Monday, August 19, 2013

Committee Hearing on Unions and Secret Elections

Sub-committee on Health, Employment, Labor, and Pensions hearing on secret ballot elections,
collective bargaining agreements, and unions:

Date: 06/26/13

Witnesses:
Jerry Hunter: General Counsel for the National Labor Relations Board (NLRB) (1989-1993)
Eric Oppenheim: Chief Operating Officer Public Foods, Burger King Franchisee (15 franchisees)
Craig Feinstein: Former General Counsel for NLRB and University of Maryland fellow
Glenn Taubman: Attorney, National Right to Work Foundation
Marlene Felter: Employee, Chapman Medical Center

Key terms

H.R. 2346: The Secret Ballot Protection Act.  H.R. 2346 requires a secret ballot election before
a union can be certified or decertified, eliminating card checks; prevents employers from
bargaining with any union that has not been certified by a secret ballot election; prohibits unions
from negotiating with an employer before they have been certified by a secret ballot election.

H.R. 2347: The Representation Fairness Restoration Act.  H.R. 2347 rolls back the NLRB’s
Specialty Healthcare decision, replacing the board’s micro-union decision; reinstates the
traditional standard for determining the appropriate group of employers that will vote in a union
election.  The board is required to look at similarity of wages, skills, working conditions, and job
functions when determining which unit of employees is appropriate.

Specialty Health Care decision:  In 2011, the NLRB ruled that small groups or micro-unions
could be formed in a workplace based on a new standard by the NLRB.  Prior to this ruling, the
NLRB imposed a uniform formula to determine whether or not a union would be valid.
Secret ballot election: workers decide whether or not to support a union in the same manner
as voting in a political election.  Opponents of secret ballot elections assert that they hurt the
workplace because it becomes a political battleground.  There are numerous studies that suggest
that these elections hurt workplace harmony.      

Card check: a card check system is a way for the unions to be approved in the workplace based
on a simple majority.  Opponents of the card check system say that union organizers harass
workers to sign cards that say they support a union.

Neutrality agreement: employers agree not to speak to employees about union membership and
the impacts on their jobs.

Testimony and Questions and Answers

Jerry Hunter: In his written testimony, Hunter claimed that the Specialty Health Care Decision
would wreak havoc on employers because there could potentially be a number of unions in
a single place.  He also claims that these micro-unions would harm employees because they
are unable to participate in non-essential job functions and have to specialize. When asked to
provide data or support for these claims, Hunter relied on anecdotal evidence.

Eric Oppenheim: In his testimony he states that he was afraid the decision would hurt employee
morale and rob them of training.  He is afraid that there could be multiple unions focused on
very specialized aspects of their job and it could hurt his restaurants.  When asked if any of
his workers were unionized by Representative Raul Grijalva, he stated that he had 0 union
employees.  His employees are not a risk to become micro-unionized.  He also fears that his
small business which operates on very tight margins would have to negotiate with multiple
unions to deal with his employees. 

Craig Feinstein: Since the Specialty Health Care decision, the median size of unions has actually
increased.  So, despite the fears that there would be micro-unions, the data suggests otherwise. 
H.R. 2346 requires the NLRB to vote for all CBA’s.  He has found that workplace relations are
the best when employees and employers can work together to compromise.  He fears that H.R.
2347 can only evolve with more legislation and that it ignores the standards that the NLRB has
used to determine whether a union is valid or not.  He also notes that the NLRB’s decision in the
Specialty Health Care case does not mean it supports micro-unions.  He also stated that despite
the concerns that the NLRB is too political, the majority of cases are decided on unanimously.
Marlene Felter: While at Chapman Medical Center in 2004, there was talk about unionizing. 
There was a scheduled secret ballot.  Because of this, she decided to educate her co-workers
on the negative impacts of unions.  The ballots went out at 3 am and were eventually canceled. 
She later stated in questioning that she did not get to vote because the unions hand-picked
who was going to vote.  After that, there was an agreed card-check neutrality agreement from
Chapman Medical Center.  She never saw it.  She reported that many of her co-workers were
being harassed by SEIU.  SEIU acquired their addresses, phone numbers, and job information. 
SEIU waived the oversight from the NLRB.  SEIU harassed employees into signing cards to
support the union.  She led a campaign to sign petitions and letters to protest the unionization
of Chapman medical center.  Representative Raul Grijalva pointed out during questioning that
Kaiser Permanente and Western Medical Center make anywhere from $4/hour to $15/hour more,
because of union representation.  Felter noted that she prefers the open door policy of Chapman
to making more money.

Glenn Taubman: He stated over and over again, “unions organize employers, not employees.” 
He stated employers are harassed and brow beaten to accept neutrality agreements.  When asked
about which companies they might be, he declined to say and said that the companies might
not like to be said that they were brow beaten.  He also said that most of the time neutrality
agreements are secret agreements between unions and employers but when questioned on it,
he did not have any data to back that claim up.  He claimed that the NLRB is an incumbent
shield and that car-check or neutrality agreements destroy employee rights.  He also claims that
employees have no legal right to sign neutrality agreement because they are “routinely” not
shown them.

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