[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
THE PROTECTING THE RIGHT
TO ORGANIZE ACT: DETERRING
UNFAIR LABOR PRACTICES
=======================================================================
HEARING
before the
SUBCOMMITTEE ON HEALTH, EMPLOYMENT, LABOR, AND PENSIONS
COMMITTEE ON EDUCATION
AND LABOR
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
__________
HEARING HELD IN WASHINGTON, DC, MAY 8, 2019
__________
Serial No. 116-21
__________
Printed for the use of the Committee on Education and Labor
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: www.govinfo.gov
or
Committee address: https://edlabor.house.gov
______
U.S. GOVERNMENT PUBLISHING OFFICE
36-596 PDF WASHINGTON : 2019
COMMITTEE ON EDUCATION AND LABOR
ROBERT C. ``BOBBY'' SCOTT, Virginia, Chairman
Susan A. Davis, California Virginia Foxx, North Carolina,
Raul M. Grijalva, Arizona Ranking Member
Joe Courtney, Connecticut David P. Roe, Tennessee
Marcia L. Fudge, Ohio Glenn Thompson, Pennsylvania
Gregorio Kilili Camacho Sablan, Tim Walberg, Michigan
Northern Mariana Islands Brett Guthrie, Kentucky
Frederica S. Wilson, Florida Bradley Byrne, Alabama
Suzanne Bonamici, Oregon Glenn Grothman, Wisconsin
Mark Takano, California Elise M. Stefanik, New York
Alma S. Adams, North Carolina Rick W. Allen, Georgia
Mark DeSaulnier, California Francis Rooney, Florida
Donald Norcross, New Jersey Lloyd Smucker, Pennsylvania
Pramila Jayapal, Washington Jim Banks, Indiana
Joseph D. Morelle, New York Mark Walker, North Carolina
Susan Wild, Pennsylvania James Comer, Kentucky
Josh Harder, California Ben Cline, Virginia
Lucy McBath, Georgia Russ Fulcher, Idaho
Kim Schrier, Washington Van Taylor, Texas
Lauren Underwood, Illinois Steve Watkins, Kansas
Jahana Hayes, Connecticut Ron Wright, Texas
Donna E. Shalala, Florida Daniel Meuser, Pennsylvania
Andy Levin, Michigan* William R. Timmons, IV, South
Ilhan Omar, Minnesota Carolina
David J. Trone, Maryland Dusty Johnson, South Dakota
Haley M. Stevens, Michigan
Susie Lee, Nevada
Lori Trahan, Massachusetts
Joaquin Castro, Texas
* Vice-Chair
Veronique Pluviose, Staff Director
Brandon Renz, Minority Staff Director
------
SUBCOMMITTEE ON HEALTH, EMPLOYMENT, LABOR, AND PENSIONS
FREDERICA S. WILSON, Florida, Chairwoman
Donald Norcross, New Jersey Tim Walberg, Michigan
Joseph D. Morelle, New York Ranking Member
Susan Wild, Pennsylvania David P. Roe, Tennessee
Lucy McBath, Georgia Rick W. Allen, Georgia
Lauren Underwood, Illinois Francis Rooney, Florida
Haley M. Stevens, Michigan Jim Banks, Indiana
Joe Courtney, Connecticut Russ Fulcher, Idaho
Marcia L. Fudge, Ohio Van Taylor, Texas
Josh Harder, California Steve C. Watkins, Jr., Kansas
Donna E. Shalala, Florida Ron Wright, Texas
Andy Levin, Michigan Dan Meuser, Pennsylvania
Lori Trahan, Massachusetts Dusty Johnson, South Dakota
(VACANT)
C O N T E N T S
----------
Page
Hearing held on May 8, 2019...................................... 1
Statement of Members:
Walberg, Hon. Tim, Ranking Member, Subcommittee on Health,
Employment, Labor, and Pensions............................ 4
Prepared statement of.................................... 6
Wilson, Hon. Frederica S., Chairwoman, Subcommittee on
Health, Employment, Labor, and Pensions.................... 1
Prepared statement of.................................... 3
Statement of Witnesses:
Trumka, Mr. Richard L., J.D., President, AFL-CIO............. 8
Prepared statement of.................................... 10
Staus, Mr. Jim, Pittsburgh, PA............................... 16
Prepared statement of.................................... 18
Miscimarra, Mr. Philip A., J.D., Partner, Morgan, Lewis and
Bockius LLP................................................ 21
Prepared statement of.................................... 23
Pearce, Mr. Mark G., J.D. Executive Director and
Distinguished Lecturer, Georgetown Law Center's Workers'
Rights Institute........................................... 36
Prepared statement of.................................... 38
Additional Submissions:
Foxx, Hon. Virginia, a Representative in Congress from the
State of North Carolina:
Article: Big Labor's Big Shrink.......................... 79
Hayes, Hon. Jahana, a Representative in Congress from the
State of Connecticut:
Letter dated February 15, 2018, from the United States
Government National Labor Relations Board.............. 81
Roe, Hon. David P., a Representative in Congress from the
State of Tennessee:
Letter dated April 12, 2019, from Congress of the United
States................................................. 88
Mr. Trumka:
Letter dated May 22, 2019, from AFL-CIO America's Unions. 97
Mr. Walberg:
Letter dated May 6, 2019 from National Retail Federation
(NRF).................................................. 116
Letter dated May 7, 2019 from the Coalition for Workforce
Innovation (CWI)....................................... 106
Letter dated May 8, 2019 from Associated Builders and
Contractors (ABC)...................................... 102
Letter dated May 8, 2019 from the Coalition for a
Democratic Workplace................................... 104
Letter dated May 8, 2019 from International Franchise
Association (IFA)...................................... 107
Letter dated May 8, 2019 from Independent Electrical
Contractors (IEC)...................................... 109
Letter dated May 8, 2019 from Motor and Equipment
Manufacturers Association (MEMA)....................... 111
Letter dated May 8, 2019 from National Association of
Home Builders (NAHB)................................... 112
Letter dated May 8, 2019 from National Restaurant
Association............................................ 114
Wild, Hon. Susan, a Representative in Congress from the State
of Pennsylvania:
Prepared statement from International Brotherhood of
Teamsters.............................................. 117
Chairwoman Wilson:
Letter dated May 8, 2019 from SEIU....................... 122
Letter dated April 29, 2019 from the AFL-CIO............. 124
Letter dated May 8, 2019 from the Bluegreen Alliance..... 126
Prepared statement from International Union of Painters
and Allied Trades (IUPAT).............................. 128
Letter dated May 6, 2019 from the United Steelworkers
(USW).................................................. 132
Questions submitted for the record by:
Fulcher, Hon. Russ, a Representative in Congress from the
State of Idaho......................................... 135
Bonamici, Hon. Suzanne, a Representative in Congress from
the State of Oregon.................................... 137
Scott, Hon. Robert C. ``Bobby'', a Representative in
Congress from the State of Virginia
Stevens, Hon. Haley M., a Representative in Congress from
the State of Michigan
Responses to questions submitted for the record by:
Mr. Miscimarra........................................... 143
Mr. Pearce............................................... 146
Mr. Staus................................................ 149
Mr. Trumka............................................... 150
THE PROTECTING THE RIGHT TO ORGANIZE
ACT: DETERRING UNFAIR LABOR PRACTICES
----------
Wednesday, May 8, 2019
House of Representatives,
Committee on Education and Labor,
Subcommittee on Health, Education, Labor, and Pensions,
Washington, DC.
----------
The subcommittee met, pursuant to notice, at 2:18 p.m., in
room 2175, Rayburn House Office Building. Hon. Frederica S.
Wilson [chairwoman of the subcommittee] presiding.
Present: Representatives Wilson, Norcross, Morelle, Wild,
McBath, Underwood, Stevens, Courtney, Harder, Shalala, Levin,
Trahan, Scott, Walberg, Roe, Allen, Banks, Fulcher, Taylor,
Watkins, Wright, Meuser, and Johnson.
Also present: Representatives Foxx, Hayes, and Jayapal.
Staff present: Tylease Alli, Chief Clerk; Nekea Brown,
Deputy Clerk; Ilana Brunner, General Counsel Health and Labor;
David Dailey, Senior Counsel; Kyle deCant, Labor Policy
Counsel; Mishawn Freeman, Staff Assistant; Christian Haines,
General Counsel Education; Eli Hovland, Staff Assistant;
Stephanie Lalle, Deputy Communications Director; Kevin
McDermott, Senior Labor Policy Advisor; Max Moore, Office Aid;
Merrick Nelson, Digital Manager; Banyon Vassar, Deputy Director
of Information Technology; Katelyn Walker, Counsel; Courtney
Butcher, Minority Director of Coalitions and Members Services;
Akash Chougule, Minority Professional Staff Member; Rob Green,
Minority Director of Workforce Policy; John Martin, Minority
Workforce Policy Counsel; Hannah Matesic, Minority Director of
Operations; Kelley McNabb, Minority Communications Director;
Ben Ridder, Minority Legislative Assistant; Meredith Schellin,
Minority Deputy Press Secretary and Digital Advisor; and
Heather Wadyka, Minority Operations Assistant.
Chairwoman WILSON. The Subcommittee on Health, Employment,
Labor, and Pensions will come to order. Welcome, everyone.
I note that a quorum is present. I ask unanimous consent
that Representatives Suzanne Bonamici of Oregon, Pramila
Jayapal of Washington, Jahana Hayes of Connecticut, Bradley
Byrne of Alabama, and Ben Cline of Virginia be permitted to
participate in today's hearing with the understanding that
their questions will come after all members of the HELP
Subcommittee on both sides of the aisle who are present have
had an opportunity to question the witnesses. But we welcome
our colleagues to this hearing.
Without objection, so ordered.
The subcommittee is meeting today in a legislative hearing
to receive on Protecting the Right to Organize Act: Deterring
Unfair Labor Practices. Pursuant to committee rule 7c, opening
statements are limited to the chair and the ranking member.
This allows us to hear from our witnesses sooner and provides
all members with adequate time to ask questions.
I recognize myself now for the purpose of making an opening
statement.
Today we are holding the first legislative hearing on H.R.
2474, the Protecting the Right to Organize, or the PRO Act, a
comprehensive proposal to strengthen workers' rights to
organize and to bargain for higher wages, better benefits, and
safer working conditions. This hearing will focus specifically
on the provisions of the bill that prevent employers from
violating workers' rights through coercion, retaliation, and
delay.
For generations, labor unions fueled our Nation's
prosperity, protected the health and safety of American workers
and supported a strong, strong, strong middle class. When union
membership was at its peak of around 30 percent between the end
of World War II and 1973, wage growth and worker productivity
grew at nearly identical rates. But over the next 4 decades, as
union membership declined, the link between rising productivity
and rising pay was eroded.
Between 1973 and 2017, worker productivity increased by 73
percent, but wages only grew by 12 percent, adjusting for
inflation. This shift has undermined the financial security of
workers and their families and contributed to the severe income
inequality we face today.
Yet, despite the proven benefits of strong unions, just one
in ten workers is currently a union member. That is a level not
seen since the 1930's, just before the passage of the National
Labor Relations Act. But American workers have not given up on
unions--far from it. Support for unions is at a 4 decade high.
According to a poll of workers across the country by
researchers at MIT, 48 percent of non-union workers said they
would vote to join a union.
One major reason for the gap between worker enthusiasm and
low union density is that toothless labor laws, more intense
and more sophisticated employer opposition to unions, and
relentless political attacks have dismantled workers' right to
organize.
The current system allows employers to unlawfully
discourage, delay, or prohibit union organizing with near
impunity. Even when our labor laws work as intended, employees
are often left with hollow victories after months or years of
appeals.
Today we will evaluate how provisions in the PRO Act would
deter employers from violating workers' rights to form unions.
The PRO Act would do this in five ways:
First, it establishes meaningful penalties for companies
that violate their employees' rights. Incredibly, there are no
civil penalties that can deter employers from violating
workers' rights to organize under current law, no matter how
repeated or willful the conduct.
The PRO Act would authorize civil penalties for employers
that retaliate against workers who seek to join a union.
Second, the PRO Act would streamline procedures to
guarantee swift remedies. If a worker is unlawfully fired for
organizing, they may have to wait years before receiving
recourse. And justice delayed is justice denied.
The PRO Act would guarantee temporary reinstatement for
workers while their cases are pending and would make National
Labor Relations Board orders self-enforcing, like those of any
other Federal agency.
Third, the PRO Act would ban employers from requiring
employees to attend captive audience meetings.
Fourth, the PRO Act would establish a mediation and
arbitration process to encourage employers and unions to reach
a first collective bargaining agreement. Under current law,
even if a union wins an election, employers can stall at the
bargaining table with minimal consequences. The PRO Act would
effectuate the NLRA's original purpose of promoting collective
bargaining.
And, finally, the PRO Act fosters transparency so employees
know their rights under the law. Other Federal labor and
employment laws require employers to post notices of employees'
rights, like Title VII of the Civil Rights Act, the Family and
Medical Leave Act, and OSHA. The PRO Act will similarly
guarantee that employers notify employees of their rights under
the law.
This legislation is all about restoring workers' rights to
organize and improving the quality of life for workers and
their families in communities across America.
I want to thank our witnesses for giving us this time and
expertise this afternoon, and I now yield to the ranking
member, Mr. Walberg, my friend, for the purpose of an opening
statement.
Mr. Walberg, the esteemed Mr. Walberg.
[The statement of Chairwoman Wilson follows:]
Prepared Statement of Hon. Frederica S. Wilson, Chairwoman,
Subcommittee on Health, Employment, Labor, and Pensions
Today, we are holding the first legislative hearing on H.R. 2474,
the Protecting the Right to Organize, or the PRO Act, a comprehensive
proposal to strengthen workers' right to organize and bargain for
higher wages, better benefits, and safer working conditions. This
hearing will focus specifically on the provisions of the bill that
deter employers from violating workers' rights through coercion,
retaliation, and delay.
For generations, labor unions fueled our Nation's prosperity,
protected the health and safety of American workers, and supported a
strong middle class. When union membership was at its peak of around 30
percent between the end of World War II and 1973, wage growth and
worker productivity grew at nearly identical rates.
But over the next four decades as union membership declined, the
link between rising productivity and rising pay was eroded. Between
1973 and 2017, worker productivity increased by 73 percent, but wages
only grew by 12 percent, adjusting for inflation. This shift has
undermined the financial security of workers and their families and
contributed to the severe income inequality we face today.
Yet despite the proven benefits of strong unions--just one in 10
workers is currently a union member. That's a level not seen since the
1930's, just before the passage of the National Labor Relations Act.
But American workers have not given up on unions. Far from it.
Support for unions is at a four-decade high. According to a poll of
workers across the country by researchers at MIT, 48 percent of non-
union workers said they would vote to join a union.
One major reason for the gap between worker enthusiasm and low
union density is that toothless labor laws, more intense and more
sophisticated employer opposition to unions, and relentless political
attacks have dismantled workers' right to organize.
The current system allows employers to unlawfully discourage,
delay, or prohibit union organizing with near impunity. Even when our
labor laws work as intended, employees are often left with hollow
victories after months or years of appeals.
Today, we will evaluate how provisions in the PRO Act would deter
employers from violating workers' rights to form unions.
The PRO Act would do this in five ways:
First, it establishes meaningful penalties for companies that
violate their employees' rights. Incredibly, there are no civil
penalties that can deter employers from violating workers' rights to
organize under current law--no matter how repeated or willful the
conduct. The PRO Act would authorize civil penalties for employers that
retaliate against workers who seek to join a union.
Second, the PRO Act would streamline procedures to guarantee swift
remedies. If a worker is unlawfully fired for organizing, they may have
to wait years before receiving recourse, and justice delayed is justice
denied. The PRO Act would guarantee temporary reinstatement for workers
while their cases are pending, and would make National Labor Relations
Board orders self-enforcing, like those of any other Federal agency.
Third, the PRO Act would ban employers from requiring employees to
attend captive audience meetings.
Fourth, the PRO Act would establish a mediation and arbitration
process to encourage employers and unions to reach a first collective
bargaining agreement. Under current law, even if a union wins an
election, employers can stall at the bargaining table with minimal
consequences. The PRO Act would effectuate the NLRA's original purpose
of promoting collective bargaining.
And finally, the PRO Act fosters transparency, so employees know
their rights under the law. Other Federal labor and employment laws
require employers to post notices of employees' rights--like Title VII
of the Civil Rights Act, the Family and Medical Leave Act, and OSHA.
The PRO Act will similarly guarantee that employers notify employees of
their rights under the law.
This legislation is about restoring workers' right to organize and
improving the quality of life for workers and their families in
communities across America.
______
Mr. WALBERG. Oh, keep it up.
Madam Chairwoman, thank you. I appreciate serving with you
on this committee. And we disagree on some things, we agree on
plenty of things. And I would say today as well, that our
esteemed Chair of the full Education and Labor Committee, as
well as yourself and I, certainly agree on some things about
the labor movement, the labor union, and the accomplishments
that they have had. That has been a benefit to all of us who
have been in the workplace, at whatever area of the workplace
it has been.
Organized labor has a long history in America, in the work
force of America, in its diverse looks and places and the work
force. The early advocacy for fairness and decent treatment
left an important legacy--and I say that sincerely--save lives,
that have impacted benefits and futures for Americans, and
giving an example, in many cases, to the rest of the world. But
that legacy also is, as is continued unfortunately, to the
modern labor movement, has appeared to have been abandoned or
gone beyond need in many cases.
And that is what we are discussing today, and it is a vital
discussion.
I grew up in a union household on the south side of
Chicago. My father was a machinist and, in fact, tool and die
maker and a union organizer. I remember seeing the buttons on
his apron and on his cap of the Steelworkers Union. I saw that
in my household and upon graduating from high school I went to
work at US Steel South Works on the south side of Chicago, No.
2, electric furnace, as a laborer, as a furnace worker, a
ladler repairman, as a mold platform operator, third helper on
the furnace, and as a hooker. And if you are a steel mill
operator you will know what a hooker is.
But that was my life. And I can tell you that there were
parts of those jobs that I performed that were safer, benefits
were better, because of early work by my father and other union
workers.
But there are other things about that as well. The lessons
I learned from my father and my own experience as a union
worker helped shape my understanding of labor unions, both the
good and the bad. Americans have the right to organize. I will
say that again--Americans have the right to organize--and to
join a union if they choose to do so. The United States law has
protected this freedom for over 80 years.
Outdated U.S. labor laws are in need of significant
reforms. It is true. But those reforms should put workers, not
union leaders, first. With all due respect, the sweeping
legislation we are here to discuss today doesn't benefit
workers. H.R. 2474 reads like a sweeping special interest wish
list. Contrary to the statements of the bill's sponsors, this
bill fails to promote the wellbeing or success of American
workers. Instead, the legislation grants unprecedented power to
special interests at the expense of workers and employers, and
it takes two.
Among its many radical provisions, the bill requires
employers to turn over workers' personal information, including
their home addresses, cell phone and landline numbers, personal
email addresses, and more. My workers aren't asking for that or
wanting that, without workers ever having a say in the matter.
H.R. 2474 will decimate workers' rights to privacy in order to
satisfy union demands.
The bill also bans right-to-work, or as I call it, employee
free choice laws, that allow workers to decide for themselves
whether to join and pay a union, laws that have resulted in
more jobs and higher incomes for workers. And in an effort to
make it easier to create unions, the legislation contains a
back-door card check scheme that Congress deemed too extreme in
the last time Democrats were in power. The scheme provides that
in the event that a union loses an election, employers must
prove they did not interfere in the election's results. A
completely ludicrous and unworkable standard. If an employer is
unable to prove they didn't interfere, that union is
automatically ushered into the work force without ever winning
a secret ballot election.
Union membership across the United States is steadily
declining. They have failed to adapt with the changing economy.
And the absence of transparency and accountability in their
activities has left many workers disillusioned and
dissatisfied. But instead of making necessary changes to better
serve their members, union leaders appear to be exerting their
political influence to call for radical labor laws like this
one, that will allow them to further consolidate power and
bolster their own agendas.
Rather than empowering unions at the expense of workers and
employers, reforms to the National Labor Relations Act, NLRA,
and the Labor-Management Reporting and Disclosure Act, LMRDA,
should improve union accountability and transparency.
The union elections process must be updated to give workers
expanded voting rights. It is the height of hypocrisy that
Americans select their representation in Congress by secret
ballot and congressional Democrats select their own leadership
by secret ballot, yet they seek to deny that same right to
Americans selecting their representation in the workplace.
Today's workers deserve better than what this extreme
legislation has to offer.
Ten years on from the Great Recession and the American
economy is achieving robust, record-breaking growth. Wages are
rising while unemployment remains near record lows. And the
number of job openings exceed the number of job seekers
nationwide by 7 million. Workers have built this reality,
spurred on by pro-growth policies, like the Republican-led tax
law and regulatory reform.
Everyone sitting here on this dais is here because we
prevailed in a debate over ideas back in our districts. We are
here because our constituents decided we would be responsible
enough and responsive enough to serve them. Congress may not be
the most popular organization in America, but at least there
are mechanisms in place for voters to change their minds and
change their representation.
Those same basic American values and principles should
apply to everyone, including organized labor. Resistance to
those basic values and principles deserve a thorough
examination. And, thankfully, that is what we are here to do
today.
And I commit myself to that effort, Madam Chairwoman. And I
yield back.
[The statement of Mr. Walberg to follows:]
Prepared Statement of Hon. Tim Walberg, Ranking Member, Subcommittee on
Health, Employment, Labor, and Pensions
Thank you for yielding.
Organized labor has a long history in the American work force.
Their early advocacy for fairness and decent treatment left an
important legacy, one unfortunately that the modern labor movement has
appeared to have abandoned. I grew up in a union household. My father
was a machinist and union organizer for part of his career, and upon
graduating from high school, I went to work at U.S. Steel South Works
on the south side of Chicago. The lessons I learned from my father and
my own experience as a union worker helped shaped my understanding of
labor unions, both the good and the bad. Americans have the right to
organize and join a union if they choose to do so, and United States
law has protected this freedom for over 80 years.
Outdated U.S. labor laws are in need of significant reforms, it's
true. But those reforms should put workers, not union leaders, first.
The sweeping legislation we are here to discuss today doesn't benefit
workers. H.R. 2474 reads like a sweeping special interest wish list.
Contrary to the Statements of the bill sponsors, this bill fails to
promote the wellbeing or success of American workers. Instead, the
legislation grants unprecedented power to special interests at the
expense of workers and employers.
Among its many radical provisions, the bill requires employers to
turn over workers' personal information including their home addresses,
cellphone and landline numbers, personal email addresses, and more
without workers ever having a say in the matter. H.R. 2474 will
decimate workers' right to privacy in order to satisfy union demands.
The bill also bans right-to-work laws that allow workers to decide
for themselves whether to join and pay a union--laws that have resulted
in more jobs and higher incomes for workers. And in an effort to make
it easier to create unions, the legislation contains a backdoor ``card-
check'' scheme that Congress deemed too extreme the last time Democrats
were in power. The scheme provides that in the event that a union loses
an election, employers must prove they did not interfere in the
election's results a completely ludicrous and unworkable standard. If
an employer is unable to prove they didn't interfere, that union is
automatically ushered into the workplace without ever winning a secret
ballot election.
Union membership across the United States is steadily declining.
They have failed to adapt with the changing economy, and the absence of
transparency and accountability in their activities has left many
workers disillusioned and dissatisfied. But instead of making necessary
changes to better serve their members, union leaders appear to be
exerting their political influence to call for radical labor laws like
this one, that will allow them to further consolidate power and bolster
their own agendas.
Rather than empowering unions at the expense of workers and
employers, reforms to the National Labor Relations Act (NLRA) and the
Labor-Management Reporting and Disclosure Act (LMRDA) should improve
union accountability and transparency. The union election process must
be updated to give workers expanded voting rights. It is the height of
hypocrisy that Americans select their representation in Congress by
secret ballot and congressional Democrats select their own leadership
by secret ballot, yet they seek to deny that same right to Americans
selecting their representation in the workplace.
Today's workers deserve better than what this radical legislation
has to offer. Ten years on from the Great Recession and the American
economy is achieving robust, record-breaking growth. Wages are rising
while unemployment remains near record lows, and the number of job
openings exceeds the number of job seekers nationwide. Workers have
built this reality, spurred on by pro-growth policies like the
Republican-led tax law and regulatory reform.
Everyone sitting here on this dais is here because we prevailed in
a debate over ideas back in our districts. We're here because our
constituents decided we would be responsible enough, and responsive
enough, to serve them. Congress may not be the most popular
organization in America, but at least there are mechanisms in place for
voters to change their minds and change their representation. Those
same basic American values and principles should apply to everyone,
including organized labor. Resistance to those basic values and
principles deserves a thorough examination, and that's what we want to
do today.
______
Chairwoman WILSON. Thank you, Mr. Walberg.
Material for the hearing record--I remind my colleagues
that pursuant to committee practice, materials for submission
for the hearing record must be submitted to the committee clerk
within 14 days following the hearing, preferably in Microsoft
Word format, by 5 p.m. on May 21, 2019, without objection.
I will now introduce our witnesses.
Mr. Richard Trumka is the distinguished president of the
AFL-CIO. He was formerly the president of the United Mine
Workers of America, and a third generation coal miner. Welcome.
Mr. Jim Staus is a former employee of the University of
Pittsburgh Medical Center.
Mr. Philip Miscimarra is a partner in Morgan Lewis &
Bockius LLP and former chairman of the National Labor Relations
Board.
Mr. Mark Gaston Pearce is the former chairman at the
National Labor Relations Board and currently the executive
director and distinguished lecturer at the Workers' Rights
Institute at Georgetown University Law Center.
Welcome today. Thank you for being here. We certainly
appreciate your presence and your time. We look forward to your
testimony.
And let me remind the witnesses that we have read your
written statements and they will appear in full in the hearing
record. Pursuant to committee rule 7d and committee practice,
each of you is asked to limit your oral presentation to a 5
minute summary of your written statement. Let me also remind
the witnesses that pursuant to Title 18 of the U.S. Code
Section 1001, it is illegal to knowingly and willfully falsify
any statement, representation, writing, document, or material
fact presented to Congress, or otherwise conceal or cover up a
material fact.
Before you begin your testimony, please remember to press
the button on the microphone that is in front of you so that it
will turn on and the members can hear you. As you begin to
speak the light in front of you will turn green. After 4
minutes the light will turn yellow to signal that you have 1
minute remaining. When the light turns red your 5 minutes have
expired and we ask that you please wrap it up.
We will let the entire panel make their presentations
before we move to member questions. When answering questions,
witnesses, please remember to once again turn your microphone
on.
I will first recognize Mr. Trumka.
STATEMENT OF RICHARD L. TRUMKA J.D., PRESIDENT, AFL-CIO
Mr. TRUMKA. Chairman Wilson, Ranking Member Walberg, and
members of the subcommittee, on behalf of the 12.5 million
members and 55 unions of the AFL-CIO, thank you for inviting me
to testify today.
I want to thank House Education & Labor Committee Chairman
Bobby Scott and his colleagues for his foresight they have
demonstrated in crafting this important legislation.
Gallup recently put the popularity of unions at 62 percent,
a 15 year high. The Wall Street Journal reported that in 2018
it was the biggest year for collective action in 3 decades.
Teachers, from West Virginia to Arizona, Google employees,
workers in every sector and every region, are embracing the
transformational power that comes from joining together in
common cause.
MIT found that half, half of all non-union workers would
join a union today if given the chance. That is more than 60
million Americans. So why haven't we seen a rise in union
membership commensurate with this surge in approval,
recognition, and desire? Well, the answer is clear: our
woefully outdated labor laws no longer serve as an effective
means for working people to have our voices heard.
The stated purpose of the National Labor Relations Act is
to encourage collective bargaining. Yet in the more than 80
years since its passage, every amendment to the law has made it
harder for workers to form unions.
Today, union busting consultants are paid tens of millions
of dollars to deny workers a voice on the job. And once a union
election is won, the same bad actors do everything in their
power to undermine the collective bargaining process. Workers
are forced to sit in meetings where the only item on the agenda
is bashing the union. Pro-union workers are fired, employers
refuse to bargain in good faith, some refuse to bargain at all,
and far too often the financial consequences for breaking
Federal law is virtually nonexistent. This must change. The
Protecting the Right to Organize Act will change it.
Now, imagine if when running for office your opponent could
force the electorate to listen to speeches urging them to vote
against you. Imagine your opponent had the power to punish
those voters if they did support you. Imagine that Congress
refused to recognize your rightful election. And then imagine
that once you finally were seated, you were denied the basic
rights and responsibilities that come with that office. That is
the grim reality that workers face today. They see it in a
number of places: misinformation, reprisals, delays, threats.
And after all those obstacles are overcome, an outright refusal
to recognize the election results.
I included several such examples in my written testimony.
And that is why half of non-union workers want to join a union
today, yet less than 12 percent actually have one. Why does it
matter? Simply put, workers in unions bargain for higher wages
and are much more likely to have healthcare and a pension. The
union advantage is even greater for people of color and those
without a college degree. Unionized workers have a real say in
critical workplace issues, like time off to care for a loved
one, the deployment of technology, protection from
discrimination.
A happier, healthier, more upwardly mobile work force is
good for our economy as consumers have additional money to
spend, local tax revenues increase, education funding is
bolstered, inequality shrinks. It is a virtuous cycle upward,
not downward.
The union movement and all working people are hungry for
pro-worker reforms to existing labor laws. The PRO Act would do
many important things. Chief among them, provide more
substantial relief for workers whose rights have been violated,
ensure a process for reaching a first contract once a union is
recognized, and create a true deterrent so that employers think
twice before violating the law.
Something is happening in America. Workers are embracing
collective action with a fervor that I have not seen in a
generation. It is time for our laws to catch up, it is time to
make the PRO Act the law of the land.
Thank you very much.
[The statement of Mr. Trumka follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairwoman WILSON. Thank you so much, Mr. Trumka.
We will now recognize Mr. Staus. Welcome.
STATEMENT OF JIM STAUS, PITTSBURGH, PA
Mr. STAUS. Madame Chair Wilson, Ranking Member Walberg, and
members of the committee, thank you for the opportunity to
testify today.
My name is Jim Staus. I am a part-time porter in
Pittsburgh, Pennsylvania.
I am honored to speak with you today about the PRO Act.
Seven years ago I started to organize a union at University of
Pittsburgh Medical Center, or UPMC. I learned firsthand what
workers face when they try to stand up for better wages and
safer working conditions.
When I went to work at the UPMC in 2006, I thought that if
I worked for the biggest employer in the city I would be able
to provide for my family. If you ask my neighbors about good
jobs, they say try to work at the hospital, they pay well. But
I quickly learned that things at the hospital were not what I
pictured. UPMC is a $19 billion global entity. I still started
at $9.60 an hour. I was surprised that I was making so little,
but I thought if I just worked hard things would change. So I
went to work at 5 a.m. each day and gave my best.
My job was demanding. I had to carry 300 pounds of supplies
per unit per shift. My job should have been performed with a
power jack, but we had to use manual ones. We had no back
braces either. I am not a doctor and I cannot prove that I got
hurt from working without proper safety equipment. I can,
however, tell you that I have had two knee replacement
surgeries. I can also tell you that I could not make ends meet.
I needed government assistance to put food on the table for my
family the whole time. One particularly rough winter, our water
was shut off, so my wife and I had to melt snow to be able to
flush our toilets.
Still, I enjoyed my job. I liked helping people recover
from illness and injuries. In 2012, UPMC workers began to talk
about forming their union. I wanted in. In Pittsburgh, everyone
knows the union turned dangerous, low-paying steel jobs into
middle class jobs. If workers came together, I knew that I
could make a better future for my wife, Cindy, and daughter,
Hannah, my co-workers too.
But instead of respecting our rights to organize our
hospital better, UPMC launched a fierce anti-union campaign. We
were faced with threats and intimidation. One of the first
scare tactics was holding a mandatory staff meeting to attack
the union.
Management's harassment of me got worse when I wore a
sticker saying ``I am with Ron'' to support Ron Oakes, who was
illegally fired from UPMC for union organizing.
After that I became the prime target for management anti-
union campaign. Management followed me around and threw out my
pro-union literature. I was ostracized to the point where many
co-workers were scared to talk to me about the union.
Then things came to a head. After years of having positive
work evaluations, I was placed on a performance improvement
plan. Soon after, in 2013, I was illegally fired, along with
others who wanted the union. We fought the terminations.
In 2014 a judge from the National Labor Relations Board
said UPMC has violated our rights and ordered them to put us
back to work. In 2018 the NLRB told them again, but UPMC is
still appealing my case.
Sadly, my story is not unique. Working people are supposed
to have union rights, but we have to risk everything to
exercise them. We need new laws like the PRO Act to hold
companies accountable and to make it easier for people to join
unions. We must stop them from using scare tactics, like
captive audience meetings. We need real penalties so companies
will think twice about illegally firing people, like Ron and
myself. We need to force companies to make things right quickly
when they break the law.
The Federal Government twice found UPMC wrongly fired me,
but 6 years later I still haven't returned to work or seen a
penny of back-pay. And everything I have earned since I was
fired is deducted from what UPMC owes me. By trying to provide
for my family at another job, I am working off UPMC's debt.
That is not right.
I urge the members of this committee to support the PRO Act
and help ensure what happened to me doesn't happen to anybody
again.
Thank you.
[The statement of Mr. Staus follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairwoman WILSON. Thank you, Mr. Staus.
We will now recognize Mr. Miscimarra.
Mr. MISCIMARRA. Thank you.
Chairwoman WILSON. You are welcome.
STATEMENT OF PHILIP A. MISCIMARRA J.D., PARTNER, MORGAN, LEWIS
& BOCKIUS LLP
Mr. MISCIMARRA. Chairperson Wilson, Ranking Member Walberg,
and Subcommittee members, thank you for the invitation to be
here.
I am a partner in the law firm, Morgan Lewis & Bockius, but
I had the privilege of serving as Chairman of the National
Labor Relations Board, as board member and acting chairman from
2013 to December 2017. I might add, I served on the NLRB with
my friend, Mark Pearce, who is seated here to my left. I am
also a Senior Fellow in the Wharton Center for Human Resources
at the University of Pennsylvania's Wharton School.
Everyone in Congress wants to do good when considering
changes in our Federal labor laws. Based on four reasons, I
think the changes proposed in H.R. 2474, though intended for
good, would do significant harm.
First, this legislation disregards the remarkable work done
by the NLRB, and especially its dedicated career professionals
and staff members throughout the country. Parties can pursue
and NLRB charge from start to finish without a lawyer. Also,
nearly 20,000 unfair labor practice charges are filed annually
and roughly 90 percent are completely resolved within three or
4 months and employees get near immediate relief in those
cases. And in the 5 or 6 percent of cases that are not resolved
at this early stage, the overwhelming majority of Board
decisions are unanimous.
Here is my second point, the National Labor Relations Act
carefully balances the competing interests of employees,
employers, unions, and the public. H.R. 2474 would dramatically
change this balance. For example, the bill would permit union
strikes and boycotts targeting neutral parties, basically
everybody who does business with the struck employer. These
secondary boycotts have been unlawful for more than 70 years.
Another example, any struck employer would be prohibited
from continuing operations using permanent replacements.
Employers but not unions would be barred from being parties
in NLRB elections cases. In many cases the bill would eliminate
the employee right to vote in NLRB elections, substituting
mandatory union recognition with an election.
In many first contract negotiations the bill would
eliminate the employee right to vote on contract ratification,
substituting arbitrator-imposed terms for a 2-year period or
more. The bill provides for two-track NLRB and court litigation
over the same issues with expanded damages.
The bill would override state laws adopted in more than
half the country that prevent employees from being forced to
make mandatory union agency fee payments. And the bill would
even redefine the terms ``employer'' and ``employee.''
My third reason for opposing this bill involves the role
played by economic weapons.
Now, the NLRA was adopted during the Great Depression. It
centers around a bargaining model where leverage is based on
each side's potential infliction of economic injury on the
other party. In a global economy this puts unions and employers
in a relay race. And in the United States, unions have an
incentive to use the baton to injure the employer instead of
running the race against global competitors.
H.R. 2474 increases the intensity of the weapons while
expanding the role played by conflict and economic injury. I
think this moves U.S. labor policy in the wrong direction,
especially when it comes to trade, jobs, and our place in the
world economy.
Finally, as everyone knows, recent years have spawned
dramatic advances in robotics, self-driving vehicles,
artificial intelligence, and automation. Simply stated, this is
the worst time in U.S. history, and probably the worst time in
human history, to adopt a national labor policy that increases
employment-related conflict costs and disruptions, which
companies can and will avoid by using more fully automated
systems. This bill, if enacted, will inevitably cause more
investment in technology and less investment in people.
I will conclude with this, Congress produced a remarkable
achievement in the National Labor Relations Act, which the
Supreme Court said is not intended to serve any party's
individual interest, but to foster in a neutral manner, a
system in which conflict between these interests may be
resolved.
H.R. 2474 departs from this neutrality, and I think it
would disadvantage employees, employers, unions, and the public
interest.
Thank you again, and I look forward to the Subcommittee's
questions.
[The statement of Mr. Miscimarra follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairwoman WILSON. Thank you. Thank you very much.
We will now recognize Mr. Pearce. Welcome.
STATEMENT OF MARK GASTON PEARCE J.D., EXECUTIVE DIRECTOR AND
DISTINGUISHED LECTURER, GEORGETOWN UNIVERSITY LAW CENTER'S
WORKERS' RIGHTS INSTITUTE
Mr. PEARCE. Thank you, Chairperson Wilson, thank you
Ranking Member Walberg.
I really appreciate the opportunity to speak here today.
This is a special privilege for me because I spent half of my
40 year career working with the National Labor Relations Board,
first as a lawyer, then ultimately as a Board member and as a
chairman.
The Nation Labor Relations Board is the agency charged with
enforcing the foremost labor law in the country, the National
Labor Relations Act. It has, however, been hampered in
effectively enforcing the Act because of its remedies failing
to deter unlawful conduct. That is why the statutory change is
needed, to update the law to reflect today's workplace.
Compare Congress with an auto plant charged with producing
legislation to protect working people in this country. The NLRA
would be described as a heavy duty vehicle with major design
flaws, an underpowered engine, and only three wheels.
I would like to highlight four main shortcomings of the law
as it exists today: inadequate remedies for violations,
procedural obstacles to relief, insufficient protections during
the bargaining process, unfair remedies in cases involving
undocumented workers.
With regard to inadequate remedies, Section 10(c) of the
National Labor Relations Act limits remedies to a cease-and-
desist order; in the event of an unlawful firing, reinstatement
with back pay; along with a required notice posting. That has
been, in effect, a slap on the wrist.
By contract, other worker protections statutes, like Title
VII of the Civil Rights Act and the Fair Labor Standards Act,
provide compensatory damages, liquidated damages, and sometimes
punitive damages. These people have been harmed, they have been
damaged. They don't have to have a requirement that requires
them, as this worker just testified, to pay back the debts of
the wrongdoer in order to be entitled to compensation.
Limitations in the current statutory scheme make it
economically rational for employers to violate the Act. An
example being a case that is cited by both me and my colleague,
Mr. Miscimarra, Pacific Beach Hotel, which is detailed in my
written statement. That is a case where for the span of 10
years the employer blatantly violated the National Labor
Relations Act, and each time when the Board went back they
would have to go into court to enforce the orders. Each time,
the parties had to pony up big legal expenses in order to get
that done. Each time, employees were told that they would get
recompensed and that the unilateral changes that were being
created will be rectified. And each time the employer violated
it. For 10 years. The question becomes what does an employee
think of an Act when for 10 years they are being abused by an
employer and there is nothing in the Act to stop it from
happening?
Procedural obstacles to relief have been significant. When
workers filed charges with the NLRB, they are often left to
work for a significant period of time. And in many instances,
as the Chairperson eloquently said, justice delayed is justice
denied. By the time a case worked its way through the NLRB
process, its litigation in Federal court, several years may
have lapsed. For this reason, only one-third of those people
entitled to reinstatement accept reinstatement. The PRO Act
would help address the problems of delay by authorizing the
Board to seek injunctions in Federal district court.
Strengthening the protections of the bargaining process is
something that is also going to be needed, and that is detailed
also in my report, with mediation and arbitration of contract
issues, an essential piece of a bargaining process designed to
facilitate collective bargaining.
I can say a lot more, but I am out of time.
Thank you very much.
[The statement of Mr. Pearce follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairwoman WILSON. Under committee rule 8A we will now
question witnesses under the 5 minute rule.
Thank you so much for your testimony--riveting testimony.
And we appreciate it.
I will now yield myself 5 minutes.
Mr. Trumka, the right to join a union is an internationally
recognized human right and protected by Federal labor laws, but
in the United States it is frequently violated in practice.
Why do workers need unions? How can civil monetary
penalties and damages for severe economic harm deter employers
from retaliating against workers engaged in union organizing
with near impunity?
It is a two pronged question.
Mr. TRUMKA. Madam Chairman, workers need unions because the
power imbalance between employers and individuals is vast. An
employer is not required to talk to an individual employee or
even a group of employees to ask them what they want. Only
whenever they come together as a union in concerted activity do
they have the power and ability to talk for a union. And what
happens is evident, they make more money, a benefit of roughly
13 percent more. Women, Latino women, make $11,000 more for
being in a union. African Americans make $9,000 a year more for
being in a union. Women in general make $9,000 more for being
in a union. Only by being in a union can they talk collectively
and actually bargain for a fairer deal.
We have seen what has happened since the union density has
fallen in this country. Wages have stagnated or gone backwards.
There was recently a study that said that the lack of union
density has also hurt non-union workers to the tune of $2,700 a
year. If unions had been the same density as they were in the
`90's and `80's, non-union workers would be making $2,700 a
year more.
So it is to balance the scale, to balance the power of
employers and employees. Workers have to come together and
speak with one voice and then they can come to the table and
negotiate as equals, not as supplicants. That is why it is so
important. It is for dignity, it is for respect, and it is for
the ability to raise their standard of living and get a fair
share of what they produce.
Chairwoman WILSON. Thank you.
I understand, Mr. Staus, that UPMC fired you for union
organizing in 2013. Five years later, the National Labor
Relations Board ordered that they reinstate you with back pay,
and they have not done so.
Mr. STAUS. No, ma'am.
Chairwoman WILSON. Why were you fighting so hard, and why
are you still fighting?
Mr. STAUS. Well, I am fighting so hard not only for myself
and my family but for the region, the Pittsburgh region. What
they are doing at UPMC is wrong, and they need to be held
accountable for their actions.
Chairwoman WILSON. What needs to change in the laws to
safeguard your rights and your fellow workers' rights?
Mr. STAUS. Well, we need the PRO Act to take effect because
right now the laws as they are today have no teeth. UPMC and
the like are able to get away with whatever they want and there
is no repercussion for them.
Chairwoman WILSON. Thank you. Mr. Pearce, your career
embodies the best in public service. In your testimony you
described how, despite your best efforts, the NLRA fails to
deter or fully remedy violations. What are some of the
obstacles workers face when they seek to vindicate their
rights, and how would the PRO Act address those obstacles?
Mr. PEARCE. Well, one major obstacle is that an employee
does not even know what their rights are because they are not
permitted the opportunity to see notices, just like with the
Department of Labor and with OSHA--they can have notices on the
wall. The National Labor Relations Act is not placed on the
wall. Efforts have been made for us to be able to do that and
it was struck down by the courts by the opposition of forces
that were led by my esteemed colleague here, while he was in
private practice.
But then there is the protracted nature of the process. The
investigations take about 30 days, the trial takes almost a
year to culminate, and then afterwards it is appealed to the
Board where the Board can take a significant amount of time
before a decision gets issued. That decision is not self-
enforcing. So the parties can appeal that to the courts and
have it tied up for a significant period of time.
Meanwhile, people are losing homes, people are getting
divorced, people are not able to meet their rent or pay for
their children's education, people lose hope.
Chairwoman WILSON. Thank you so much for your testimony.
I now recognize the distinguished Ranking Member Walberg
for his round of questions.
Mr. WALBERG. Thank you, Madam Chairwoman. And thanks to the
panel for being here.
Mr. Miscimarra, H.R. 2474 requires business owners to turn
over reams of personal information about workers to unions,
including home addresses, home phone numbers, cell phone
numbers, personal emails, and much more. If this legislation is
enacted, would workers have any say in whether their personal
information is shared with the union? And, second, what risks
might this scheme create for workers?
Mr. MISCIMARRA. Representative Walberg, thanks for that
question.
When the NLRB was engaged in rulemaking, which led up to
the adoption of a new election rule in 2014, significant
concerns were expressed about the lack of consent or any opt-
out procedures or any safeguards associated with what would be
the new requirement that employers would provide personal
information to unions in connection with NLRB conducted
elections. And the personal information includes personal
telephone numbers, work telephone numbers, cell phone numbers,
when they are available, work email addresses, and when they
are available, home email account addresses as well.
There were concerns that were expressed. We had a 2-day
hearing in connection with that rule and the board ultimately
adopted a requirement that these disclosures take place without
any safeguards associated with this personal information, and
also without any provisions for consent or opt in or opt out.
H.R. 2474 codifies exactly the same disclosure requirements and
there really are not safeguards in the bill, nor are there in
the regulations adopted by the board and it is currently still
in effect.
Mr. WALBERG. Far different than getting approval, voluntary
status from workers saying yes, sure, this is information I
want to know about, so here is the information that you need to
get a hold of me.
Mr. Miscimarra, union corruption remains an unfortunate
problem. It is not every case, but as seen recently in my home
state of Michigan with UAW, where union leaders spend hard-
earned worker dues on excesses like $1,100 pairs of shoes, two
$37,000 gold pens. Fortunately, Michigan is an employee free
choice state, so workers cannot be forced to fund such
extravagant and likely illegal spending against their will.
However, H.R. 2474 prohibits states from enacting right-to-work
protections. Would banning right-to-work laws make union
leaders like those at UAW more or less accountable to workers?
Mr. MISCIMARRA. Well, Representative Walberg, the bill
would override the state right-to-work laws passed in 27 states
that protect employees from being forced to make mandatory
union agency fee payments. And one of the points that I made in
my oral testimony, as well as my written testimony, is that the
bill really does not continue the balance between competing
interests among employers and employees and unions and the
public. And with respect to obligations and requirements under
the law, the bill would impose significantly greater
requirements on employers and there are no additional
requirements on unions.
Mr. WALBERG. Okay. Mr. Miscimarra, according to polling
from Opinion Research Corporation, 81 percent of union
households and 81 percent of Democrats support the right to a
secret ballot in union elections. H.R. 2474 allows unions to
automatically be approved under certain circumstances, even
after they lose a secret ballot vote.
What risks does it create for workers to allow unions to be
certified without winning a secret ballot?
Mr. MISCIMARRA. Well, the challenge in those cases is to
the extent that employees have not had the opportunity to vote
in the secret ballot election, it is not clear what the
employee sentiments are with respect to union representation.
And the preferred method for decades under the National Labor
Relations Act has been for union sentiments to be tested in the
context of an NLRB-conducted secret ballot election, which the
board conducts in a very efficient and very effective manner
that instills confidence in all the parties.
To the extent that, as the bill would require, to the
extent that in particular cases bargaining orders would require
union recognition and negotiations without any secret ballot
election in those instances, once the union is in there are
significant challenges associated with the ability of employees
to ever vote on the possibility of decertifying the union or
continuing union representation. Of course, if you don't have
an election, you don't know how the election is going to turn
out.
So once a union is in, there are certain bar rules. The
existence of a 3-year contract, for example, would prevent
employees from even having an NLRB election until the last 90
days prior to the expiration of that contract.
So bypassing a secret ballot election, at least with
respect to current law and the Board's practice for 83 years,
is a very significant issue. And one never knows what employee
sentiments would be expressed if they had the opportunity
merely to express those sentiments in a board conducted
election.
Mr. WALBERG. I thank the gentleman.
Chairwoman WILSON. Thank you so much, Mr. Walberg.
We will now go to the member's questions. Mr. Norcross, of
New Jersey.
Mr. NORCROSS. Thank you, Madam Chairwoman, and appreciate
you putting together this hearing and certainly to my
colleagues on the other side of the isle. We have many similar
views, but on this one I think we are going to diverge, just a
little bit.
Isn't it ironic that we are hearing about corruption and we
are being challenged by members of Congress talking about this?
Or is it more ironic that we are talking about preserving
elections when Russians just hacked ours and we are trying to
shut that down?
Can we get back to the point here that if we look at the
density of unions over the course of the last 25 years, and it
has declined, the middle class is doing worse, and the fact of
the matter we are having more challenges at the NLRB.
Now, for 37 years I was an electrician. I was a union
representative. I filed probably more elections at the NLRB
than this entire group combined. I understand firsthand how it
works on both ends. And I will start off by saying not every
employer is a bad employer. We have some very good employers
that we work with. But when we have the bad ones, they can
abuse this system to the nth degree, really crushing people
like you.
So when we have a conversation--I want to remind, we have
213 attorneys in Congress and there is only 1 electrician. What
is my point? It is I understand this, I have lived it from both
sides.
So, Mr. Trumka, thank you for coming in. And you
understand, you have heard, you have lived, coming out of the
mines, how tough it is sometimes. When we look at finally as
the process goes, you file for elections, and let us just
assume that the union wins it, then you have to sustain that
recognition. And let us say you make it through that second
step and then you try to bargain for your first contract. What
happens then typically when there is an adversarial
relationship? Is this something that they can force their way
and say let us get a contract, let us go to arbitration and
figure this out? Or what typically happens?
Chairwoman WILSON. Turn on your microphone.
Mr. TRUMKA. Let me start with a general statement and work
down to what you said. The law as currently written gives the
employer to decide whether or not workers will have a union. It
was never intended that way.
Since 1935 the law has allowed and accepted the fact that
when a worker and an employer don't disagree, you can have
recognition without an election. They do it most of the time in
the country. So that has been since 1935, been the law. Only
recently has it been questioned.
Now, one of the colleagues here wanted to make this seem
like this was almost like a governmental election. Well, when
you all get elected, you are getting elected to govern. When a
union gets elected, it is to represent the workers there. It is
like their lawyer. That is all that they are getting at that
point.
And I might add that whenever a majority of people or a
minority of people don't vote for you, they are still governed
by what you do afterwards forever. In this election, with
14(b), they get a chance to say we vote no, we also won't get
in, but we want all the benefits that a union has to bring, and
we don't have to pay a cent for it. That is what you are
sanctioning here, that is what comes out.
What happens is normally the employer will surface bargain.
They will not bargain with you, they will not give you
proposals, it doesn't go back and forth. The first thing will
happen is you will ask for information and it will take them
several months to get you the information, and then it is not
all there. So you ask for it again. And if they don't give it
to you, then you go to the Board and you go through a bunch of
charges that take 3 or 4 years. Finally, if you get the
information, they sit down, they are not required to agree, all
they do is mouth empty words at you. And you can tell pretty
quickly if they are trying to get to an agreement or whether
they are trying to get to impasse so that they can declare
things and go on their merry way.
Mr. NORCROSS. So what typically happens to the person of
the workers who have organized this? Are they targeted? What
usually happens to the--
Mr. TRUMKA. Absolutely. Take the--they always get targeted.
They always get targeted, they get fired, and as you heard from
my friend next to me, it will take months, years for them to
get back. And when they do get back all the money that was
spent defending them is tax deductible. Any money that the
worker gets or earns in that interim period is deducted from
what the employer pays. It virtually costs them nothing.
In the case of Kumho Tire, we had a guy that was fired. He
got fired at a non-union shop and he went to a union shop and
actually had better wages. So when he gets put back in 3 years,
they will owe nothing, which--
Mr. NORCROSS. Thank you. We are out of time, but I want to
thank you for your testimony.
Mr. TRUMKA. Thank you.
Chairwoman WILSON. Thank you so much. Thank you so much.
Dr. Foxx. Distinguished Dr. Foxx.
Mrs. FOXX. Thank you, Madam Chairman.
Mr. Miscimarra, last time Democrats held the majority in
the House they voted to deny workers the right to a secret
ballot for union elections. This is a right guaranteed to all
Americans when they vote for representation in Congress, and
the same right guaranteed to congressional Democrats when they
vote for their own caucus leadership.
Under H.R. 2472, could some unions be automatically
certified even though they lose in a secret ballot vote? And
why might union bosses prefer this scheme?
Mr. MISCIMARRA. Thank you for the question, Dr. Foxx.
The H.R. 2474 specifically provides if a union loses an
election and if there are unfair labor practice charges that
are filed, if the employer does not sustain the burden of
proving that any unfair labor practice charges would not have
altered the outcome of the election, the union is then
automatically recognized as the exclusive bargaining
representative without conducting another election.
And as I explained previously, that prevents employees from
being able to express their sentiments in the confines of the
voting booth, which the board has always said is the preferred
course for testing employee sentiments regarding union
representation.
Mrs. FOXX. Thank you.
Mr. Miscimarra, despite Democrat claims that the decline of
unions has harmed workers, Americans are inarguably better off
today than they were decades ago when the union participation
was higher. And by the way, we have the figures to prove that,
despite what others may say here today.
A significant provision in H.R. 2474 repeals the ban on
secondary boycotts, subjecting even more employers, workers,
and customers to union harassment. In your view, does this
provision, not to mention the bill overall, threaten economic
growth? And what impacts would secondary boycotts have on
business owners, workers, and the overall health of the U.S.
economy?
Mr. MISCIMARRA. Well, Dr. Foxx, the term secondary boycotts
is an important one when it comes to labor law. And what a
secondary boycott means is if a union has a dispute with you,
under current law the union can move forward and can use
picketing and other means, other economic weapons against you,
but the union can't spread that dispute to everybody in our
complicated economy merely because they do business with you.
In the United States we had that state of affairs for 12
years. The Act was passed in 1935 and then there were
amendments that were made in 1947 that, among other things,
barred secondary boycotts because they were having too
debilitating an effect on the U.S. economy. The next amendments
to the Act occurred in 1959 and Congress strengthened the
prohibitions against secondary boycotts because there were
loopholes during the original restrictions that still permitted
labor disputes to have widespread, debilitating effects
throughout the economy.
What H.R. 2474 does is repeal in their entirety the
provisions that bar secondary boycotts. So we would have, under
this bill, not only the type of conflict and dissention that as
I indicated is part and parcel of our collective bargaining
motto under the statute, but we would return to a state of
affairs that has not existed in this country for more than 70
years, which would be a very, very significant change in the
law.
Mrs. FOXX. Thank you, Mr. Miscimarra.
In the event of a collective bargaining impasse, H.R. 2474
requires employers and unions to enter arbitration, allowing
the unelected bureaucrats to write a binding union contract.
The bill states that the contract ``shall be based on the wages
and benefits other employers in the same business provide their
employees.'' Does that mean that under this standard a mom and
pop retail small business would have to accept the same union
contract terms as a mega corporation like Walmart or Amazon?
What effect would this mandate have on small businesses and
their employees?
Mr. MISCIMARRA. Well, Dr. Foxx, there are two potential
effects. One is, we don't know what an arbitrator would do in
that circumstance where the arbitrator inherits--these are
initial contract negotiations where an arbitrator inherits a
small business, a union, and various competing demands that may
be very, very far apart. And there is a risk, since we are
talking here about contract terms that are imposed and not
agreed upon. There is no certainty regarding what the employer
could confront, and it is possible that imposed terms would
actually be not only injurious to the employer, but injurious
to the employer, the employees, the union itself, even though
the union was seeking those terms.
The one other point I will make is that current law has
been very clear that the NLRB regulates the process of
collective bargaining, but the NLRB does not have the authority
to impose substantive contract terms on parties. That has
worked very well for the Act's 83-year history. This law, for
the first time in the Act's history, would change that.
Chairwoman WILSON. Thank you. Let us wrap it up.
Mrs. FOXX. Thank you. Thank you, Mr. Miscimarra. And thank
you, Madam Chairman.
I would like to enter into the record an article called
``Big Labor's Big Shrink'', which was in the Wall Street
Journal on April 30.
Chairwoman WILSON. So ordered.
Mrs. FOXX. Thank you.
Chairwoman WILSON. Now, Mr. Morelle.
Mr. MORELLE. Thank you, Madam Chair, for holding this
hearing, which is so important, and to all of our witnesses who
are testifying today, and in particular, Mr. Trumka. Thank you
for your lifetime of efforts on behalf of America's working
families.
Over the past 4 decades there has been a concerted effort
to diminish the right of workers to organize and collectively
bargain. And we have seen the impact of that in my district in
upstate New York and throughout our country. These concerted
efforts have had a serious impact on union density in
Rochester, where I represent, and surrounding communities,
resulting in suppressed wages for union and non-union workers.
Something that is not often talked about is the impact on non-
union workers because the impact on union organizing.
As the proud son of a pipefitter and a member of Plumbers
and Steamfitters Local 13, United Association, I am glad to
have the opportunity to focus on what can and should be done to
deter unfair labor practice.
And I want to start, if I might, Mr. Staus, if I can ask
you, Federal law states that it is the policy of the U.S.
Government to ``protect your freedom of association, promote
collective bargaining''. The National Labor Relations Board
decided in 2018 that you were unlawfully terminated, but your
employer has not yet given you a cent of back pay, as I
understand from your testimony.
Mr. STAUS. That is true.
Mr. MORELLE. I gather that is because the NLRB is weaker
than other Federal agencies in that it cannot enforce its own
orders.
With that in mind, do you feel the law as stated is living
up to its stated purpose?
Mr. STAUS. No, it is not. We need something like the PRO
Act to give the law some teeth, because, you know, it has been
6 years and I haven't got penny one or reinstated.
Mr. MORELLE. Thank you. Obviously a law failing to meet its
stated goal needs to be changed and updated, the purpose of our
conversation here.
I wanted to just, if I could, Mr. Pearce, because of that
lack of the ability for the NLRB to have sanctions or be able
to implement sanctions, how do employers abuse that deficiency
in the law? Could you just describe that a little bit?
Mr. PEARCE. Well, employers are able to--if they want to
snuff out a union's organizing drive, the employer can take
full advantage of violating the law with minimum repercussions.
You terminate an individual, like Ron Oakes, and kill the
organizing drive. You could possibly put the back pay owed to
that individual in a low interest savings account and by the
time there is a determination that you have to pay and you
subtract the interim earnings from that, you have made money on
your wrongdoing.
Mr. MORELLE. Obviously something the law is not intended to
provide an opportunity for that.
Mr. PEARCE. Not at all.
Mr. MORELLE. One just followup, in Mr. Miscimarra's
testimony, and this is for Mr. Pearce--I am just curious--he
cites 2014 case Pacific Beach Hotel as an example of the NLRB
having sufficient teeth to defer unfair labor practices. I
notice that you cite the same case in your testimony. Sort of
unusual that you both point to the same thing.
Were the remedies that Mr. Miscimarra listed actually
significant, were they enough to deter the employer from
violating the NLRA over a period of years? Because deterrence
is obviously a big part of what we hope to do with sanctions.
Mr. PEARCE. We were talking about recidivists that engaged
in bad doings over the span of 10 years. And repeated
violations of the Act were brought forth and pursued in court.
We ultimately, as a unanimous body, concluded that these
egregious violations needed to be remedied. We went through
every possible effort to fit the remedy with the crime within
the limitations of the statute. And a lot of that was upheld by
the court, even though it was dissented to by some of our
colleagues.
The one remedy that was significant is the court costs of
having to go to court each time in order to rectify these
circumstances, and we ordered costs to the general counsel and
to the charging parties because of the abuse of the process
that was being subjected to.
Well, the DC Circuit, while they upheld our other efforts,
struck that down because there was no statutory authority for
us to impose those things.
So otherwise, resources that were utilized to try to
enforce this were denied this agency so it could not
effectively investigate cases and apply its resources in order
to protect the working people.
Mr. MORELLE. Very good. Well, thank you, sir.
Thank you, Madam Chair.
Chairwoman WILSON. Thank you.
The renowned Dr. Roe.
Mr. ROE. Thank you, Madam Chairwoman. I appreciate that.
First of all, welcome back, Mr. Miscimarra and Chairman
Pearce, to the Committee. It is good to see both of you again.
Mr. MISCIMARRA. Thank you.
Mr. ROE. I grew up in a union household, as Mr. Walberg
did. My dad worked almost 40 years in the United States Workers
Union. I think it is Steelworkers' now.
Forty-five years ago I put on a uniform, left this country,
and served 11 miles south of the DMZ in Korea to ensure that
you had the basic rights given to you by the Constitution of
this country, which is a secret ballot. I say this jokingly,
but my wife claims she votes for me. I don't know for sure that
she does because it is a secret ballot, and that is the way it
should be. And I bet Mr. Trumka was also elected by the secret
ballot. I know everybody on this dais was. I think that is one
of the most fundamental basic rights we have as an American
citizen, is a secret ballot. And we should protect that above
almost anything. It is what helps guarantee our democracy.
I can say I appreciate what the unions do and in many
cases--and apprenticeships. I have worked with you on that and
certainly we have had legislation here. In Tennessee, in my
state, we have 3.2 percent unemployment. And the union
penetration there is about 5.5 percent I think. And I don't
believe the problem is a decline in not too few unions, I think
the problem in my state is too few skilled workers. We are
looking to find workers. Everywhere you look there is a help
wanted sign in the state of Tennessee.
So the second thing I want to bring up is the personal
information. Look, I think that is yours and you should decide
as an individual. You have the freedom to do that. If you want
to share that information you should be able to do that, but it
shouldn't be required of you.
And last, before I ask some questions, I want to enter,
Madam Chairman, into the record a letter that 82 House
Democrats, including Chairman Scott, and 11 other members of
this committee, wrote to Ambassador Lighthizer. Some of the
members serve on the HELP Subcommittee. In it they say this,
that they express concerns in the USMCA agreement that the
ability of a Mexican worker to exercise a free secret and
personal vote on a collecting bargaining agreement.
So while my colleague is advocating the basic right for a
Mexican worker, but denying that right for an American worker.
And right here it is and I would like to submit that for the
record.
And I would assume given that, that members would vote
against their own bill because I do believe that the PRO Act is
a solution looking for a problem, not the other way around.
Mr. Miscimarra, I want to ask you a couple of questions.
And 2474 requires employers to turn over reams of personal
information to the union about every worker, such as their home
address, phone number, cell phone, personal email, and other
things. In your experience, how have you seen this information
used?
Mr. MISCIMARRA. Well, you know, I can't address, Dr. Roe,
how the information is used, but as I indicated before, there
were not--the bill does not provide for safeguards regarding
the use of this information. And that was the source of
significant concern during the public hearing that was held
when the NLRB was considering the adoption of the 2014 election
rule.
One thing, though, that I would like to address, is my
colleague, Mr. Pearce, made reference to the Pacific Beach
case, and that was a case unquestionably it dealt with a
recalcitrant employer and the Board imposed extraordinary
remedies on that employer. But as I indicated previously, the
Board's experience shows that in 95 percent of the cases that
are filed, there are not recalcitrant employers. We are talking
about cases that get resolved 95 percent of the time within the
first four to 6 months. And so these recalcitrant employer
examples are the tail of a dog. And what this legislation I
think effectively does is it takes a problem with the tail and
then dismembers the dog. And, you know, I think that operates
to the detriment of not only employees and employers, but also
the unions too.
Mr. ROE. I think one of the problems with declining union
membership has been we lost--my dad was in manufacturing and he
lost his job to Mexico many, many years ago, and I think you
are beginning to see those come back, and that is a very good
thing under the current policies of this administration.
My colleagues claim that the employers must hand over
workers' personal information, otherwise unions have
insufficient access to employees. Is that true?
Mr. MISCIMARRA. Well, I don't think so, Dr. Roe. And, you
know, we had a case that dealt with union organizing efforts or
employee organizing efforts, it is called Purple
Communications. And the question there was whether there were
adequate means by which employees could organize or communicate
with one another. And in connection with that case, one of the
points that I made in a separate opinion was that we've seen
entire national uprisings that have resulted from the use of
social media. And so the notion that there has to be specific
employer provided information for effective organizing to occur
I don't believe has support.
Mr. ROE. Thank you, Madam Chairman. I yield back.
Chairwoman WILSON. Thank you.
Ms. Wild?
Ms. WILD. Thank you, Madam Chairwoman.
I am proud to be a co-sponsor of the PRO Act and I thank
you, Madam Chairwoman, for holding this subcommittee hearing.
I am deeply troubled by the different standards for the
actions of employers and the actions of employees or labor. I
believe it has a chilling effect on workers' right and ability
to organize.
Mr. Trumka, I would like to address the mandatory captive
audience meetings that are held. It is my understanding, and
correct me if I am wrong, that under current law an employer
can hold a mandatory captive audience meeting to dissuade
employees from unionizing, so long as it is not held 24 hours
prior to an election and so long as the meeting does not
overtly threaten reprisal. Correct?
Mr. TRUMKA. That is correct.
Ms. WILD. On the other hand, if an employee leaves the
meeting without permission, that employee is subject to penalty
up to the point of termination. Is that fair to say?
Mr. TRUMKA. Not only that, if an employee speaks up in a
meeting and tries to rebut an untruthful statement that is
made, they can be fired.
Ms. WILD. Thank you. And yet it is, as I understand it, not
permitted for a union or workers to campaign during work time.
Correct?
Mr. TRUMKA. That is correct.
Ms. WILD. And they have to campaign during breaks or
offsite or after working hours. Is that true?
Mr. TRUMKA. Correct.
Ms. WILD. And yet there is no limit under the law to the
number of mandatory captive audience meetings that an employer
can hold. Is that true?
Mr. TRUMKA. That is correct. In fact, Kumho Tires, they had
2 hour sweat sessions every day for 25 consecutive days,
stopped the day before the election.
Ms. WILD. And these are held throughout the workday, on
work time, on the work site? True?
Mr. TRUMKA. On work site, and they are mandatory. You don't
have the choice to go or not to go.
Ms. WILD. It seems to me that creates a rigged system, one
that is almost destined to ensure that organized labor fails at
its efforts. Is that a fair statement?
Mr. TRUMKA. Just the fact that they can make you go to a
meeting demonstrates to workers how much power they have. And
then the fact that you can't speak demonstrates the power
again. The message is, I have the power, you don't. I will use
it, you can't.
Ms. WILD. And we have heard from Mr. Staus, who lost his
job. Is it your belief that workers who want to organize would
be subject to the same kind of fear of losing their jobs? Mr.
Trumka?
Mr. TRUMKA. Would you repeat that, ma'am? I thought you
were talking--
Ms. WILD. Yes, my question is whether these policies that
we have just talked about lead employees potentially to believe
that they will be terminated if they try to organize?
Mr. TRUMKA. Absolutely. They are threatened with it. And
not only that, they actually fire people. They fire people like
my friend here and they put the head up on the wall and they
say to people if you exercise your rights, the same thing will
happen to you. And, yes, maybe 4, 5, 6 years down the road I
may have to pay you back pay, but I get to deduct everything in
the process, all the expenses, and I get to deduct from any
back pay I may owe you any earnings you may have had in the
interim. So it becomes virtually a cost of doing business. And
these things occur in more and more and more frequency these
days.
Captive audience meetings are held in over 90 percent of
organizing drives right now, and the number is growing. Before
long it will be 100 percent.
Ms. WILD. Not only is it a cost of doing business, but in
fact it is often economically more beneficial to the employer
to do exactly that. Isn't that true?
Mr. TRUMKA. Absolutely.
Ms. WILD. Okay.
I have a question for any of you, but let me address it to
Mr. Pearce. Under Federal law, workplace notices have to be
conspicuously posted, advising employees of their rights under
Title VII, the ADEA, FMLA, and OSHA. Why is it that there are
no mandatory workplace notices advising employees of their
rights under the NLRA?
Mr. PEARCE. Because it is not specifically set forth in the
statute. As I said in my opening statement, this is a car with
three wheels with an under powered engine. This is an Act that
is not self-enforcing. We have to wait for complaints from
individuals if they are subjected to unfair labor practices.
Clearly we are not going to get those complaints if those
individuals don't know their rights.
Ms. WILD. Thank you, Mr. Pearce.
Madam Chairwoman, I ask recognition and unanimous consent
to introduce into the record a letter dated May 8, 2019 from
the International Brotherhood of Teamsters.
Chairwoman WILSON. So ordered.
Ms. WILD. Thank you. I yield back.
Chairwoman WILSON. Thank you.
Mr. Allen.
Mr. ALLEN. Yes, and thank you very much.
You know, Mr. Staus, it is sad that you or anyone was
mistreated in the work force in this new economy, the best
economy in the world. And I get out among the businesses
because I come from the business community, and the people I
talk to are growing wages and benefits to really keep their key
people. In fact, in this--we have the best economy in the world
and, you know, when I talk to folks, particularly about just
Federal Government interference with things, we don't need more
laws to deal with, you know, labor shortages, we need more
skilled workers.
And my experience is initially as a union contractor back
in the early `70's. The biggest problem we had was a shortage
of skilled workers. And so we had no choice but as companies to
recruit and train workers to assist us, to get the work
completed, and so did our subcontractors. And as a result, the
unions--you know, most companies now are open shop or dual shop
or whatever, to allow for that flexibility. But the bottom line
is in this new economy companies are partnering with workers,
particularly as it relates to 401Ks and ESOPs, which for
whatever reason--and Mr. Miscimarra, you might can shed some
light on this--be my first question--is I understand that the
unions fight for ESOPs and 401K or anything that rewards
employees beyond their abilities in a company, and these
companies are, like I said, fighting to keep their workers. And
so they are doing this. And, like I said, a lot of them are
going to ESOPs and they are working out very well for their
employees.
Do you have any comment about, you know, how the two work
together?
Mr. MISCIMARRA. Representative Allen, thank you very much
for the question.
The one thing I will say is probably one of the most
important, and the most challenging for all sides question that
comes up in collective bargaining, and certainly this has been
true for the past 20 years, involves methods of compensation
and various arrangements that are much more complicated than
they are today than they were 10-20-30 years ago. And so with
respect to various types of especially retirement plans and
other types of fringe benefits, it is from soup to nuts, it is
all over the map. And I think that those present challenges for
everybody.
The one other thing, if I may, Representative Wild raised a
question, why is there no notice requirement in the National
Labor Relations Act. In point of fact, the original version of
the Wagner Act legislation in 1934 had a proposed notice
requirement and it had a separate unfair labor practice that
targeted employers that failed to comply with the notice
requirement. During the legislative debates it was discussed.
Senator Wagner himself expressed opposition for that
requirement. It was removed from the bill.
Mr. ALLEN. Well, certainly my suggestions to our friends
with the unions is to if they can recruit skilled workers--in
this economy, you are going to find work. I can assure you of
that.
Let me ask you, Georgia is the sixth best state in the
country to do business--or the best state to do business with 6
years in a row. We are a right-to-work state. You know, I was
at a union project, a nuclear power plant, met all the workers,
going well, and we have your companies that are ESOP owned.
And, like I said, it is what the people want, the right to
choose.
As far as this legislation, H.R. 2474, how does it deal
with right to work states? And to give us the flexibility to do
what we do and to be the best state to locate business, that
produce jobs, by the way.
Mr. MISCIMARRA. Well, I mean what the bill does, the
principle effect on right-to-work states that the legislation
has is to eliminate the protection that exists in more than
half of the country for employees that object to paying
mandatory union agency fee payments. And this legislation would
override that employee protection.
Mr. ALLEN. For example, if I choose to do a job in
Washington, DC, I have no choice, I have to work union? So you
are telling me this law is going to affect us like this in
Georgia as well?
Mr. MISCIMARRA. Well, to the extent that employees end up
being represented by a union in Georgia, this law would prevent
the Georgia right-to-work law from being given effect and those
employees that have union representation could be required to
make mandatory union agency fee payments, notwithstanding
provisions in Georgia law to the contrary.
Mr. ALLEN. Thank you, sir.
I yield back.
Chairwoman WILSON. Thank you very much.
Mr. Courtney.
Mr. COURTNEY. Thank you, Madam Chairwoman, and thank you to
all the witnesses for being here today.
I just wanted to followup actually on the Chairwoman's
opening comments about the value of unions in terms of the
standard of living of workers.
Up in New England we actually witnessed the value of
collective bargaining when 31,000 workers were organized with
the United Food and Commercial Workers Union and employed by
Stop and Shop, a grocery chain owned Ahold Delhaize, a Danish
company, successfully exercised their rights to strike over
proposed cuts to their pay and benefits.
It was an 11 day strike and the company obviously
calculated that they could outlast the union. What was at stake
was almost existential for the middle class way of life for the
people who work there. The employer proposed increasing health
plan deductibles from $300 a year to $5,000 a year. They had
proposed more than doubling health insurance premiums, they had
proposed removing spousal coverage for health insurance, they
proposed eliminating time and a half on Sundays, and they also
proposed slashing pension contributions for full-time employees
by half.
What the company miscalculated was that in fact the public
would support the picket lines that stood up in those grocery
stores, again, in all the New England states, and after 11 days
the strike ended and the UFCW was successful in restoring all
of those out-of-pocket hits that workers would have taken and
were not even close to being offset by any sort of modest wage
increases, which were proposed.
So, again, from the standpoint of the people who stock the
shelves and work the cashier lines, who I met with afterwards,
who, again, felt that they had taken their own economic destiny
into their own hands by exercising their right to strike, it
obviously paid off big time for them.
So I know today, in Mr. Miscimarra's testimony, he has
pointed to what he believes the employer's ability to
permanently replace economic strikers, carefully balances
competing interests. The PRO Act obviously would change that to
not allow replacement strikers.
Just looking at the experience of what just happened up in
New England, where again 31,000 workers stood up for their way
of life and their standard of living, can you, Mr. Trumka, just
talk about how the PRO Act would clarify that employers not
being able to retaliate against striking workers and how that
would actually facilitate collective bargaining and bring some
of these job actions to a swifter conclusion, like we just saw?
Mr. TRUMKA. If in fact you can permanently replace workers,
you take away their major leverage. They have no leverage left
at that point. And so it encourages people, employers, to
facilitate the dispute, escalate the dispute, and to replace
the worker.
And I would like to give him a hypothetical. I would like
to offer him a job and say you can get--I am going to give you
a job that pays $1 million a year and you have 360 days of
vacation. And so you come in, you take your--you work a day or
two and you go I have 360 days of vacation, I will just take a
week. So you take a week and when you come back somebody is
sitting in your chair and you go, what is this. And I say,
well, I have replaced you. And he goes, but I was on vacation.
Yes, that is correct, but you are now replaced, so you are
gone.
Does anybody believe that you really have 360 days of
vacation? Does anybody believe you have the right to strike
when they can replace you for actually exercising that right?
Not having that right would force employers to come together
with employees to work and actually negotiate a settlement. And
so would the arbitration procedure. Because no one wants to
have something imposed on them, so both sides would have an
incentive.
First, the employer would have an incentive to give you
information quickly because there is a 90 day limit that you
get to do that. Second of all, it would help you come to an
agreement, because you don't want somebody else to take the
chance that somebody will impose on you an agreement that you
don't like. So it would actually encourage, it would level the
playing field that is now terribly, terribly, terribly skewed
in favor of the employer.
Mr. COURTNEY. So basically your experience is that
replacement workers basically kind of enable employers to just
drag out job actions and delay actually resolutions of these
kinds of disputes?
Mr. TRUMKA. Absolutely.
Mr. COURTNEY. Thank you.
I yield back, Madam Chairwoman.
Chairwoman WILSON. Thank you, Mr. Courtney.
And now, Mr. Banks.
Mr. BANKS. Thank you, Madam Chair.
Mr. Miscimarra, in your testimony you say ``the biggest
problem with the PRO Act is the expansion of economic weapons
and economic injury. Increasing the scope of these economic
weapons and making them more destructive will have a
destabilizing impact on U.S. employees, employers, the general
public, and unions.'' I believe you are entirely correct in
that statement, especially in this complex global economy that
we find ourselves in today.
So can you elaborate on why it is so dangerous to weaponize
labor relations in the global economy and how it is especially
reckless to do so when working Americans are benefiting more
than they have in decades in this substantially strong economy?
Mr. MISCIMARRA. Thank you very much for the question,
Representative Banks.
There are many instances in my career--I say in my written
testimony that I am a supporter and proponent of collective
bargaining. It is to the credit of so many unions and so many
employers that they have maintained and fostered constructive
relationships throughout years and often decades of successful
collective bargaining resulting in agreements. But,
nonetheless, the engine that drives collective bargaining and
the engine that has produced every collective bargaining
agreement for 83 years under the National Labor Relations Act
is either the infliction or the threatened infliction of
economic injury. And for a union that is a strike, work
stoppage, protest, or boycotts. For the employer, it is the
possibility of a lock-out or the possibility of having
temporary replacements or permanent replacements.
The National Labor Relations Act was passed during the
Great Depression. At that time there was barely a national
economy. At the present we have a global economy, and as I
indicated previously, that we have also made massive advances
in terms of automation, technological change, artificial
intelligence, and self-driving vehicles, for example. So the
parties have done well under existing law with respect to a
bargaining model that still has as its centerpiece the
potential or actual infliction of economic injury.
In a global economy that is very, very different. And I
think one of the reasons why many employees have resisted the
idea of union representation is it is counterintuitive for many
employees to understand that it is in their interests to buy
into a model that centers on potential economic injury to the
place that employs them.
Mr. BANKS. You mentioned automation again. You also did in
your written testimony. And the danger that this poses to
existing jobs, especially in production companies. I represent
the state of Indiana, home to 544,000 manufacturing jobs, so
this is particularly important to me. And while I share your
concerns about the effective automation of jobs, would you
agree that technological advancements also make workers more
productive, an increase of available job opportunities, if we
avoid bad policy choices like the PRO Act that force employers
to cut jobs?
Mr. MISCIMARRA. I completely agree with that. And as I
indicate in my written testimony, you know, the American
workplace has proved to be extraordinarily resilient with
respect to its ability to adapt to changing conditions. So I
think that there are many opportunities associated with
technological advancements.
But, to the extent that we adopt a national labor policy
that exacerbates the type of conflict or the cost or the
penalties or the efficiency of the workplace itself, I think
that will be counterproductive.
Mr. BANKS. Thank you very much.
I yield back.
Chairwoman WILSON. Thank you.
And now our former Secretary of Health and Human Services,
Dr. Shalala.
Ms. SHALALA. Thank you very much.
I sat through this whole hearing in large part because I
found Mr. Staus' testimony so compelling.
So, Mr. Miscimarra, you have made it very clear that you
don't favor the bill that we have before us. You have heard his
testimony, you were a member of the National Labor Relations
Board the first time the NLRB ordered him to be reinstated by
the University of Pittsburgh Medical Center, and then they
ordered him again to be reinstated. And they didn't do it.
Can you really look him in the eye and say that you don't
need--that we don't need to put more teeth into the law to make
sure that when the Board makes a decision it is actually
enforceable?
Mr. MISCIMARRA. Dr. Shalala, thank you very much for that
question.
In fact, I looked Mr. Staus in the eye and I told him, I am
from Pittsburgh, I grew up in Pittsburgh. I am from the same
community where he currently lives. And one of the things I
will say is former Chairman Pearce and I worked together for my
entire tenure at the NLRB to address one weakness that
certainly exists in the law, and I believe Mark and I are in
agreement with this, in the 5 percent of cases that are not
addressed and resolved in the first 60 or 90 or 120 days after
the filing of the charge, the Board needs to do a better job
getting cases decided more quickly. And I agree with that, I
believe former Chairman Pearce agrees with that.
Throughout my tenure at the board we worked very hard to
try to make improvements. It is very challenging. The current
Board has announced as an objective, both on the Board's side
and the General Counsel's side, to diminish the amount of time
associated with the board's disposition of cases, taking 20
percent less time over a 4-year period. Frankly, I still think
that is not fast enough.
And our current labor laws are not perfect. But I don't
believe that H.R. 2474 is the solution.
Ms. SHALALA. Well, but let me push you, because what you
did was answer the question about the time it took as opposed
to the enforcement. Twice the National Labor Relations Board
ordered the University of Pittsburgh Medical Center to
reinstate him. It wasn't just the time it took for you to make
the decision, it was the fact that it couldn't be enforced,
that the National Labor Relations Board couldn't either
penalize the University of Pittsburgh Medical Center and make
sure he got reinstated. That is my question.
Mr. MISCIMARRA. Well, with respect, Dr. Shalala, I don't
think that H.R. 2474 would produce the quicker resolution of
these cases. And there has already been testimony to the effect
that in certain types of cases not only would there be NLRB
proceedings, but there could be NLRB proceedings as well as
Federal Court proceedings. And we all know in the panoply of
various types of Federal laws, the Federal Courts don't have
that great a track record in terms of resolving their pending
court cases as well. And of course, a District Court case is
subject to appeal to the Court of Appeals and potentially to
the Supreme Court.
So, again, I think speed is a problem. We tried to address
it while I was at the NLRB, the current board is trying to
address it, but I don't think speed is resolved in the current
legislation that has been proposed.
Ms. SHALALA. And I don't think speed is the issue, I think
enforcement is the issue. And that was my point.
Mr. Trumka, if I might ask you a quick question. This year
marks the 100th anniversary of the International Labor
Organization, the ILO, and it has--does the U.S. law comply
with the basic standards of the ILO conventions? And how does
noncompliance diminish our standing in the world? And how would
the PRO Act help promote compliance with international human
rights standards?
Mr. TRUMKA. It does not comply. Our laws don't comply with
ILO conventions. There are eight laid out conventions. Freedom
of association and effective recognition of the right to
collective bargaining. That is conventions 87 and 98. We have
not adopted those. The elimination of all forms of force and
compulsory labor, we have adopted one, that is compulsory
labor, but not number 29. Effective abolition of child labor,
two resolutions, we have only adopted one. The elimination of
discrimination in respect to employment and occupation, we have
adopted neither one of those.
There was just a study done by the World Justice Project--
it is here. The United States ranks 20th in the world for
enforcement of those things. And the way that it affects us the
most is, because we don't do the things that we ask others to
do, we look like hypocrites. We ask them to do something and we
haven't done it. We do not protect the right to strike. That is
one of the things that the international community specifically
addresses and looks at and says the right to strike cannot
exist when you can permanently replace anybody who exercises
the right to strike.
So what it does is, it lessens our standing in the world
and it makes it more difficult for us to help people in other
parts of the world correct the outrageous labor standards and
lack of labor laws that they have.
Ms. SHALALA. Thank you.
Chairwoman WILSON. Thank you.
Mr. Wright.
Mr. WRIGHT. Thank you, Madam Chairman.
Mr. Miscimarra, I have a lot of union families that live in
my district. I have a number of building trade unions that
operate there. Dallas Fort Worth International Airport is just
outside my district, but I have a lot of families that work
there. And the largest non-government employer in my district
is a General Motors plant, and it is their most profitable
plant, makes their large SUVs. So unions are important to my
district.
But Texas is real big on individual freedom and
opportunity, and that is why so many people are flocking to
Texas, for that freedom and opportunities, and why so many
businesses are relocating there from other states. And I will
tell you that this is one of the most anti-individual freedom
bills I have ever seen.
My question to you is if this were to pass, the upheaval
would be enormous, particularly in right-to-work states. And I
can tell you that just from district that unions thrive and do
well in right to work states. So to do away with that just
strikes me as incredibly ridiculous.
But can you project what you think this upheaval would do
to us in terms of our national economy, but also, more
importantly, in terms of our competitive edge internationally
in the global economy?
Mr. MISCIMARRA. Thank you for the question, Representative
Wright.
I think that on many levels this legislation is ill
advised, particularly as it relates to the competitive position
of the United States and in the world economy. No. 1, as I
indicated, current law, which parties have worked with for
many, many, many years, itself represents an incongruity
between this model developed in the 1930's, where economic
conflict plays such a central role, and the current economy
that was barely imaginable in the 1930's when the National
Labor Relations Act was first adopted.
The second thing that Congress has done over time with our
current law is made modifications in order to sculpt or tailor
the type of economic conflict that is available under the law.
And, for example, the ban on secondary boycotts, as I indicated
before, was adopted in 1947, it was strengthened in 1959, and
it has been the law now for more than 70 years.
Not to the extent that this bill would become law, if a
union has a strike or a boycott with any particular company it
would then be permissible for the union to effectuate a strike
or engage in picketing or boycotts with every single other
entity that does business with that company. That is what a
secondary boycott is. That type of widespread turmoil in the
economy, especially given the complicated economy that exists
today, I think would be debilitating just for the people that
are exposed to that conflict in the United States, but it
certainly would be even more harmful if you consider the
ramifications in the world economy.
Mr. WRIGHT. Okay. Thank you, sir.
I yield back.
Chairwoman WILSON. Thank you, Mr. Wright.
And now, Mr. Levin.
Mr. LEVIN. Thank you, Madam Chairwoman. And I have a couple
of slides that I would like to put up there when the staff get
a chance to put them up.
And the point of these slides is to show how we have been
going in the wrong direction on workers' freedom to form unions
and how the law is completely failing and has been for decades.
I started organizing nursing home workers for SEIU in 1983,
so I picked this as a start date. And the number of elections
held every year back then was about 4,500. The number of NLRB
union elections declined by more than half from the days when I
started through the late aughts, which is the latest date we
have available. And this is 0.02 percent of private sector
employers had any kind of election.
If you look at the next slide, the number of workers who
cast ballots declined significantly from 1983--in the early
`80's it was in the low 200,000's, in the late aughts it was
100,000+/-. In 2009 the number of private sector workers who
cast a ballot was 0.009 percent. I don't even know how to say--
9 hundredths or thousandths--whatever that is. This is when 62
percent of people say that they are in favor of unions. And if
we had a perfect free market for unions, 30 percent of workers
would be in unions. The system is completely failing the
workers of the United States.
Mr. Miscimarra--is that how you pronounce your name?
Mr. MISCIMARRA. Miscimarra.
Mr. LEVIN. Miscimarra. Thank you so much. Your testimony
states that requiring injunctions for temporary reinstatement
upsets what the Supreme Court calls ``the delicate task'' of
``weighing the interests of employees in concerted activity and
the interest of the employer in operating his business in a
particular manner''.
At the end of your term as chairman in 2017, you issued
five decisions overturning prior precedent, including in Hy-
Brand Industrial Contractors. Is that correct?
Mr. MISCIMARRA. I believe that is right.
Mr. LEVIN. And so that case, the Hy-Brand case, involved
seven employees who were fired for protected activity. And
there was also a question of whether those employers were a
single employer or joint employers. And if they were joint
employers, then that would have been governed by the Browning-
Ferris decision.
In your October 18, 2017 email circulating a draft decision
in Hy-Brand, isn't it the case that you told the other members
of the NLRB that your draft decision was lifted from your
dissent in Browning-Ferris and that members should resist the
desire to improve the language in order to keep the focus on
overturning Browning-Ferris. Is that correct? Yes or no?
Mr. MISCIMARRA. In fact, my--
Mr. LEVIN. Is that what the email said? I just need--I--
because I am going onto another question, so I just need to
know whether you said that. I mean we have the emails, so I
know the answer.
Mr. MISCIMARRA. Then, I am asking why would you ask me the
question?
Mr. LEVIN. Oh, well, so let me continue.
Mr. MISCIMARRA. I will respond. What I told my fellow
members was that the dissenting opinion in Browning-Ferris
Industries was so insightful I didn't believe it could be
improved upon.
Mr. LEVIN. That is modest of you. And so because member
Emanuel's former law firm represented a party in Browning-
Ferris, didn't the Inspector General and the ethics official
find that he violated his ethics pledge? Did that occur?
Mr. MISCIMARRA. The--
Mr. LEVIN. I only have 5 minutes, so I need a yes or no
answer.
Mr. MISCIMARRA. Well, you asked me two--there is compound--
Mr. LEVIN. I asked you if it occurred or not.
Mr. MISCIMARRA. The Inspector General issued a report that
I believe is publicly available with redactions and I don't--I
have never seen it. I don't believe it has been released what
the designed ethics officer concluded in the case.
Mr. LEVIN. Well, it doesn't really sound delicate or
evenhanded to me, sir.
Mr. Trumka, none of the NLRB members in that case disagreed
that those seven employees were wrongly terminated, but the
ethics scandal caused by Mr. Miscimarra's ramming through that
decision delayed their reinstatement order by 6 months. People
have been wrongly terminated, and as we know that kills a union
election if they are gone for 6 months.
If the law required injunctions for temporary
reinstatement, like our PRO Act would have, wouldn't those
employees have been protected from these hijinks?
Mr. TRUMKA. Absolutely. And if the law had required that,
what happens is when an employer illegally fires employees
there is a tremendous chilling effect. It says to everybody
else out there, support the union and I will fire you as well.
Going in immediately and getting an injunction would have
showed two things, it would have showed, one, the employer had
acted illegally, and, two, the government was willing to stand
up and protect workers and their rights. It would have
encouraged them to go forward with the drive so that they had a
voice on the job.
As it currently stands, they can drag things out and
dissuade people from unionizing by picking out a couple of
scapegoats and illegally firing them.
Mr. LEVIN. Thank you very much.
My time has expired; I yield back, Madam Chairwoman.
Chairwoman WILSON. Thank you, Mr. Levin. Thank you so much.
Mr. Johnson. You see, they got all these names on here, and
they don't have yours. That is my friend, Mr. Taylor.
Mr. TAYLOR. Thank you, Madam Chair. Appreciate that.
Mr. Miscimarra, did you want to respond to Mr. Levin? I
know time ran short. It wasn't his fault, but just want to give
you an opportunity to respond if you would like to.
Mr. MISCIMARRA. Yes. No, I have no further response in
relation to what he was asking questions about.
Mr. TAYLOR. Okay, great. Thank you so much.
So, you know, I happen to represent a very affluent
district that is, you know, burgeoning, growing, lots of jobs
coming. And as companies come to Texas, over and over again I
hear how important it is that Texas is a right-to-work state.
And certainly in my 8 years in the legislature it was really
very important to us that we were a right-to-work state. It
seemed to certainly attract a lot of jobs, high end and low
end. Texas has certainly created a tremendous number of jobs.
I think DFW recently reported they added a million people
over the last decade and a lot of them have come to my county,
to Collin County.
So you have a JD-MBA from Wharton, is that right?
Mr. MISCIMARRA. I do.
Mr. TAYLOR. Okay. So you have me at a disadvantage.
Mr. MISCIMARRA. And law school.
Mr. TAYLOR. Okay. Well, the JD I think would be the law
degree, right?
Mr. MISCIMARRA. Yes.
Mr. TAYLOR. So you are an attorney. I am not. But I have
read the Constitution and in the Bill of Rights there are five
protected rights, freedom of speech, freedom of press, freedom
of religion, freedom to assemble, and freedom to petition. And
I am just concerned about this particular piece of legislation,
H.R. 2474. It seems to have some things that might go contrary
to our First Amendment rights, specifically the right to
assemble and the right to speech.
Can you speak to those two?
Mr. MISCIMARRA. Well, you know, there are two things I
think that create issues in relation to the First Amendment.
One thing is that the bill prohibits an employer--or would
prohibit an employer from conducting workplace meetings in
which the employer expresses, you know, its views with respect
to union related issues. And, of course, you know, an employer
in relation to its employees has access to its employees when
they are at work. A union attempting to organize has potential
access to employees at every other time. And of course
employers have First Amendment rights just like anybody else,
corporations have First Amendment rights. So from that
perspective the bill implicates the First Amendment rights of
employers.
Secondly, the bill, as we have talked about, also would
override the state laws that protect employees from being
required in right-to-work states from being required to make
mandatory union agency fee payments. And the Supreme Court in
the Janus case decided last year held that the First Amendment
also protects compelled speech, or a requirement that employees
subsidize an organization with which they lack agreement. And
so the Janus case of course dealt with First Amendment issues
that arose in the context of public employment. Those same
First Amendment issues have not been specifically addressed
since Janus in the context of private sector employment, but
this issue about compelled subsidizing an organization with
which some employees do not agree certainly implicates
potentially significant First Amendment concerns.
Mr. TAYLOR. I appreciate that. Obviously I would submit
that Congress should not attempt to pass laws that are
unconstitutional on their face, and certainly you only have to
go to the Bill of Rights to see those rights, and only the
First Amendment to see those rights.
Shifting over to something that I am sure is important to
you as an attorney, you know, in your practicing law firm,
attorney-client privilege.
So attorney-client privilege is something we understand as
being very important, particularly within the context of the
Seventh Amendment, the right to a trial by jury. And so as we
think about that, does 2474, I mean in your mind, violate some
pieces of attorney-client privilege, which is so important to
our judicial system?
Mr. MISCIMARRA. Well, the bill would codify what was known
as the Persuader Rule adopted by the Department of Labor
several years ago, which has since been rescinded. But what the
bill does, consistent with what the Department of Labor
formerly required, was--or it was in the process of being
implemented and then it was abandoned by DOL--is that to the
extent that employers consult legal counsel in relation to
various union related issues, that would then be subject to
mandatory reporting for purposes of the Labor Management
Reporting and Disclosure Act, which is a significant change
from current law and significant change from the way that the
legal advice exception to the LMRDA has been interpreted.
Mr. TAYLOR. And so that would really interfere with the
attorney-client privilege. I mean the ability for an attorney
and a client to have free communication to discuss things, you
know, knowing that they are going to have to report that,
right?
Mr. MISCIMARRA. Well, and I think it would effectively
limit access to counsel--
Mr. TAYLOR. Wow.
Mr. MISCIMARRA [continuing]. in many instances with respect
to union related issues.
Mr. TAYLOR. Well, certainly limiting access to counsel
strikes me as an un-American concept. I mean it is just not
right. I think we value that ability to have a functioning
legal system.
Mr. MISCIMARRA. Most lawyers would agree with you on that.
Mr. TAYLOR. Well, I hope most on the dais do.
Madam Chair, I yield back.
Chairwoman WILSON. Thank you, Mr. Taylor.
And now our distinguished Chair Attorney Scott.
Mr. SCOTT. Thank you.
Mr. Trumka, did you have a comment you wanted to make?
Mr. TRUMKA. I most definitely did. I trust that Texas also
wants to protect the free speech of employees, other than just
employers, because they can be made to go into these meetings
and not say a word. If they do say a word they get fired. That
is not free speech.
And he just erroneously told you it would prevent employers
from having sessions like this. It would not. The difference it
would be is they would have to do it voluntarily. The workers
would get to come if they wanted to and not come if they don't
want to.
The law as it currently stands, and as he proposes it stay,
is that they must go, whether they want to go or not. They
don't get a say in all of that.
And I would like to correct a number of those erroneous
things in written testimony after the hearing, Madam Chair, if
that is permissible.
Chairwoman WILSON. So ordered.
Mr. SCOTT. Thank you.
Mr. Trumka, could you tell me what the problem is that the
fair share agreement would solve?
Mr. TRUMKA. Well, what happens with fair share is that you
have an election and the union wins. And then they get a second
bite at the apple, the ones that don't want to be in the union
say, okay, the union won, majority rules, but you don't get to
be--I don't have to be in the union and you have to give me all
the services that you give everybody else and I don't have to
pay. This bill would allow employers and employees to come
together and say that is not fair. If they want all the
services, they also ought to have to pay a little bit of the
tab.
So it is like if you have a general election, an election
for House of Representatives, and you got 52 percent of the
vote, the other 48 percent could say I don't recognize you, I
get to be a different rule. And if you have any governance, I
don't have to apply to it, I don't have to listen to it, and
you have to give me all the services you give the other people.
Mr. SCOTT. And what kind of taxes under that scenario would
you be paying?
Mr. TRUMKA. What kind of taxes?
Mr. SCOTT. Yes. You wouldn't pay taxes.
Mr. TRUMKA. Well, you wouldn't under that scenario. I would
opt out by saying I don't recognize your new tax law.
Mr. SCOTT. Now, the fair share would cover just those
services required by law. Would it cover things like annual
cookouts and political activities?
Mr. TRUMKA. No, it would not. We cannot charge for that.
Never have. Political activities are completely separate. And
even if you don't have a right to work law, employees can opt
out of the part of their dues that is used for political
activity.
Mr. SCOTT. Now, let me ask another question. What is wrong
with misclassifying employees as independent contractors?
Mr. TRUMKA. Well, it takes away their ability to ever have
a voice on the job. What an employer does is--there is one
example where you had a trash company and they classified the
people that came in to pick the trash off of the belt, they
classified them as independent contractors, even though their
employer, the original employer, determined the speed that the
belt went. So they would never be able to have a voice with
that employer and get the level of the speed of the conveyor
belt. They couldn't negotiate to slow it down or to make the
place more safe because they were ``the employees of not the
employer, but an independent contractor''. So it prevents them
from coming together, organizing a union, and getting a voice
on the job.
Mr. SCOTT. Would independent contractors be eligible for
minimum wage?
Mr. TRUMKA. For minimum wage?
Mr. SCOTT. Right.
Mr. TRUMKA. Yes.
Mr. SCOTT. Independent contractors?
Mr. TRUMKA. Well, no, they wouldn't have a minimum wage
because they don't have an employer.
Mr. SCOTT. Right.
Mr. TRUMKA. They are an independent contractor. So you are
right, they would not be covered by it.
Mr. SCOTT. If there is an unfair labor practice, does the
victim have to wait for--let me ask Mr. Pearce. If there is an
unfair labor practice, does the victim have to wait for the
NLRB to act or can they act on their own?
Mr. TRUMKA. They cannot act on their own. First, they have
to wait for the NLRB to issue a charge. And then after the
charge it goes before an Administrative Law Judge. And then
after an Administrative Law Judge, then it goes to the full
National Labor Relations Board. After the full National Labor
Relations Board it can go to the circuit court of appeals.
After the circuit court of appeals, they still have to go
through an enforcement process then. So they say yes, you must
bargain, and then the employer doesn't bargain, so they have to
go through much of the same thing again.
Mr. SCOTT. And let me ask Mr. Pearce one final question.
What is the difference between a self-enforcing order and one
issued by the NLRB under present law?
Mr. PEARCE. Under the present law--and thank you, Mr.
Chairman, for asking the question. If a law is self-enforcing,
then that--you don't have to go to Federal court to get it
enforced. It is immediately effective on the wrongdoer. Several
other statutes provide that for wrongdoings and violations. The
NLRA essentially is a car driving with a boot on it because it
has to go and get to Federal court each time it wants to
enforce its remedies. So automatically it slows down the
process and victims are further damaged by the passage of time.
Chairwoman WILSON. Is that it, Mr. Chair? Finished?
Mr. SCOTT. I yield back.
Chairwoman WILSON. As there are no more subcommittee
members present, I now recognize the gentlewoman from
Connecticut, Ms. Hayes, who was a former National Teacher of
the Year.
Ms. HAYES. Thank you, Madam Chair.
I want to start off first by saying that I have spent my
entire adult life as a proud union member, as a member of SEIU
1199, the Waterbury Teachers Association, the Connecticut
Teachers Association, and ultimately, the National Education
Association. So I know both the power and the sense of
empowerment that labor unions bring. In fact, in my year as
National Teacher of the Year, there were four finalists
celebrated at the top of their profession. Three of those four
finalists walked out of their classrooms with their union
brothers and sisters to negotiate wages, benefits, and most
importantly, supports and resources for the kids in their
classrooms. All of those things are worth fighting for.
And above all, unions give workers a seat at the table. So
I get it. That is why I am so frustrated when I hear stories
around the country, and even in my home district, of workers
who are actively being discriminated against or retaliated
against for exercising their rights to organize.
I have heard from Social Security Administration union
representatives in Connecticut. They allege that the critical
centers were closed in many states because they had high
numbers of union employees. They allege that the Social
Security Administration makes it more difficult for union reps
to do their jobs and often targeted and retaliated against
workers aligned with the union during personnel reviews, or
when those workers requested leave or reasonable
accommodations, they were denied. Meanwhile, their complaints
to the National Labor Relations Board had gone unheard during
this Administration.
Mr. Trumka, my question is for you. Are these complaints of
employers' retaliation common for workers who are union members
or are looking to unionize? And have they increased in the most
recent years?
Mr. TRUMKA. We have seen that attacks, the number of things
that they do--they have new threats now. They have the threat
to move overseas, they have the threat to close down. They use
the sweat sessions or the closed meetings, mandatory audiences,
more often now than they did before, they are longer, more
intense, and they have a greater effect on workers.
So we are seeing the law be violated more and more, and the
ability to enforce it becomes less and less as it increases in
intensity.
Ms. HAYES. Thank you. In your testimony you mentioned that
workers who wanted to form a union often cannot talk with or
meet with union representatives at their job. As I have
mentioned, we have heard about this happening in my own
district. However, employers are free to talk with employees.
We heard a lot about those mandatory captive audience meetings.
In fact, employers can require employees to attend these
meetings.
We also heard from my Republican colleagues on the other
side of this committee that the PRO Act requires employers to
provide private information to unions, which they claim unions
could abuse or sell to third parties.
Madam Chair, I would like to submit a document that
contradicts that argument. It is information--
Chairwoman WILSON. So ordered.
Ms. HAYES. Thank you. It is information that the NLRB
submitted to this committee in 2018 and it reveals that no
employer has charged that a union has abused the voter
information list since this procedure was updated in 2014. In
fact, this document states that these lists--well, this
document shows that these lists are necessary to create parity
during election campaigns as employers already have this
information to use with employees.
Mr. Trumka, again to you, how do these rules, which require
that an employee share information and contact information with
the union before an election, eliminate this double standard,
and make this process more fair?
Mr. TRUMKA. Well, most of the time only the employer knows
who all of the employees are and where they work. So the new
rule would codify an existing rule of the NLRB, and it would
require them to provide promptly a voter list when an election
is directed, including the name, the position, the shift, the
work location, phone number, email, and physical address. That
wasn't required under the old rules, but the NLRB now requires
it. It is essential in order to be able to communicate with
them, because remember, we are not allowed on the property. We
can't go on, we can't talk to people. You may have to meet with
them at a grocery store, anyplace else where you can get them.
The most efficient place and the best place for them to be able
to talk is in their home setting at their home, so that you can
have a real conversation with them.
Ms. HAYES. Thank you.
Mr. Pearce, I have 10 seconds. Do you think--we have heard
a lot especially from Mr. Miscimarra about banning captive
audiences undermines employees' free speech right. How would
this be protected do you think under this Act?
Mr. PEARCE. Well, under this Act employees will have the
freedom to freely discuss and choose not to participate in an
employer's campaign. Employers with new technology have all the
cell phones of employees or supply cell phones to employees and
they can send anti-union texts to employees. Employee drivers--
we have the cases where drivers have ride alongs where the ride
along is giving propaganda to the employee continuously without
the employee having the ability to say, you know, I don't want
to hear this.
And then the second piece of that is, if the employee does
say I don't want to hear this, then they could be subject to
retaliation.
The technology and the control that the employers have
creates an imbalance with respect to employee access and a fair
understanding of the election process.
Chairwoman WILSON. Thank you. Mm-hmm.
Ms. HAYES. Thank you, Madam Chairwoman.
And I yield back.
Chairwoman WILSON. I remind my colleagues that pursuant to
committee practices, materials for submission for the hearing
record must be submitted to the committee clerk within 14 days
following the last day of the hearing, preferably in Microsoft
Word format. The material submitted must address the subject
matter of the hearing. Only a member of the committee or an
invited witness may submit material for inclusion in the
hearing record. Documents are limited to 50 pages each.
Documents longer than 50 pages will be incorporated into the
record by way of an internet link that you must provide to the
committee clerk within the required timeframe. But please
recognize that years from now that link may no longer work.
Again, I want to thank the witnesses for their
participation today; a very lively, energetic group of
witnesses. We learned a lot and we certainly appreciate your
time. What we heard today is very valuable.
Members of the committee may have some additional questions
for you, so look out for them. And we ask the witnesses to
please respond to those questions in writing.
The hearing record will be held open for 14 days in order
to receive those responses.
I remind my colleagues that pursuant to committee practice,
witness questions for the hearing record must be submitted to
the majority committee staff or committee clerk within 7 days.
The questions submitted must address the subject matter of the
hearing.
Before recognizing the ranking member for his closing
statement, I ask unanimous consent to enter the following
materials into the record in support of the PRO Act. I have
letters from the United Steelworkers, the International Union
of Painters and Allied Trades, the AFL-CIO, the SEIU, and the
UFCW, the BlueGreen Alliance.
Without objection.
I now recognize the distinguished ranking member, Mr.
Walberg, for his closing statement.
Mr. WALBERG. Thank you, Madam Chairwoman, and thanks to the
panel for being here. It has indeed been a lively discussion.
It is a worthy discussion. This is America. America is back,
Michigan is back. I am delighted about that. I am delighted to
see corporate entities coming back, building cars, products in
Michigan again. It is a manufacturing state, it needs workers,
it needs businesses in order to make it work together.
My concern is that for anything that would stand in the way
of continued expansion, that purports to help workers or
businesses, and in the end costs jobs. We saw that happen in
the downturn of economy. I was here in 2007-2008 and watched
what took place in Michigan as it was decimated, as businesses
left, and unions could not come up with what they promised to
their employees. And we saw large corporations, specifically
two of the big three, go bankrupt, and we had to bail them out.
Don't want that to happen again, because like Mr. Staus,
that touches lives and families. What he has lived through,
many, many people in Michigan lived through as well.
So while there needs to be reforms, there needs to be
upgrades on the legislation as well as the agencies we put
together to make sure they are working right and they are
mobile, loose on their feet, we cannot walk away from the
underpinning principles to undermine those principles that talk
about the freedom that we have in this country.
And so to take a bill like we are looking at today that
eliminates right to work laws nationwide, regardless of whether
the people of Michigan voted for that or not, is wrong. I say
the unions earn it, earn it back. To stifle work of independent
contractors, which limits workplace flexibility and
opportunity, is wrong.
Violate workers' privacy rights without them volunteering
those pieces of information that could allow, yes, a union
organizer to get their information and make those contacts.
Voluntarily, great. Involuntarily, a violation of the right to
privacy.
So we need to get it right. And, Madam Chairwoman, I think
this side of the aisle is willing to work on those issues, we
are willing to work toward a solution that is indeed a
compromise, that protects some of these key things that make
America great and, more importantly, make our workers, our work
force, and our businesses great as well.
So I commit to doing that and I think this was a good
start, talking about it. I hope it doesn't end here, we
continue in working toward solution.
And before I end, Madam Chairwoman, I ask unanimous consent
to submit letters in opposition to H.R. 2472 into the record
from the following organizations: Associated Builders and
Contractors, Coalition for a Democratic Workplace, Independent
Electrical Contractors, International Franchise Association,
National Association of Home Builders, National Restaurant
Association, and National Retail Federation.
I also ask to submit a letter from the Coalition for
Workforce Innovation expressing concerns with the bill.
Chairwoman WILSON. So ordered.
Mr. WALBERG. Thank you.
Chairwoman WILSON. I now recognize myself for the purpose
of making my closing statement. And, as always, Mr. Walberg,
the distinguished ranking member, is willing to work with me
and with our committee, so this has been a great session today.
We have heard your witness. I don't think that--we heard you,
we heard you. We are going to try to connect the dots there.
Right now they are not connecting.
I now recognize myself for the purpose of making my closing
statement.
Thank you again to all of our witnesses for your
testimoneys today. Today, we heard how the Protecting the Right
to Organize Act can safeguard the fundamental human rights to
organize a union, stopping employers from coercing and
retaliating against their workers. Routine violations of
workers' rights to organize suppresses wages and denies workers
the opportunity to negotiate for their fair share of the wealth
they create.
We heard from Mr. Trumka how the PRO Act can prevent abuse
of workers' rights through penalties and holding coercive
captive audience meetings, making people sit and not move. We
heard from Mr. Staus on how difficult it is to organize a union
in the face of vicious attacks. Mr. Staus is one of many
courageous Americans who stood up for their rights to organize
a union and he deserves justice under the law.
Some of the stories I have heard and witnessed are
deplorable. We heard from Mr. Pearce how the PRO Act would
strengthen the National Labor Relations Board by reducing
procedural obstacles and ensure that workers like Mr. Staus
receive swift remedies.
As our witnesses have made clear, Congress must enact the
PRO Act to deter violations of workers' rights and reverse
decades of wage stagnation and income inequality.
I thank my colleagues for constructive HELP Subcommittee
hearing and I yield back my time.
If there is no further business, without objection, the
committee stands adjourned.
Thank you so much.
[Additional submission by Mrs. Foxx follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
[Additional submission by Ms. Hayes follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
[Additional submission by Mr. Roe follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
[Additional submission by Mr. Trumka follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
[Additional submission by Mr. Walberg follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
[Additional submission by Ms. Wild follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
[Additional submission by Chairwoman Wilson follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
[Questions submitted for the record and their responses
follow:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
[Whereupon, at 4:38 p.m., the subcommittee was adjourned.]