During a hearing conducted by the House Committee on Education and the Workforce, labor experts and lawmakers debated the merits of the recently-introduced Workforce Democracy and Fairness Act (H.R. 3094), legislation that would restore the criteria used to determine an appropriate bargaining unit and prevent the National Labor Relations Board from pursuing its proposed changes to the representation election process.

Opening the hearing, Committee Chairman John Kline (R-MN) claimed that the NLRB is “wreaking havoc on the nation’s workforce and must be stopped.” Kline first criticized the Board’s “ambush elections proposal” that would require that pre-election hearings be held within seven calendar days after a petition is filed; provide employees with as few as 10 days to make a decision regarding whether they want to join a union; postpone the resolution of voter eligibility issues until after the election; mandate that employers complete their statement of position before evidence is heard at a pre-election hearing; and require employers to provide the union a preliminary voter list before the pre-election hearing, and a final voter list within two days after the election is scheduled, among other significant changes. According to Kline, such “expansive changes” should be vetted legislatively. To that end, Kline introduced the Workforce Democracy and Fairness Act, claiming it would “require the NLRB to change course.” This measure would provide employers with at least 14 days to prepare for an election hearing and afford workers at least 35 days to make an informed decision regarding union representation. The bill would also “safeguard privacy” by limiting what identification and contact information an employer must provide to unions prior to an election.

Kline also found fault with the Board’s recent decision in Specialty Healthcare, which changed the criteria for assessing appropriate bargaining units. Under the new standard, employers have the burden of proving excluded employees share an “overwhelming community of interest” with the proposed unit – a new and uncertain standard. The decision essentially makes it easier for unions to create smaller “micro” units within a workplace.

The majority of panelists spoke in favor of the Workforce Democracy and Fairness Act, and criticized the proposed expedited election rule. Charles Cohen, a former member of the NLRB, testified that the bill represents a “measured response” to recent NLRB actions, and would “restore the critical role that Congress should play.” He claimed that the proposed rule – which would dramatically shorten the timeframe between filing a representation petition and holding an election – “eviscerates an employer’s legitimate right” to express its position on representation. According to this witness, the election process is relatively quick, with elections occurring within a median timeframe of 38 days after the petition is filed. In fiscal year 2010, he testified, the average timeframe was only 31 days.

Cohen, as well as other witnesses, claimed that the bill would restore the status quo of long-standing election procedures, and codify a reasonable framework for holding union elections.

Another witness claimed that the Board’s recent rulemaking efforts have ignored employees’ rights in favor of promoting greater union access. He pointed out that unions often begin their organizing efforts weeks or months prior to filing a petition for representation. Limiting employers’ chances to educate and express their own positions to employees in as little as 10 days infringes on their free speech rights, they argued. Moreover, witnesses explained that the bill’s allowance of 14 days for employers to prepare for a pre-election hearing is a “reasonable compromise” and not drastically longer than the 7-day timeframe established by the proposed rule, but sufficient for an employer to prepare for the hearing.

Several witnesses also found fault with the Board’s decision in Specialty Healthcare. According to one witness, “if you control the electorate, you will have the key to winning an election.” The new “overwhelming community of interest” standard is an unknown and therefore hard to prove standard that will ultimately result in the organization of much smaller units within a company.

Testifying on behalf of the Retail Industry Leaders Association, Robert Sullivan explained that the practical result of these “micro” units will be devastating for retailers and other employers. He stated that unions will be able to organize employees within single shifts or departments, significantly limiting an employer’s flexibility and an employee’s opportunity for advancement. For example, he explained that flexibility in the retail industry is extremely important given the nature of the business and relatively high turnover. A manager will often move employees from one department or shift to another depending on business need. Doing so also enables employees to learn different functions within the organization. Organizing each department into separate units would greatly diminish this flexibility.

Another panelist echoed this position, claiming that the proliferation of micro bargaining units would amount to a “management nightmare” and limit an employee’s possibility of advancement. According to the witness, each unit would require the issuance of its own policies and benefit plans, among other administrative documents. This would not only be administratively burdensome, but expensive, they testified.

The bill garnered some critics, however. Ranking member George Miller (D-CA) claimed that the measure would enable employers to gerrymander the units. He also argued that the provision allowing parties to raise any issue prior to the pre-election hearing could encourage employers to bring up a number of issues in order to unduly delay a final election.

A union-side lawyer similarly argued that the bill “promotes neither fairness nor democracy” and is not aimed at helping the workforce. He also disputed the claim that employers would be given too little time to make their case against unionization to their employees. The witness and certain members of the Committee stated that employers have access to their employees from the date of hire. Therefore, they argued, the claim that the proposed rule limits their free speech rights is specious.

Kline concluded the hearing by promising to look into the bill’s language to see if any changes needed to be made to limit the potential for abuse.

A list of the panelists and links to their testimony and an archived web cast of the hearing can be found here.

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