Mark Carter Testifies on Capitol Hill on NLRB Regulation

February 18, 2015Quotes & Mentions

Dinsmore’s Mark A. Carter, a leading attorney on labor law, testified before a United States Senate Committee on Tuesday, February 11.

Carter, who was invited to speak as the designee of the U.S. Chamber of Commerce, appeared before the U.S. Senate Committee on Health, Education, Labor and Pension to discuss a National Labor Relations Board’s (NLRB) regulation known as the “Ambush Election” regulation, which goes into effect April 14, 2015. Carter has a long relationship with the Chamber of Commerce.

Carter was also appointed by President George W. Bush to serve three terms as a member of the Federal Service Impasses Panel. Mark served in that role from 2002 to 2009. The panel includes seven Presidential appointees who serve on a part time basis to resolve collective bargaining impasses between Federal agencies and unions representing Federal employees.

“The opportunity to serve the president of the United States was just a mind-blowing experience to me,” Carter said. He wore the gold cuff links with the blue-bordered seal of the president to his testimony on The Hill.

This is not the first time Carter has testified before Congress. In 2012, he testified before the House Oversight Committee to discuss President Obama’s recess appointments and how they would affect the NLRB and labor law in general. The Supreme Court later concluded those appointments were unconstitutional.

“As honored as Mark was to testify, we’re as honored to have Mark’s experience and passion for labor law representing our clients,” said Chuck Roesch, Labor and Employment Department Chair at Dinsmore.

Preparation is Critical

“Appearing as a designee [of the U.S. Chamber of Commerce] is a great honor and carries a great deal of responsibility,” Carter said. “It’s a great privilege to testify.”

Carter said the key to testifying before a committee is being over prepared. “The most important advice I can give anyone is to prepare with the intention to over prepare. Ensure you go into the hearing room with confidence you can testify as an expert.”

Not only did Carter have over 30 years of experience, he read through nearly 1,000 pages on the “Ambush Election” regulation and related documentation.

“If you don’t care about a topic, Senators will not take you seriously, and this is an area of law I care about deeply,” he said. “It’s an important issue for workers, employers and unions.

New Regulation Puts Employers at a Disadvantage

The “Ambush Election” regulation will overhaul the election process through which labor unions are certified by the NLRB to represent workers. The regulation dramatically shortens the period of time elections can be scheduled from approximately 38 days to as little as 10 days.

Reducing the number of days an employer has to respond to the petition for representation allows for elections to be held without the employer being able to fully present their views on the ramifications of collective bargaining. There are 13 types of information and/or positions the employer is required to gather and present in the seven days following the petition – some of which requires legal analysis. Just finding experienced counsel can take several days.

“The median number of employees in a bargaining unit petitioning for representation before the NLRB from 2004 to 2013 was 23 to 28,” Carter’s testified. “Employers who employ this volume of employees, in my experience, do not retain in-house counsel much less counsel with experience practicing before the NLRB.”

While employers are seemingly most impacted by the regulation, there is major cause for concern for employees. Under the new regulation, employees may be required to vote after hearing only one point of view – that of the labor union. Employers will also be mandated to provide a final voter eligibility list, which will include sensitive, personal employee information – such as phone numbers, home addresses and email addresses – with or without the employees’ permission.

Several senators on the committee followed Carter’s testimony with questions, but Senator Al Franken (D-Minn), who was once a member of a union, was the only member of the committee who challenged Carter’s testimony asking if it would really be as onerous to employees as Carter testified. “It was a fair question,” Carter said. “But I was able to answer it - it absolutely is.”

What’s Next

Congress will vote on a joint resolution of disapproval under the Congressional Review Act, that may stop the regulations from moving forward if passed in both the House of Representatives and the Senate and signed by the president. As the Labor Practice Chair at Dinsmore, Carter will be watching the developments closely. “We are anxious to help employers who weigh in and respond to the petitions if the need arises,” he said. “I believe ninety percent of employers are unprepared for this regulation.”


Click here for Mark Carter's full Senate HELP Testimony Transcript.