House Education and the Workforce Subcommittee on Health, Employment, Labor, and Pensions Hearing
"Legislative Reforms to the National Labor Relations Act"; H.R.2776, the "Workforce Democracy and Fairness Act"; H.R.2775, the "Employee Privacy Protection Act"; and H.R.2723, the "Employee Rights Act."
I appreciate the opportunity to testify at this hearing on three anti-union bills, HR 2776, HR 2775, and HR 2723, all with Orwellian titles: the Workforce Democracy and Fairness Act (WDFA), the Employee Privacy Protection Act (EPPA), and the Employee Rights Act (ERA), respectively.
I've been asked to analyze these bills for the subcommittee. Deceptively short, these bills are chockfull of malicious intent to render elections absurdly undemocratic, strip workers of rights, take control of unions away from union members, drain union treasuries, and otherwise destroy labor unions. These bills don't reflect sound policy or an attempt at consistent application of rules -but are a naked political assault on labor unions and nothing more. The subcommittee should reject them.
Here is what the bills do, in nine insidious steps:
Step One: Block Voter Access to Union Information
Two of the bills - EPPA and ERA - seek to make it as difficult as possible for a worker to speak with a union organizer before a union certification election.
A key element of any free and fair election is equal access to voters by the contending parties. Current law already fails to provide anything approaching equal access in a representation election administered by the
The authors of EPPA want the union to receive this list of voters as late as possible, to limit the union's access to voters ahead of an election. EPPA provides that the voter list may only be turned over "not earlier than 7 days after a final determination by the Board of the appropriate bargaining unit." This minimum waiting time is not coupled with a maximum waiting time. EPPA does not limit how long the union maybe forced to wait for this basic information. The union could receive the list of voters the night before the election under EPPA.
EPPA and ERA would restrict what the list may contain. EPPA provides that the list may not provide anymore than the voter's name and one form of contact information (telephone, email, or mailing address), chosen by the employee in writing. Even if an employee wanted to provide more than one way to be contacted, so that they might be sure to obtain information from the union before voting, the bill prohibits it. Moreover, since employees make then choice in -writing to the-- employer, this procedure is ripe for intimidation and coercion. Supervisors collecting the employees' choices may pressure employees into providing the least useful form of contact information for the union.
ERA goes a step further than EPPA in this regard. Under ERA, the list may only include employee names and home addresses. Even if an employee wanted to provide an email address or telephone number, the bill does not permit it. ERA also allows employees to "elect to be excluded from such list by notifying the employer in writing." Again, this procedure is ripe for intimidation and coercion, 'with supervisors pressuring employees to exclude themselves from the list altogether, or workers excluding themselves due to the inherently coercive nature of this process. In that event, the union would not know the names of the voters, let alone how to contact them before the election. Meanwhile, the employer has had those names all along - and has had constant access to those voters in the workplace.
The point of these provisions is not to ensure a fair election or employee privacy. Both the ERA and EPPA couch these provisions as giving employees a choice on what or whether to disclose while making sure employees cannot choose freely. First, they cannot choose freely because the choices are arbitrarily limited (only home addresses, nothing else, in the case of ERA, or only one form of contact and no more, in the case of EPPA), Second, they cannot choose freely because the employees must provide their choice to their employer, who controls their working Eves and who will frown upon the wrong choice or strongly encourage another. Third, they cannot apply those same choices toward what information they provide to their employers; nothing in these bills prevents employers from requiring their employees to provide them all of their contact information as a condition of employment and then using that information to further the employer's anti-union campaign.
The knife-twisting doesn't stop there. ERA allows employers to pressure voters into keeping their existence, let alone their contact information, secret from the union altogether. EPPA allows employers to provide the list of voters and contact information to the union as late as possible before the election. The point of these provisions is to deprive one party- the union - of the opportunity to speak to voters in a timely way- even if the voters want to allow as much opportunity as possible for communications with the union.
Does the employer have total access to the voters everyday at work? Yes Yes Yes
May the employer require voters to attend anti-union captive audience meetings? Yes Yes Yes
Does the union have the right to access the voters inside the workplace, the one place they congregate everyday? No No No
How may the union access the voters? Outside of work Outside of work Outside of work
Is the union guaranteed to receive a complete list of voter names? Yes Yes No
Will the union receive the voters' job classifications, work locations and shifts? Yes No No
Is the union guaranteed to receive some sort of contact information for each voter? Yes Yes No
May the union receive mote than one form of contact information? Yes No No
What form of contact information may the union receive, if any? Home address and, if the employer has any of them, personal email addresses and personal cell and telephone numbers. Only one of the following: Telephone number OR email address OR mailing address Home address, unless employer obtains written request from employee to be excluded
The sponsors of ERA set rules for union elections that they wouldn't set for their own elections. Under ERA, in a union certification election all non-votes are considered no votes. Under current law, the majority of ballots cast determine the outcome of any election under the National Labor Relations Act (NLRA), Those voters who choose not to cast a ballot simply do not count one way or another; they have opted to allow co-workers who cast ballots to decide the question of unionization. This should sound familiar to members of the Subcommittee, as it is the way congressional elections are conducted.
ERA, however, seeks to stuff the ballot box with no votes. Under ERA, for a union to win a certification election, it must obtain yes votes from a majority of the employees in the bargaining unit, not just the majority of the employees who cast ballots......--
We don't run political elections this way in
Tellingly, ERA does not apply this rule to its new process for automatic decertification elections - employer-triggered elections to get rid of a union. Under that provision, ERA is very explicit that anti-union forces do not need a majority of all eligible voters in order to eliminate an incumbent union: "If a majority of the votes cast in a valid election reject the continuing representation by the labor organization, the Board shall withdraw the labor organization's certification... " What's good for the goose is not good for the gander because the sponsors of ERA are trying to put the law's thumbs on the scale against unions and workers. Fairness and uniformity are utterly foreign concepts in this bill.
Under ERA, if your shop is... Then you need to meet this standard... In order to...
Non-union Majority of all eligible voters to vote for the union Certify a union, triggered by an employee petition
Union Majority of just those casting ballots to vote against the union Decertify a union, triggered by employer's alteration of the bargaining unit
Notice the standard changes depending on whether the election is for a non-union shop to become union, or a union shop to become non-union. ERA greases the skids for deunionizing and makes the mountain even steeper than it already is for unionizing.
Step Three: Eliminate ways for workers to form a union and create new ways for employers to bust unions
ERA eliminates a key method by which employees win union representation while creating a new method just for employers to strip workers of union representation.
First, ERA prohibits employers from voluntarily recognizing a union based on a showing of majority support from the employees. Voluntary recognition has been permitted under the NLRA since its inception. It is the preferred way of organizing because it minimizes the strife of the election process, and voluntary recognition usually comes by way of agreements that also require the employer to be neutral or provide the union with actual access to the voters in the workplace. In these cases, there is no
Just to be clear, ERA's prohibition of voluntary recognition is not because secret ballots are a sacred principle for ERA ERA does not touch the withdrawal of recognition doctrine, which is the anti-union mirror of voluntary recognition. Under this doctrine, an employer may withdraw recognition from a union without an election if there is a showing that a majority of the employees no longer support the union. ERA is fine with this doctrine, even though it does not involve a secret ballot election, because it is a way of eliminating a union.
While blocking workers from voluntary recognition of their union, ERA creates new, undemocratic ways for employers to eliminate a union.
Under ERA an employer can manipulate its workforce through turnover, expansion, or some other alteration, such that the change in the workforce exceeds 50 percent of the original bargaining unit size, and trigger an automatic decertification election. This election would happen even if not a single employee wants it. It is an election that maybe triggered entirely on the employer's initiative.
Interestingly, for all their talk about "ambush elections," the anti-union forces behind this bill appreciate speed when it comes to an employer-triggered election. Under this process, speed counts. Because of employer alterations, there are brand new workers in the bargaining unit, so ERA does not want to give the union workers time to talk to their new brothers and sisters. So a petition need not be filed. No hearing is called for. Unfair labor practices cannot stall the election date. The election must happen within a maximum 30 day timeframe from the date of the employer's alteration of the bargaining unit when there is no collective bargaining agreement in place.
Otherwise, in cases where there is a collective bargaining agreement in place, ERA requires the election to happen within a particular 10-day window (between the 120th and 110th day prior to contract expiration). This entire decertification process happens even if not a single employee wants to alter his union representation. The automatic decertification election is an open invitation to employers to manipulate their workforces to trigger votes and decertify the union. Again, unlike certification elections for new unions, which are designed to be as difficult as possible for the union to win, this employer-triggered decertification process requires only a majority of those casting ballots to. change the status quo and eliminate the incumbent union.
Moreover, this new decertification process would undermine the NLRA's emphasis on stability in collective bargaining relationships. The process could be triggered by an employer who does not even mean to trigger it or simply because of persistently high turnover. Depending on the workplace, decertification elections could be happening on a near-constant basis, even though neither the employer nor employees want one. They will stop, however, once the anti-union vote wins. None of the bills require periodic elections in non-union workplaces to determine whether workers now want a union.
Step Four: Delay a Union Certification Election When Workers Want One
Recall that ERA's new employer-triggered method for elections requires elections within a maximum of 30 days of whenever the employer has changed the composition of the bargaining unit, wherever there is no collective bargaining agreement. Do you think these bills would impose a maximum waiting period when workers trigger an election? Of course not. WDFA requires, when the worker's trigger an election to win union representation, a minimum 35-day waiting period before the election may occur. When employers trigger the election, the vote must happen fast. When workers trigger the election, the vote must be stalled. These bills ensure that, when the employer is not the party triggering the election, this pre-election time period is long enough for some serious employer campaigning. At least one study found that this period between petition and election is when employers are most likely to commit unfair labor practices. It's a critical period for unionbusting.
But would a minimum of 35 days always be long enough for the employer to bust the union drive? If not, there are plenty.of other delays built into the bills. While current law aims to hold pre-election hearings on petitions within 8 days of the petition filing, both ERA and WDFA require a two-week waiting period before a pre-election hearing about the bargaining unit, voter eligibility, and other issues. After that initial delay, the bills diverge on their approaches to creating further needless delay. Under ERA, after the Regional Director issues his decision, the employer may appeal any or all of the decisions to the full
If you're employees petitioning for an election to win a union... If you're an employer triggering a decertification election by altering a bargaining unit...
Minimum Delay Required At least 35 days from the date of the petition. None.
Maximum Delay Permitted No limit. 30 days where there is no collective bargaining agreement; as little as fewer than 10 days where there is a collective bargaining agreement, depending on how soon the agreement expires.
Step Five: Gerrymander the voting districts.
One of the most confounding complaints of anti-union forces in recent years is their concern about a 2011 case called
Nevertheless, the anti-union groups have been screaming "micro-units" ever since the Board's 20-1-1 decision. That is, they say that, thanks to
So the "micro-unit" nightmare is not grounded in reality But was the fear of micro-units even genuine? Think about it. Unionbusters often tell employees that they don't need a union because they can cut their own great deals with management, without a "third party" involved. Would that not be an extreme version of micro-unit hell, bargaining with thousands of micro-units consisting of one employee each at the same large employer? Yes, of course, it would be. Maybe the employer would even favor a single bargaining representative for efficiency's sake, if this individualized bargaining was a reality in a nonunion workplace. But it's not real In the non-union workplace, very little bargaining, if any, takes place with any particular employee. Employees are expected to accept whatever the employer deigns to offer them and nothing more. If they don't like it, they can quit.
So what's really behind the attack on
Incidentally, let's not forget to read these bills as a whole. Thanks to the voter-packing rules in these bills, the employer will have added voters to the rolls that had no involvement in the organizing drive, did not want to be part of a bargaining unit, and are not part of the original unit that the organizing employees sought. Thanks to the manipulation of the Excelsior Lists, under EPPA, the union may not find out who these voters are until shortly before the election - and certainly "not earlier than seven days" after the Board has defined the bargaining unit. And under ERA, the union may not find out who some of these voters are... ever, thanks to supervisors pressuring the workers to opt out of the Excelsior list altogether. Great system!
The WDFA does provide for one instance in which smaller units are favored: when a union seeks to accrete additional employees to an existing unionized bargaining unit. The WDFA is very clear about this double standard: "Whether additional employees should be included in a proposed unit shall be determined 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." In other words, small unionized units are bad, and making a small unionized unit a bigger unionized unit is also bad.
For anyone who is confused at this point by these bills' efforts to address
Arrangement Desirability for WDFA
A "micro unit" of all 53 certified nursing assistants at a nursing home getting a union Too small!
Once unionized, a "micro unit" of all certified nursing assistants at a nursing home that seeks to become a bigger unit Too big!
159 million micro units consisting of one employee each, without a union Just right!
Per these bills, no matter what size the bargaining unit is, if it's unionized, it's not the right size!
Step Six: Play a Gotcha Game so Employers Have
ERA includes new penalty provisions in the NLRA directed at unions. If a union is found to have interfered with, restrained, or coerced employees in the exercise of their Section 7 rights or to join a union or refrain from joining a union, the union is liable for wages lost and union dues or fees collected unlawfully as well as an unspecified "additional amount as liquidated damages." It's -unclear what problem this provision seeks to solve. The last year for which the
ERA also plays a game of gotcha with unions: Any union "found to have [committed an 8(b)(1) violation] in connection with the filing of a decertification petition shall be prohibited from filing objections to an election held pursuant to such petition." In other words, once a shop steward or union activist makes any mistake during a decertification drive, the employer is given carte blanche to render the decertification election as unfair as possible, and the union cannot object to the unfair conditions. So the point of this provision is not to ensure a fair election. After all, most unfair labor practices are committed by employers - but ERA does not strip employers of their right to object to unfair election conditions simply because the employer itself has committed unfair labor practices. As with all the previous provisions, the point of this penalty provision is to help employers eliminate unions.
Step Seven: Drain Union Treasuries
ERA contains a number of amendments to the Labor Management and Disclosure Act (LMRDA) designed to simply drain union treasuries.
First, ERA requires all internal union elections - such as for union officers, setting dues, authorizing strikes, or ratifying contracts - to be conducted "in the privacy of a voting booth." This might sound innocuous to the average person. But here's the problem: any particular local union or bargaining unit may have members scattered over very wide geographic areas. Depending on the situation, the only feasible, affordable, franchising way to conduct an election is by mail ballot - or in some cases via internet or telephonic voting. But the phrase "in the privacy of a voting booth" appears to specifically prevent anything other than in-person voting. The end result will be to either force unions to conduct elections in multiple physical places at once, with all of the election judges and observers present at each polling location, or simply disenfranchise geographically dispersed members. A single bargaining unit may have members scattered in locations with just a couple employees across many states. After a few elections, a geographically dispersed local union or bargaining unit won't have much resources left to fight for its members, which is the point of this provision.
Second, ERA really does not want an organization of working people to be free to engage in their communities the way, say, a business organization would be free to engage in its community In
Third, ERA would require unions to conduct, at their own expense, contract ratification votes which they may otherwise not have any reason to conduct. Under ERA, if a union wants to conduct a strike authorization vote, it must first conduct a ratification vote on any outstanding proposed collective bargaining agreement from the employer. The union may know - or at least have very strong reasons to believe - that its members would vote down the particular proposal, which is why the strike vote is necessary in the first place; yet ERA would require the pointless ratification vote - in the privacy of a voting both - for every member and nonmember employee in the bargaining unit (more on that later).
Fourth, ERA would not allow this contract ratification vote and the strike authorization vote to be conducted by the union - something that unions are very capable of doing. Instead, ERA would require the union to contract with a private third party to conduct these elections. Moreover, the employer must agree on who that private third party is, even though the union alone must pay for the entire undertaking. Would an employer hellbent on busting the union agree to an affordable third party - or one that will drain the union coffers? There's a business opportunity in ERA for starting an overpriced election services company.
Fifth, ERA apparently creates an obligation for every labor organization to conduct an "independently verified annual audit of the labor organization's financial condition and operations." Unions already provide extensive financial reporting, their officer's are bound by fiduciary duties, their officers must be bonded, and their entire governance is subject to democratic elections. While it's obviously a good practice to utilize an independent auditor, not every local union can afford this cost. Typically, a local union with extremely limited resources will appoint a finance committee of members to conduct an audit of its books. It is not independently verified, but it is the best a small union can do. ERA has found yet another way to force a union to spend its resources on something other than smartly advancing workers' interests. It is a wonder the bill's authors did not require the employer to consent to which auditing company the union may use.
Step Eight: Take control of the union away from dues-paying union members (so maybe they'll stop paying dues)
Recall that ERA strips union members of their right to freely subsidize their union's activities without annual government interference. The flip side of that coin is that ERA gives nonmembers new rights over the members' union.
Under ERA, nonmembers would be granted the same rights as members to vote on contract ratifications and strike authorizations. This provision is an entirely new level of free-riding. In a so-called right-to-work state, nonmembers would pay zero for the services of the union and be entitled to participate in the union's ultimate decisionmaking. The bill authors know that having a say in contract ratification is one of the strongest incentives to join the union for some workers. So getting that say for free will reduce the chances a particular worker will become a member.
Furthermore, strikes are a big deal. Members are expected to honor picket lines. Members who cross picket lines maybe fined. Nonmembers cannot be fined. They can scab without consequence. So, imagine a strike authorization vote in which nonmembers join some number of members to vote for a strike. The strike is called. The members must honor the picket lines, while the nonmembers who forced them to strike may scab. Then, when a possible contract is reached and sent out for ratification, the nonmembers can vote to reject the contract, prolonging the strike for members while the nonmembers have been collecting a paycheck all along. The nonmembers may want the strike to continue to force the company to improve a provision or two, or because they are financially benefiting from the overtime during the strike. After all, it's no skin off the nonmembers' back to prolong the strike, as the members are the only ones who must honor the picket lines.
Union members have contributed and obligated themselves in ways which correctly give them the exclusive right to vote on contract ratifications and strike authorizations. Nonmembers have not earned such a right. This provision undermines the very concept of a union. It is also an assault on the constitutionally-protected assodational rights of the union members.
Under ERA, it's not just nonmember employees who obtain inappropriate power over a union's internal affairs. The employer is also granted a ridiculous say over the union. As noted earlier, a union cannot call a strike authorization vote unless the employer has agreed on what private third party will conduct the vote. This employer consent requirement would give the employer-veto power over when and whether a strike vote happens. The strike is the ultimate economic weapon of a union in collective bargaining. The timing of a strike vote is an internal strategic decision of the union. ERA would eliminate the union's prerogative on this issue and eviscerate the right to strike.
Step Nine: Create a One-Sided Federal Crime Targeting Union Supporters and Fail to Deter Violence by Employers and their Agents
ERA adds a new criminal provision to the LMRDA: "It shall be unlawful for any person, through the use of force or violence, or threat of the use of force or violence, to restrain, coerce, or intimidate, or attempt to restrain, coerce, or intimidate any person for the purpose of obtaining from any person any right to represent employees or any compensation or other term or condition of employment." A person found guilty of this provision shall be fined up to
Let's be clear about the target of this provision: unions. It is unions that seek the right to represent employees or seek terms or conditions of employment in the course of collective bargaining or a strike. Of course, it is old hat to talk of violent union "goons." During a strike, however, especially when emotions run highest, unions have strong incentives to maintain nonviolence and tamp down any violent-sounding rhetoric. Set aside that violence and threats of violence are already illegal and criminallyprosecuted under state law. The slightest mistake on the picket line will land the union in a county court within hours, where a judge may enjoin the picket lines, rendering the strike ineffective.
Managers and replacement workers are not covered by this ERA provision. Yet managers and replacement workers have been found engaging in violent, physically threatening, or verbally threatening behavior near picket lines. In fact, CWAers wear red on Thursdays to commemorate a member who was killed on a picket line when a manager's daughter broke through a picket line with a car and struck him. Sometimes this replacement worker or manager behavior is used to bait picketers into responding, perhaps in hopes of obtaining an injunction against the picket lines. And now this behavior can be used to bait picketers into responding so that strikers will spend 10 years in jail. This lopsided provision renders strikers even more vulnerable to violence or threats of violence.
Finally, ERA includes a provision that would apply the Hobbs Act - a federal criminal law outlawing extortion - to unions' legitimate objectives. In
While these three bills are relatively short, they are packed with malicious intent. Their goal is to weaken or eliminate unions, full stop. I've attempted to explain the how. The more interesting question is:
Why?
Why would anyone want to weaken or eliminate unions altogether from the American landscape? These bills are part and parcel of a coordinated assault by wealthy interests on workers' rights around the country, here in
Is it because unions allow workers to exercise their real bargaining strength so that they may insist on their fair share of the wealth they help create, raising wages, obtaining benefits, protecting health and safety?
Is it because unions are an effective and organized voice for workers' interests in the political and legislative realm, winning or helping win minimum wage increases, health and safety laws, paid leave, civil rights protections, and so on?
Is it because super wealthy interests have ideological dreams of cutting taxes on the rich, eliminating regulatory protections for working people, and eliminating any safety net - and unions tend to stand in the way of that dystopia?
I urge the subcommittee to reject these bills. Thank you for the opportunity to testify.
n2 357
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n4 See Kindred Nursing Ctrs. E., HLC v. IVLRB, 727 F.3d 552 (6th Cir, 2013) (enforcing the original
n5 FY2010 NLRB Annual Report.
Read this original document at: https://edworkforce.house.gov/UploadedFiles/Calemine_-_Testimony.pdf
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