed of post-hearing appeals creates unnecessary delay? 

Mr. HUNTER. Yes. Essentially what this bill would do—as Mr. 

Cohen indicated the board would do—in a current situation, generally within a relatively short amount of time, it will decide 

whether it is going to take a review. And it does not take a review 

in 98 percent of the cases. 

What this will do is require review of every case. And even if the 

case involves a question as to whether one head cook in a thousand-member hospital is a straw boss or a supervisor, if that is 

what is up on appeal then the entire thousand-member unit is 

going to have to wait 2 years until that cut gets made. 
60 

That is essentially what is going to happen. And as a practical 

matter, it is just going to deprive people of a meaningful right to 

organize. 

Mr. HINOJOSA. Mr. Hunter, are workers to have full and fair 

elections undermined by this legislation? Explain your position on 

that. 

Mr. HUNTER. Well, they absolutely are. Again, I think in the first 

instance there is the delay. But in the next instance, there is the 

fact that, as the Supreme Court has indicated, in the first instance 

it is up to the workers to take the initiative to decide what unit 

they want to organize themselves into. And under this bill, it will 

not be up to the workers. 

Because if the employer can show that you have some community 

of interest—and again, it is a sliding scale of common denominators—with the wider unit, then that is the unit that is going to prevail. 

And in many cases, quite frankly, if the union is organizing a 

particular traditional group, a traditional craft or a traditional 

technical unit, and the employer expands it, the petition will simply get dismissed because the union will not have submitted a 

showing of interest from that wider unit. And the proceeding will 

just be dead, at that point. 

Mr. HINOJOSA. I would like to ask the next question of Mr. Sullivan. Is it not true that regardless of the election time frame, employers always have unrestricted access to employees during the 

work day and have the ability to conduct captive audience meetings. 

Mr. SULLIVAN. Congressman, I do not think that is a fair characterization. Employers are concerned with employees doing their 

jobs. They do not go after them in the workplace. And while they 

may have access to them, the amount of time that they devote to 

trying to educate employees about promises being made by unions 

and about what joining the union really means is very minimal 

overall in relation to the amount of time they spend—— 

Mr. HINOJOSA. I disagree with you, Mr. Sullivan. Your testimony 

suggests that the Specialty decision will result in more unions and 

make employers less attractive for takeovers. Yet takeovers generally result in layoffs, as employers combine operations or as they 

cut costs to pay for that takeover. 

Do the workers not have greater job security if their company is 

not taken over? 

Mr. SULLIVAN. It depends on the circumstances that the company 

is in at the time a takeover is being considered. These days there 

are a lot of companies out there that are not making it, but might 

get saved if they are acquired by a company that is performing 

strongly. 

And if the potentially acquiring, and saving, company looks at a 

situation where there are multiple, very small bargaining units, it 

is going to make that acquisition much less attractive. And the potential acquirer may well walk away, resulting in loss of the business and the jobs. 

Mr. HINOJOSA. Your answer—— 

Chairman KLINE. The gentleman’s time has expired. 

Mrs. Roby? 
61 

Mrs. ROBY. Thank you, Mr. Chairman. 

I want to give you, Mr. Cohen, an opportunity to go back and address some of the testimony that we just heard from Mr. Hunter. 

He made the statement that Wheeling Island Gaming, if that had 

been the law, that a can on one floor in one unit could not collectively bargain with a CNA in another unit. 

Can you expand on that? I wanted to give you an opportunity to 

respond. 

Mr. COHEN. Thank you very much, Congresswoman. I could not 

disagree more with the characterization of that. As I said, in 

Wheeling Island Gaming the minority view was that as long as the 

union asks for all of a particular classification of employee at a particular facility that there is no reason why that should not be appropriate. 

What the board did is, they took a health care case as a vehicle, 

an excuse, to take that position that was in the minority position, 

dress it up around the community of interest standard, and apply 

it to virtually all of the NLRB’s jurisdiction and the normal NLRB’s 

jurisprudence. 

If I could? In fact, we hear a parade of potential horribles that 

would occur in terms of litigious employers, et cetera if this legislation were to pass. Quite simply, from where I sit, if the board were 

to take two simple actions—if they were to overrule Specialty 

Healthcare and if they were to withdraw the proposed notice on 

quickie elections—there would be no need for the legislation to be 

changed. 

We would have the law as it functions, we would continue to 

have a miniscule amount of cases where the board grants review, 

and we now have all-time lows in employer challenges to union certifications in the courts. It did not always used to be like that. I 

worked in that part of the NLRB, as well. 

It used to be a substantial function of the NLRB enforcement 

lawyers. It is not any longer. 

Mrs. ROBY. Well, and that goes to my next question, and thank 

you for your classification on that. 

My next question for you, Mr. Sullivan, as it relates to the Specialty Healthcare decision. I had the opportunity just a few short 

weeks ago to talk to, on the record, one Mrs. Ivey, who came in and 

testified before this committee. And her company voluntarily chose 

to allow the union. And as a result, she was unafforded the opportunity to vote which, as you know, represents everything that this 

great country stands for. 

So I just want to ask you a very specific question. How does the 

Specialty Healthcare decision affect whether or not an employer 

will just raise their hand and voluntarily decide to allow? 

Mr. SULLIVAN. Congresswoman, that is a great question. And I 

think, yet again, it depends on the circumstances of the employer. 

I think for very small employers, if they look at the situation that 

they are in and if they talk to legal counsel and say what is this 

going to cost me and what are my chances, they are going to throw 

their hands up and say, ‘‘Okay, I will recognize the union.’’ 

And, in light of other recent NLRB precedent, an employee in the 

situation you are describing will find herself with no avenue to file 
62 

her own petition seeking to have a secret ballot election. Because 

that decision will have been made—— 

Mrs. ROBY. For her. 

Mr. SULLIVAN [continuing]. By an employer. Essentially forced 

into it due to these recent changes. Larger employers will have a 

decision to make, and that decision is going to be do I challenge 

this or do I see my business chipped away and harmed. And so employers will make a strategic decision based on their own situation 

and their resources. 

And they may very well go through the process, and then refuse 

to bargain and accept defense of an unfair labor practice charge in 

the hopes of getting, some day, court review. 

Mrs. ROBY. Right. Thank you for that. 

And just real quickly, Mr. Cohen, let us talk about that meaningful purpose from the Gaming decision. Expand on that, just a little 

bit, about how important that is for the employee to have that 35 

days in order to educate him or herself as to whether or not joining 

a union is in their best interest as an employee. 

Mr. COHEN. Sure. It is a complicated world in which all employers are operating now. We are in a global economy, whether we like 

it or not. It is fine if employees choose representation. That is their 

right guaranteed under the law. But they have to do it, in all fairness to them, in a context of knowledge and to learn the state of 

the business. 

If I can for a moment, we have heard so much about access to 

employees. I would submit that of course employers have unfettered access to their employees during work time. They are the employer. There is nothing out of the norm in having that. And most 

employers get employees together regularly to learn about the state 

of the business, to deal with safety issues, to hear about the economy and means of production which can be improved through 

cross-training and making the operation more efficient. 

Chairman KLINE. I am sorry, the gentlelady’s time has expired. 

Mr. Kildee? 

Mr. KILDEE. Thank you, Mr. Chairman. I apologize first for being 

late. I had another hearing in another building. 

Mr. HUNTER, in 1937 General Motors and the UAW reached a 

one-page agreement that recognized the UAW as the exclusive bargaining representative for GM employees who were members of the 

union. I have always had a copy of that hanging on my wall. One 

page, signed by John. L. Lewis and Mr. Knutson, the CEO of General Motors. 

That was very simple in those days. They agreed on a contract, 

and it went in effect for the members of the union. There was only 

one other union in General Motors at that time, the pattern makers. But it was just the UAW who were recognized then. 

How will the Workplace Democracy and Fairness Act primarily 

make more difficult the ability to workers to establish a contract 

with their employer? What is the deterrents that cause the greatest 

difficulty? 

Mr. HUNTER. Well, Congressman, I think the primary deterrents 

will be the inability of the union to obtain legal recognition for such 

a long period of time. That by the time it is able to get an election, 

that organizing drive would have been torn apart by an employer. 
63 

Secondly, if the employees lose all say over what bargaining unit 

can be established that can be taken away, they will never reach 

a contract because they will never have a bargaining unit that they 

can meaningfully bargain in. 

So I think that is the difficulty. That if workers have a prompt 

and efficient ability to organize into appropriate units that they petition for—and the legal process is not jammed up with delays and 

stuff—they then will have the legal right, and the employer will 

have the legal obligation to bargain with them. 

But unless that happens, getting a contract just is not happening. 

Mr. KILDEE. Can you give us some examples of how long this 

process could take, has taken, or could take under this bill? 

Mr. HUNTER. Well, first of all, in the initial thing you will have 

a hearing in which you are literally allowed to litigate anything 

you want. So, for example, it has been the law forever that you 

cannot litigate unfair labor practice charges in a representation 

hearing because it is supposed to be a nonadversarial hearing. 

This law would mandate that it be a nonadversarial hearing, and 

then also mandate that you can raise any issue you want to— 

whether it is, you know, people ought to vote against the union because, the plant manager has always been good to them, or they 

should vote this way because this is unfair or because these unfair 

labor practices are going on, or it might affect the outcome of the 

election how their wages compare to other people. 

So that can all be throw into that hearing. So that hearing literally would go on forever. And then on top of that, they have an 

absolute appeal. So that you not only have an appeal in 100 percent of the cases, but you have a record going up on appeal that 

is jammed up with all kinds of issues that have absolutely nothing 

whatsoever to do with whether or not there is an appropriate unit. 

And I disagree with Mr. Cohen with the characterization that 

you get review 100 percent of the time. You have a right to an initial hearing 100 percent of the time, but you do not have a right 

to review. And review is granted in less than 2 percent of the cases. 

If this becomes law, you are going to have hearings that go on 

forever. You are going to have records that make the court reporters happy. And then you are going to have the process at the 

NLRB in Washington totally jammed up with those records. 

Chairman KLINE. Then gentleman’s time has expired. 

Mr. Walberg? 

Mr. WALBERG. Thank you, Mr. Chairman. And I appreciate the 

panel being here. 

Mr. SULLIVAN, Michigan is the proud home to Myer retail store. 

It has 190 stores, 60,000 people in five states, several stores, and 

many of the people in my district. This Specialty Healthcare would 

have serious implications for our fundamental business model I 

just have to imagine. 

At a time when Michigan’s unemployment rate is at 11.2 percent, 

and the heart of my district hovers around 15 percent unemployment. I guess I want to go to the issue of jobs and, specifically, 

what kinds of costs would be associated with dealing with micro 

bargaining units as permitted by Specialty Healthcare. 
64 

And then secondly, what will be the impact on job creation in the 

stores and retailers that you represent? 

Mr. SULLIVAN. Congressman, the cost of dealing with micro 

unions with, with multiple organizing campaigns targeted at small 

groups of employees, is hard to imagine. Obviously, it would depend on exactly the approach the employer takes. 

But first of all, it would be an enormous distraction at many levels of management. And to tie into the job creation idea, it is pretty 

hard to think about expanding a business, potentially buying more 

stores, if you are getting picked apart by having single departments organize over and over. I think the potential is just enormous, and it is not good. 

Mr. WALBERG. The impact, as I think of specific jobs, if you have 

micro units with restrictions on cross-training, what is it this says 

to the individual who begins at a certain level in a store, wants to 

expand, wants the opportunity to grow into a job situation and, ultimately, further themselves? 

I mean, we are talking about jobs and the ability to go to a place 

and say, ‘‘I would like to ultimately be in management.’’ By going 

through all the processes, what does this do? 

Mr. SULLIVAN. Well, it hinders the process. And I think the impact is felt at many levels. If you have got an ambitious person who 

would like to work in all of the departments in the store and 

progress into management, the ability to go between departments 

could become nonexistent. 

And then when you think about the day-to-day impact on employees, regardless of their ambitions, to have to work in the floral 

department and only the floral department all day long and not be 

able to help stock cans on shelves when needed, I think would be 

demoralizing. I think you would have boredom and stagnation. 

So I think the ambitious employees would be held back, and everybody else’s quality of job experience would suffer. And I think 

that would come through to the customers. And that is an enormous concern. Because I have seen grocery store chains fold after 

a year of customer dissatisfaction, and people start shopping somewhere else. 

Mr. WALBERG. Going further along that line, it seems to me the 

only way this adds jobs to the economy is by forcing retailers to 

hire more lawyers. And no offense to the lawyers in the room, at 

least not intended. The human resource staff to deal with all of the 

management nightmare. And the case of retailers, this is at a time 

when you really need the economy to pick up and be strong. 

Is there any sense of how destructive this will be across your 

business from distribution center to the store itself? 

Mr. SULLIVAN. Well, distribution centers are equally vulnerable 

to having small units organized. There are many different functions under a warehouse roof, from shipping and receiving clerks 

to inventory control. There are selectors who pick the boxes off the 

shelves. There are forklift operators. There are people who load 

and unload trucks. 

And under Specialty Healthcare, every one of those jobs that I 

just stated is potentially a separately organized bargaining unit. 

Mr. WALBERG. Okay. 
65 

Mr. COHEN, turning to an attorney, I noticed that you were responding by writing some fast notes at the end of the last questioning. I would like to give you an opportunity to share those with 

us. 

Mr. COHEN. Sure. Thank you very much. It has to do primarily 

with this notion of what goes on at a hearing. We have 60 years’ 

worth of jurisprudence as to what is permissible to raise at a hearing or not. I believe it is a total red herring to say that we are 

going to have representation hearings deal with employees 

thoughts about whether a union is a good idea or not. 

Hearings are limited. The people in the regional offices of the 

NLRB know what they are doing. They hold these hearings. They 

do not permit irrelevant items to be raised in it. And the precise 

issues at a hearing have to do with unit scope and unit composition. 

Chairman KLINE. Then gentleman’s time has expired. 

Mr. Tierney? 

Mr. TIERNEY. Thank you, Mr. Chairman. You know, I am sort of 

amused sometimes by my colleagues on the other side who think 

they first have to immunize themselves by saying how closely affiliated their families re with unions, and then they jump in to attack. 

But if it matters at all, I am a former president of the Chamber 

of Commerce. So this will be a man-bites-dog story on the other 

side on that. [Laughter.] 

And the other is, one of my colleagues, who unfortunately left 

here, was chastising us all because we are not asking questions 

just to get the facts, we seem to be predisposed. It would be wonderful to ask questions to which we could get the answers if we had 

a panel here that was not predisposed and not biased. And I do not 

think that that is the case. 

So I think maybe it is important in asking the questions to understand where our witnesses are coming from so we can put them 

into some sort of perspective on our own. So Mr. Sullivan, let me 

start with you. I understand that you are a professional advocate 

on behalf of business interests. 

Easily recognized and, according to your own testimony, you do 

a wonderful job advocating for your clients. But we are being asked 

here to consider legislation that makes it harder for working people 

who want to form a union to have an election. So I want to probe 

a little bit more into the rhetoric that you use in your testimony. 

I want to see whether or not that is supported by the facts. In 

your written testimony, you have got a whole section dedicated to 

micro unions. I think that anybody who reads Specialty Healthcare 

would think it was about CNAs, CNAs who want to form a union. 

Maybe those who read it that way missed something. 

Will you point out to me the page in the Specialty majority opinion where you see the term ‘‘micro union?’’ 

Mr. SULLIVAN. Congressman, that term is not in the opinion. 

Mr. TIERNEY. No, I did not see it there either, and that is—— 

Mr. SULLIVAN. It is the effect that would—— 

Mr. TIERNEY. Well, maybe you can help me then with understanding your rhetoric on that. How big, in your mind, is a micro 

unit, specifically? 
66 

Mr. SULLIVAN. Well, CNAs alone—and not including other employees, nonprofessional employees, working in a nursing home— 

in my opinion, is a micro union. 

Mr. TIERNEY. All right. So Specialty Healthcare, that issue has 

53 CNAs. So 53 is a micro union, in your mind. 

Mr. SULLIVAN. It is a micro union because it consists of a single 

job classification. 

Mr. TIERNEY. Well, it is what you determine as a micro union. 

Fifty-three. 

Mr. SULLIVAN. The term does not depend necessarily on the number of employees in the unit. It depends on the isolation of the unit 

from other employees that have a similar community of interest. 

Mr. TIERNEY. So it is your contention that janitors and other people had a similar community of interest with the CNAs? 

Mr. SULLIVAN. That was the position I think the employer took 

in Specialty Healthcare. 

Mr. TIERNEY. I know. And it is your position to advocate for the 

employer. But over the last decade, the median size of units in bargaining range from 23 to 26. So let me ask you whether or not 23 

employees is a micro union. 

Mr. SULLIVAN. I cannot answer the question in those terms, Congressman. I can tell you that I have been involved in negotiating 

contracts, first contracts, after campaigns for nursing home employees in my career. And I can also tell you think when unions 

have petitioned to recognize employees, including CNAs in nursing 

homes that I dealt with, every single one of those elections proceeded under an agreement. 

We did not go to hearing on one of them. And that was because 

that I knew the rules and worked with the union, and we were able 

to hammer out an agreement. 

Mr. TIERNEY. I do not want to interrupt you, but I do not know 

where you are going with that. But it does not deal with the issue. 

This rhetoric that you have had of micro unions, it just sounds to 

me like a lot of rhetoric and it is not even mentioned in the decision. 

But let us move on. Your testimony also claims that the board’s 

proposed rule would remove board agents from the process, and result in fewer elections by agreement. When you read that proposed 

rule, I think you would be hard pressed to see how the board’s been 

removed from the process. 

But you also claim in your testimony that the board wants to remove its board agents from the role of developing a record on the 

representation issue. Now, just to be clear, if you read the rule 

what it says is that it is the duty of the hearing officers to create 

an evidentiary record concerning only genuine disputes as to material facts. That is on page 36822 of the Federal Register. 

So let’s get it straight. Are you taking the position that board 

agents should have to create a record where there are not genuine 

disputes as to material fact? 

Mr. SULLIVAN. Excuse me, Congressman. What I mean by removing the board agents from the process is that today—— 

Mr. TIERNEY. No, but my question to you is whether or not you 

take the position that board agents should have to create a record 

where there are not genuine disputes as to material fact. 
67 

Mr. SULLIVAN. That is not what I am saying. 

Mr. TIERNEY. That is not your position. Is it your position that 

employers should be able to bog down the hearing with frivolous 

claims? 

Mr. SULLIVAN. Not at all. 

Mr. TIERNEY. Thank you. 

Mr. RUSSELL, let me just look to your for a second here. In February of 2009 you presented a conversation, or a talk, entitled 

‘‘Staying Union-Free in a Pro-Union World—A Special Management Briefing.’’ And you presented that to the Florida Transportation Builders Association Contractors Construction Industry conference. 

In this PowerPoint for the Costangy law firm, you are stated that 

you are a labor employment lawyer for business, and that you help 

businesses stay union-free. Is that how you see your role as a 

businessperson? Your job is to help businesses stay union-free? 

Mr. RUSSELL. That is correct Congressman—whenever the client 

requests. That is correct. When the clients request that service, I 

do provide it. I do it by the ways I have described today. Providing 

information to my clients. 

Mr. TIERNEY. Look, I just wanted to make it clear who we are 

dealing with here—— 

Mr. RUSSELL. Correct. By providing information to my clients 

that they—— 

Mr. TIERNEY. You also—— 

Chairman KLINE. The gentleman’s time has expired. 

We have had an opportunity for all members to ask questions. 

I want to thank the panel, and I will turn to Mr. Miller for his closing remarks. 

Mr. MILLER. Well, thank you, Mr. Chairman. I would just sort 

of pick up where Mr. Hunter left off. And that is that it is hard 

to see how you keep out the issues that Mr. Cohen has suggested 

would never be raised. Because, in fact, the language in your bill 

suggests that all of these issues can be raised in these hearings, 

and any other issue resolution which may make an election unnecessary or which reasonably is expected to impact an election’s outcome. 

And then during that hearing, parties may independently raise 

any issue or assert any position any time prior to the close of the 

hearing. And since you must now have that hearing as a matter 

of law, it is not the discussion of the board. It is the law, and that 

review will take the review of the post hearing appeals. 

It seems to me that you have done exactly what many have 

sought to do over the years. And that is to basically prevent the 

National Labor Relations Board from providing a remedy to the 

rights for which it was designed and brought into being to protect. 

It is very clear in section 1 of the Act, when it says ‘‘to eliminate 

the causes of certain substantial obstructions to the free flow of 

commerce, and to mitigate and eliminate these obstructions, where 

they have occurred, by encouraging the practice and procedure of 

collective bargaining, and by protecting the exercise by workers of 

full freedom of association, and self-organization,’’ and so forth. 

I mean, that may sound as an anachronism or something that 

does not fit in today’s globalized economy. But the fact of the mat-
68 

ter is, that is how workers get rights at work. That is how workers 

get a safe workplace, that is how they get a decent wage, that is 

how they get decent hours, decent benefits, and decent conditions. 

And now what you are setting in motion is a review process and 

a hearing process that when it has been invoked in a limited number of cases it is an average where the elections have been held, 

the ballots have been impounded. And now you have the review. 

It sees, on the average, some 500 days over the many years of 

that review. And we all know that this is a competition between 

holding that potential bargaining unit together, and fracturing it. 

And so time is on the side of those who would want to fracture it. 

Because employees get promoted, employees leave, they get other 

opportunities elsewhere. 

They move, they get divorced, whatever happens in their in their 

lives. And that works to whittle away the unity that those members might have had. The idea that actions are never taken against 

them, they are not intimidated? They are intimidated all the time. 

That is what all those cases are about on unfair labor practices. 

People are fired all of the time, and they get back pay if they are 

successful some years later getting rehired by their employer after 

the determination of that case. These actions go on all the time. 

And so now what you have set up is the perfect storm between 

raising frivolous cases, invoking the legal resources of the board, 

and swamping them now with hearings. 

And then reviews of those hearings so the opportunity to get the 

collective bargaining rights that are provided for in the establishment of the National Labor Relations Act are eviscerated by this 

legislation. 

That is consistent with the opinion of most of the members on 

the other side of the aisle here. That is what they would like to do. 

They see no reason for this Board to continue, or the act to continue. And yet it is absolutely critical to employees having some 

bargaining power in the workplace, to hold on to the foothold that 

they might have in middle class. 

And we obviously know that the benefits of that go even to those 

employees who are not in the unionized workplace. But that process continues to support their wages, their benefits. 

So, Mr. Chairman, I would hope that this legislation would undergo extensive revision if we are going to consider it. But I really 

believe that it really, really strips the rights of workers under the 

laws that have served both employers and employees well for 

many, many years is—now at risk of being destroyed by this this 

legislation. Thank you. 

Chairman KLINE. I thank the gentleman. I have been given three 

letters in support of H.R. 3094. I would ask you now for consent 

that those be inserted in the record. Hearing no objection, the letters—— 

[The information follows:] 

October 11, 2011. 

Hon. JOHN KLINE, Chairman; Hon. GEORGE MILLER, Ranking Member, 

Education and the Workforce Committee, U.S. House of Representatives, Washington, 

DC 20515. 

DEAR CHAIRMAN KLINE AND RANKING MEMBER MILLER: On behalf of Associated 

Builders and Contractors (ABC), a national association with 75 chapters representing 23,000 merit shop construction and construction-related firms with nearly 
69 

two million employees, I am writing in regard to the full committee hearing on the 

Workforce Democracy and Fairness Act (H.R. 3094). 

ABC supports the Workforce Democracy and Fairness Act, which would block the 

National Labor Relations Board (NLRB) from moving forward with its ‘‘ambush’’ 

elections proposal and also reverse the Board’s recent decision in Specialty 

Healthcare. 

For more than a year, the NLRB has moved forward with an agenda that is creating an environment of economic uncertainty and threatening to harm the construction industry. The NLRB’s decisions, proposed rules, invitations for briefs and 

enforcement policies demonstrate that the agency has abandoned its role as a neutral enforcer and arbiter of labor law in order to promote the special interests of 

politically powerful unions. These actions will have negative implications for workers, consumers, businesses and the economy, including: 

• ‘‘Ambush’’ elections 

In August, ABC criticized a NLRB proposed rule that could dramatically shorten 

the time frame for union organizing elections from the current average of 38 days 

to as few as 10 days between when a petition is filed and the election occurs. ABC 

submitted comments to the NLRB stating the proposed rule would significantly impede the ability of construction industry employers to protect their rights in the preelection hearing process; hinder construction employers’ ability to share facts and 

information regarding union representation with their employees; and impose numerous burdens without any reasoned justification on small merit shop businesses 

and their employees, which constitute the majority of the construction industry. In 

the largest response on record, the NLRB received more than 70,000 comments, 

many of which strongly opposed the proposed changes. 

• Specialty Healthcare and Rehabilitation Center of Mobile and United Steelworkers 

In an August 30 decision, the Board ruled that a union could seek to organize 

a group of nursing assistants, despite requests by the employer to include other employees in the unit. The decision effectively creates a new standard for bargaining 

unit determinations for all industries. This reverses a standard that has been in 

place for decades without controversy. The new standard places a heavy burden of 

proof on the employer to show that the excluded employees should be included. 

At this time of economic challenges, it is unfortunate that the NLRB continues 

to move forward with policies that threaten to paralyze the construction industry 

and stifle job growth. We commend the committee for holding a hearing on this important matter and urge immediate passage of the Workforce Democracy and Fairness Act (H.R. 3094). 

Sincerely, 

CORINNE M. STEVENS, Senior Director, 

Legislative Affairs, Associated Builders and Contractors, Inc. 
70 
71 
72 
73 
74 

October 12, 2011. 

Hon. JOHN KLINE, Chairman, 

Committee on Education and Workforce, U.S. House of Representatives, Washington, 

DC 20515. 

DEAR CHAIRMAN KLINE: On behalf of the National Association of Manufacturers 

(NAM), I am writing to express manufacturers’ strong support for H.R. 3094, the 

Workforce Democracy and Fairness Act. 
75 

1 76 Fed. Reg. 36812. 

2 357 NLRB No. 83 (August 26, 2011). 

The NAM is the nation’s largest industrial trade association, representing small 

and large manufacturers in every industrial sector and in all 50 states. The NAM’s 

mission is to enhance the competitiveness of the manufacturing economy by advocating policies that are conducive to U.S. economic growth. 

The recent actions and the decisions of the National Labor Relations Board 

(NLRB) demonstrate the Board’s commitment to pursue an activist agenda that 

threatens economic growth and jobs. This agenda would burden manufacturers with 

harsh rules, making it harder to do business in the United States. If enacted, the 

Workforce Democracy and Fairness Act would restore the balance needed to ensure 

employees receive the information they need to make an informed decision and give 

job creators the certainty they require to be confident in hiring and expansion. 

According to the NLRB’s proposed ‘‘ambush election’’ rule, employers would have 

as few as 10 days to communicate with their employees between the time they learn 

that a union is trying to organize the workforce and the election. This proposed rule 

represents a dramatic shift in union election procedures that have stood for decades. 

If finalized, this new regulation would pose a considerable burden on employers and 

limit the ability of employees to make an informed decision on joining a union. 

Additionally, the Board’s decision in the Specialty Healthcare case represents the 

most dramatic change in labor law in 50 years. The decision sets forth a new standard for determining which group or ‘‘unit’’ of employees will vote in the union election. These ‘‘micro-unions’’ could cripple an employer’s ability to manage operations 

in an effective way, resulting in a manufacturing facility with separate unions representing custodial staff, assemblers, and fitters. We believe this decision will unnecessarily divide employees and place an extraordinary burden on employers. 

Your bill, by guaranteeing an employer’s ability to participate in a fair union election process by establishing a 14 day timeframe for an employer to prepare a case 

to be heard by the NLRB and establishing no union election will be held in less than 

35 days, ensures employees are able to make fully informed decisions about joining 

a union. Your bill would also correctly reestablish decades of law, reinstating the 

standard by which employees vote in the union elections and preventing the possibility of several ‘‘micro-unions’’ at one facility. 

We look forward to continue working with you on our shared goals for a strong 

economy, job creation and promoting fair and balanced labor laws. Thank you for 

bringing the Workforce Democracy and Fairness Act forward in the Committee. I 

urge its swift enactment. 

Sincerely, 

JOE TRAUGER, Vice President, 

Human Resources Policy. 

October 14, 2011. 

Hon. JOHN KLINE, Chairman; Hon. GEORGE MILLER, Ranking Member, 

Committee on Education and the Workforce, 2181 Rayburn House Office Building, 

Washington, DC 20515. 

RE: Committee Hearing on H.R. 3094 ‘‘The Workforce Democracy and Fairness Act’’ 

DEAR SIRS: We are writing to express the strong support of HR Policy Association 

for H.R. 3094, ‘‘The Workforce Democracy and Fairness Act’’ (‘‘Act’’ or ‘‘legislation’’). 

We are very concerned with the National Labor Relations Board’s recent activity including the issuance of the proposed regulation regarding representation case procedure1 and the Specialty Healthcare decision.2 This legislation targets and would 

remedy the serious problems associated with the proposed rule and the Specialty 

Healthcare decision and would provide greater freedom of choice and protections for 

employees in union elections. We respectfully request that this letter be included in 

the hearing record. 

HR Policy Association is a public policy advocacy organization representing chief 

human resource officers of major employers. The Association consists of more than 

330 of the largest corporations doing business in the United States and globally, and 

these employers are represented in the organization by their most senior human resource executive. Collectively, these companies employ more than 10 million people 

in the United States, and their chief human resource officer are generally responsible for employee and labor relations for their respective companies. 

The legislation would establish minimum time frames for union representation 

elections that would closely approximate the current 38-day median rejecting the 
76 

3 NLRB General Counsel, Summary of Operations (Fiscal Year 2010), GC. Mem. 11-03, at 5 

(January 10, 2011). 4 ‘‘Number of NLRB Elections Held in 2010 Increased Substantially from Previous Year,’’ 

Daily Lab. Rep. (BNA), No. 85, at B-1 (May 3, 2011). 

NLRB’s recently proposed election rules that could result in elections being held in 

as few as 10 days, giving employees little time to hear the employer’s position as 

well as that of their co-employees. The bill also preserves existing procedures that 

enable the NLRB to sufficiently determine which employees should be included in 

the unit that the union would represent. Finally, the bill would overturn the recent 

Specialty Healthcare decision, which will result in fragmented workplaces where 

unions can represent extremely small groups of employees (e.g., the cashiers in a 

retail setting) even where their interests coincide with the broader workforce. 

The Board’s recent actions including most prominently the proposed regulation 

dramatically shortening the time for union elections, and the Specialty Healthcare 

decision which encourages micro-units in the workplace, all serve to disrupt the 

workplace and undermine and hinder job growth and economic recovery. We applaud your Committee for holding a hearing on The Workforce Democracy and Fairness Act and urge Congress to pass the Act. What follows are the Association’s concerns regarding the proposed election regulations and concerns related to the recently issued Specialty Healthcare decision, which the legislation would remedy. 

I. NLRB’s Expedited Election Rules Would Curtail Employees’ Ability to Make a 

Fully Informed Decision on Union Representation 

Election Data Indicates Proposal is a Solution in Search of a Problem. In a statement issued in conjunction with publication of the rules, NLRB Chairman Wilma 

Liebman states that, despite some improvements over the years, ‘‘the current [election] rules still seem to build in unnecessary delays, to encourage wasteful litigation, to reflect old-fashioned communication technologies, and to allow haphazard 

case-processing.’’ Yet, the case is not made in the proposal for this apparent breakdown. Indeed, in his dissent, NLRB Member Brian Hayes cites NLRB data to show 

that the vast majority of elections proceed in a very expeditious manner. Currently, 

the NLRB’s internal objective in representation cases is to complete elections within 

42 days of the filing of the petition.3 However, in 2010, the regional offices exceeded 

this objective, completing initial elections in representation cases in a median of 38 

days from the filing of the petition. Citing BNA data, Member Hayes adds: ‘‘Inasmuch as unions prevailed in 67.6 percent of elections held in calendar year 2010 

and in 68.7 percent of elections held in calendar year 2009, the percentage of union 

victories contemplated by the majority in the revised rules must be remarkably 

high.’’ 4 H.R. 3094 recognizes that the longstanding existing election procedures are 

wholly adequate. 

Failure to Seek Stakeholder Views. In addition to its failure to justify the need 

for the proposed changes, the credibility of the proposed rules is further undermined 

by the decision of the Board not to solicit any views from the stakeholder community before issuing the proposal. In our Blueprint for Jobs in the 21st Century, the 

Association recommends ‘‘involvement of essential stakeholders in the formulation 

of new employment policies’’ (i.e., through a process of negotiated rulemaking) as a 

solution to the problem of existing rules failing to reflect the realities of the workplace. Instead of being formulated through a collaborative process, employment regulations often simply implement the wish list of a powerful interest group. Moreover, President Obama’s Executive Order 13563 specifically states that ‘‘[b]efore 

issuing a notice of proposed rulemaking, each agency, where feasible and appropriate, shall seek the views of those who are likely to be affected, including those 

who are likely to benefit from and those who are potentially subject to such rulemaking.’’ While independent agencies like the NLRB are not required to comply 

with the Executive Order, they should operate within its spirit, particularly in a 

highly sensitive matter like union representation elections, where a number of interests are affected. As Member Hayes notes in his dissent, there were a number of 

ways of involving the affected stakeholders in this process, including negotiated 

rulemaking or, at the very least, receiving comment by the Board’s standing Rules 

Revision Committee and by the Practice and Procedures Committee of the American 

Bar Association. Indeed, some of the proposed changes, such as allowing the electronic filing of key documents with the Board, have not generated significant opposition and, as part of an overall collaborative process, could be part of a package of 

welcome improvements to the Board’s election procedures. 

Curtailing Employee Access to Essential Information Before Voting. The Workforce Democracy and Fairness Act would reject the Board’s proposed ‘‘hurry up and 

vote’’ procedures, under which employees will be denied critical information in mak-
77 

5See Chamber of Commerce of the United States v. Brown, 554 U.S. 60, 60-68 (2008); Franzia 

Bros. Winery, 290 N.L.R.B. 927, 932 (1988). Section 8(c) of the National Labor Relations Act 

protects an employer’s right to communicate with employees regarding unions and representation issues. 6 343 N.L.R.B. 906 (2004). 

ing an informed decision regarding whether to be represented by a union—a decision that in the vast majority of situations is, as a practical matter, a permanent 

one that will bind not only the voting employees but later hires as well. Under the 

proposed regulations, there are two critical areas where key information will be limited or curtailed: • Shorter Campaign Periods. While the proposed rules do not identify a specific 

time target, a key provision in the changes requires the NLRB regional director to 

set the election at ‘‘the earliest date practicable.’’ Member Hayes estimates that the 

changes will result in elections between 10 and 21 days. This is far shorter than 

the current 38 day median (within which, as BNA data indicates, unions win 2 of 

every 3 elections already), which is itself a considerably shorter period already than 

voters have in deciding whether a candidate will represent them for 2, 4 or 6 years 

in Washington. In most cases, this gives employees ample opportunity to hear not 

only from their employer but to discuss the issues among themselves. Both the 

Board and the U.S. Supreme Court have recognized that Federal labor policy favors 

‘‘uninhibited, robust, and wide-open debate in labor disputes’’ and that the enactment of Section 8(c) ‘‘manifested a congressional intent to encourage free debate on 

issues dividing labor and management.’’ 5

• Not Knowing Who Else the Union Would Represent. In seeking to expedite the 

election process, the proposed rules would eliminate pre-election proceedings in certain situations where the employer disputes the union’s claim of which employees 

will vote upon and potentially be represented by the union. Currently, the Board 

will make a ‘‘unit determination’’ in those situations before the employees vote. The 

dispute may be based on different job classifications or, as discussed below, whether 

certain employees are exempt supervisors and therefore excluded from the voting 

and the representation. The proposed rules provide that, where the disputed group 

of employees involves fewer than 20 percent of the total number, all employees are 

to vote anyway, with the votes to be counted after the unit determination is made. 

Thus, in a casino setting, the blackjack and poker dealers may have to vote without 

knowing whether their terms and conditions of employment will be covered by a collective bargaining agreement that also covers waiters and waitresses, bartenders 

and others that may or may not have a sufficient ‘‘community of interest’’ with 

them. 

Uncertain Status of Supervisors. One critical group that will be affected by the 

‘‘20 percent’’ rule just described are supervisors, whose exempt status determines 

not only whether they will vote and be represented by the union, but also whether 

their conduct is regulated by the same rules that apply to the employer. Thus, if 

they participate as employees in the campaign and it is later determined that they 

were in fact supervisors, statements they made for or against the union could be 

deemed coercive. This could result in the election being overturned, as occurred in 

Harborside Healthcare, Inc., where an employee who helped the union solicit supporters was later deemed a supervisor.6

Denial of Employer Due Process Rights. A number of the changes, purportedly in 

the interests of expediting election procedures, would curtail the ability of employers—especially small businesses—to effectively present their position to the Board 

on critical issues like which employees should or should not be in the unit. Many 

of these highly technical but significant changes would violate the requirement of 

‘‘an appropriate hearing’’ under the National Labor Relations Act, including: 

• Limiting access to the NLRB for review of both pre-election and post-election 

determinations made by regional bureaucrats who often are not lawyers; 

• Requiring employers to articulate and substantiate their positions on key election issues prior to any hearing or risk waiving those arguments; nor could they 

offer evidence or cross-examine witnesses with respect to virtually any issues not 

raised by them at the outset, even if those issues have a critical impact on the employees; 

• Requiring an employer who contests the union’s description of the ‘‘appropriate 

unit’’ to identify ‘‘the most similar unit’’ that the employer would deem appropriate, 

and provide the names, work locations, shifts and job classifications of those employees, which would then become available to the union. 

Expanding Union Access to Employees’ Personal Information. Under current procedures, once an election is ordered, employers are required to provide the union 

with a list of the names and addresses of the employees who will be voting. The 
78 

7 Named after Excelsior Underwear, Inc., 156 N.L.R.B. 1236 (1966). 

8 357 NLRB No. 83 (August 26, 2011). 

9 Cf. Wheeling Island Gaming, 355 NLRB No. 127, Slip. Op. at 1 n.2 (August 27, 2010); Newton-Wellesley Hospital, 250 NLRB 409, 411-12 (1980). 10Petition in the Matter of Rulemaking Regarding Members-Only Minority-Union Collective 

Bargaining (Aug. 14, 2007). 

proposed rules would expand the information required under so-called ‘‘Excelsior 

lists’’ 7 to include telephone numbers and email addresses, though it is not clear 

whether this information would be personal, business or both. Either is problematic. 

If personal email addresses and telephone numbers are required, this would be a 

significant incursion on employees’ privacy. If the requirement involves business 

telephone numbers and email addresses, this would be an unprecedented expansion 

of union access to employers’ workplaces. The Workforce Democracy and Fairness 

Act would protect employee privacy and limit the information made available making it similar to the longstanding procedure. 

II. The NLRB’s Decision in Specialty Healthcare Furthers Long-term Goal of Labor 

to Undermine Fundamental American Labor Law Principle of ‘‘Majority Rules’’ 

Decided on August 26, 2011 by a vote of 3 to 1, with NLRB Member Brian Hayes 

dissenting, the decision in Specialty Healthcare,8 enables unions to secure organizing victories by carving out very small ‘‘micro-units’’ within a workplace, such as 

cashiers in a retail setting or poker dealers in a casino setting. What makes the situation even more alarming is the inability of employers to obtain a prompt review 

in the courts, which will likely take two or three years at best. Consequently, 

prompt legislative action such as the Workforce Democracy and Fairness Act is necessary. 

Determining Who Votes in a Union Representation Election. When a union seeks 

to organize employees in a workplace, the first issue to be addressed is usually 

which group of employees will vote and ultimately be represented by the union if 

it is successful—i.e., the ‘‘appropriate unit.’’ The general touchstone in making this 

determination, which is very fact-sensitive, is whether there is a ‘‘community of interest’’ among the employees. When a union has authorization cards signed by at 

least 30% of the employees in the unit, it files a petition with the NLRB regional 

office. If the employer believes the union’s target is not an appropriate unit, it can 

challenge the petition, prompting a hearing and determination by the Board as to 

what the appropriate unit is, i.e., a ‘‘unit determination.’’ In making this determination, there is a presumption in favor of the union’s petition. However, if the employer believes that other employees have been inappropriately excluded, it will 

argue that there is a broader community of interest and, prior to Specialty 

Healthcare, the employer generally could prevail if it could show that the union’s 

unit does not have interests that are ‘‘sufficiently distinct’’ from the larger group.9

The legislation would generally preserve this framework. 

Union’s Victory Strategy Often Premised on Smallest Possible Group. The smaller 

the group of employees voting in an election, the fewer the union needs to gain a 

majority. Thus, unless there is strong sentiment favoring the union in the larger 

workplace, the union will target a discrete group where pro-union sentiment is 

strongest and hope to hold the support of a majority of them in the election. If successful, the union can then try to secure better wages, benefits and other advantages for this small group, creating a case it can then make to the larger workforce. 

Thus, in Specialty Healthcare, rather than seeking to organize the entire non-acute 

healthcare facility—or even all nurses—the the union targeted certified nursing assistants (CNAs), and excluded registered nurses (RNs) and licensed professional 

nurses (LPNs), not to mention cooks, dietary aides, business clericals, residential activity assistants and others covered by the employers human resource policies. 

The Goal of Organizing ‘‘Minority Unions.’’ As organized labor’s ability to organize 

new members has declined, it has begun supporting the concept of ‘‘minority 

unions,’’ i.e., enabling any subset of a workforce’s employees to form a union that 

the employer must bargain with, even if a majority of the employees do not support 

it. Although a petition has been filed with the NLRB by a broad coalition of unions 

to achieve this through rulemaking,10 the National Labor Relations Act is clearly 

based on a ‘‘majority rule’’ principle. Moreover, such a policy, which mirrors the laws 

in several European countries, would be viewed by employers and, likely the overwhelming majority of policymakers as well, as being highly disruptive and divisive 

in American workplaces at a time when U.S. employers are struggling to compete 

globally. Nevertheless, organized labor is interested in any approach that enables 

it to subdivide a workforce to obtain smaller ‘‘majorities’’ in elections. 
79 

11Specialty Healthcare, 357 NLRB No. 83, Slip. Op. at 19-20. 12Wheeling Island Gaming, Inc., 355 NLRB No. 127, Slip. Op. at 1. 

The Specialty Healthcare Decision. In Specialty Healthcare, the Board adopted a 

new standard for determining appropriate units, raising the bar substantially—impossibly, in the view of many labor lawyers—for an employer to challenge the 

union’s unit as excluding other employees with a shared community of interest. 

Abandoning the ‘‘sufficiently distinct’’ standard, the Board will now require employers to show that there is an ‘‘overwhelming community of interest’’ with the larger 

group by pointing to ‘‘factors that overlap almost completely.’’ Effectively, any time 

a union files a petition involving a group of employees with the same job title and 

description, it will likely prevail. Although in deciding the case the Board sought 

in one part of the decision to claim that the new rule would only apply in non-acute 

health care facilities, the otherwise broad statements made in the decision prompted 

dissenting Member Brian Hayes to point out what management attorneys are generally concluding as well: 

[T]his test obviously encourages unions to engage in incremental organizing in the 

smallest units possible * * * [It will] make it virtually impossible for a party opposing this unit to prove that any excluded employees should be included * * * [T]he 

Board’s Regional Offices * * * will have little option but to find almost any petitioned-for unit appropriate * * *11

The Disruptive Impact of the Decision. The successful operation of a business 

often depends on the ability to maintain uniform human resource policies that provide wage scales, benefits, scheduling, promotions, and so forth to a broad range of 

employees within the workplace. To have these policies fragmented, requiring bargaining with a union representing a small group of employees every time changes 

are made, can make or break the employer’s ability to maintain the flexibility needed to respond to the demands of the marketplace. This becomes even more difficult 

if there are multiple unions, each representing one small part of the workforce. 

Thus, in a retail setting, in order to change major store policies, such as hours of 

operation, management of work flows during peak seasons, etc., the store owner 

may first have to bargain with the unions separately representing the cashiers, the 

salespersons in each department, the loading dock, the delivery truck drivers, etc. 

To underscore the absurdity of the ruling in Specialty, an earlier ruling in a case 

involving a casino rejected a union’s petition to organize the poker dealers as a distinct unit from the blackjack, roulette, craps dealers and so forth.12 Under Specialty 

Healthcare, the union would likely have prevailed, as signaled by Member Craig 

Becker’s dissent in the case. 

Inability of Employers to Bring a Legal Challenge Necessitates Legislative Solution. What is perhaps most disturbing about the Specialty Healthcare decision is the 

inability of employers to obtain a challenge in the courts, due to the complicated 

procedures of the NLRB. With extremely rare exceptions, the NLRB does most of 

its rulemaking with decisions in cases rather than regulations. There are two kinds 

of decisions—those such as Specialty Healthcare involving election procedures 

(called ‘‘R cases’’) and those involving unfair labor practices (‘‘C cases’’). Only decisions in C cases can be appealed directly to the federal courts, nor generally is there 

any realistic ability to obtain declaratory relief by a court that a Board decision is 

wrong. If an employer wishes to challenge an R case decision where the union ‘‘won’’ 

the election, it must refuse to bargain with the union, thus committing an unfair 

labor practice, which then invokes the Board’s procedures in those cases. Thus, the 

time frame from the filing of a union petition to a review by the courts typically 

involves at least a year or two if not longer. Meanwhile, as employers wait for the 

right case to move through these procedures, every NLRB regional office in the 

United States will be required to rule on union petitions in accordance with Specialty Healthcare. Absent legislation overturning the decision, the disruptive effects 

will be felt immediately and for a very long time. Thus, it is imperative for Congress 

to pass the Workforce Democracy and Fairness Act. 

We applaud the Committee for holding this hearing and appreciate your consideration of this matter. 

DANIEL V. YAGER, 

Chief Policy Officer & General Counsel, HR Policy Association. 

Mr. MILLER [continuing]. Also under the announcements that 

make available documents for the hearing for the record. 

Chairman KLINE. No objection to either, they will be submitted 

for the record. 
80 

[The information follows:] 

Prepared Statement of Chris Grant, Schuchat, Cook & Werner 

Per your request, here is a summary of two examples of employer abuse of the 

election process creating delay: 

1. Employer refusing to provide issues in advance of hearing and taking contradictory positions 

Employers sometimes refuse to provide notice of the issues prior to the hearing, 

and then change their positions, resulting in delay. In ADB Utility Contractors, 353 

NLRB No. 21 (2008) and 355 NLRB No. 172 (2010), the employer refused to give 

its position as to the issues prior to the representation hearing, forcing the union 

to guess as to what the employer would argue. At the representation hearing, the 

employer contended that its project supervisors and project managers (involving less 

than 20% of the unit) were employees and not supervisors. Notwithstanding, the 

employer subsequently argued at the unfair labor practice trial in the case that various crew leaders which the employer had fired for their union activity, that worked 

under the project supervisors and managers, were statutory supervisors. That is, 

the employer took the exact opposite position as to the status of the same individuals in two, virtually contemporaneous NLRB proceedings. The employer also knew 

that the workers were meeting with union representatives before the union filed the 

representation petition, and the employer acted on that knowledge. The General 

Manager informed employees that he knew that they were attending union meetings, and the employer fired several lead union supporters before the union filed the 

petition. 

The Union spent nearly five years having to litigate the employee status of the 

crew leaders. In the 2008 decision, the Board noted that delay in the case was due 

to the Employer posture on the supervisory issue which was ‘‘a complete turnaround 

from its position during the near contemporaneous representation proceeding.’’ The 

Board noted that, but for the Employer’s contradictory positions, the Board could 

have issued a decision earlier. 

If the law required exhaustion of Board appeals before an election, in cases like 

ADB where employers raise frivolous issues it would take five years before employees would have the opportunity to vote. Employees would be denied the right to select a representative for 5 years or more. 

2. Employer repeatedly litigating the same position at facilities across the country despite repeatedly losing 

In response to election petitions, the American Red Cross forces local unions 

across the country to litigate simple issues that the ARC has lost multiple times 

at other facilities. This creates delay. 

Unions typically seek to include team leaders (also called mobile unit leaders, site 

supervisors, and charges) in Red Cross bargaining units. These are frontline employees who collect blood and have the same hours as other employee, work under 

the close supervisor of low-level managers, are subject to detailed rules, and have 

little discretion in making decisions. The ARC claims these employees are supervisors. It has lost this claim many times, but continues to raise it. See American 

Red Cross, Heart of America Blood Services Region, Case 33-RC-5033 (May 4, 2007), 

American Red Cross Blood Services, Southern California Division, Case 21-RC20885 (May 11, 2006), American Red Cross, Missouri-Illinois Blood Services Region, 

Case 14-RC-12500 (June 10, 2004), American Red Cross Tennessee Valley Blood 

Services Region, Case 26-RC8399 (November 24, 2003) (site supervisors are not statutory supervisors); American Red Cross Blood Services, Northern Ohio Region, Case 

8-RC-16337 (charges are not supervisors); American Red Cross Badger-Hawkeye Region, Case 13-RC-20710 (March 14, 2002) (collections specialists II are not statutory 

supervisors); American Red Cross Tennessee Valley Blood Services Region, Case 26- 

RC-8150 (March 13, 2000) (mobile unit leaders are not statutory supervisors); TriState Division Greater Alleghenies Region, American Red Cross, 9-RC-17310 (November 1, 1999) (charge nurses are not supervisors); American Red Cross Blood 

Services, Northern Ohio Region, Case 8-RC-15906 (August 24, 1999) (charges are 

not supervisors). 

Unions also typically seek to represent collection or blood drive employees in an 

area (numbering up to 150 employees). The Red Cross has repeatedly argued that 

Unions must represent other non-supervisory employees in the area, like tele-recruiters and lab techs, that have little to no contact with the collection employees, 

work in different facilities, and work under different supervisor, and do not collect 

blood. The ARC has lost this issue repeatedly. American Red Cross, Arizona Region, 
81 

Case 28-RC-6452 (July 7, 2006); American Red Cross, Missouri-Illinois Blood Services Region, Case 14-RC-12500 (June 10, 2004), American Red Cross Tennessee Valley Blood Services Region, Case 26-RC8399 (November 24, 2003); American Red 

Cross, Blood Services, Southern Region Savannah East Coast District, Case 10-RC15296 (August 9, 2002), American Red Cross Badger-Hawkeye Region, Case 13-RC20710 (March 14, 2002), American Red Cross Blood Services Southwest Region, 

Case 16-RC10255 (June 23, 2000); American Red Cross Tennessee Valley Blood 

Services Region, Case 26-RC-8150 (March 13, 2000). 

The litigation of issues that the ARC repeatedly loses at the least creates unnecessary delay in scheduling and holding an election. At worst, it is in bad faith. 

If you need additional information, let me know. 
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Chairman KLINE. I want to thank the panel, and just restate 

what I think is the obvious. This is a legislative hearing. We have 

some legislation before us. We are hearing from experts their 

views, their opinions, on the impact of that legislation and the impact of the proposed rule and rules coming from the National Labor 

Relations Board. 

It is the intent of the legislation not to clog up the review process. We are looking to codify what has been existing practice in 

both reviews and appeals, and allow this to move forward smoothly. We believe that the current actions of the board are injurious 

to workers, denying them the opportunity to hear all sides of the 

debate before they make a truly huge decision in their lives and 

their family lives on whether or not to recognize a union. 

We believe that the current ruling is manifestly unfair to employers, particularly small employers, when they have to deal with 

something like this, and more. I understand we have a multi-volume set, a couple of volumes. And as Mr. Russell pointed out, there 

are many, many employers who have no idea what is coming 

through the door and they have 7 days to find the lawyer, get their 

position in, and then not be able to change it. 

So we are looking in this legislation to undo what I think are 

very injurious actions of the National Labor Relations Board, protect the rights of employees and employers as they go forward to 

make these decisions. We will be informed by the hearing today. 

And if we need some classification, to Mr. Miller’s point, in report 

language or in changing the language of the bill to make sure that 

we are not doing the egregious harm which has been suggested by 

the other side, we will of course be looking at that. 
111 

Again, I thank the witnesses for their participation today. And 

there being no further business, the committee stands adjourned. 

[The prepared statement of Mr. Kucinich follows:] 

Prepared Statement of Hon. Dennis J. Kucinich, a 

Representative in Congress From the State of Ohio 

Mister Chairman, I strongly oppose H.R. 3094, ‘‘The Workforce Democracy and 

Fairness Act.’’ It would tear down seventy five years of National Labor Relations 

Board (NLRB) case law governing the appropriateness of a bargaining unit of employees. That case law says that unions should be able to organize sub-units of an 

employer, such as employees of one department, as opposed to all the employees at 

that workplace. But H.R. 3094 would allow employers to water down any potential 

bargaining unit by using its influence to stack the voting pool full of guaranteed 

‘‘no’’ votes. 

The NLRB recently proposed a change to the procedures governing the rights of 

workers seeking to form a union. The changes would modernize and improve the 

procedures currently in place and further protect workers from efforts to delay or 

thwart workers exercising their right to collectively bargain. These changes would 

bring improvements for American workers. H.R. 3094 would prevent these important changes from taking place and serves as yet another bill brought by the majority of this committee that would significantly undermine the right of American 

workers to collectively bargain. 

The bill would allow employers to indefinitely delay union elections by requiring 

the National Labor Relations Board to hear and issue a formal decision on every 

appeal, no matter how arbitrary, made by employers. This will force workers seeking to assert their right to collectively bargain to wait months, even years, until an 

actual union election can take place. 

The intent of H.R. 3094 is clear: to impede the right of workers to collectively bargain. Given that about 14 million Americans are out of work and another 8 million 

are unable to find enough work to live reasonably, it is a shame that this Committee 

is wasting its resources on another piece of legislation that attacks the National 

Labor Relations Board. One of the greatest barriers toward an American economic 

recovery is the steady weakening of the middle class. This bill does nothing to help 

that. Instead, it is another step in the other direction. 
112 

112TH CONGRESS FIRST SESSION

H.R. 3094 

To amend the National Labor Relations Act with respect to representation hearings and the timing of elections of labor organizations under that Act. 

IN THE HOUSE OF REPRESENTATIVES

OCTOBER 5, 2011 

Mr. KLINE (for himself, Mr. MCKEON, Mr. WILSON of South Carolina, Ms. FOXX, Mr. HUNTER, Mr. ROE of Tennessee, Mr. 

THOMPSON of Pennsylvania, Mr. WALBERG, Mr. DESJARLAIS, 

Mr. ROKITA, Mr. BUCSHON, Mr. GOWDY, Mrs. ROBY, Mr. ROSS

of Florida, and Mr. KELLY) introduced the following bill; which 

was referred to the Committee on Education and the Workforce 

A BILL 

To amend the National Labor Relations Act with respect to representation hearings and the timing of elections of labor organizations under that Act. 

Be it enacted by the Senate and House of Representatives of the 

United States of America in Congress assembled, 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘Workforce Democracy and Fairness Act’’. 

SEC. 2. TIMING OF ELECTIONS. 

Section 9 of the National Labor Relations Act (29 U.S.C. 159) 

is amended— 

(1) in subsection (b) by striking the first sentence and inserting the following: ‘‘In each case, prior to an election, the 

Board shall determine, in order to assure to employees the fullest freedom in exercising the rights guaranteed by this Act, the 

unit appropriate for the purposes of collective bargaining. Unless otherwise stated in this Act, the unit appropriate for purposes of collective bargaining shall consist of employees that 

share a sufficient community of interest. In determining 

whether employees share a sufficient community of interest, 

the Board shall consider (1) similarity of wages, benefits, and 

working conditions; (2) similarity of skills and training; (3) centrality of management and common supervision; (4) extent of 

interchange and frequency of contact between employees; (5) 

integration of the work flow and interrelationship of the production process; (6) the consistency of the unit with the employer’s organizational structure; (7) similarity of job functions 

and work; and (8) the bargaining history in the particular unit 

and the industry. To avoid the proliferation or fragmentation 

of bargaining units, employees shall not be excluded from the 

unit unless the interests of the group sought are sufficiently 

distinct from those of other employees to warrant the estab-
113 

lishment of a separate unit. Whether additional employees 

should be included in a proposed unit shall be based on whether such additional employees and proposed unit members 

share a sufficient community of interest, with the sole exception of proposed accretions to an existing unit, in which the inclusion of additional employees shall be based on whether such 

additional employees and existing unit members share an overwhelming community of interest and the additional employees 

have little or no separate identity.’’; and 

(2) in subsection (c)(1) in the matter following subparagraph (B)— 

(A) by inserting ‘‘, but in no circumstances less than 

14 calendar days after the filing of the petition’’ after 

‘‘hearing upon due notice’’; 

(B) by inserting before the last sentence the following: 

‘‘An appropriate hearing shall be one that is non-adversarial with the hearing officer charged, in collaboration 

with the parties, with the responsibility of identifying any 

pre-election issues and thereafter making a full record 

thereon. Pre-election issues shall include, in addition to 

unit appropriateness, the Board’s jurisdiction and any 

other issue the resolution of which may make an election 

unnecessary or which may reasonably be expected to impact the election’s outcome. Parties may raise independently any issue or assert any position at any time prior to 

the close of the hearing.’’; 

(C) in the last sentence— 

(i) by inserting ‘‘and a review of post-hearing appeals’’ after ‘‘record of such a hearing’’; and 

(ii) by inserting ‘‘to be conducted as soon as practicable but not less than 35 calendar days following 

the filing of an election petition’’ after ‘‘election by secret ballot’’; and 

(D) by adding at the end the following: ‘‘Not earlier 

than 7 days after final determination by the Board of the 

appropriate bargaining unit, the Board shall acquire from 

the employer a list of all eligible voters to be made available to all parties, which shall include the employee 

names, and one additional form of personal employee contact information (such as telephone number, email address 

or mailing address) chosen by the employee in writing.’’. 

[Whereupon, at 12:25 p.m., the committee was adjourned.] 

Æ