Floor Situation

On Friday, November 18, 2011, the House is scheduled to consider H. Res. 470, the rule for H.R. 3094, the Workforce Democracy and Fairness Act.  H.R. 3094 will likely be considered after the Thanksgiving recess.

The rule provides for one hour of debate on H.R. 3094, equally divided and controlled by the chair and ranking minority member of the Committee on Education and the Workforce.  Additionally, the rule makes in order four amendments, debatable for ten minutes each, and provides for one motion to recommit with or without instructions.  The bill was introduced by Rep. John Kline (R-MN) on October 5, 2011, and referred to the Committee on Education and the Workforce.  On October 26, 2011, a mark-up was held and the bill was reported as amended.

Bill Summary

H.R. 3094 would amend the National Labor Relations Act to define how the National Labor Relations Board may determine a unit for purposes of collective bargaining. The bill would also provide minimum and maximum time frames in which action should be taken in response to the filing of election petitions.

Specifically, the bill would prohibit a pre-election hearing from taking place less than 14 calendar days after a petition for an election has been filed.  H.R. 3094 would require the following:

• That a pre-election hearing be non-adversarial and identify any issues before the election. The bill would require the Board to decide all issues that may make the election unnecessary or that may reasonably be expected to impact the election’s outcome;
• Both unions and employers may raise any relevant and material issue or position at any time prior to the conclusion of the pre-election hearing;
• The Board must consider all requests for review filed at the conclusion of the pre-election hearing;
• An election be held as soon as practicable but not less than 35 calendar days from the filing a petition for an election;
• The Board to determine the group of employees or “unit” that is appropriate for the purposes of collective bargaining prior to the election;
• That when determining which employees will be included in the bargaining unit in a representational election, the Board apply the long-standing “sufficient community of interest” test.  The legislation would outline eight factors the Board shall consider as it determines which employees will be a part of the bargaining unit, such as wages and benefits, and skills and training;
• That in cases in which a union seeks to add to its membership non-union workers (known as accretions), the Board shall maintain the current “overwhelming community of interest” standard;
• That after the pre-election hearing, the Board will receive from the employer a list of all eligible voters and make the list available to the union. The bill would require that the list include the employees’ names and one additional form of personal employee contact information chosen by the employee in writing.

Background

According to the House Committee on Education and the Workforce, on June 22, the National Labor Relations Board (NLRB) issued a notice of proposed rulemaking that will significantly change procedures that govern union elections.  The proposed rule represents a dramatic shift in union election procedures that have been in place for decades.  The NLRB’s proposal will, among other things:

• Provide employers just seven days to find legal counsel and prepare their entire case to be presented at the NLRB pre-election hearing;
• Give workers as little as ten days to consider all the consequences of joining a union before they have to vote in the election;
• Severely limit an employer’s ability to raise additional issues or concerns throughout the election hearing process; and
• Require that employers provide to the union even more intrusive information about their employees, including home or cell phone numbers, personal email addresses, and work schedules.

In August, 2011, the Board also adopted a new standard in its Specialty Healthcare decision for determining which group or “unit” of employees will vote in the union election.  This new standard makes it almost impossible for anyone to challenge the bargaining unit chosen by the union.  The decision will divide employees and raise an employer’s labor costs. 

Cost

The Congressional Budget Office (CBO) estimates that enacting H.R. 3094 would have no budgetary effect. Because enacting the bill would not affect direct spending or revenues, pay-as-you-go procedures do not apply.

Amendments

Amendment No. 1—Rep. Bishop (D-NY):  This amendment would require that the attorney or filing party meet certain standards before filing and would give the Board authority to impose sanctions on a party for presenting a frivolous or vexatious filing during pre-election proceedings.  The amendment would define frivolous or vexatious filing as “one that an attorney of ordinary competence would recognize as so lacking in merit that there is no substantial possibility that the Board would accept it as valid.”

Amendment No. 2—Rep. Boswell (D-IA):  This amendment would prohibit employers that have paid any executive compensation bonuses in excess of 10,000 percent of the annual compensation of the average employee from engaging in open-ended litigation.  The amendment would require that such parties state their issues or positions at the outset of pre-election hearings, and prohibited from raising new, frivolous issues as a dilatory tactic.

Amendment No. 3—Rep. Walz (D-MN):  This amendment would prevent this Act from applying to employers that have been found liable for any labor law violation against a veteran of the Armed Forces during the 1-year period preceding the filing of a petition.  The bill would prohibit such parties from engaging in the dilatory tactic of raising new issues or positions during a pre-election hearing that were not raised prior to the commencement of the hearing.

Amendment No. 4—Rep. Jackson Lee (D-TX):  This amendment would strike a section of the bill that would ensure that employers would not be able to unnecessarily delay an election.