[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
THE FUTURE OF UNION ORGANIZING
=======================================================================
HEARING
before the
SUBCOMMITTEE ON HEALTH,
EMPLOYMENT, LABOR, AND PENSIONS
COMMITTEE ON EDUCATION
AND THE WORKFORCE
U.S. House of Representatives
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
HEARING HELD IN WASHINGTON, DC SEPTEMBER 19, 2013
__________
Serial No. 113-33
__________
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COMMITTEE ON EDUCATION AND THE WORKFORCE
JOHN KLINE, Minnesota, Chairman
Thomas E. Petri, Wisconsin George Miller, California,
Howard P. ``Buck'' McKeon, Senior Democratic Member
California Robert E. Andrews, New Jersey
Joe Wilson, South Carolina Robert C. ``Bobby'' Scott,
Virginia Foxx, North Carolina Virginia
Tom Price, Georgia Ruben Hinojosa, Texas
Kenny Marchant, Texas Carolyn McCarthy, New York
Duncan Hunter, California John F. Tierney, Massachusetts
David P. Roe, Tennessee Rush Holt, New Jersey
Glenn Thompson, Pennsylvania Susan A. Davis, California
Tim Walberg, Michigan Raul M. Grijalva, Arizona
Matt Salmon, Arizona Timothy H. Bishop, New York
Brett Guthrie, Kentucky David Loebsack, Iowa
Scott DesJarlais, Tennessee Joe Courtney, Connecticut
Todd Rokita, Indiana Marcia L. Fudge, Ohio
Larry Bucshon, Indiana Jared Polis, Colorado
Trey Gowdy, South Carolina Gregorio Kilili Camacho Sablan,
Lou Barletta, Pennsylvania Northern Mariana Islands
Martha Roby, Alabama John A. Yarmuth, Kentucky
Joseph J. Heck, Nevada Frederica S. Wilson, Florida
Susan W. Brooks, Indiana Suzanne Bonamici, Oregon
Richard Hudson, North Carolina
Luke Messer, Indiana
Juliane Sullivan, Staff Director
Jody Calemine, Minority Staff Director
------
SUBCOMMITTEE ON HEALTH, EMPLOYMENT, LABOR, AND PENSIONS
DAVID P. ROE, Tennessee, Chairman
Joe Wilson, South Carolina Robert E. Andrews, New Jersey,
Tom Price, Georgia Ranking Member
Kenny Marchant, Texas Rush Holt, New Jersey
Matt Salmon, Arizona David Loebsack, Iowa
Brett Guthrie, Kentucky Robert C. ``Bobby'' Scott,
Scott DesJarlais, Tennessee Virginia
Larry Bucshon, Indiana Ruben Hinojosa, Texas
Trey Gowdy, South Carolina John F. Tierney, Massachusetts
Lou Barletta, Pennsylvania Raul M. Grijalva, Arizona
Martha Roby, Alabama Joe Courtney, Connecticut
Joseph J. Heck, Nevada Jared Polis, Colorado
Susan W. Brooks, Indiana John A. Yarmuth, Kentucky
Luke Messer, Indiana Frederica S. Wilson, Florida
C O N T E N T S
----------
Page
Hearing held on September 19, 2013............................... 1
Statement of Members:
Roe, Hon. Phil, Chairman, Subcommittee on Health, Employment,
Labor, and Pensions........................................ 1
Prepared statement of.................................... 3
Statement of Witnesses:
Adams, Clarence, Field Technician, Cablevision............... 38
Prepared statement of.................................... 40
Burton, David R., General Counsel, National Small Business
Association................................................ 19
Prepared statement of.................................... 21
Meisburg, Ron, Member Of The Firm, Proskauer................. 5
Prepared statement of.................................... 8
Marculewicz, Stefan J., Shareholder, Littler Memdelson....... 41
Prepared statement of.................................... 43
Appendix
Roe, Hon. Phil, Chairman, Subcommittee on Health, Employment,
Labor, and Pensions:
Letter, dated September 18, 2013 from Vice President Angelo
I. Amador, Esq., National Restaurant Association........... 64
Letter, dated September 19, 2013 from Vice President Geoffrey
G. Burr, Associated Builders and Contractors Inc........... 65
THE FUTURE OF UNION ORGANIZING
Thursday, September 19, 2013
House of Representatives,
Subcommittee on Health, Employment Labor & Pensions,
Committee on Education and the Workforce,
Washington, D.C.
The subcommittee met, pursuant to call, at 10:07 a.m., in
Room 2175, Rayburn House Office Building, Hon. David P. Roe
[chairman of the subcommittee] presiding.
Present: Representatives Roe, Salmon, Guthrie, DesJarlais,
Andrews, Holt, Grijalva, Courtney, and Wilson.
Also present: Representatives Kline and Miller.
Staff present: Katherine Bathgate, Deputy Press Secretary;
Owen Caine, Legislative Assistant; Molly Conway, Professional
Staff Member; Ed Gilroy, Director of Workforce Policy; Benjamin
Hoog, Senior Legislative Assistant; Marvin Kaplan, Workforce
Policy Counsel; Brian Newell, Deputy Communications Director;
Krisann Pearce, General Counsel; Molly McLaughlin Salmi, Deputy
Director of Workforce Policy; Alissa Strawcutter, Deputy Clerk;
Loren Sweatt, Senior Policy Advisor; Aaron Albright, Minority
Communications Director for Labor; Tylease Alli, Minority
Clerk/Intern and Fellow Coordinator; Jody Calemine, Minority
Staff Director; Melissa Greenberg, Minority Staff Assistant;
Eunice Ikene, Minority Staff Assistant; Brian Levin, Minority
Deputy Press Secretary/New Media Coordinator; Richard Miller,
Minority Senior Labor Policy Advisor; Megan O'Reilly, Minority
General Counsel; Michele Varnhagen, Minority Chief Policy
Advisor/Labor Policy Director; Michael Zola, Minority Deputy
Staff Director; and Mark Zuckerman, Minority Senior Economic
Advisor.
Chairman Roe. A quorum being present, the Subcommittee on
Health, Employment, Labor and Pensions will come to order. This
morning we will broadly examine the future of union organizing.
It is no secret the number of workers electing to join a union
has declined sharply in recent decades. Since 1983, the share
of all workers belonging to a union has dropped from roughly 20
percent to less than 12 percent.
Today, fewer than 7 percent of private sector workers are
union members. AFL-CIO president, Richard Trumka, recently
warned the labor movement is in crisis. Gary Chaison, an
industrial relations professor at Clark University, told the
New York Times unions are thrashing around looking for answers,
and there is a sense that this is a make or break time for
labor. Either major changes are done, or we will be too late to
resuscitate the labor movement. As union leaders try
desperately to swell the ranks of dues-paying members, we have
to ensure the tools they use abide by the law and are in the
best interests of our workforce.
We must also hold federal agencies accountable for the role
they play as union looks to regain the support they once held
among America's workers. Toward that end, this committee has
repeatedly expressed concerns with the culture of union
favoritism embraced by the current administration. In some
cases, we have stated our disapproval and called for a course
of correction. In others, we have advanced legislation that
would strengthen the rights of workers and ensure a level
playing field between unions and employers.
Schemes such as ambush elections or micro unions will spark
radical changes in the union organizing process. Under the
process envisioned by union leaders, a worker's right make to
informed decisions in union elections is diminished, employers'
freedom to communicate with employees is stifled, and workers'
privacy is jeopardized. And the solidarity in the workplace is
broken. As a result, it will be virtually impossible for
workers to freely vote their conscience. Aside from the help of
friendly federal agencies, union leaders are also pursuing
inventive strategies to organize workers.
Recent news reports have highlighted one particular
strategy to utilize worker centers to build employee support
for unionization. Worker centers often engage in traditional
union activities, such as corporate campaigns and employee
walkouts. But because they operate under the guise of non-
profit community organizations, they can avoid a range of
federal standards that have long governed union contact.
Chairman Klein and I have asked the Department of Labor to
clarify the legal obligations of worker centers.
While the response we received to our initial inquiry was
incomplete and disappointing, we are hopeful Secretary Perez
will provide more substantive answers to our questions. We
should support every effort to improve wages and working
conditions of those struggling in today's economy, so long as
those efforts follow the law. The question of union
representation is a deeply personal matter for any worker. It
is important to remember what has been, and must remain, the
vital principle of federal labor law.
The law is supposed to enable unions to organize every
workplace, and the law isn't designed to help employers
obstruct union representation. Fundamentally, the law exists to
protect the right of workers to freely choose to join or not
join a union. Defending this right is the responsibility of
every elected policymaker, and this committee will continue to
demand fair and objective policies that allow workers to make
this important decision without a fear of coercion,
intimidation or retribution. And we will work to ensure these
policies are vigorously enforced.
Before I close, I want to thank our witnesses for being
with us. I would also like to extend a special thanks to Mr.
Clarence Adams, a Marine veteran. Mr. Adams was the first of
many troops deployed under Operation Iraqi Freedom. This week's
senseless tragedy at the Navy Yard reminds us of the sacrifice
rendered every day by the men and women in our armed forces.
Mr. Adams, we are grateful for you service to our country, and
for your participation in today's hearing.
I will now recognize our senior Democratic member of the
subcommittee, my colleague, Mr. Andrews, for his opening
statement.
[The statement of Chairman Roe follows:]
Prepared Statement of Hon. Phil Roe, Chairman, Subcommittee on Health,
Employment, Labor, and Pensions
This morning we will broadly examine the future of union
organizing. It's no secret the number of workers electing to join a
union has declined sharply in recent decades. Since 1983 the share of
all workers belonging to a union has dropped from roughly 20 percent to
less than 12 percent. Today fewer than seven percent of private-sector
workers are union members.
AFL-CIO President Richard Trumka recently warned the labor movement
is in a ``crisis.'' Gary Chaison, an industrial relations professor at
Clark University, told the New York Times, ``Unions are thrashing
around looking for answers. There's a sense that this is make-or-break
time for labor. Either major things are done, or it will be too late to
resuscitate the labor movement.''
As union leaders try desperately to swell the ranks of dues-paying
members, we have to ensure the tools they use abide by the law and are
in the best interests of our workforce. We also must hold federal
agencies accountable for the role they play as unions look to regain
the support they once held among America's workers.
Toward that end, this committee has repeatedly expressed concerns
with the culture of union favoritism embraced by the current
administration. In some cases, we have stated our disapproval and
called for a course correction. In others, we have advanced legislation
that would strengthen the rights of workers and ensure a level playing
field between unions and employers.
Schemes such as ambush elections and micro-unions will spark
radical changes in the union organizing process. Under the process
envisioned by union leaders, workers' right to make informed decisions
in union elections is diminished; employers' freedom to communicate
with employees is stifled; workers' privacy is jeopardized; and
solidarity in the workplace is broken. As a result, it will be
virtually impossible for workers to freely vote their conscience.
Aside from the help of friendly federal agencies, union leaders are
also pursuing inventive strategies to organize workers. Recent news
reports have highlighted one particular strategy to utilize worker
centers to build employee support for unionization. Worker centers
often engage in traditional union activities, such as corporate
campaigns and employee walkouts. But because they operate under the
guise of nonprofits community organizations, they can avoid a range of
federal standards that have long governed union conduct.
Chairman Kline and I have asked the Department of Labor to clarify
the legal obligations of worker centers. While the response we received
to our initial inquiry was incomplete and disappointing, we are hopeful
Secretary Perez will provide more substantive answers to our questions.
We should support every effort to help improve the wages and working
conditions of those struggling in today's economy, so long as those
efforts follow the law.
The question of union representation is a deeply personal matter
for any worker. It is important to remember what has been and must
remain the vital principle of federal labor law. The law isn't supposed
to enable unions to organize every workplace. And the law isn't
designed to help employers obstruct union representation. Fundamentally
the law exists to protect the right of workers to freely choose to join
or not join a union.
Defending this right is the responsibility of every elected
policymaker, and this committee will continue to demand fair and
objective policies that allow workers to make this important decision
without fear of coercion, intimidation, and retribution, and we will
work to ensure these policies are vigorously enforced.
Before I close, I want to thank our witnesses for being with us.
I'd also like to extend a special thanks to Mr. Clarence Adams. As a
marine veteran, Mr. Adams was the first of many troops deployed under
Operation Iraqi Freedom. This week's senseless tragedy at the Navy Yard
reminds us of the sacrifice rendered every day by the men and women in
our Armed Forces. Mr. Adams, we are grateful for your service to our
country and for your participation in today's hearing.
I will now recognize the senior Democratic member of the
subcommittee, my colleague Mr. Andrews, for his opening remarks.
______
Mr. Andrews. Thank you, Mr. Chairman. I would also like to
thank the witnesses for their diligence in preparation for
today's hearing. We are glad that you are here. And I thank
you, Mr. Chairman, for starting this hearing off with a solemn
reminder of those who lost their lives working for our country
just a few blocks from here, at the Navy Yard, on Monday. We
are deeply in their debt, and I appreciate you honoring their
service with your remarks this morning.
When I was home for our extended break in August and early
September, I got the sense from listening to a lot of
constituents that although the economy has improved certainly
since the dark days of 5 years ago, when the economy nearly
collapsed, that it is not good enough. It has just not gained
the traction that we need to lift people out of the struggles
that they feel every day. Now, one way to--one thing we should
certainly not do is continue with the budget sequester policies
that, unfortunately, this House is gonna vote to renew either
tomorrow or Friday.
I hope that we can find a way to reenergize our economy by
reducing and eliminating the sequester. But one thing we should
do is regenerate the middle class. Our economy works when a
middle class worker gets her kitchen remodeled. Because the
kitchen remodeler then is likely to go out and buy a car. And
the car salesman earns more commissions, so he or she is more
likely to buy a house. And the real estate agent earns a
commission, so he or she is more likely to go out to a
restaurant. And the owner of the restaurant is more likely to
hire more servers and more workers and they are more likely to
get their kitchens remodeled. And on it goes.
So we believe that you grow the economy from the middle
class out. There has been an unhappy story, even in this
recovery, for the middle class. In the early days of this
economic recovery, for every 1 dollar of growth that went to
higher wages for America's workers $70 went to corporate
profits in the country. So by a 70-to-1 ratio the benefits of
growth that we have seen have gone to corporate profits and not
to employee wages. What do you do about that?
Well, the evidence broadly suggests that when people engage
in collective bargaining that those results are considerably
better. On the average, members of unions earn 27 percent more
than those who don't belong to a union for similar work.
Members of unions are 28 percent more likely to have health
care benefits provided for them at work. They are 64 percent
more likely to have a pension plan when they retire. These are
the elements of middle class success. This is particularly
relevant to groups in our society who have historically
suffered under greater burdens and had more difficulty in
achieving the American dream.
For African-Americans, African-American workers who are in
unions have a median wage that is 30 percent higher than those
who are not. For Latinos in our country, Latinos who are in a
union have a median wage 58.5 percent higher than those who are
not. I think the Chairman exactly stated the intention of U.S.
labor law, which is an aggressive neutrality. It is the idea
that people should be free to make their own decisions about
what is right for them. I certainly agree that that means that
there shouldn't be any coercive behavior toward employers or
toward employees who do not wish to join a union. Certainly
that is part of the law.
And the chairman states it well when he says, and I am
quoting him, ``The law is not designed to enable employers to
obstruct union representation.'' He is absolutely right. When
Mr. Adams came home from Iraq, he went to work for an employer
in New York City and he was part of an effort to organize his
fellow workers under the Communication Workers of America. They
succeeded, on January 26 of 2012, to win a representation
election. Today, all these days later, they still do not have a
first contract.
So one of the issues we should be looking at, as we try to
grow the economy, grow the middle class and permit those who
have freely chosen to join a union and have the benefits of
collective bargaining, is, what is happening across this
country with those first contracts. I look forward to our
discussion here this morning.
I thank the Chairman and look forward to hearing from the
witnesses.
Chairman Roe. Thank you, Mr. Andrews.
Pursuant to committee rule 7-C, the members will be
permitted to submit written statements to be included in the
permanent hearing record. And without objection, the hearing
record will remain open for 14 days to allow such statements
and other extraneous material referenced during the hearing to
be submitted for the official hearing record.
It is now my pleasure to introduce our distinguished panel
of witnesses. Mr. Ronald Meisburg is partner of Proskauer Rose
in Washington, D.C. Mr. Meisburg served as general counsel for
the NLRB for the 4 years, and is a board member for 1 year. And
I did a little research on him. He graduated from Carson-Newman
College, very close to my home. Welcome.
Mr. David Burton is the general counsel for the National
Small Business Association and is testifying on their behalf.
Mr. Clarence Adams, a field technician for Cablevision in
Brooklyn, New York. Welcome. Mr. Stefan Marculewicz is a
shareholder in Littler Mendelson, PC of Washington, D.C.
And before I recognize you to provide your testimony, let
me briefly explain our lighting system. You have 5 minutes to
present your testimony. When you begin, the light in front of
you will turn green. When one minute is left, the light will
turn yellow. When your time is expired the light will turn red.
At that point, I will ask you to wrap up your remarks as best
as you are able. And I won't cut you off in the middle of your
remarks, but try to finish up. After everyone has testified,
members will each 5 minutes to ask questions.
And right now, I would like to thank the witnesses. And if
you would, Mr. Meisburg?
STATEMENT OF MR. RON MEISBURG, MEMBER OF THE FIRM, PROSKAUER,
WASHINGTON, D.C.
Mr. Meisburg. Good morning, Mr. Chairman, members of the
subcommittee. My name is Ronald Meisburg. I am a partner in the
Proskauer Rose law firm. I am co-chair of the firm's labor-
management relations practice group. I appreciate the
opportunity to appear before you here today.
My testimony is solely my own. I am not here representing
my firm, its clients or any person or organization. I have
practiced law now for 39 years. I began my legal career in 1974
in the office of the solicitor of labor; first, in the division
of employee benefits, and then the division of mine safety and
health. I moved to private practice in 1980, and for the next
23 years I practiced principally in the area of labor
relations, including collective bargaining, contract
administration, grievance and arbitration proceedings and cases
before the NLRB and in federal court.
In 2003, I was nominated for a seat on the National Labor
Relations Board by President George W. Bush. I served a recess
appointment on the board for 1 year, January through December,
2004. In January 2006 I received a recess appointment for the
post of general counsel. I was confirmed by the Senate in
August of 2006, and I served as general counsel until mid-2010.
Following that, I returned to the private practice of law,
where I am now.
I have submitted written testimony about what I see as the
areas of law and legal issues that will most likely be
addressed by the board in the upcoming months, and I will touch
only lightly on them here. In 2011, the board proposed
regulations making substantial changes in the representation
election process. Some of the proposed regulations that were
promulgated were eventually set aside, and are currently
pending on appeal in the United States Court of Appeals for the
District of Columbia Circuit. Other parts of the proposed
regulations have yet to be promulgated.
I would expect the board to revisit that and to attempt to
complete what it began in 2011. Many in the management
community, I believe, felt that the board's previous rulemaking
efforts were not necessary, given the overall success of the
board's handling of representation cases. At the time the
proposed rules were announced, the board's general counsel had
described the board's representation case handling results as
outstanding. If the board, in fact, goes forward with further
rulemaking it will hopefully follow a process that involves
stakeholders earlier--perhaps through an advanced notice of
proposed rulemaking--and which focuses on the potential delay
caused in outlier cases.
We have also recently seen the board expand in areas of
concerted protected activity, such as decisions addressing non-
employee and off-duty employee access to an employer's property
and protection from employee social media statements. I would
expect the board to continue to expand these areas and the
concept of protected activity, particularly as it is adapted to
developments in the organization of work and the revolution we
are seeing in technology. And I would hope that the board does
this with a sense of balance, recognizing that the NLRA is one
of a constellation of federal, state and local workplace laws
with which employers must comply.
I also expect the board will continue to apply, and perhaps
refine, its tests for the determination of bargaining units
announced in specialty health care through both administrative
processes at the regional office level, as well as cases coming
before the board itself. And the board will continue to deal
with the fallout from the recess appointment issue in many
cases where it has been raised, both with respect to the board
and with respect to some of the regional directors and also
delegations of the board. And just a few weeks ago, there was a
decision by a federal district court in Washington which held
the general counsel's appointment in 2010, under the Federal
Vacancies Reform Act, to have been invalid.
So the board and its staff, unfortunately, are going to be
distracted by a lot of these cases as they go forward. Finally,
let me say a brief word about the career staff at the board
with whom I had the pleasure of working on almost a daily basis
for several years. They serve the appointees like a lawyer
serves a client: giving advice, speaking directly, arguing
their points. But when a decision is made, they turn to
delivering a draft opinion or advice memorandum, or brief or
other action as decided by the appointee. And they do this
whether they serve a Republican appointee or a Democrat
appointee.
I have great respect for these career professionals and the
staff that supports them, and I hope they can be kept free of
the political crossfire that sometimes engulfs the NLRB. Thank
you very much for this time, and I look forward to your
questions.
[The statement of Mr. Meisburg follows:]
[GRAPHIC] [TIFF OMITTED]
Chairman Roe. Thank you, Mr. Meisburg.
Mr. Burton?
STATEMENT OF MR. DAVID R. BURTON, GENERAL COUNSEL, NATIONAL
SMALL BUSINESS ASSOCIATION, WASHINGTON, D.C.
Mr. Burton. I appreciate the opportunity to be here today.
My name is David Burton. I am general counsel for the National
Small Business Association. NSBA was founded in 1937, and
represents approximately 65,000 small businesses throughout the
country. About 28 percent of our members have 20 or more
employees. Roughly 4 percent of our members have unions.
Roughly 8 percent of our members have dealt with unionization
campaigns. And a very large proportion of our members are
subject to NLRB jurisdictional standards.
I will quickly address four issues. The DOL has proposed a
rule that would radically narrow the advice exemption in the
Labor-Management and Disclosure Act and jettison the
interpretation of that exemption that has been adopted by every
administration since the Kennedy administration. It is our
considered view that the proposed rules be withdrawn because it
is contrary to congressional intent for at least five reasons.
It upends a century of settled law and creates uncertainty,
and imposes dramatically higher costs than the DOL claimed in
their estimate; to harm the right of employers to secure advice
that will violate the attorney-client privilege; and it lacks
an adequate evidentiary basis. For half a century, advisors
that did not interact with employees generally did not have to
file reports with DOL. In contrast, under the interpretation of
section 203-C contained in the proposed rule, virtually any
imaginable activity by almost any consultant or vendor that, in
any manner, directly or indirectly relates to a labor dispute
or attempted organization of an employer would be reportable.
In addition, attorneys, employee benefits consultants and
other human resources advisors would probably be reportable.
Even extremely minor activities would have to be reported. And
if you go back and look at the legislative history, the 1959
conference committee report explicitly stated that Congress
intended for the advice exception to be broad. It is, however,
difficult to conceive of a more narrowly drafted definition of
advice than that contained in the proposed rule.
The proposed rule is inconsistent with basic rules of
statutory construction. It more or less reads the 203-C
exemption out of the law. It is impermissible to read a section
of the statute as unnecessary or meaningless surplusage when an
alternative construction can give meaning to the provision.
Congress has acquiesced to the definition established by the
Kennedy--or the interpretation that satisfied the Kennedy
administration for over half a century. That is strong evidence
that the Kennedy administration DOL got it right.
The proposed rule also applies to multi-employer seminars,
Webinars and conferences. And absent mind-reading skills, the
sponsors of those seminars aren't going to know to what use the
information is gonna be put. So they will end up having to
report on every attendee of their conferences with respect to
the fees and who attended. With respect to union elections, in
June of 2011 the NLRB published a proposed rule, now withdrawn
but likely to be revisited now that the NLRB has a quorum.
The rule would revise election procedures so that in many
cases, if not most, elections would be conducted within 10 to
21 days rather than the 35 to 40 days typical today. The
members of this committee know a thing or two about elections,
and I invite each member of this committee to engage in a
thought experiment. Imagine if your opponent was permitted to
organize his or her campaign, raise money, hire consultants,
recruit volunteers, communicate with voters and only then you
were informed there was gonna be an election and it was gonna
be in 10 days.
Perhaps I am wrong, but I think most people would regard
that as unfair. It is equally unfair in the case of union
elections. Small businesses are not familiar with labor law,
they don't have labor lawyers on staff. They need time to find
advice and to decide how to deal with the potential
unionization campaign. In the case of micro unions, we
basically are extremely concerned with the line of cases
inaugurated by specialty health care.
The case that I think is most notable is the Bergdorf
Goodman case, where the second and fifth floor ladies shoe
departments were separately organized. When you get into a case
where you can organize separate shoe departments in a store,
you have the potential to have an incredible multiplicity of
bargaining units, tremendous complexity and a balkanization of
the workplace.
And with that, I will wrap up my statement. I am glad to
answer any questions.
[The statement of Mr. Burton follows:]
[GRAPHIC] [TIFF OMITTED]
Chairman Roe. Thank you, Mr. Burton.
Mr. Adams?
STATEMENT OF MR. CLARENCE ADAMS, FIELD TECHNICIAN, CABLEVISION,
BROOKLYN, NY
Mr. Adams. Thank you. Thank you, Mr. Chairman, Ranking
Member Andrews, and members of the subcommittee for giving me
this opportunity to testify. I appreciate it greatly. Thank you
very much.
My name is Clarence Adams, and I have been a field
technician for Cablevision in Brooklyn for over 14 years. I am
also a proud veteran of the United States Marines. And 10 years
ago, I was among the first wave of American troops who invaded
Iraq. I was proud to serve my country and was prepared to do
whatever was necessary to define the basic freedoms that make
this country great.
I want to tell you today that my coworkers and I have gone
through a lot to try to join a union. In the fall of--I am
sorry, in the winter of 2011 myself and a large group of
coworkers decided to organize with the Communication Workers of
America. Company management viciously opposed our efforts. I
was forced to attend literally dozens of meetings where
Cablevision management told me that CWA was corrupt. They lied
to me about the cost of dues and the likelihood of strikes.
They threatened that my wages and benefits would actually go
down if we joined together in a union.
But on January 26, 2012 an overwhelming majority of my
coworkers in Brooklyn voted to join CWA. We were very excited.
We thought now we would be able to sit down with Cablevision
and negotiate a contract that reasonably addresses our
concerns. But we were wrong. I soon learned that management had
no intention of bargaining with us in good faith. They
continued their campaign of pressure and intimidation. And as a
union supporter, I felt like I was under the microscope every
day when I went to work.
A few months after we won our election, my Cablevision
workers in the Bronx and I decided--my Cablevision workers in
Bronxville decided to begin organizing as well and join CWA. In
late April, James Dolan, the CEO of Cablevision, made it clear
that he would stop at nothing to prevent more employees from
joining our union. Dolan gave every single employee in the
entire company, about $10,000, significant raises, except for
us in Brooklyn. He improved the health plans of every single
employee in Cablevision except for us in Brooklyn.
He allowed techs all over his company to install Wi-Fi in
parks, except for us in Brooklyn. The only difference between
those of us in Brooklyn and the rest of the company was that we
exercised our legal rights to join a union. Right before my
coworkers in the Bronx held a vote on joining the union in late
June, James Dolan personally visited them and stated that they
shouldn't make the same mistake we did in Brooklyn. He told
them that Cablevision would now abandon Brooklyn. He told them
Brooklyn would be left behind in terms of investment in
workforce.
Management succeeded in frightening enough workers so that
a majority voted against the union. Earlier this year, on
January 30, I was among 70 Cablevision workers in Brooklyn who
decided to take advantage of the company's open door policy,
which encourages employees to go to management at any time to
discuss issues of concern. I arrived, before my shift started,
to meet with a manager, any manager, for only 5 minutes to
express my frustration that the company was stalling during
bargaining.
That morning, management eventually agreed to invite 22
techs into a conference room, and I was one of those techs. I
was shocked to find that vice president, Mr. Rick Levesque,
came into the room and told us we were all being permanently
replaced. Cablevision's open door policy specifically says that
the company does not tolerate retaliation against employees for
having views different from their own, but on this day that
policy wasn't worth the paper it was written on.
Thanks to a massive pressure campaign, the company has been
forced to hire all of us back. I am proud to say that my 21
coworkers and I, who were fired, stayed strong through the
entire ordeal. And when we walked back in the door, we showed
our fellow coworkers that this is a fight that we can still
win. But I have to say that I am very, very upset about what
happened to us and what has happened since we voted the union
in.
The NLRB had filed charges against Cablevision, and we
still await justice. Cablevision threatened my livelihood by
illegally firing me, and they have shown utter contempt for the
rule of the law. And so far, there have been no consequences
for them. Cablevision has hired over 50 lawyers, literally, to
defend their unlawful actions. It is simply obscene for them to
spend so much on lawyers instead of sitting down to negotiate
with their employees.
I just want a shot at the American dream. I want job
security. I want to know that I can't be fired without just
cause. Ten years ago, I put my life on the line 6,000 miles
away from home in the name of protecting the basic rights of
American democracy. I believe I was fighting so that the rights
of every American would be protected. I never thought that I
would see the day that I, as an American citizen, would have my
basic rights trampled on, and no one would do anything about
it.
I never thought that a big corporation could violate my
rights, and the government would just let them get away with
it. I am sad to say that my experience has taught me that our
current labor laws are broken. Workers who dream of reaching
the middle class and who hope for some job security shouldn't
have to endure months, or even years, of fear and intimidation
at work. I was there when my country asked me to risk
everything in Iraq, and is it too much to ask for my government
to protect my rights to join a union at work?
Thank you for giving me the opportunity to share my story
with you today. Thank you.
[The statement of Mr. Adams follows:]
Testimony of
Clarence Adams
Before the Subcommittee on
Health, Employment, Labor and Pensions
Hearing on
"The Future of Union Organizing"
September 19, 2013
Thank you Mr. Chairman, Ranking Member Andrews and members of this
subcommittee for giving me the opportunity to testify.
My name is Clarence Adams and I have been a field technician for
Cablevision in Brooklyn for over 14 years. I am also a proud veteran of
the US Marines. Ten years ago, I was among the first wave of American
troops who invaded Iraq. I was proud to serve my country and I was
prepared to do whatever was necessary to defend the basic freedoms that
make this a great country.
I want to tell you today what I and my coworkers have gone through
just to try to join a union.
In the fall and winter of 2011, I and a large group of my co-
workers decided to organize with the Communications Workers of America.
Company management viciously opposed our efforts. I was forced to
attend literally dozens of meetings where Cablevision management told
me CWA was corrupt. They lied to me about the cost of dues and the
likelihood of strikes. They threatened that my wages and benefits would
actually go down if we joined together into a union. But on January 26,
2012, an overwhelming majority of my coworkers in Brooklyn voted to
join CWA.
We were so excited. We thought, now we'll sit down with Cablevision
and negotiate a contract that reasonably addresses our concerns.
We were wrong. I soon learned that management had no intention of
bargaining with us in good faith. They continued their campaign of
pressure and intimidation. As a union supporter, I felt like I was
under a microscope every day I went to work.
A few months after we won our election, my Cablevision coworkers in
the Bronx decided to begin organizing as well, to join us in CWA.
In late April, James Dolan, the CEO of Cablevision, made it clear
that he would stop at nothing to prevent more employees from joining
our union. Dolan gave every single employee in the entire company -
about 10,000 people - significant raises. Except for us in Brooklyn. He
improved the health plans of every single employee in Cablevision.
Except for us in Brooklyn. He allowed techs all over his company to
install Wi-Fi in parks. Except for us in Brooklyn. The only difference
between those of us in Brooklyn and the rest of the company was that we
exercised our legal rights to join a union.
And then, right before my coworkers in the Bronx held a vote on
joining the union in late June, James Dolan personally visited them and
stated that they shouldn't make the same mistake we did in Brooklyn. He
told them that Cablevision would now ``abandon'' Brooklyn. He told them
Brooklyn would be left behind in terms of investment and the workforce.
Management succeeded in frightening enough workers so that a majority
voted against the union.
Early this year, on January 30th, I was among 70 Cablevision
workers in Brooklyn who decided to take advantage of the company's
``Open Door Policy'', which encourages employees to go to management at
anytime to discuss issues of concern.
I arrived before my shift started to meet with a manager, any
manager, for only five minutes to express my frustration that the
company was stalling during bargaining. That morning, management
eventually agreed to invite 22 techs into a conference room. I was one
of those techs.
I was shocked when the Vice President, Mr. Rick Levesque, came into
the room and told us we were being ``permanently replaced.''
Cablevision's ``Open Door Policy'' specifically says that the
company ``does not tolerate retaliation against employees for having
views different from ours,'' but on this day, that policy wasn't worth
the paper it was written on.
Thanks to a massive pressure campaign, the company has been forced
to hire all of us back. I am proud that my 21 co-workers and I who were
fired stayed strong through this ordeal. And when we walked back in the
door, we showed our fellow workers that this is still a fight that we
can win.
But I have to say I am very, very upset about what happened to us
and what has happened since we voted in the union. The NLRB has filed
charges against Cablevision, and we still await justice. Cablevision
threatened my livelihood by illegally firing me, and they have shown
utter contempt for the rule of law. And so far there have been no
consequences for them. Cablevision has hired over 50 lawyers,
literally, to defend their unlawful actions. It is simply obscene for
them to spend so much on lawyers, instead of sitting down to negotiate
with their employees.
I just want a shot at the American Dream. I want some job security.
I want to know that I can't be fired without just cause.
Ten years ago, I put my life on the line 6,000 miles away from home
in the name of protecting the basic rights of American democracy. I
believed I was fighting so that the rights of every American would be
protected. I never thought that I would see the day that I, as an
American citizen, would have my basic rights trampled on and no one
would do anything about it. I never thought that a big corporation
could violate my rights and the government would let them get away with
it.
I am sad to say that my experience has taught me that our current
labor laws are broken. Workers who dream of reaching the middle class
and who hope for some job security shouldn't have to endure months and
even years of fear and intimidation at work.
I was there when my country asked me to risk everything in Iraq. Is
it too much to ask for my government to protect my right to join a
union at work?
Thank you for giving me the opportunity to share my story with you
today.
______
Chairman Roe. Thank you, Mr. Adams.
Mr. Marculewicz?
STATEMENT OF MR. STEFAN J. MARCULEWICZ, SHAREHOLDER, LITTLER
MEMDELSON, WASHINGTON, DC
Mr. Marculewicz. Chairman Roe, Ranking Member Andrews and
the members of the committee, I want to thank you all for the
opportunity to offer testimony this morning on this important
topic. My name is Stefan Marculewicz. I am a shareholder with
the law firm of Littler Mendelson here in Washington, D.C. I am
speaking to you today on my own behalf and not on behalf of my
firm or any firm client or anyone else.
I have practiced law, or labor employment law, for nearly
20 years. I started my career at the National Labor Relations
Board in Forth Worth, Texas as a field attorney, and also
worked for a time in Baltimore, Maryland at the regional office
there, as well.
Labor unions, as Chairman Roe indicated, the primary
advocate for workers' rights in the United States for more than
a century, have experienced a significant decline in
membership. As a result, labor unions have sought new and
innovative means to effectuate change in the workplace. One of
the most significant examples of this effort is the development
of organizations known as worker centers. In recent months,
these groups have been involved in protests and other
activities that have received substantial coverage in the
media.
Typically, they are non-profit organizations that receive
funding from foundations, grants, including from government,
membership fees and other donations. Some are funded by other
labor organizations. These groups offer a variety of services
to their members, including education, training, employment
services and legal advice. Increasingly, however, worker
centers are directly engaging employers or groups of employers
to effectuate change in the wages, hours, and terms and
conditions of employment of the workers they claim to
represent.
Indeed, when it comes to such direct engagement, these
worker centers often act no differently than traditional labor
unions. Yet few of these groups comply with the laws that
regulate labor organizations. Statutes, like the National Labor
Relations Act and the Labor, Management, Reporting and
Disclosure Act, contain significant protections with respect to
representational democracy, organizational democracy, access to
basic information and promotion of the duty of fair
representation.
These basic rights are an important part of the process
governing the representation of employees in the workplace by
third-party organizations. Even though compliance with these
laws would confer benefits upon the very workers these groups
claim to represent, many such groups are reluctant to define
themselves as labor organizations because the NLRA and LMRDA
are perceived as creating an impediment to worker centers'
activities. In addition, worker centers have not considered
themselves to be limited by the NLRA restrictions on secondary
picketing and protracted picketing for recognition.
And such conduct is a common tool used by these groups to
convey their message, although it would violate the National
Labor Relations Act. Without coverage of the NLRA and LMRDA,
these organizations can avoid accountability to the workers
they claim to represent, and avoid restraints that are imposed
on traditional labor organizations. Yet the laws that provide
protections to workers, vis-a-vis labor organizations that
represent them, were designed precisely to create that
accountability.
Moreover, these laws were also intended to protect worker
self-choice, to ensure a balance between labor and management,
labor and management interests, and to ensure the free flow of
commerce. The burden of compliance with those laws is not so
severe, when considered within the context of the benefits
afforded to workers and the economy in general. The mission of
many worker centers is often seen as being an important means
of advocating on behalf of underrepresented employees who do
not have access to, or knowledge of, the legal mechanisms to
protect their rights.
However, no organization, no matter how laudable its
mission, is above reproach. And through its passage of laws
that regulate labor organizations, Congress established
safeguards to give workers a say in, and understanding of, the
operations of the organizations that represent them. Compliance
with the NLRA and LMRDA serves not only as a protection for
workers, but perhaps as a validator of the worker centers that
claim to represent them.
One goal of many worker centers is to ensure that employers
of their members comply with the basic laws that offer
protections to workers. Ultimately, the benefits of the laws
that govern labor organizations flow to the workers they
represent. And as such, there is simply no viable justification
for worker centers not to comply with them.
Thank you for your time, and I look forward to answering
any questions that you may have.
[The statement of Mr. Marculewicz follows:]
Testimony of Stefan Marculewicz Before
The United States House of Representatives
Health, Employment Labor and Pensions Subcommittee
September 19, 2013
Chairman Roe and Ranking Member Andrews, thank you for the
opportunity to offer testimony to the members of this Committee. My
name is Stefan Marculewicz and I am a Shareholder at the law firm of
Littler Mendelson here in Washington, DC. I am speaking to you today on
my own behalf and not on behalf of my firm or any firm client.
Labor unions, the primary advocates for workers' rights in the
United States for more than a century, have experienced a significant
decline in membership. As a result, labor unions have sought new and
innovative means to effectuate change in the workplace.
One of the most significant examples of this effort is the
development of organizations known as ``worker centers.'' In recent
months, these groups have been involved in protests and other
activities that have received substantial coverage in the media. Today
there are hundreds of worker centers across the country. Their
structure and composition vary. Typically, they are non-profit
organizations that receive funding from foundations, grants-including
from government, membership fees and other donations. Some are funded
by other labor organizations. These groups offer a variety of services
to their members, including education, training, employment services
and legal advice. Increasingly, however, worker centers are directly
engaging employers or groups of employers to effectuate change in the
wages, hours and terms and conditions of workers they claim to
represent. Indeed, when it comes to such direct engagement, these
worker centers often act no differently than traditional labor
organizations.
Yet, few of these groups comply with the laws that regulate labor
organizations. Statutes like the National Labor Relations Act (NLRA)
and the Labor Management Reporting and Disclosure Act (LMRDA) contain
significant protections with respect to representational democracy,
organizational democracy, access to basic information and promotion of
a duty of fair representation. These basic rights are an important part
of the process governing the representation of employees in the
workplace by third-party organizations.
Even though compliance with these laws would confer benefits upon
the very workers these groups claim to represent, many such groups are
reluctant to define themselves as labor organizations because the NLRA
and the LMRDA are perceived as creating an impediment to worker
centers' activities. In addition, worker centers have not considered
themselves to be limited by the NLRA restrictions on secondary
picketing and protracted picketing for recognition, and such conduct is
a common tool used by these groups to convey their message, although it
would violate the NLRA.
Without coverage of the NLRA and LMRDA these organizations can
avoid accountability to the workers they claim to represent and avoid
restraints that are imposed on traditional labor organizations. Yet,
the laws that provide protections to workers vis a vis labor
organizations that represent them were designed precisely to create
that accountability. Moreover, these laws were also intended to protect
worker self-choice, to ensure a balance between labor and management
interests, and to ensure the free flow of commerce. The burden of
compliance with those laws is not so severe when considered within the
context of the benefits afforded to workers and the economy in general.
The mission of many worker centers is often seen as being an
important means of advocating on behalf of underrepresented employees
who do not have access to or knowledge of the legal mechanisms to
protect their rights. However, no organization, no matter how laudable
its mission, is above reproach, and through its passage of the laws
that regulate labor organizations, Congress established safeguards to
give workers a say in and understanding of the operations of the
organizations that represent them. Compliance with the NLRA and LMRDA
serves not only as a protection for workers, but perhaps as a validator
of the worker centers that claim to represent them.
A goal of many worker centers is to ensure that employers of their
members comply with the basic laws that offer protections to workers.
It therefore is not unreasonable to expect worker centers to do the
same. Ultimately, the benefits of the laws that govern labor
organizations flow to the workers they represent, and, as such, there
simply is no viable justification for worker centers not to comply with
them.
Thank you for your time, and I look forward to answering any
questions you may have.
______
Chairman Roe. I thank the panel. And you all may be the
best on the lights that I have seen since I have been here.
Everybody was under the wire, so thank you all. You all did a
great job.
I will now ask Mr. Salmon. Yield to him.
Mr. Salmon. Thank you. I appreciate the opportunity to
listen to this panel's testimony. Thank you very much.
I have a little bit of a story, and I would like maybe some
thoughts. Arizona had, really, only one family-owned grocery
store left in Arizona, called Bashas'. The head of Bashas', who
basically became the head of Bashas' after his father died,
Eddie Basha, a very, very dear and close personal friend of
mine. While I am a Republican, he was a prominent Democrat. In
fact, about 15 years ago--might even be a little longer, maybe
18 years ago--he was the Democrat nominee for governor of the
state of Arizona.
He didn't prevail. He ran against the incumbent. But Eddie
has always been just a pillar in our community, always, you
know, fighting for homeless people and against child abuse. Any
good cause, Eddie was always there. And what is really tragic
is that he was one of the top contributors, over the last, I
would say, 30, 40 years to the Democrat Party and Democrat
candidates. He was very prominent in the Democrat Party. And
yet, time and time again the unions tried to organize at
Bashas'.
And the employees themselves decided they didn't want to do
it. So the last several years, they started resorting to some
dirty tricks. In fact, they planted some overdue formula--some
bad formula, baby formula--on the shelves, and they did all
kinds of real nasty public relations tricks on him. In fact,
they were caught red-handed on the planting of the tainted
formula, or the overdue formula. And then they filed just
multiple frivolous claims with the NLRB.
And they had an unlimited supply of money to file these
lawsuits. And the upshot is that Eddie's company, Bashas',
ended up going into bankruptcy because they had multimillion
dollars of trying to defend against these stupid, frivolous
lawsuits against the NLRB. And Eddie, much--sad to say, just in
the last few months, passed away. But Arizona has sorely missed
him.
My question is, what can be done to address some of these
frivolous lawsuits and this aggressive tactic of just trying to
wear somebody down through that kind of a process, to the point
where they just either throw up their hands and give in or file
bankruptcy like Bashas' had to? Any thoughts on that from
anybody in the panel?
Mr. Meisburg. I believe one thing that would help in these
circumstances would be if the board would permit an employer to
call for an election. In other words, make the fact that the
employees don't want to join the union, make it a matter of
record in a board election. And treat a corporate campaign of
this sort like a demand for recognition. Now, the board has, in
the past, had cases where they could do that. It has been
bouncing around the board for a number of years.
I think that would let the employer say, ``Listen, I am
willing to let my employees decide whether they want to be a
member--a union-represented shop or not. But I want to do it
through a secret ballot election.'' Unless the union files for
a petition or demands recognition, right now the employer can't
make that happen. So what I think might help in those
situations would be if the employer could say, ``Okay, I am
willing to put this to a vote of my employees.''
And if there are a number of employees--the employees vote
against it, then the union would be banned from--as they are
trying to organize after a lost election for a year. And that
would give, I think, some calming effect to these kinds of
campaigns.
Mr. Burton. I think the problem that you have identified is
very real. Litigation costs can crush small businesses. Mr.
Adams referred to how much money was being spent on lawyers. It
is a problem throughout the entire legal system, not just NLRB.
I think there is a need to streamline the procedures. Some of
the things the NLRB has done along those lines makes sense, but
a lot of them also do it in a way that don't really make sense.
But in the entire legal system, we have given some thought
to the problem. And there is probably a need, at least with
respect to smaller litigants that don't have unlimited
resources. Fortune 500 companies and the federal government are
fine, but small businesses and other smaller entities are not.
To move more towards a small claims type arrangement or a
continental European-type arrangement where the judge is more
of a fact-finder rather than the two litigants being able to
throw up walls and expend the other side's money on an almost
unlimited basis in discovery or filing various motions.
These days, it can cost $60-to 100 grand to defend an
utterly frivolous lawsuit. And that can be crushing to a small
firm.
Chairman Roe. I thank the gentleman for yielding.
Mr. Andrews?
Mr. Andrews. Thank you, Mr. Chairman. I thank each of the
witnesses for their testimony. Mr. Adams, thank you for serving
our country and for being with us this morning. And thank all
four of you.
It has now been, by my count, 601 days since Mr. Adams and
his group won the organizing election he referred to. And, Mr.
Adams, my understanding is there is still not a first contract.
Is that right?
Mr. Adams. Yes, that is correct.
Mr. Andrews. Mr. Meisburg, on April 19 of 2006, in your
role as general counsel, you wrote a memo. I want to read from
it. You quote approvingly the federal mediation conciliation
service, observing, ``Initial contract negotiations are often
more difficult than established successor contract negotiations
since they frequently follow contentious representation
election campaigns.'' Then you go on to say, ``And when
employees are bargaining for their first collective bargaining
agreement, they are highly susceptible to unfair labor
practices intended to undermine support for their bargaining
representative.''
``Indeed, our records indicate that in the initial period
after election and certification, charges alleging that
employers that refuse to bargain are meritorious in more than a
quarter of all newly-certified units, or 28 percent.'' That
sounds like a sort of macro description of the case that Mr.
Adams just talked about. What do you think we should do about
these cases where there is a chronic failure to come to that
first contract because of the kind of practices you discuss in
2006? What should we do to fix that problem?
Mr. Meisburg. Well, what we did, at the time, was we
followed up on that first contract bargaining initiative, which
included a more aggressive use of 10-J, which is the injunction
provisions of the act, which then can get into a situation
where an employer can be in contempt. So that is a pretty
powerful weapon. We also suggested other potential remedies
that aren't typically used in board cases: bargaining on a
specific schedule; reports by the employer directly to our
regional directors about the status of the bargaining; and
payment of the costs of the bargaining by the wrongful-acting
party of the wronged party.
Mr. Andrews. Now, I know because of your recess status
appointment situation, you weren't around for a whole long
period of time to see this through. But did that tactic work?
Mr. Meisburg. Well, that actually, I was there. I issued
this memorandum before I was confirmed, and then I was
confirmed.
Mr. Andrews. These days, that would be probably pretty
smart--confirmation.
Mr. Meisburg. And I followed up as a confirmed GC. What got
me interested in it was, we noticed that----
Mr. Andrews. But did it work? Did the----t
Mr. Meisburg. Well, I think it did. And let me tell you
statistics. When I first became GC, 50 percent of all the
refusal to bargain, 85 bad faith bargaining charges were filed
in first contract situations. When I left, that number had
dropped to 25 percent. Now, I just felt like the arrows were
pointing in the right direction when we left. Also, I think it
is important to note--and this was in the last speech I gave as
general counsel--80 percent of all first-contract bargaining
succeeds without resort to the board.
Mr. Andrews. Yes----
Mr. Meisburg. And that is a tribute to the----
Mr. Andrews. It is that 20 percent I am worried about.
Mr. Adams----
Mr. Meisburg. I understand.
Mr. Andrews. Mr. Adams, what I want to ask Mr. Adams a
question. There is a proposal that has been before the Congress
that after a certain number of days if there wasn't a first
contract there would be mediation, where your union and the
company would have had to go to a mediator and talk about
things. And after a certain number of days, if that didn't work
the first contracts could be subject to what is called
``binding arbitration,'' where you guys would make your offer,
the company would make its offer, and the arbitrator would
choose the outcome that he or she thought was best.
Would that have helped you in this situation?
Mr. Adams. Tremendously, it would have helped a lot. In
fact, I would already be within the first year of an actual
contract had that been in place.
Mr. Andrews. It is interesting that if you played for the
Yankees, which you probably could--if you played for the
Yankees and you had that situation, you would get that kind of
arbitrator. Because, in other words, you would have the
bargaining leverage to have somebody figure out what you were
worth. So you would support a proposal in the law that would,
after a certain period of time, provide for that binding
arbitration.
Mr. Adams. Absolutely, yes.
Mr. Andrews. Thank you very much.
Chairman Roe. I thank the gentleman for yielding.
Mr. Guthrie?
Mr. Guthrie. Thank you. Thanks for all the panelists for
being here. And, Mr. Adams, I thank you for your service and
willing to put on the uniform and serve overseas. I was
actually in Brooklyn Monday. I went to college in metro New
York, at West Point. And so Brooklyn has changed a lot. It is
great, it is a wonderful place. I enjoyed being there. So it
was wonderful to be there. It has changed a lot since the
1980s, so it was great to be there.
But I have a question for Mr. Burton. You mentioned in your
testimony, and I have heard from small businesses, about the
persuader activity. And from my own experience, I know the
importance of being able to seek outside counsel. So I would
like you to--give you a chance to expand on the persuader rule
a little bit. And you mentioned specifically in testimony that
imposing additional burdens on employers seeking advice would
be a deterrent to seeking advice.
And could you expand on that for just a couple of minutes.
I have another question of another panelist, but--about the
persuader activity and how it will discourage people from
seeking advice.
Mr. Burton. Okay. Well, if you end up having to buy into a
bureaucratic morass, filing reports, and then potentially
having to spend a great deal of money to hire people to advise
you how to fill out the reports, then you will tend not to want
to hire consultants. Because they don't cost just what you have
to pay them, but----
Mr. Guthrie. You know what the----
Mr. Burton.--the entire compliance cost associated with it.
Mr. Guthrie. You know what the Department of Labor is
trying to get to in that rule, and why you think they are wrong
in that?
Mr. Burton. I am not entirely sure what their true
rationale is. I think part of it is so that they can obtain
information that they would find useful in terms of
understanding better the employer strategy in unionization
campaigns. And also would--this, of course, would not be
lawful, but some might want to use it for purposes of
intimidating people.
Mr. Guthrie. Well, thank you for that. And I have a
question for Mr. Marculewicz? Is that correct? Under both the
NLRA and LMRDA, one of the primary elements in determining
whether an entity is a labor organization is whether it exists
for the purpose, in whole or part, of dealing with employers
concerning terms and conditions of employment. Last month, in
response to an oversight letter sent by this committee, the
Department of Labor stated it concluded, in 2004 and 2008, that
the restaurant opportunity center was not a labor organization
primarily because it did not deal, or intend to deal, with
employers.
How have the courts defined ``dealing with?'' Is the
department's conclusion consistent with your findings related
to RLC?
Mr. Marculewicz. Thank you. The concept of--well, first and
foremost, the concept of worker centers has evolved
dramatically in the last 5 years. We have seen a tremendous
amount of activity by these groups, and they have engaged in a
wide variety of different things. The situation that occurred
in 2004 and 2008 with respect to those letters, the analysis
under the Labor-Management Reporting and Disclosure Act
provides that it has to be an organization in which employees
participate, that it have a purpose, in whole or in part, of
dealing with an employer over issues related to wages, hours,
and terms and conditions of employment.
The definition of that ``dealing with'' is pretty--the bar
is set very, very low. And, in fact, the National Labor
Relations Board has the same test for employer-created
committees, and has found many of those committees to be
violative of section 882 of the National Labor Relations Act
when an employer creates an organization that engages in a
dialogue and engages in, you know, so dealing with their
workforce. And as a result of that, it is a fairly low bar.
And, in fact, the NLRB has reached--has considered a number
of cases where the name of the case is actually Group of
Concerned Workers and Their Leader. Because they have grouped
together, engaged in picketing or other activity, and the NLRB
has looked at that and said, you know, they have a goal of
dealing with, their purpose is dealing with, it is focused on
the intent. And if you look at some of the activities of these
worker centers subsequent to that, you will see that--you know,
I think there is a wide variety of attempts to effectuate
change in the workplace.
Mr. Guthrie. I am about to run out of time. So also on
that, you mentioned that because they are not limited that they
do secondary picketing. And what is secondary picketing, and
why does the NRLA respect secondary picketing and protracted
picketing for recognition?
Mr. Marculewicz. Secondary picketing is where, if you and I
have a labor dispute and one of my major customers--you go and
picket that major customer--that customer has nothing to do
with our labor dispute, the NLRB prohibits that, or the
National Labor Relations Act prohibits, that secondary--they
are trying to protect the true neutrals; those who are not
interested to--and it was Congress' balance of the balance of
the interests of labor and management and the pursuit of the
free flow of commerce.
Mr. Guthrie. So the work centers are doing the secondary
picketing.
Mr. Marculewicz. In many situations. Not all, but in many
situations, yes.
Mr. Guthrie. I believe I am out of time.
I yield back.
Chairman Roe. Mr. Grijalva?
Mr. Grijalva. Thank you, Mr. Chairman. Let me ask Mr. Adams
a couple of questions, if I may. And as a point of reference to
my friend and colleague from Arizona, and the comments
regarding Bashas', the grocery chain, a very large grocery
chain in Arizona. Mr. Basha, who passed is a good
philanthropist, great immigrant story. And considered him a
friend.
But at the same time, the lawsuits that were referenced and
some of the other issues dealt with some very specific things:
OSHA violations worker safety. It also dealt with violations of
overtime. It also dealt with other kinds of issues that any
individual employee has the right to, and should, exercise that
right. And exercising the right does not make the people doing
that, or the organization helping with that, necessarily evil.
And I would subject--I would ask people that there is, in any
question of that magnitude, there is always another side.
Let me ask Mr. Adams, in your testimony you--well, let me
go--in your testimony, you said that the management at
Cablevision had no intention of bargaining. Can you share some
of the tactics they used to pressure, intimidate workers, and
really keep from formalizing what, through election, the
workers wanted to sit down and collectively bargain?
Mr. Adams. Thank you. One of the things that my coworkers
and I definitely noticed is, they were obviously objectionable
to the whole of us unionizing in the first place. They didn't
think it was necessary. One of the things we tried to point out
to management is that there was a serious need for structure. A
lot of the times there was a lot of, you know, favoritism,
things like that, that go on. And it is unfair to a number of
employees who are doing the right thing and, you know,
following some of the expectations that the company has for,
you know, the employees.
One of the things that I have noticed--especially last
year, the number of meetings we had, their way of trying to
inform us what was best for us was to tell us that we didn't
need to form a union. Are we--you know, are we sure that we
know what we are getting into. And no matter how often we made
them aware of the fact that we were very sure and this was what
we wanted to do, they always seemed to come up with a new way
of trying to derail it.
I have to say, this is, without question, one of the
hardest things that I have ever been through. As you know
already, I have been fired already. Myself and 21 other
employees were fired because we basically took advantage of an
open door policy to speak with management on the morning of
January 30. It would have only literally taken about 5 minutes.
They were very dismissive. They seemed to have other things to
do.
And like I said, they--you know, Mr. Levesque invited us,
the vice president of our shop invited us into the room. And he
basically told us we were all being permanently replaced. That
was just one of the things that took place to try to intimidate
the workers. As soon as we were led out by police escort and we
were removed from the building, a memo went out to the
employees about decertification.
A lot of the employees, already intimidated by the fact
that a number of the stronger members were already led out the
door, got them to feel like they didn't have a chance against
Cablevision. And so a lot of them felt like they had to put
their names on the paper to decertify.
Mr. Grijalva. Open door policies that the company has. What
else is covered other than coming in and stating your opinion
to management? What else is covered in that policy?
Mr. Adams. If there is any general concerns that we have,
one of the things that is covered in there, especially when it
comes to employee safety--you know, there are a lot of times
that we have to do things that are otherwise unsafe. You know,
it is not really safe for the employee to do. We are climbing
rooftops, fire escapes, you know, we are in backyards where
most people, you know, traditionally don't have much traffic.
A lot of the time people do get hurt, and they end up, you
know, being off the job for some time, sometimes over 4 or 5, 6
months. You know, Cablevision has already, this past year, two
employees were let go because they weren't able to recover in
time from their injuries. A lot of the times employees feel the
need to come in and work, you know, sometimes with injuries,
you know, that are work-related. And they refuse to let
management know about it because they understand that they will
not be able to relate to what is going on with them, or at
least do the right thing in making sure they take care of those
employees.
Mr. Grijalva. Thank you. And, Mr. Chairman, with regard to
the comments on the worker centers, it should be noted that
much of the activity and support these centers are providing is
to immigrant workers all across this country, including the
push for an increased minimum wage. And, in doing so, are
providing a service, providing English lessons, providing
social services, and providing a voice to a group of workers in
this country that have historically been exploited.
And I would consider that a good thing for the overall
economy of this country and, certainly, for those immigrant
workers' rights.
With that, I yield back.
Chairman Roe. I thank the gentleman for yielding.
Mr. Miller?
Mr. Miller. Thank you. And I want to thank Mr. Adams for
coming and testifying today. I also want to recognize Lana
Stuart and Tanya Cauley, who are in our audience today. I have
had many of my constituents participate in our Wal-Mart--and my
conversations with them in my office and on the street, a lot
of it about just they are trying to figure out--you know, they
know that with Wal-Mart discussion of a union is toxic.
They are trying to figure out how to keep their job, and
how they get some respect and how they get a decent wage and
how they get decent conditions in working, and don't live in a
place of intimidation. I mean, Wal-Mart has figured it out
pretty clearly. They have the highest paid truck drivers in the
country. Because they know if they don't the Teamsters can
organize them. But people on the floor, they are
interchangeable.
Just fire them and find somebody else to do that job, as
hard as it is and as difficult as it is. And that is, you
know--and so if you try to figure it out yourself among your
peers, you can get fired. If you talk to somebody from OUR[MG3]
Wal-Mart, you can get fired. So you can be arbitrary as hell in
that fashion. But if you then go the other route, as Mr. Adams
went, you spend a year trying to talk to your coworkers and get
a union and you win an election. What did you win by, Mr.
Adams, 180 to 86?
Mr. Adams. Yes, that is correct.
Mr. Miller. Yes. Everybody that gets elected, close the
deal. Except your deal never got closed.
Mr. Adams. That is correct, yes.
Mr. Miller. So now you have spent how long? What is it--Mr.
Andrews says 600 days?
Mr. Adams. Six-hundred-one.
Mr. Miller. Six-hundred-one days trying to get the results
of your election.
Mr. Adams. Yes.
Mr. Miller. And get the benefits of the bargaining. Which I
understand started out with you are asking for parity.
Mr. Adams. Yes.
Mr. Miller. And I assume if you find out that this unit can
crawl and walk and run, you might ask for something else some
day.
Mr. Adams. Hopefully, we will be able to get a contract.
Mr. Miller. Yes.
[Laughter.]
Mr. Adams. Hopefully.
Mr. Miller. So they don't give you the contract, and Mr.
Andrews went through that part of it. And they gave everybody
around you a raise, but not for the people in your unit that
signed up for the union.
Mr. Adams. That is correct.
Mr. Miller. So Mr. Dolan can be as arbitrary and as
capricious as he wants to be, as long as you don't get a
contract.
Mr. Adams. That is correct.
Mr. Miller. So he can reward people, trying to send a
signal to the 186 that joined you that they just missed out on
this benefit of--what was it you said, $5,000 to 25,000,
something like that. I didn't get the benefit of your previous
testimony, but.
Mr. Adams. Upwards of $27,000, yes, $18,000.
Mr. Miller. So just a cash benefit.
Mr. Adams. Yep.
Mr. Miller. Telling people to stay away from this unit. And
then I guess this progressive company, Cablevision, they have
an open door policy.
Mr. Adams. Yes. Yes, they do. They have an open door
policy.
Mr. Miller. Unless you are in the union, it turns out to be
a trapdoor.
Mr. Adams. Pretty much.
Mr. Miller. Yes. So you must be wondering where you go to
get justice.
Mr. Adams. I am, actually. My and----
Mr. Miller. Where do you go to get your union. And these
people can drag you out for 600 days. They can fire you because
you asked for a 5-minute meeting. Apparently, you didn't even
ask for a meeting in front of other workers. You asked for a
meeting with your group, with him, with Mr. Levesque is it?
Mr. Adams. Rick Levesque, yes.
Mr. Miller. And that meeting, that meeting got you
permanently displaced, or immediately replaced.
Mr. Adams. That is correct. Permanently replaced, yes.
Mr. Miller. You need a union.
Mr. Miller. That is what--because these people are about as
arbitrary and capricious as an employer could be. And this is
just, you know, a company that is a rogue with respect to its
employees. They have decided also that you are replaceable. And
anybody else that, apparently, speaks up, uses their policies,
uses the law, can be punished and lose their job and lose the
benefits of an increase in pay. And they are daring you to do
something about it.
Mr. Adams. That is correct.
Mr. Miller. It is really unfortunate for you. You know, and
I noticed several members here thank you for your service to
the country. Don't make a damn bit of difference when you are
in that workplace at Cablevision. Doesn't make a damn bit of
difference. Made a big difference to us as a country and to
your fellow servicepeople.
Thank you very much for your testimony.
Mr. Adams. Thank you.
Chairman Roe. Mr. Courtney?
Mr. Courtney. Thank you, Mr. Chairman. I actually just
wanted to pick up where Mr. Miller left off. You testified, Mr.
Adams, that what you have been going through is the toughest
thing you have ever experienced?
Mr. Adams. Yes, that is correct.
Mr. Courtney. Okay. And you are a U.S. Marine combat
veteran of Iraq. Is that correct?
Mr. Adams. Yes. Support, yes.
Mr. Courtney. Yes. And when you entered the Marines you
entered as a volunteer. Isn't that correct?
Mr. Adams. Yes.
Mr. Courtney. And you took an oath. And in that oath, you
swore to uphold the Constitution and the laws of this country,
is that correct?
Mr. Adams. Yes, that is correct.
Mr. Courtney. And when we go into military service, again,
you are not taking an oath to an individual or to the homeland
or to the motherland. You are really taking an oath to a system
that is about protecting people's dignity and rights as
American citizens. Isn't that correct?
Mr. Adams. Yes, that is correct.
Mr. Courtney. And it--again, I just--you know, listening to
this--your story, it just is stunning to see that, you know,
where you were prepared to put your life on the line as a
Marine, and to come and have the system, again, really just
trample on your rights. Which, again, are not sort of just
statutory rights. The rights to collectively bargain are
recognized by the United Nations human rights charter. It was
recognized by Pope Leo in the Vatican in the late 1880s in
terms of--1880s, in terms of recognizing that human dignity is
tied to the fact that people have the right to withhold their
work as a way of bargaining for appropriate working conditions.
And yet you are in a situation now where 600 days after
going through the process, following the rules, obeying the
law, that, again, you still do not have an outcome that the law
claims to offer. Isn't that correct?
Mr. Adams. Yes, that is correct.
Mr. Courtney. The Marines actually have a motto. Isn't that
correct?
Mr. Adams. Yes, they do.
Mr. Courtney. And what is it?
Mr. Adams. ``Always Faithful--Semper Fi.''
Mr. Courtney. Semper Fi. Well, there is also another Latin
term called ubi jus ibi remedium, which says that ``without a
remedy, there is no right.'' And, again, that is first-year law
class, you know, taught to individuals. Marshall v. Marbury,
that was the principle that the U.S. Supreme Court,
establishing its authority, enunciated. And it is a very simple
concept. Which is that, you know, you can have all the
platitudes in the world about people's right to equality and
votes and collective bargaining. But if you don't have a
remedy, it really doesn't exist.
And what your story proves is that the decline in union
membership, which we have heard from witnesses and which we
have heard from the chairman, is frankly because we have a
broken system. And sadly, in this committee room, you know, we
have seen measures brought forth trying to exploit the fact
that the filibuster rule was used in the Senate to basically
neuter the National Labor Relations Board and use that. Not the
merits of cases, but use that procedure as a device to, again,
basically strip people of their rights.
Thank goodness, they are--you know, the majority leader
exercised a procedural measure to make sure that we now have a
fully-staffed National Labor Relations Board. But the fact of
the matter is, you know, that just sort of gets us to the point
where we can begin the process of making sure that situations
like yours are addressed. So thank you for your amazing
service, for you belief in our system. Not just as a soldier,
but also a citizen and as a worker.
And, again, we--and some of us here want to make sure that
we create a system that really balances rights and remedies so
that people can actually have available to them--which is,
again, bedrock human rights principles that has been recognized
by international organizations and, in fact, the Vatican.
I yield back.
Chairman Roe. I thank the gentleman for yielding.
Ms. Wilson?
Ms. Wilson. Thank you, Mr. Chair. Strengthening labor means
strengthening our economy. And according to the Bureau of Labor
Statistics, the median weekly earnings of full-time union
workers in 2012 were $943 compared with $742 for non-union
workers, or $10,400 per year per worker. So people who are in
unions earn less than people who are not. By getting more
income into the hands of hardworking people who will spend it,
we ensure more customers for American businesses and eliminate
much of the need for government assistance.
This is the case now more than ever. At a time of high
unemployment and falling living standards for workers, today a
parent working full-time at minimum wage will simply not earn
enough income to cover basic needs like food, clothing and
shelter. Even working a second job and well over 40 years a
week, it is mathematically impossible for many minimum wage
workers to pay for child care, clothing and gas. If you doubt
these claims, take a look at the draft budget that a major
employer distributed to its employees.
According to a new study from the Economic Policy
Institute, the bottom 60 percent of workers are earning less
than they did 13 years ago. According to a recent report by the
Center for Economic & Policy Research, black Americans who have
earned much higher average levels of education over recent
decades have a lower chance of earning a living wage today than
they had 30 years ago. And so economic growth remains slow,
unemployment stays high, government debt continues to grow.
My question to Mr. Adams--and I have read your story, and I
commend you for your bravery and for standing tall for working
men and women--and I would like for you to--I would like to
find out your view. How does collective bargaining affect low-
and middle class Americans' purchasing power?
Mr. Adams. Well, what it does is, it definitely helps, at
least for the people who have already gone through the
experience of earning low incomes, it really helps a lot when
it comes to being able to pay rent, being able to provide, you
know, medical, being able to just get some of the common items
that every American deserves and as to be as comfortable as
possible, to work hard as possible, and to earn a reasonable
salary.
With collective bargaining, what it does is, it just points
out that the workers, if they have a good structure, are able
to, you know, help the company, you know, strive where it needs
to go. And then at the same time, without--I could--I don't--I
hate to use the term, without ``greed'' being part of the
equation. Where everybody is doing well, normally you would
get, obviously, better results. Better workers, people are
willing to go the extra mile. And with collective bargaining,
it allows both sides to at least be able to, you know, review
that. And like I said--and it helps families tremendously.
Ms. Wilson. Yes. Well, you keep up the good fight. I have
always been a strong supporter of unions. I come from the
public school sector, where unions play a major role in making
sure that there is equal pay for everyone working for the
school system. So it is a bargaining procedure to make sure
that people receive health care, the benefits that they need to
keep people at least surviving and not falling below the
poverty level.
And I just can't even imagine what we would actually do in
our school district in Miami-Dade County if we did not have the
support of the unions making sure that people received a wage
commensurate with what their living demanded. So thank you for
keeping on the--stay on the path.
Mr. Adams. Thank you.
Chairman Roe. I thank the gentlelady for yielding.
Dr. DesJarlais?
Mr. DesJarlais. Thank you, Mr. Chairman. And thank you all
for being here today. I would like to start with Mr.
Marculewicz. If a worker center is a labor organization under
federal law, what are the filing requirements and restrictions
on activity?
Mr. Marculewicz. Well, as in any labor organization they
must file an LM-1, which is a form with the Department of Labor
that incorporates and includes the constitution and bylaws. And
this is designed to provide disclosure, public information to
those who have an interest in that. Specifically those who are
seeking to be--you know, or that group is seeking to represent
as to how officers are elected, what the process is, and the
like.
There are also financial disclosures, in an LM-2--or if you
are a smaller labor organization, an LM-4--which are forms that
are filed with the Department of Labor that incorporate
references and describe and disclose the information, financial
information, for the labor organization. So workers, members
can understand where the money is coming from and where the
money is going.
Mr. DesJarlais. Okay. I think you have partially answered
this, but why are the filing requirements and restrictions so
important?
Mr. Marculewicz. Well, they are important because back when
the Labor-Management Reporting and Disclosure Act was enacted
by Congress there were really fundamental problems of
corruption within labor unions. The McClellan hearings, which
took place--actually were the first televised, to my
understanding the first televised hearings in congressional
history. And there was a fair amount of interest in the issue.
And it exposed union corruption, exposed a wide variety of
issues related to that.
And the law was passed to ensure that workers who were
members and represented by these groups had a democratic right
of participation, a right to expression of opinion, a right to
vote. I mean, they have to elect their leadership, in a local,
every 3 years and in an international every 5 years. And those
democratic principles are sort of at the foundation of
organizational representation.
Mr. DesJarlais. Okay, thank you. Where do worker centers
get their funding?
Mr. Marculewicz. Typically, worker centers--they get them,
as I indicated in my initial remarks, they receive funding from
a wide variety of sources. There are grants. Foundations will
make contributions to them. There are also government grants
that can be--that they can apply for and they can obtain. They
also--some of them also receive direct funding from labor
organizations. So the money comes from a variety of different
sources.
Now, the reality is, is that there is no disclosure related
to where that money comes from if that worker center doesn't
consider itself a labor organization. Now, recognize this. That
workers--not all worker centers act like labor organizations,
but many of them are starting to do so. And that is--once you
become a labor organization and start engaging in dealing with
an employer, there is a responsibility to file that and to
disclose that information.
Mr. DesJarlais. Okay. Does this affect their tax status?
Mr. Marculewicz. Well, typically--there is actually a very
good piece written by Diana Furchtgott Roth on the worker
center tax treatment. And typically, a labor organization is a
501(c)(5) organization, which has different type--it is a
different type of tax treatment. But many worker centers file,
or designate themselves, as 501(c)(3)s. And the manner in which
you can contribute is different. There are also contribution
limitations by employers under the Labor-Management Relations
Act. Section 302 also limits how money can be given to these
worker centers.
Mr. DesJarlais. Thank you, sir.
The next question will be for Mr. Meisburg. In fiscal year
2011, labor unions won more than 71 percent of representation
elections; 89 percent of those elections were held pursuant to
agreements of the union and employer, commonly referred to as
voluntary consent agreements. The median time to proceed to an
election from the filing of a petition was 38 days. It appears
the NLRB elections are timely, and unions fare pretty well. In
rare cases, the time between a petition election can be
significantly longer. What is the source of these elections'
delay?
Mr. Meisburg. Well, I haven't done a study of that
personally. But my experience suggests that a lot of the delay
is caused in blocking charge cases. I know I had one case where
we--it was between the SCIU and the NUHW in California. And
there was a petition for an election by the NUHW which was
blocked for over a year by a charge filed by the SEIU.
Eventually, we refused to issue a complaint. The block was
withdrawn.
Now, the block can be withdrawn by a regional director if
the permission of the board at other times. But my sense is,
and without having made a study, a thorough study of is, that
is the source of a lot of delay in, and it skews the statistics
higher in those cases.
Mr. DesJarlais. Is this the exception to the rule?
Mr. Meisburg. It is. I mean, you know----
Chairman Roe. The gentleman is time has expired.
Mr. DesJarlais. Oh, sorry, Mr. Chairman.
Chairman Roe. Dr. Holt?
Mr. Holt. I thank the chair. I would like to address Mr.
Adams. I was pleased to meet you in Brooklyn. I am impressed by
your service. I would think that the customers of the company
must be very pleased to know that someone such as you, so
thoughtful and diligent, is on the job. And as a policymaker, I
must say I am very pleased to find someone who so articulately
expresses the worker's point of view.
You know, for well over half a century now labor laws in
this country have protected workers who believe that a union,
through collective bargaining, can improve their working
conditions and safety and pay and benefits. And those
protections, I think, have been well-justified because, over
the intervening decades, unions have, and to this day continue
to be, I think, continue to have a very beneficial effect on
working conditions and safety and pay and benefits.
What we see, and I have looked at this pretty closely, what
we see there with the Cablevision instance is a textbook
example of what has come to be known as union busting. In
punishment, in your case firing, for those who want to
organize; inducements to try to entice others not to organize;
all sorts of statements, and then retractions of those
statements, and delays right up to the deadlines. It is a
textbook example of how you use or misuse the laws to prevent
unionization. And even to this very day, the corporation is
spending millions of dollars to continue to fight this. Far
more than was at stake in the salaries and in the pay under
dispute.
You have spoken about, we have heard about, Cablevision
CEO, Jim Dolan's visit to the Bronx field technicians who were
getting ready to vote on affiliating and organizing. And he
said they would be left behind in training and investment and
promotion and job advancement. And that group did not vote to
affiliate. How do you distinguish that from what happened with
your group of field technicians? And from what you know about
the Employee Free Choice Act, how would that have made a
difference in the Bronx? How would it have made it a difference
for your group?
Mr. Adams. Well, one of the things that would have been
extremely beneficial, at least, you know, for the technicians
in the Bronx, when Mr. Dolan went to go visit them he did so
simply because he realized that by underestimating the
technicians in Brooklyn he decided to, obviously, do something
that would otherwise, like I say, point to our being
irresponsible, so to speak, by being a bit manipulative with
his message. It was very difficult to get the truth out to the
Bronx.
Like I said, Cablevision has an unlimited amount of
resources. Like I said before, they have over 60 lawyers
already working on this case. They are spending countless
amount of money just trying to stop something that--I can't
understand why--but to stop something that we have already,
like I said, strongly made a decision on. I just think that if,
had we had the Free Choice Act, like I said, I would already be
one year into our first contract. And then possibly at least
coming together to make an even better second one.
Because that is what I honestly thought this was all gonna
be about. Just being able to create better structure, to
basically let them know that obviously he proved us correct by
paying the other workers more money to help better their
situations. When those things are being brought up, that is
really what we were hoping that Mr. Dolan and his management
team would see. That obviously we were behind. So had that been
in place, this would all be behind us and, like I said, we
would be already one year into our first contract.
Mr. Holt. Thank you. And Mr. Chairman, I understand 55
percent of the workers still support the union, which is about
equal to the original..
[Off mike.]
Mr. Adams. That is correct.
Mr. Holt. [Off mike.]
Chairman Roe. The gentleman's time has expired and I
appreciate the gentleman yielding.
I will now yield myself 5 minutes. And Mr. Meisburg, if you
would like to continue your thoughts.
Mr. Meisburg. Well, just at the end of that last question I
had about whether it was typical for blocking charges to be
filed, they are--it is not typical. It happens, but it is not
the rule, I don't believe.
Chairman Roe. Yes, I thank you.
And now, Mr. Burton, and I agree with Dr. Holt that
basically, as I understand, the NLRA was passed, I think, in
1935. And then the NLRB was established to be a fair arbiter
between the employees and employers. So that you didn't favor
either side. It is like being in a ball game, where you go and
you hope the refs are fair. And you want a--you just want a
fair hearing. When some people run the string out or whatever,
they are at the tail--most of time, as I understand these, the
unions win most elections, 71 percent.
The elections are--and this happens in a fairly timely
fashion. I think within less than a month and a week, 35 days,
I believe is the median. So it seems like that it allows both
sides to get--a small business especially--to get the expertise
in. I was thinking about my own business. I wouldn't have any
idea how to go out and find a labor lawyer. I would have to go
find somebody if I--and I couldn't do it in 10 days or 15 days.
It is impossible.
So both sides need to be fair. And this case that Mr. Adams
points out probably is at the other end of the scale. So I want
to ask a couple of questions about--for you, Mr. Burton. And
the statistics to the size of our units, they fluctuate year-
to-year. And there is a graph over here that is up. And the
Democrats are correct that the median size of units has
increased from 2011 to 2012. However, the average size--there
is a difference between median and average--has decreased from
71 to 65 in 2012.
And these are interesting numbers, but they really don't
address the issue of Specialty Health Care where this is the
fragmentation of the workforce. That is what I want to ask the
question. And also Bergdorf Goodman you mentioned. How does
fragmentation of the workforce affect the employers and
employees? And number two, can you give me an example of
workplace fragmentation by recent NLRB unit certification?
Mr. Burton. Well, fragmentation is a problem in the sense
that you could end up having to deal with many unions. You can
have some aspects of your company governed by one collective
bargaining agreement, and another. And there is a multiplicity
of agreements, a multiplicity of unions, complexity, inability
to move back and forth and so on down the line. The case that I
mentioned briefly in my oral remarks is, to me, the most
dramatic--the Bergdorf case, where you are organizing by shoe
department, a department store.
There is another case that, out of the Northrop Grumman
cited in my written statement, where I believe they organized
180 out of 2,400 technicians in the shipyard. So you end up
having a lot of division. I think that the--and it was all
launched by specialty health care which, of course, is a
specific job description type unit. This is of concern to small
employers, but not really small employers. Mid-size, 100, 200
type employers, which is part of our membership base.
Chairman Roe. Next question would be, in your experience,
and anybody can answer this, when do employers become aware
that--of a union organizing drive? And anyone can--how do you
know when you are being organized?
Mr. Burton. Well, that can vary dramatically. Sometimes it
can be reported to you by employees. But obviously, sometimes
people find out about it when the petition is filed by the
labor union. So it just varies dramatically. The one thing I
think that is most important to understand is, most small
employers don't know anything about labor law until they have
to. They know about employment law, or maybe NRLA section 7
rights of like social media or what have you.
But they don't know about unions or union organizing. The
unions generally do. That is what they do for a living. Six-
hundred days is ridiculous. Ten days is also ridiculous. I
mean, there needs to be a reasonable middle ground found. But
there is no way on God's green earth that a typical small
business owner is going to be able to find representation,
understand the law, understand the implications for his
business, explain it to his employees, and adequately present
the facts to his employees in 10 days.
Chairman Roe. Yes. I will now cut myself off. I would like
to again thank the witnesses for taking time to testify before
the committee. Y'all have been a terrific group.
I will now recognize the ranking member for closing
statements.
Mr. Andrews. Well, I, too, want to thank the witnesses and
our fellow members for their participation this morning. I
think we heard a lot of good information. I wanted to come back
to one thing Mr. Meisburg said which struck a chord with me.
Which is that whatever ideological or political disputes may
happen, it is very important that the dedicated career
employees of the National Labor Relations Board be respected in
the integrity of their work. And I appreciate that.
And again, I--this is just my own observation. I am not
putting words in anyone's mouth. But one of the things that we
were disturbed about previously--and Mr. Miller, Mr. Cummings
and Mr. Conyers wrote a letter on August 12 of 2011--when the
dispute over the Boeing case was going on and the board had
filed a complaint against Boeing, there was a subpoena served
on the board by the--not by this committee, by the Government
Reform Committee, that called for all communications that took
place between the regional office and the board pertaining to
the filing of the Boeing complaint.
Now, obviously, that was a rather hotly-contested item. But
one of the things we were worried about then was that the trial
strategy, the negotiated settlement strategy, the work that the
regional office was doing was gonna be subject to invasion in a
public forum. And I think that was a grave concern. So I
thought about that, Mr. Meisburg, when you made that remark. I
know that was not your intention, but it triggered that
response with me.
And I take it as a worthy admonition. The NLRB is a place
where there are fierce ideological battles. It has been this
way for a very long time. I hoped that we could bridge some of
them. But certainly, the work of the men and women in the
regional offices and in the main office, the career people,
should not be abridged in any way. And I think that was a very
important point that you made.
Mr. Chairman, I think this panel has served us well. I
appreciate their time and effort. Mr. Adams, we especially
appreciate your efforts, as well. And we thank you for your
time.
Chairman Roe. I thank the gentleman for yielding. And I
thank the panel. And in closing, you know, we have, in this
country right now, a real problem with jobs. And we have had a
huge problem. And you have noticed that the jobs in unions have
dropped from 20 percent of the population down to around 7 in
the private sector. I grew up in a union household. My dad
worked in a factory, made shoe heels. He belonged to the union
as--after World War II until he died. And died before he was
able to retire.
So we have some issues. The ranking member and myself are
gonna work on union issues with pensions. It is a huge issue.
We plan to work diligently on that to help save those. I
believe, quite frankly, that we will not recreate the middle
class in America until we recreate--bring manufacturing back to
this country. There are estimates out there, with a coherent
energy policy in this country--if we had just exactly like
President Kennedy did when I was a high school student, he said
we are going to go to the moon in this decade. And we beat
that.
Americans are that good. We beat that deadline. We put
somebody on the moon in less than 10 years. We can become
energy independent in America, if we use all the resources we
have, within 10 years. And Mr. Adams, one of the reasons that I
have to look at energy independence, it was 40 years ago this
year I was stationed just south of the DMZ in Korea. And I
almost froze to death because we only got heat 3 hours a day.
And the reason was because the Middle East embargoed our
oil and we had to keep the oil for our Huey--fuel for our Huey
helicopters, our Cobra gunships, our tanks and so forth. And
you understand that very well. We were a hostage of what
somebody else halfway around the world did. If I could be the
President of the United States for 1 month--and I don't want to
be, but if I were--in 1 month----
Mr. Andrews. You are announcing your candidacy?
Chairman Roe. No.
[Laughter.]
Mr. Andrews. Okay, all right.
Chairman Roe. Trust me, I already said I don't want to be.
But I would have a coherent energy policy so that I think--for
middle America, where I grew up, the price of energy affects us
more than anything. You see a gallon of gas go up a dollar.
That affects everybody. When they have got to fill their tank
up where we live and drive miles to their job, if they are
making $10 or $11 or $12 an hour it may take an entire day's
work just to get to and from work.
And that is why we have to do that. And there are estimates
out there, with people a lot smarter than I am, that say in the
next 8 to 10 years we can create 2-1/2 to 5 million
manufacturing jobs if we become energy independent. And let me
tell you, the American worker is the best worker in the world.
And I was in China a year--a little over a year ago. And it
struck me when I was in Beijing, you know they have done a lot
of building. You hear all about China.
That country has 1.4 billion, with a ``B,'' people. The
United States of America has 300 million people, and we produce
more goods and services than they do. The best worker in the
world in the American, and the most productive. We have got to
give them the tools in which to do that. And I really think
recreation of the middle class will solve a lot of these
problems for us going forward. I am concerned. Right now, I
have got to share some real frustration with me in my job right
now.
I spent 30 years, over 30 years practicing medicine. There
is one hospital system in my state that because of what is
going on in health care right now is going to have to make a
$250 million cut. We have just lost 50 residency slots, how we
train young doctors in the community I live in Johnson City,
Tennessee. This is going on all over the country, the effects
of the Affordable Care Act. We need to step back and re-look at
that.
It is affecting the economy. We have had a hospital close
in southwest Virginia, very close. It will close the 1st of
October, this year. I look forward to working with you all. I
appreciate very much all of the input from the members. And you
all did a great job. I appreciate you being here.
With no further business, this hearing is adjourned.
[Whereupon, at 11:37 a.m., the subcommittee was adjourned.]
APPENDIX
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Material Submitted for the Hearing Record
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