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Hearing on Workforce Fairness Act suggests law could reveal concerns over Board action, possible delay to election process

At an October 12 hearing into the Workforce Democracy and Fairness Act (HR 3094), the House Committee on Education and the Workforce engaged in a spirited debate over the bill, which would undo or block recent decisions and proposed rulemaking by the NLRB. Supporters of the bill tended to focus more on what they perceive to be overreaching by the current NLRB, while opponents of the bill highlighted its potential consequences, which include mandated Board review of every election petition.

Chairman Jon Kline opened the hearing saying that the NLRB “is wreaking havoc on the nation’s workforce and it must be stopped.” Kline pointed to the board’s “ambush elections proposal,” which would require a hearing on election petitions within seven days of a filing. He argued that the proposal would give employees as little as 10 days to consider all the consequences of joining a union and suggested that, when combined with the Board’s recent Specialty Healthcare decision, the proposal is intended to promote unionization. Kline did say that he was open to ideas that would modernize the election process, but said that ideas as far-reaching as the Board’s should be argued and decided by Congress. Such a debate, Kline said, is the purpose of the Workforce Democracy and Fairness Act, which would give employers at least 14 days to prepare for the election hearing.

Charles Cohen, a former member of the board appointed by President Clinton, testified that the legislation is necessary in order to “restrict this NLRB – or any future NLRB – from attempting to violate the mandates of the NLRA and circumvent Congress with regard to election procedures.”

Various issues were debated during the course of the hearing. The panelists and Committee members discussed whether the new bill would protect, or hinder, employees’ exercise of their right to vote. Phillip Russell, an attorney and expert on combating unionization campaigns, argued that the WDFA would “protect the rights of all employees in a workplace to vote on unionization and the right to information from all sides before being forced to vote.” Cohen said that the law will guarantee the privacy of employees because it gives employees the choice of how they shall be contacted by a union. Under questioning by Democratic lawmakers, Cohen acknowledged that the WDFA would require the Board to review any election petition that came before it, a process that could greatly delay representation elections. Cohen also said that if the Board drops its election reform proposal and rescinds Specialty Healthcare, he would see no need for the passage of the WDFA.

Witnesses also discussed whether the WDFA will protect employers. Many of the witnesses focused on the bill’s eradication of the requirement that the Board’s election proposal would impose on employers to present their case to the Board within seven days of the filing of an election petition. Cohen said that most employers, especially small employers, simply lack the time, resources, and knowledge to prepare to defend against a unionization campaign within seven days. Robert Sullivan, a spokesman for the Retail Industry Leaders Association seconded that concern, saying that businesses need, at minimum, ten days in which to respond.

Most witnesses also defended the WDFA’s overturning of the Specialty Healthcare decision. Russell contended that the WDFA “would prevent fragmented workforces in which management would be forced to negotiate multiple contracts with multiple groups of employees.” Sullivan said that Specialty Healthcare opened the door to a scenario in which employees could no longer move among jobs at a company and limits the opportunity for employees to train for a number of roles. Russell added that the decision could lead to an explosion of employer voluntary recognition of unions, because employers would rather give in than fight a host of election petitions.

Although most of the witnesses supported the WDFA, Phillip Hunter, an attorney representing unions, argued that the Board’s recent actions and decisions are necessary to level the playing field. Employers, Hunter contended during the hearing, have “unfettered access to employees from the employees’ first day on the job.” The Board’s election proposal, insisted Hunter, puts the employer and union on more equal footing in terms of the opportunities available to each side for persuasion. Hunter also sought to alleviate concerns that the Board’s election proposal would result in lawsuits by employees against employers for giving their information to unions. Employers who are simply following the law in handing over employees’ contact information, averred Hunter, would not be liable for privacy lawsuits.

Following the hearing, the Associated Builders and Contractors (ABC) released a statement attacking “the NLRB’s ‘ambush’ elections proposal” which it says “would significantly impede the ability of construction industry employers to protect their free speech rights” and “hinders the free choice of workers to make a fully informed decision in a union election campaign.”

Source: CCH Editorial Staff.