[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
PROTECTING THE RIGHT TO ORGANIZE ACT:
MODERNIZING AMERICA'S LABOR LAWS
=======================================================================
HEARING
before the
SUBCOMMITTEE ON HEALTH, EMPLOYMENT, LABOR, AND PENSIONS
COMMITTEE ON EDUCATION
AND LABOR
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
__________
HEARING HELD IN WASHINGTON, DC, JULY 25, 2019
__________
Serial No. 116-37
__________
Printed for the use of the Committee on Education and Labor
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: www.govinfo.gov
or
Committee address: https://edlabor.house.gov
______
U.S. GOVERNMENT PUBLISHING OFFICE
37-329 WASHINGTON : 2020
COMMITTEE ON EDUCATION AND LABOR
ROBERT C. ``BOBBY'' SCOTT, Virginia, Chairman
Susan A. Davis, California Virginia Foxx, North Carolina,
Raul M. Grijalva, Arizona Ranking Member
Joe Courtney, Connecticut David P. Roe, Tennessee
Marcia L. Fudge, Ohio Glenn Thompson, Pennsylvania
Gregorio Kilili Camacho Sablan, Tim Walberg, Michigan
Northern Mariana Islands Brett Guthrie, Kentucky
Frederica S. Wilson, Florida Bradley Byrne, Alabama
Suzanne Bonamici, Oregon Glenn Grothman, Wisconsin
Mark Takano, California Elise M. Stefanik, New York
Alma S. Adams, North Carolina Rick W. Allen, Georgia
Mark DeSaulnier, California Lloyd Smucker, Pennsylvania
Donald Norcross, New Jersey Jim Banks, Indiana
Pramila Jayapal, Washington Mark Walker, North Carolina
Joseph D. Morelle, New York James Comer, Kentucky
Susan Wild, Pennsylvania Ben Cline, Virginia
Josh Harder, California Russ Fulcher, Idaho
Lucy McBath, Georgia Van Taylor, Texas
Kim Schrier, Washington Steve Watkins, Kansas
Lauren Underwood, Illinois Ron Wright, Texas
Jahana Hayes, Connecticut Daniel Meuser, Pennsylvania
Donna E. Shalala, Florida William R. Timmons, IV, South
Andy Levin, Michigan* Carolina
Ilhan Omar, Minnesota Dusty Johnson, South Dakota
David J. Trone, Maryland Fred Keller, Pennsylvania
Haley M. Stevens, Michigan
Susie Lee, Nevada
Lori Trahan, Massachusetts
Joaquin Castro, Texas
* Vice-Chair
Veronique Pluviose, Staff Director
Brandon Renz, Minority Staff Director
------
SUBCOMMITTEE ON HEALTH, EMPLOYMENT, LABOR, AND PENSIONS
FREDERICA S. WILSON, Florida, Chairwoman
Donald Norcross, New Jersey Tim Walberg, Michigan
Joseph D. Morelle, New York Ranking Member
Susan Wild, Pennsylvania David P. Roe, Tennessee
Lucy McBath, Georgia Rick W. Allen, Georgia
Lauren Underwood, Illinois Jim Banks, Indiana
Haley M. Stevens, Michigan Russ Fulcher, Idaho
Joe Courtney, Connecticut Van Taylor, Texas
Marcia L. Fudge, Ohio Steve C. Watkins, Jr., Kansas
Josh Harder, California Ron Wright, Texas
Donna E. Shalala, Florida Dan Meuser, Pennsylvania
Andy Levin, Michigan Dusty Johnson, South Dakota
Lori Trahan, Massachusetts
(VACANT)
C O N T E N T S
----------
Page
Hearing held on July 25, 2019.................................... 1
Statement of Members:
Walberg, Hon. Tim, Ranking Member, Subcommittee on Health,
Employment, Labor, and Pensions............................ 5
Prepared statement of.................................... 6
Wilson, Hon. Frederica S., Chairwoman, Subcommittee on
Health, Employment, Labor, and Pensions.................... 1
Prepared statement of.................................... 4
Statement of Witnesses:
Alvarez, Mr. Josue I., Misclassified Truck Driver for XPO
Logistics.................................................. 27
Prepared statement of.................................... 29
Garden, Ms. Charlotte, J.D. LL.M, Co-Associate Dean for
Research and Faculty Development and Associate Professor,
Seattle University School of Law........................... 8
Prepared statement of.................................... 11
Griffin, Mr. Richard F. Jr., J.D. Counsel, Bredhoff and
Kaiser, P.L.L.C............................................ 49
Prepared statement of.................................... 51
King, Mr. G. Roger, Senior Labor and Employment Counsel, HR
Policy Association......................................... 32
Prepared statement of.................................... 34
Additional Submissions:
Foxx, Hon. Virginia, a Representative in Congress from the
State of North Carolina:
Article: Big Labor's Big Shrink.......................... 73
Mr. King:
Citation: 105 Cong. Rec. 5361 (1959)..................... 95
Prepared statement....................................... 150
Norcross, Hon. Donald, a Representative in Congress from the
State of New Jersey:
Chart: Productivity Growth and Hourly Compensation
Growth, 1948-2015...................................... 78
Mr. Walberg:
Letter dated April 12, 2019 from Congress of the United
States................................................. 165
Letter dated May 16, 2019 from the Chamber of Commerce of
the United States of America........................... 146
Letter dated June 10, 2019 from Coalition for a
Democratic Workplace................................... 134
Letter dated July 24, 2019 from the International
Franchise Association (IFA)............................ 139
Letter dated July 24, 2019 from the National Association
of Home Builders (NAHB)................................ 141
Letter dated July 24, 2019 from the Internet Association. 174
Letter dated July 24, 2019 from TECHNET.................. 176
Letter dated July 24, 2019 from the Coalition for
Workforce Innovation (CWI)............................. 182
Article: A Record Expansion's Surprise Winners: The Low-
Skilled................................................ 184
Letter dated July 25, 2019 from the American Hotel and
Lodging Association (AHLA)............................. 143
Letter dated July 25, 2019 from the Associated Builders
and Contractors (ABC).................................. 144
Article: Faster Growth Is Paying Off for Low-Skilled
Workers................................................ 188
Chart: Right To Work States Benefit From Faster Growth,
Higher Real Purchasing Power - Winter 2019 Update...... 191
Report: Did right-to-work laws impact inequality?........ 193
Article: The 99% Get a Bigger Raise...................... 229
Article: The Link Between Wages and Productivity Is
Strong................................................. 231
Chairwoman Wilson:
Letter dated July 15, 2019 from Amalgamated Transit Union 106
Letter dated July 22, 2019 from LiUNA.................... 243
Letter dated August 7, 2019 from International
Brotherhood of Teamsters............................... 107
Prepared statement from United Steelworkers (USW)........ 129
Questions submitted for the record
Responses to questions submitted for the record by:
Ms. Garden............................................... 248
Mr. Griffin.............................................. 252
PROTECTING THE RIGHT TO ORGANIZE ACT:
MODERNIZING AMERICA'S LABOR LAWS
----------
Thursday, July 25, 2019
House of Representatives,
Subcommittee on Health,
Employment, Labor, and Pensions,
Committee on Education and Labor,
Washington, D.C.
The subcommittee met, pursuant to call, at 10:15 a.m., in
Room 2175, Rayburn House Office Building, Hon. Frederica Wilson
[chairwoman of the subcommittee] presiding.
Present: Representatives Wilson, Norcross, Morelle, Wild,
McBath, Underwood, Stevens, Courtney, Harder, Shalala, Levin,
Trahan, Scott Walberg, Roe, Allen, Fulcher, Taylor, Wright,
Meuser, Johnson, and Keller..
Also Present: Representatives Foxx and Kennedy
Staff Present: Tylease Alli, Chief Clerk; Jordan Barab,
Senior Labor Policy Advisor; Ilana Brunner, General Counsel;
Kyle deCant, Labor Policy Counsel; Emma Eatman, Press
Assistant; Mishawn Freeman, Staff Assistant; Eli Hovland, Staff
Assistant; Eunice Ikene, Labor Policy Advisor; Stephanie Lalle,
Deputy Communications Director; Andre Lindsay, Staff Assistant;
Jaria Martin, Clerk/Assistant to the Staff Director; Kevin
McDermott, Senior Labor Policy Advisor; Richard Miller,
Director of Labor Policy; Max Moore, Office Aide; Veronique
Pluviose, Staff Director; Banyon Vassar, Deputy Director of
Information Technology; Katelyn Walker, Counsel; Courtney
Butcher, Minority Director of Coalitions and Members Services;
Akash Chougule, Minority Professional Staff Member; Cate
Dillon, Minority Staff Assistant; Rob Green Minority Director
of Workforce Policy; Bridget Handy, Minority Communications
Assistant; John Martin, Minority Workforce Policy Counsel;
Hannah Matesic, Minority Director of Operations; Audra
McGeorge, Minority Communications Director; Carlton Norwood,
Minority Press Secretary; Brandon Renz, Minority Staff
Director; and Ben Ridder, Minority Professional Staff Member.
Also Present: Representatives Kennedy and Keller.
Chairwoman Wilson. Good morning.
The Subcommittee on Health, Employment, Labor, and Pensions
will now come to order. Welcome, everyone. I note that a quorum
is present. I note for the subcommittee that Representative
Fred Keller of Pennsylvania be permitted to participate in
today's hearing. I also note for the subcommittee that
Representative Joseph Kennedy of Massachusetts will be
participating in today's hearing with the understanding that
his questions will come only after all members of the HELP
Subcommittee, and any members of the full committee on both
sides of the aisle who are present have had an opportunity to
question the witnesses.
Thank you for joining us.
The subcommittee is meeting today in a legislative hearing
to receive testimony on Protecting the Right to Organize Act:
Modernizing America's Labor Laws. We call it the PRO Act.
Pursuant to Committee Rule 7(c), opening statements are
limited to the Chair and the Ranking Member. This allows us to
hear from our witnesses sooner, and provides all members with
adequate time to ask questions. I recognize myself now for the
purpose of making an opening statement.
Today, we are gathered for a legislative hearing on how the
Protecting the Right to Organize Act, or PRO Act, would protect
workers' rights to organize unions in the modern economy.
We had a hearing on the PRO Act just a few months ago. It
is rare to have a second hearing so soon. But here we are
today, making this issue, that is so important. This is a fight
that we must engage in together on behalf of our hard-working
Americans. They are our constituents, and they are counting on
us to fight for them so that they can, in turn, fight for
themselves and their families; fight to earn decent wages and
benefits that enable them to care for their families, extended
families, and for themselves.
And I want to implore all of my colleagues on the committee
to become co-sponsors of this legislation, and then encourage
all of the members of their respective delegations to sign on
so that we can get this bill to the floor.
Talk about this legislation during the August recess. I
recently made a presentation before the Teamsters so we can get
the word out to workers that we are on their side. This is a
fight that we must fight in a consistent manner; and if we have
to hold a third hearing on why the PRO Act is so urgently
needed, we will do that.
So, let's do everything we can to keep the public, our
congressional colleagues, the National Labor Relations Board,
and others, informed until everyone understands just how
important this legislation is.
Unions are essential for there to be dignity in and on the
job. Protecting the right to organize is critical for reversing
decades of wage stagnation and income inequality. Yet, the
rapidly changing relationship between employers and employees
is undermining workers' ability to negotiate for better wages,
benefits, and working conditions. Today's workers are
increasingly hired not as full-time employees with middle-class
jobs, but as independent contractors and permatemps.
As our witnesses will testify today, employers exploit
ambiguities and loopholes in the NLRA to prevent their
employees from organizing unions, even though those employers
control the terms and conditions of employment for their
subcontracted employers. Rather than working to strengthen the
right to organize in this changing economy, corporate interests
and their allies in the Trump administration are exploiting
weaknesses in this outdated law to aid their assault on
workers' rights.
For example, under the Trump administration, the National
Labor Relations Board has further enabled employers to
misclassify their employees. Earlier this year, the NLRB denied
SuperShuttle drivers employee status because of their alleged
entrepreneurial opportunity, even though SuperShuttle
prohibited workers from using their vehicles to work for any
competitor.
And what if a worker has multiple employers? As our
witnesses will testify, for many workers, the name on the door
of the building where they work is not the name of the company
that signs their paycheck. Thanks to the 2015 NLRB decision,
known as Browning-Ferris, both the user of permatemps and the
supplier of permatemps can have a responsibility to
collectively bargain with employees, since they jointly control
directly and through contractual provisions. These terms and
conditions of employment for permatemps, that joint control,
makes them joint employers.
However, despite an appeals court ruling that affirming
this decision on the definition of a joint employer, the Trump
administration is continuing its efforts to obliterate the
court's direction through rulemaking.
As the workplace becomes increasingly splintered, we must
protect employees' First Amendment rights to free speech and
protests, in addition to preventing employers from invading
their legal obligations. The NLRA currently impairs workers'
First Amendment rights by barring them from protesting for
their right to unionize, and from standing in solidarity with
workers from other employers, which would be otherwise
constitutionally protected. These laws prevent workers from
peacefully protesting companies that do business with
unscrupulous employers.
As work relationships become more complicated, the First
Amendment becomes even more essential for those workers to
advocate for better pay and better conditions. But the Trump
administration is seizing upon current law to further undermine
workers' rights. The Republican General Counsel of the NLRB
recently argued that workers break the law when they use
balloon animals while peacefully protesting. This makes a
mockery of our First Amendment.
The organization of the workplace becomes even more
splintered, and employers are able to exploit these
arrangements to eviscerate workers' rights. The Federal
government has a responsibility to ensure that labor law
continues to protect workers. The PRO Act would help achieve
this goal by modernizing labor law to meet the challenges
facing today's workers.
The PRO Act would prevent the misclassification of
employees by codifying a clear standard for when a worker is an
employee or an independent contractor. The PRO Act also
clarifies the standard for determining joint employment so that
employers cannot evade their obligations under labor law. By
codifying the NLRB's current standard, workers can hold each of
their employees accountable under the law, and the PRO Act
protects workers' First Amendment rights by repealing
prohibitions on peaceful union picketing to guarantee
organizing workers the same freedom of speech to which all
Americans have a right.
By passing the PRO Act, Congress and this committee would
modernize our Nation's foundational labor law to ensure that
all workers can join together and bargain with employers for
better pay and working conditions. I look forward to hearing
from our witnesses and the discussion that will ensue.
I now recognize the Ranking Member, Mr. Walberg, for an
opening statement, the esteemed Mr. Walberg.
[The statement of Ms. Wilson follows:]
Prepared Statement of Hon. Frederica S. Wilson, Chairwoman,
Subcommittee on Health, Employment, Labor, and Pensions
Today, we are gathered for a legislative hearing on how the
Protecting the Right to Organize Act, or PRO Act, would protect
workers' rights to organize unions in the modern economy.
Unions are essential for there to be dignity in the on the job.
Protecting the right to organize is critical for reversing decades of
wage stagnation and income inequality.
Yet, the rapidly changing relationship between employers and
employees is undermining workers' ability to negotiate for better
wages, benefits, and working conditions. Today's workers are
increasingly hired--not as full-time employees with middle class jobs--
but as independent contractors and permatemps.
As our witnesses will testify, employers exploit ambiguities and
loopholes in the N-L-R-A to prevent their employees from organizing
unions--even though those employers control the terms and conditions of
employment for their subcontracted employees.
Rather than working to strengthen the right to organize in this
changing economy, corporate interests and their allies in the Trump
administration are exploiting weaknesses in this outdated law to aid
their assault on workers' rights.
For example, under the Trump Administration, the National Labor
Relations Board, or N-L-R-B, has further enabled employers to
misclassify their employees. Earlier this year, the N-L-R-B denied
SuperShuttle drivers employee status because of their alleged
``entrepreneurial opportunity,'' even though SuperShuttle prohibited
workers from using their vehicles to work for any competitor.
And what if a worker has multiple employers? As our witnesses will
testify, for many workers, the name on the door of the building where
they work is not the name of the company that signs their paycheck.
Thanks to a 2015 N-L-R-B decision, known as Browning-Ferris, both
the user of permatemps and the supplier of permatemps would have a
responsibility to collectively bargain with employees, since they
jointly control-- directly and through contractual provisions--the
terms and conditions of employment for permatemps. That joint control
makes them ``joint employers.''
However, despite an Appeals Court ruling that affirming this
decision on the definition of a joint employer, the Trump
administration is continuing its efforts to obliterate the court's
direction through a rulemaking.
As the workplace becomes increasingly fissured, we must protect
employees' First Amendment rights to free speech and protest, in
addition to preventing employers from evading their legal obligations.
The N-L-R-A currently impairs workers' First Amendment rights by
barring them from protesting for their right to unionize and from
standing in solidarity with workers from other employers, which would
be otherwise constitutionally protected.
These laws prevent workers from peacefully protesting companies
that do business with unscrupulous employers. As work relationships
become more complicated, the First Amendment becomes even more
essential for those workers to advocate for better pay and conditions.
But the Trump administration is seizing upon current law to further
undermine workers' rights. The Republican General Counsel of the N-L-R-
B recently argued that workers break the law when they use balloon
animals while peacefully protesting. This makes a mockery of our First
Amendment.
The organization of the workplace becomes even more fissured and
employers are able to exploit these arrangements to eviscerate workers'
rights. The federal government has a responsibility to ensure that
labor law continues to protect workers.
The PRO Act would help achieve this goal by modernizing labor law
to meet the challenges facing today's workers.
The PRO Act would prevent the misclassification of employees by
codifying a clear standard for when a worker is an employer or an
independent contractor.
The PRO Act also clarifies the standard for determining joint
employment so that employers cannot evade their obligations under labor
law. By codifying the N-L-R-B's current standard, workers can hold each
of their employers accountable under the law.
And, the PRO Act protects workers' First Amendment rights by
repealing prohibitions on peaceful union picketing, to guarantee
organizing workers the same freedom of speech to which all Americans
have a right.
By passing the PRO Act, Congress and this Committee would modernize
our nation's foundational labor law to ensure that all workers can join
together and bargain with employers for better pay and working
conditions.
I look forward to hearing from out witnesses today and the
discussion that will ensue. I now recognize the Ranking Member, Mr.
Walberg, for an opening statement.
______
Mr. Walberg. I thank the gentlelady.
And I thank you for this hearing. I think this is going to
be a good hearing, and I appreciate the opportunity for the
give and take that will go on.
Thanks to a skyrocketing economy -- and I think that is
evident all across the board -- propelled by recent tax cuts,
innovation, regulatory reform, and American enterprise with
great workers throughout the country doing the jobs that only
they can do, workers throughout this country are experiencing
record-breaking success and opportunity.
While workers' lives are improving, union membership rates
have steadily plummeted, suggesting what Democrats refused to
acknowledge, that strong workers, strong union workers, as
well, and not strong union bosses lead to economic prosperity.
Workers' disenchantment with union representation has created a
real crisis for union leaders who, instead of increasing
transparency and accountability to serve their members better,
continued to exert their political influence by demanding
radical national labor laws.
Union bosses and the Democrats who have their support want
to use the power of government to further consolidate control,
coerce workers, and bolster their personal agendas; and as
evidenced by steadily declining union membership rates, that
doesn't sit well with American workers.
The bill we are here to discuss today, H.R. 2474, the
Protecting the Right to Organize Act, or the PRO Act, is a
sweeping labor union boss wish list designed to appeal to
liberal Democrat primary voters, rather than American workers
in a modern workplace. This legislation is based not on the
innovative 21st century economy we are fortunate enough to
enjoy today, but on the economic and workplace realities of the
1930s when my father was helping to organize labor at steel
mills in Chicago. It increases the coercive power of big labor
at the expense of workers and business owners.
Among the list of dangerous one-sided provisions, the bill
contains a card check scheme, the same undemocratic concept
that was rejected by Congress the last time Democrats were in
power. If a union loses an election, the legislation requires
employers to prove they did not interfere in the election's
results, a nearly-impossible standard to demonstrate, which
defies our nation's long-held principle that you are innocent
until proven guilty.
If an employer is unable to prove that it didn't interfere,
a union is automatically ushered into the workplace without
ever winning a secret ballot election. Americans select their
representation in Congress by secret ballot, and congressional
Democrats select their own leadership by secret ballot. But
today, they seek to deny the same right to Americans in the
workplace. Where is the logic in that?
Remarkably, the bill also requires employers to turn over
workers' personal information. I wouldn't want that. The
workers I know don't want that. They don't want me to know
their personal information, or call their personal phone cells.
This information includes their home addresses, cell phone and
land line numbers, personal email addresses, and more without
workers ever having a say in the matter. It also bans state
right-to-work laws, enacted by state legislators and/or
citizens to allow workers to decide for themselves whether to
join and pay a union, laws that have resulted in more jobs and
higher incomes for workers since being enacted in 27 states,
including my home state of Michigan.
The radical and coercive policies in this legislation are
blatantly anti-worker and blatantly pro-union boss. Democrats
are claiming that this bill will modernize labor law. In
reality, H.R. 2474 amounts to little more than forcing more
workers into one-size-fits-all union contracts, and returning
to a stale and old-fashioned 1930s-era view of the American
economy and workforce.
Unlike this antiquated, anti-growth special interest
viewpoint, Republicans believe that true modernization means
expanding entrepreneurial opportunity and embracing flexible
work arrangements and ensuring that union bosses are truly
accountable to the workers they claim to represent.
There is nothing progressive or modern about what Democrats
are proposing in this bill. History has shown us that
individual opportunity, innovation, and economic growth are
what lead to real progress and prosperity for American workers.
Americans are benefiting from the strong economy ushered in by
Republican-led tax and regulatory reform. Wages are rising,
unemployment is at near-record lows, and millions of jobs have
been created since President Trump took office.
But the anti-worker freedom bill being discussed today
would threaten this progress. Instead of more freedom and
opportunity, it promises more coercion and red tape.
Republicans on this committee will continue to stand with
workers and promote individual freedom and pro-growth economic
policies as the best path forward for workers, the best workers
in the world, and job seekers for increased jobs throughout
this country.
As I said, Madam Chairwoman, I appreciate this hearing. It
will be good discussion, even with disagreement; but we have to
recognize the reality of what we are doing.
And I yield back.
[The statement of Mr. Walberg follows:]
Prepared Statement of Hon. Tim Walberg, Ranking Member, Subcommittee on
Health, Employment, Labor, and Pensions
Thanks to a skyrocketing economy propelled by recent tax cuts,
innovation, and American enterprise, great workers throughout the
country are experiencing record-breaking success. While workers' lives
are improving, union membership rates have steadily plummeted,
suggesting what Democrats refuse to acknowledge: that strong workers-
strong union workers as well- and not strong union bosses, lead to
economic prosperity. Workers' disenchantment with union representation
has created a real crisis for union leaders, who instead of increasing
transparency and accountability to serve their members better, continue
to exert their political influence by demanding radical national labor
laws. Union bosses--and the Democrats who have their support--want to
use the power of government to further consolidate control, coerce
workers, and bolster their personal agendas. And as evidenced by
steadily declining union membership rates, that doesn't sit well with
American workers.
The bill we're here to discuss today, H.R. 2474, the Protecting the
Right to Organize Act (PRO Act), is a sweeping labor union boss wish-
list designed to appeal to liberal Democrat primary voters rather than
American workers in a modern workplace. This legislation is based not
on the innovative 21st century economy we are fortunate enough to enjoy
today, but on the economic and workplace realities of the 1930's, when
my father was helping organize labor at the steel mills in Chicago, and
it increases the coercive power of Big Labor at the expense of workers
and business owners.
Among a list of dangerous one-sided provisions, the bill contains a
``card-check'' scheme, the same undemocratic concept that was rejected
by Congress the last time Democrats were in power. If a union loses an
election, the legislation requires employers to prove they did not
interfere in the election's results--a nearly impossible standard to
demonstrate, which defies our nation's long-held principle that you are
innocent until proven guilty. If an employer is unable to prove that it
didn't interfere, a union is automatically ushered into the workplace,
without ever winning a secret ballot election. Americans select their
representation in Congress by secret ballot, and Congressional
Democrats select their own leadership by secret ballot, but today they
seek to deny that same right to Americans in the workplace. Where is
the logic in that?
Remarkably, the bill also requires employers to turn over workers'
personal information. I wouldn't want that. The workers I know don't
want that. This information includes their home addresses, cellphone
and landline numbers, personal email addresses, and more--without
workers ever having a say in the matter. It also bans state right-to-
work laws, enacted by state legislators and/or citizens, that allow
workers to decide for themselves whether to join and pay a union--laws
that have resulted in more jobs and higher incomes for workers since
being enacted in 27 states, including my home state of Michigan.
The radical and coercive policies in this legislation are blatantly
anti-worker, and blatantly pro-union boss. Democrats are claiming that
this bill will ``modernize'' labor law. In reality, H.R. 2474 amounts
to little more than forcing more workers into one-size-fits-all union
contracts and returning to a stale and old-fashioned 1930s-era view of
the American economy and workforce. Unlike this antiquated, anti-
growth, special interest viewpoint, Republicans believe that true
modernization means expanding entrepreneurial opportunity and embracing
flexible work arrangements and ensuring that union bosses are truly
accountable to the workers they claim to represent.
There is nothing ``progressive'' or ``modern'' about what the
Democrats are proposing in this bill. History has shown us that
individual opportunity, innovation, and economic growth are what lead
to real progress and prosperity for American workers.
Americans are benefiting from the strong economy ushered in by
Republican-led tax and regulatory reform. Wages are rising,
unemployment is at near-record lows, and millions of jobs have been
created since President Trump took office.
But the anti-worker bill being discussed today would threaten this
progress. Instead of more freedom and opportunity, it promises more
coercion and red tape. Republicans on this Committee will continue to
stand with workers and promote individual freedom and pro-growth
economic policies as the best path forward for workers and job-seekers
throughout the country.
______
Chairwoman Wilson. Thank you, Mr. Walberg.
Without objection, all other members who wish to insert
written statements into the record may do so by submitting them
to the committee clerk electronically in Microsoft Word format
by 5:00 p.m. on August 7, 2019.
I will now introduce our witnesses. Welcome to you, and
thank you so much for coming.
Ms. Charlotte Garden is a Professor of Labor and
Constitutional Law at Seattle University School of Law.
Welcome.
Mr. Josue Alvarez is a truck driver for XPO Logistics from
Bell Gardens, California. Thanks for traveling so far.
Mr. Roger King is a Senior Labor and Employment Counsel
with the HR Policy Association. Thank you.
Mr. Richard F. Griffin, Jr., is of counsel at the law firm
of Bredhoff & Kaiser, PLLC. He also served as a Board Member
and as General Counsel for the National Labor Relations Board.
Welcome.
We appreciate all of the witnesses for being here today,
and we all look forward to your testimony. Let me remind the
witnesses that we have read your written statements, and they
will appear in full in the hearing record.
Pursuant to committee rule 7(d) and committee practice,
each of you is asked to limit your oral presentation to a five-
minute summary of your written statement.
Let me also remind the witnesses that pursuant to Title 18
of the U.S. Code, Section 101, it is illegal to knowingly and
willfully falsify any statement, representation, writing,
document, or material fact presented to Congress, or otherwise
conceal or cover up a material fact.
Before you begin your testimony, please remember to press
the button on the microphone in front of you so that it will
turn on and the members can hear you. As you begin to speak,
the light in front of you will turn green. After 4 minutes, the
light will turn yellow, to signal that you have one minute
remaining. When the light turns red, your five minutes have
expired; and we ask that you please wrap it up so I will not
have to gavel you.
We will let the entire panel make their presentations
before we move to member questions. When answering a question,
please remember to, once again, turn your microphone on.
I will first recognize Ms. Garden.
STATEMENT OF CHARLOTTE GARDEN, J.D., LL.M, CO-ASSOCIATE DEAN
FOR RESEARCH & FACULTY DEVELOPMENT AND ASSOCIATE PROFESSOR,
SEATTLE UNIVERSITY SCHOOL OF LAW
Ms. Garden. Thank you.
Madam Chair Wilson, Ranking Member Walberg, and members of
the subcommittee, thank you for the opportunity to testify
today about the need to expand the protections of labor law,
and to ensure that workers and unions can robustly exercise
their First Amendment rights to engage in collective action.
My name is Charlotte Garden. I am an associate professor at
Seattle University School of Law, where I teach labor law and
constitutional law.
My testimony today focuses on two reasons that the NLRA
falls short of its promise to restore to workers equality of
bargaining power and full freedom of association. First, the
NLRA curtails workers' and unions' rights of free speech,
association, and assembly, by prohibiting certain secondary
protests. Second, it doesn't do enough to respond to workplace
fissuring, including through subcontracting and
misclassification.
I want to make two points regarding the NLRA's ban on
certain secondary activity, which generally covers strikes and
picketing, aimed at persuading businesses or consumers not to
do business with an employer with whom a union has a labor
dispute.
First, in fissured workplaces, this restriction can force
workers to act irrationally, focusing their attention on the
small entities that are technically their employers, rather
than the larger entities that exercise the most effective
control over their working conditions. Second, this restriction
on how workers and unions can protest is in tension with modern
First Amendment case law.
Both points are illustrated by a recent NLRB decision in
Preferred Building Services. In Preferred, a group of janitors
supported by a labor union picketed and passed out literature
detailing bad treatment they had faced at work including,
sexual harassment by their supervisor.
Naturally, they did this outside the place they went to
work every day. That was an office building managed by a
company called Harvest, but Harvest didn't employ the janitors
directly. Instead, it contracted with Preferred Building
Services, which, in turn, contracted with a smaller janitorial
company called OJS. It was OJS that signed the workers'
paychecks, and it was OJS that fired the workers shortly after
they sought to draw attention to harassment and the other
problems they faced at work.
An administrative law judge found that the workers should
get their jobs back and other relief; but the NLRB disagreed,
concluding that the workers picketing lost NLRA protection
because it sought to coerce Harvest or building tenants.
To say the least, it is counterintuitive that labor law
would not protect workers picketing at their job site to
improve fundamental working conditions, such as the right to
work free of sexual harassment. But in the modern economy,
large companies often contract out parts of their operations,
including their janitorial services, sometimes to small firms
that work for a small number of clients or maybe just one
client.
In this scenario, the large companies maintain effective
control over wages and working conditions. So, if you imagine a
small janitorial firm that squeezed between workers demanding
higher pay, and a main client demanding lower overhead, I know
which side will win every time. Yet, labor law expects workers
to keep their picketing focused on their small employer, and
not the large company that employer contracts with.
In short, law allows employers to strategically manage
their operations through interconnected contractual
relationships. It shouldn't then limit how workers respond to
the effects of those relationships.
Second, the NLRA's prohibition on secondary activity raises
serious First Amendment problems. Those problems are especially
apparent in recent cases. For example, the Board's General
Counsel's office has recently argued that unions' use of
inflatable rats and other animals either qualifies as picketing
or is otherwise coercive, and that these balloons violate the
NLRA when used for a secondary purpose.
In one recent case, the General Counsel's office argued
that a, quote, ``huge, menacing inflatable rat placed near a
business entrance . . . inherently conveys a threatening and
coercive message that will restrain a person.'' But even more
restrained interpretations of the NLRA's secondary activity ban
raised serious First Amendment problems that have only deepened
in recent years. The Supreme Court has struck down limits on
other forms of protest, including civil rights boycotts,
picketing at funerals, and anti-abortion sidewalk counseling.
It has increasingly found that legal restrictions on the speech
of corporate entities are suspect. Yet, the secondary activity
ban limits what unions can say on picket signs, ignoring the
reality that today, union pickets rely on moral persuasion
rather than coercion.
The PRO Act appropriately responds to these problems by
excising limits on secondary and recognitional protests under
the NLRA, and it blunts some forms of workplace fissuring by
adopting a more straightforward and predictable method of
distinguishing employees from independent contractors and
retaining the current definition of joint employer.
Thank you for the opportunity to testify.
[The statement of Ms. Garden follows:]
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Chairwoman Wilson. Thank you, Ms. Garden.
We will now recognize Mr. Alvarez.
Welcome, Mr. Alvarez.
STATEMENT OF JOSUE ISRAEL ALVAREZ, MISCLASSIFIED TRUCK DRIVER
FOR XPO LOGISTICS
Mr. Alvarez. Thank you, Chairwoman Wilson and Ranking
Member Walberg.
My name is Josue Alvarez from Bell Gardens, California. I
am 26 years old, and I am a misclassified truck driver at XPO
Logistics.
I am honored to speak with you today about the Protecting
the Right to Organize Act. My parents came to the United States
from El Salvador in search of a better future. Growing up, my
father had many jobs, but struggled to make ends meet. We lived
in a cramped one-bedroom apartment shared with other families.
It was difficult. My dad and I worked for a $15 billion global
corporation called XPO Logistics.
We know that these companies have scams to hide their
responsibilities to the workers. One scam is calling drivers
who own or lease trucks independent contractors, but then
controlling them just like any employee. This is known as
misclassification. The other scam is completely avoiding any
responsibility to a driver who works for them and drive someone
else's trucks, usually at the nightshift. They call this driver
a second sheet driver. Whatever they call us, at the end of the
day, we are all experienced employees, while XPO gets away with
wage theft and union busting.
I didn't always want to be a truck driver. I tried to
finish my degree in aviation administration, and have a dream
of becoming a pilot, but those dreams are becoming more
difficult. I became my dad's second seat driver in hope that my
extra income would not only help my family, but also further my
education. That has not been the case. With the income I bring
home, I cover costs like cell phone and Internet, so my two
younger brothers can focus on their education. I am slowly
trying to finish my degree, but it is hard when you have to
work 14 hours a day and at the company's mercy.
I cannot say now just how much misclassification has badly
impacted not just my life, but also the thousands of other
misclassified drivers and their families. As a second seat
driver, you are paying cash per load. You have no access to
benefits, work nights often, and receive the worst dispatches.
Whenever an issue arises, we bring them to XPO management. They
turn us away and tell us that the truck owner is our boss but
XPO controls our work. They dispatch us. They tell us when to
go and where, and they decide how much we get paid. Controls
all relations with customers, including the type of service
provided, how much the customer is charged, and the
appointments when to pick up the container.
My truck says XPO on it. I wear an XPO vest every day. It
is clear who the boss is here. It is XPO. If something happens
while we are on the road, we immediately have to report it to
dispatch and wait for instructions.
One time I was passing through a scale for an inspection. I
was issued a citation from DOT and given a report to return to
dispatch. This citation falls into XPO since it is XPO's DOT
member, but XPO has their own internal point system used to
discipline us. For this instance, I received 55 points. Once
you hit 75 points, you are terminated.
Last year, I purchased my own truck. You may be wondering
why, knowing the struggle involved. The answer is that XPO
misled me. They told me that they were going to get a bunch of
new accounts and work was going to pick up significantly. That
ended up not being the case. We haven't seen these new
accounts, and work has not picked up. Now I am stuck with this
truck. XPO does what it can to fool workers into buying into
this business. They try to sell you a dream. My paycheck comes
with a statement attached, telling me how much I make per load,
and then a list of deduction of insurance and miscellaneous
administration fees. I have no idea what some of these
administration costs really are, or if they are legitimate.
And because I am misclassified, XPO is able to push
operation costs like taxes, diesel, tags, and more onto me. My
dad and his coworkers tried to organize back in 2015, but XPO's
misclassification made it impossible to organize. Workers were
met with intimidation and retaliation against and were told
that they were independent contractors. An administrative law
judge issued her decision, finding us to be employees in 2018,
but XPO filed an appeal in the case and still it is still
unresolved.
The law needs to be changed so it will be easier to be
recognized as an employee. My dad tried to bring me around
organizing meetings at first. I wanted no part of it. I
believed XPO and their antiunion messaging. I was wrong. XPO is
wrong. I realize that things at XPO need to be changed. I don't
have health insurance. We don't have sick days or vacation
days. We should be able to go to a bargaining table and
negotiate higher pay and benefits, sick days, vacation days,
and agreement procedures. We are not asking for a lot. We are
asking for what is just and fair.
Being properly classified at XPO will mean that we can
finally form our union and bargain for the employee benefits
and protections that we have been denied. Our community, which
has long been exploited by this industry, could finally live
the middle-class life they came to this country for. My family
could finally make ends meet and even thrive. I could finally
go back to school and fulfill my dream of becoming a pilot. We
could finally achieve the American dream.
Thank you, and I am looking forward to your questions.
[The statement of Mr. Alvarez follows:]
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Chairwoman Wilson. Thank you so much, Mr. Alvarez.
We will now recognize Mr. King.
STATEMENT OF G. ROGER KING, SENIOR LABOR AND EMPLOYMENT
COUNSEL, HR POLICY ASSOCIATION
Mr. King. Thank you, Chair Wilson, Ranking Member Walberg,
members of the Subcommittee. Thank you for having me back.
Mr. Roe, nice to see you again.
Ms. Foxx, nice to see you.
And Committee Chair Scott, nice to see you also.
I am testifying here today on behalf of the Coalition for
Democratic Workplace. I am the Senior Labor Employment Counsel
for the HR Policy Association, and the association is a member
of CDW. CDW represents literally hundreds of thousands of
employers throughout the country, and millions of workers. The
HR Policy Association represents a good number of the major
companies in this country and their chief human resource
officers.
We are opposed to this bill. When I went through it the
other evening, I counted at least 30-plus negative provisions
that are biased, as mentioned by Mr. Walberg, toward not only
employers, but also employees. Also at least four Supreme Court
cases are overruled by this legislation. After reading the
professor's testimony the other day, I added another one
because, as she suggests, secondary boycotts would now be
illegal and would be overruled by the Supreme Court decision in
question.
This is a disturbing act. It amends the National Labor
Relations Act to radically change the definition of joint
employers. This body recently took the opposite direction. It
passed, on a bipartisan basis, a bill that went exactly the
other way and protected small business entities, particularly
franchisors and franchisees. I think many people in this
country will remember that vote, and this bill clearly is
repugnant to what this body did in that legislation.
Second, the bill radically changes the definition of
employee status under our Nation's labor laws, and blindly
accepts a perhaps California approach known as the ABC test. I
would note in passing, even California now is having trouble
with this proposal. The General Assembly in Sacramento is not
sure how to go. The courts are not sure how to go. They just
accepted another remand on this case. This is a bad proposal
that will hurt American workers.
The bill also mandates that arbitrators decide in initial
negotiations, if the parties can't agree, the terms of the
agreement if, in fact, a majority of employees in the unit have
signed cards. This is backdoor card check. This is something
this body, as Mr. Walberg mentioned, rejected. This is very
controversial, not a good idea, not favored by the public, not
favored by workers. Under this provision, the workers don't
even get a chance to vote on whether they would accept or
reject what the arbitrators come up with. Not a good idea.
Further, the bill without any premise or predicate
whatsoever would permit intermittent strikes. Why that is a
good idea, I have yet to hear anybody give me a good
explanation. Intermittent strikes cripple companies and
businesses. They are not good for workers.
The bill also would overrule, as mentioned, the right-to-
work legislation that has been enacted, Michigan, been
mentioned by Mr. Walberg, and other states. Let me give you a
practical consequence of that. An employee in one of those
states that refuses because of her or his very solid thinking
that they do not want to pay fees or dues to a union could be
ousted from employment because in that state now, a condition
of employment could be made to pay fees or dues.
The premise for this bill is wrong. The nation's labor laws
are not broken. The National Labor Relations Board is
functioning quite well.
If you look at the stats I have in my testimony, unions
have failed to organize. We are at a 75-year low for petitions
being filed in this country by unions, and the stats and the
papers speak for themselves. What really is interesting, when
you compare the number of potential workers in this country for
unionization in the private sector to the number of petitions
filed by unions in this country, it is less than one tenth of
one percent.
Let me emphasize it again. Unions are not devoting any
material resources to organizing. Before they come to this body
and ask for a lifeline, they should do their own work. They are
simply not doing that. That is a startling statistic, and even
labor union leaders are criticizing that fact. The AFL-CIO's
budget is devoting less and less resources to organizing, but
yet, they want you to bail them out. Not a good idea.
We oppose this bill and we think it is a very bad proposal,
not only for employers, but for employees and for our nation's
economy, because it is going to be a formula for disruption.
Thank you.
[The statement of Mr. King follows:]
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Chairwoman Wilson. Thank you, Mr. King.
We will now recognize Mr. Griffin.
STATEMENT OF RICHARD F. GRIFFIN, JR., J.D. OF COUNSEL, BREDHOFF
& KAISER, P.L.L.C.
Mr. Griffin. Madam Chair Wilson, Ranking Member Walberg,
and members of the committee, my name is Richard F. Griffin,
Jr. I was the General Counsel of the National Labor Relations
Board from November 2013 until the end of October 2017.
I want to state at the outset the central importance of
workers' rights to join together to form unions, and to engage
in collective bargaining to any fair economic system. Section 7
of the National Labor Relations Act beautifully articulates
these rights, but the rest of the Act does not fulfill Section
7's promise. Reform is needed. I will thus discuss here the
standards for determining independent contractors and joint
employers and injunctive relief.
Only employees as statutorily defined have the right to
engage in Section 7 activities. Thus, independent contractors
are not protected when they form a union and seek to engage in
collective bargaining. When I was General Counsel, the employee
status issue and the misclassification of employees occupied a
large amount of time and resources for the agency. The status
determination requires the application of a complicated 10-part
test. The Board in the D.C. Circuit disagreed over how to view
workers' potential entrepreneurial opportunity when applying
that test, with the Board focusing much more on whether
entrepreneurial opportunity was actually exercised.
Recently, the current Board in the SuperShuttle case
determined that all 10 common-law factors have to be examined
through the prism of potential economic opportunity. This
decision complicates the application of a difficult test,
expands the number of workers excluded from the Act's coverage,
and opens up the potential for employer manipulation. Employer
manipulation resulting in rampant misclassification of
employees as independent contractors is a real concern.
As an example, we had one case where an employer settled an
unfair labor practice charge by agreeing to post a notice,
advising its truck driver employees of their rights under the
Act, only to turn around and advise those same truck drivers
that the notice didn't apply to them because they were
independent contractors.
The PRO Act's three-part test is easy to apply and will
make such misclassification obvious and easily addressable.
On the joint employer question, everyone agrees that common
law applies. The fight is over what the common law requires.
Lost in the rhetoric is the changing nature of the workplace
and the need to put employees' representatives at the
bargaining table with the entities that have a right to control
the employees' conditions of employment. In the modern
workplace, the responsibility formerly performed by one
employer are now done by multiple entities. This calls for a
particularized application of all the common-law factors. The
prior Board did this in its Browning-Ferris decision. On the
other hand, the current Board is proposing a rule that would
limit the factors considered to possession and actual exercise
of substantial, direct, immediate control over the essential
terms and conditions of employment of another employer's
employees in a manner that is not limited and routine.
As an example of why this is a bad test, in a supplier/
employer, user/employer situation, where a temporary agency
supplies permatemps to a workplace, the user's supervisors
routinely mandate overtime for supplied employees. In
contemporary society where people hold multiple jobs, both
spouses are working, commuting distances are great, and child
and elder care responsibilities paramount, there are few more
essential determinations than whether a worker has to work
longer hours on a particular day than she or he planned.
In this context, the union representative seeking to
bargain voluntary overtime provisions, set schedules, the
equitable rotation of overtime, or advanced notice of schedule
changes has an impossible task if she is limited to seeking
such provisions from the supplier employer.
In this example, effective collective bargaining requires
the user employer to be represented at the bargaining table.
The Board's Browning-Ferris decision requires consideration of
routine repetitive control, along with indirect control and
reserved control. The PRO Act wisely would codify that
standard.
Finally, on injunctive relief, the Act's critics frequently
point to the inadequacy of its remedies. When combined with the
requirement to enforce Board orders in the courts of appeals,
final enforcement comes too late to be effective. The typical
worker will think twice about supporting a union if the
potential consequence is that she will be fired and have to
wait a long time to obtain legal redress.
Injunctive relief under sections 10(l) and 10(j) is a
powerful way to obtain quick relief. Section 10(l) requires
that relief be sought mandatorily, 10(j) is discretionary.
Section 10(l) has been very successful in essentially
eliminating the union unfair labor practices, the 8(b)s, that
it is addressed to eliminate. Virtually the only time that
Section 10(l) injunctions are sought these days is when general
counsels advance novel theories infringing on union First
Amendment rights, such as the current initiative seeking
injunctions against union's symbolic speech using inflatable
rats. The PRO Act incorporates mandatory language in Section
10(j), making the Board more capable of addressing violations
quickly and effectively.
Thank you for this opportunity to testify, Madam Chair.
[The statement of Mr. Griffin:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairwoman Wilson. Thank you, Mr. Griffin.
Under Committee Rule 8(a), we will now question witnesses
under the 5-minute rule. I will now yield myself 5 minutes.
Mr. Alvarez, because XPO industries misclassified you and
other drivers as independent contractors, you are not able to
be bargained -- you are not able to bargain for basic worker
protections like health insurance and sick pay. So, what
happens now when you or a fellow driver becomes sick or needs
time off?
Mr. Alvarez. We really have to think about it. It is just
like anytime, just like any -- before I take vacation or a day
off, XPO still pushes the operation, costing us, regardless we
go to work or not.
Chairwoman Wilson. How would organizing a union solve this
problem for and other drivers?
Mr. Alvarez. With the union help, we will be able to go to
our bargaining table and bargain those benefits that we have
been denied, for example, vacations and sick days. We should be
able to go to vacation and not come back to a negative check
every time.
Chairwoman Wilson. Okay. I want to thank you for your
courage to testify here today before this committee, and know
that we are going to fight for you. We will fight for you and
all Americans who want to exercise their rights to negotiate
for better pay and working conditions, and thank you for
standing up and coming today.
Mr. Griffin, I want to thank you for your public service
with the NLRB. During your time as General Counsel, you devoted
yourself to the core purposes of the National Labor Relations
Act, which are to protect workers' freedom of association and
promote the practice and procedure of collective bargaining. In
your testimony, you detailed the harm that misclassification
has done to employees, like Mr. Alvarez.
What are some of the ways that misclassification
independently violates workers' rights under the labor law, and
how would the PRO Act address this problem?
Mr. Griffin. Well, it is fundamental under the Act. If you
are an employee, you have rights, they are protected. If you
are an independent contractor, you don't have rights, you are
not protected. And so, if an employer deliberately takes
someone who has employee status and does not allow them to
exercise their rights by advising them that they are an
independent contractor, that they have no rights, it is a
fundamental violation of people's ability to engage in the
activities protected under Section 7.
In addition, it has a chilling effect on people's ability
to speak to each other, to engage in the type of concerted
activity that the Act protects, because they think they don't
have any rights. They are misinformed, misclassified, and it is
probably an extremely -- it is an extremely effective way to
deny people their rights.
And so what the PRO Act does, is it takes this 10-part test
that is very complicated and confusing, and makes it simple and
straightforward. And so if somebody misclassifies an employee,
it is very obvious under that three-part test what they have
done and so it makes it simpler to identify the
misclassification.
Chairwoman Wilson. Thank you.
Your testimony -- this is for Professor Garden.
Your testimony details how provisions of the NLRA curtails
workers' First Amendment free speech rights.
Do the reasons for those restrictions on workers' speech
including the so-called secondary activity as part of the Taft-
Hartley Act of 1947 hold up in today's workplace?
Ms. Garden. Thank you for that question.
I think there are two reasons that the reasons behind the
secondary boycott provision don't hold up today: One has to do
with law, and one has to do with the changing nature of work.
First, in 1959 when 8(b)(4) was adopted and then when it
was modified in 1959 -- I'm sorry -- 1947 -- when it was
adopted and modified in 1959, perhaps Congress could have
reasonably seen picket lines as coercive. At the time, refusing
to cross a picket line could mean the ability to -- could mean
losing the ability to work in a heavily unionized industry.
That is no longer the case as a matter of law. Workers' jobs
can't be conditioned on their willingness to walk a picket
line. That means today's picket lines depend on moral
persuasion, not on coercion.
Second, work has changed. Fissuring situations like the one
that gave rise to Preferred Building Services have become more
common, and that means there is a greater need for employees to
be able to picket outside of the larger entities that control
their wages and working conditions as a practical matter.
Chairwoman Wilson. Okay. In your opinion, should First
Amendment rights to free speech be restricted because of who is
making the speech?
Ms. Garden. Absolutely not. And it is not just my opinion.
It is the Supreme Court's opinion as well. In recent cases like
Sorrell v. IMS Health, even like Citizens United, the Supreme
Court has strongly criticized the idea that speech rights can
turn on who is speaking at a given time. The Court has said
that government has to justify speech rights that turn on who
the speaker is, and, essentially, demands proof that the
restriction is necessary to achieve an important government
interest.
Chairwoman Wilson. I thank you. I thank you so much.
I now recognize the Ranking Member Walberg for his round of
questions.
Mr. Walberg. I thank you, Madam Chair.
I believe we will recognize the Chairwoman or the Ranking
Member.
Chairwoman Wilson. Oh, the esteemed Dr. Foxx --
Ms. Foxx. Thank you.
Chairwoman Wilson. -- for her round of questioning.
Ms. Foxx. Thank you, esteemed Chairwoman.
I thank all of the witnesses for being here today.
Mr. King, the bill before us today undermines the right of
American workers to a secret ballot election to decide union
representation. But shockingly, 77 House Democrats who have
cosponsored H.R. 2474, including 12 on this committee, also
signed a letter to the Trump administration, urging strong
enforcement of a new law in Mexico that guarantees Mexican
workers that same right to a secret ballot union representation
election.
Doesn't it seem remarkably inconsistent, even hypocritical,
for Democrats to ensure the right to a secret ballot union
representation election for Mexican workers, but undermine the
same right for American workers; and why is the right to a
secret ballot election so important for workers?
Mr. King. Thank you, Dr. Foxx. It is nice to see you again.
I have been following the United States, Mexico, Canada
negotiations quite closely. Our members, many have operations
in Mexico and we are quite concerned about where that is going,
but it looks like we have progress. But your point is well
taken. Those negotiations guarantee Mexican workers the right
to vote on whether they want union representation; and,
further, it even goes beyond that. The workers in Mexico under
the negotiation status of present will also have a right to
approved collective bargaining. Their collective bargaining
agreement will be subject to a vote. So, those rights are even
further being articulated and pursued than what is available to
American workers.
Ms. Foxx. Thank you, Mr. King.
Mr. King, in the first hearing on H.R. 2474, a union leader
testifying for the Democrats admitted the reasons they need to
force workers to turn over personal information such as home
addresses and cell phone numbers is so that unions can target
workers, quote, ``at a grocery store,'' end quote, or, quote,
``any place else where you can get them,'' end quote,
including, quote, ``at their home,'' end quote.
Under this bill would workers have any say regarding the
privacy of their personal information and what personal
information is shared with the union organizers? What risks,
disruptions, or threats could that create for workers and their
families?
Mr. King. Well, it certainly could subject them to
harassment at any location, as you mentioned, whether it be the
grocery store or at their home; and, further, there is no
ability under this bill for a worker to opt out, to say that
she or he does not want to share such information.
Additionally, there is no protection whatsoever for this
private information. We have all seen the data breaches that
occur, particularly in government, but not just in government.
So this is a very poor provision. I think members that support
this bill will have a very difficult time explaining to their
constituents why they authorized the release of personal cell
phone numbers, personal home phone numbers, personal email
addresses. Very bad idea.
Ms. Foxx. I think there is also some discrepancies in what
our colleagues are saying about the Internet and agencies that
control the Internet in this regard.
Mr. King, Democrats have made their intentions clear in
H.R. 2474 regarding their goal of eliminating independent
contractor status which has encouraged innovations like the
sharing economy that millions of Americans embrace and use
every day.
How exactly would this bill impact business owners,
workers, and consumers in the sharing economy?
Mr. King. Well, Dr. Foxx, it would eliminate for all
intents and purposes, decades of jurisprudence as to who is and
who is not an independent contractor; and as a practical
matter, pursuant to your question, it would adversely affect
millions of workers who prefer to have a job where they work
when they want to work, and the independence they have
associated with that job. So, it is going to hurt that part of
our growing economy tremendously, another very poorly thought-
out proposal.
Ms. Foxx. Well, our whole country, the capitalist system,
is based on the idea that somebody can start a business and get
it going and work with other people who are independent
contractors. I think it underlines capitalism, frankly. It is a
much broader issue, I believe, than what is just in this bill.
Madam Chairwoman, I would like to submit for the record an
article from the Wall Street Journal, April 30, 2019, called,
Big Labor's Big Shrink.
Thank you.
[The information follows:]
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Chairwoman Wilson. Thank you.
And now Mr. Norcross from New Jersey.
Mr. Norcross. Thank you. First of all, thank you for
holding this second hearing, because, remarkably, facts count,
and when we look at the long history of employer/employee
relationships in this country, we have had some valleys and
some peaks. But the one I look at now is the gap between
productivity of a typical worker's compensation, and that of
their hourly compensation. So, as compensation went up pretty
much even from the early 1960s to the mid 1970s, with
productivity, they stayed pretty much aligned -- and I will
enter this into the agreement -- but then a remarkable thing
happened in the mid 1970s. Productivity continued to skyrocket,
and hourly compensation stayed flat, to the point that they
were even in the 1970s, there is now 130 percent gap over those
45 years.
Now you are asking yourself: Why? Well, what I heard is
Americans are making it today. Absolutely right if you are that
top 1 percent, which this is what shows, but that is what
happened when the laws became outdated and changed for those
who wanted to have representation. So now, today, we are left
with a set of rules for those who want to collectively bargain
that are chiefly stacked against them.
You cannot argue with the gap between those who are at the
top 1 percent and those workers. It used to be, if you played
by the rules in America and you worked hard, you grew with your
company and they would treat you that way. But what you see
today is something that is nothing short of remarkable.
Ritz, the Nabisco company in Philadelphia, closing down
their shop, moving to Mexico. Why? We do have the greatest
workers in the world, but apparently, we don't want to pay
them. So, we ship them off to Mexico and say sorry to everybody
else. This has happened time and time again.
And then the independent worker, the entrepreneurial
spirit, so those Uber drivers are now their own accountant and
bookkeeper. They are their tax advisor. They are talking about
them as they are now their retirement. They are health advisors
to make sure they get the right insurance. They now have to be
their legal advisor, their insurance advisor, their safety in
OSHA; and these are the same folks that are barely making
minimum wage.
So, what you are seeing is the deferred responsibility,
companies dumping it off and making them their own company. We
know this isn't going to work. We are seeing evidence of this
every day. It is a way of a company deferring their
responsibility to making those employees, which, as you spoke,
Mr. Griffin, is they have certain rights and responsibilities
when you are an employee; but when you are a subcontractor,
that all goes out the window. So, the company that hired them
now defers all that.
Tell me what person you know driving an Uber is his own
accountant, his tax advisor, his requirement advisor, health
advisor, legal advisor, insurance, and now safety. Tell me how
that works? It doesn't. It is not about entrepreneur. Those who
want to start their own companies make that determination. Uber
drivers don't want to start their own company. They just want
to make a fair living. I am just bringing out Uber. There are
dozens and dozens of examples of this.
So, Mr. Griffin, in the PRO Act, does this change what
would be considered an independent and entrepreneurial person
and an employee? Could you explain that?
Mr. Griffin. Yeah, I don't think that there is any issue
about truly independent contractors who want to start their own
business and get customers, as far as those people being
limited in their ability to do that.
What this test does is it prevents the three-part test that
is in the PRO Act. It prevents people who are actually
employees who are not out, seeking other customers but who are
handed a piece of paper when they come to work and ask to sign
it, that is a paper document that the employer drafts and has a
lot of provisions about potential entrepreneurial opportunity
that are never actually going to come to fruition that is
designed to misclassify those people.
What it does is, it puts a very straightforward three-part
test to make sure that the person is genuinely an independent
contractor. If they are not, they are an employee.
Mr. Norcross. Well, thank you for that answer, and to enter
into the record the Economic Policy Institute, I ask that this
be accepted into the record.
Chairwoman.
Chairwoman Wilson. Give you another minute?
Mr. Norcross. No.
Chairwoman Wilson. You are finished? Okay. Thank you.
Mr. Norcross. Thank you.
Chairwoman Wilson. Without objection.
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Chairwoman Wilson. Mr. Walberg, questions?
Mr. Walberg. Thank you, Madam Chairwoman.
And thanks to the panel for being here and some of you
coming many, many miles to be here. Thank you.
Mr. King, over the years, Congress, I believe, has struck a
delicate balance in federal labor law with respect to the
interest of employers and workers during this time, even as the
union membership rate has fallen drastically; and we will
certainly have, for the record, numbers that will be in stark
contrast to some of the statements made about the lack of
growth for the average employee during this time. But union
membership has -- the rate has fallen drastically. The economy
has grown enormously, inproving the lives of tens of millions
of American workers, normal, everyday, blue-collar workers in
my district and others. But rather than modernize a 70-year old
law, laws back as I mentioned my father used to organize a
steel mill in the 1940s, using those laws. The Democrats'
current labor agenda would take us back to the volatile 1930s-
era conflicts between labor and management.
Let me ask you this: Is H.R. 2474 consistent with the
balance that Congress has sought with respect to labor
management relations?
Mr. King. Absolutely not, Mr. Walberg. It goes just in the
opposite direction. It would prohibit an employer from hiring
permanent replacements in a strike situation. Now, people say,
Well, is that fair? The labor laws in this country permit the
employer in a strike to continue its operations; not terminate
strikers, but replace them so they can continue. Workers can
withhold their services and strike. That is a perfect balance.
The Supreme Court has approved that. That has been the law for
decades. This bill wipes that out. It also, as I mentioned,
would permit intermittent strikes. This bill is not well
thought out, it is going to lead to instability. It is going to
take us back, as you mentioned, decades.
Mr. Walberg. Again, I would say, as I have tried to clearly
state in my opening statement, we are talking about union boss
control, not necessarily labor, employee, control of their
lives and their opportunities. So Mr. King, the decision about
whether to unionize is an enormously important question for
workers and their families, a decision that they ought to have.
But H.R. 2474 codifies the Obama administration's radical
ambush election rule, which significantly shortens the amount
of time -- I mean significantly -- the amount of time available
to workers to consider the pros and cons of unionizing from an
average of 38 days to as few as 11 days.
We don't do that in our efforts here in Congress. We have
had more than those days for two hearings that we are involved
with on this particular issue even. How does the ambush
election rule in this bill tilt the playing field in favor of
union bosses, but against workers?
Mr. King. Unions can take as much time as they want to take
to organize. There is no limit. They can engage in organizing
activities for years, and then file a petition and per these
ambush rules, insist upon an election. But then as you
mentioned, 12, 14 days. There is not an opportunity for an
intelligent dialogue. I remember Senator Kennedy when we had
this discussion quite some time ago, saying at a minimum, there
should be 30 days before an intelligent thoughtful discussion,
pros and cons. Workers in this country are bright, they will
figure it out for themselves, but let us have an intelligent
period for thoughtful discussion before we have this important
vote.
Mr. Walberg. Mr. King, the franchise model has created an
accessible path to entrepreneurship for many, many Americans,
from all walks of life, and cities, and towns across the
country. However, H.R. 2474 codifies the Obama NLRB's joint
employer standard, which would essentially turn independent
franchises into middle managers. That is not what they got into
the franchise for, they wanted their own business, and local
small business employees, into employees of faraway
corporations.
What impact would this have on entrepreneurial opportunity,
and on the employees of the enterprise? And also, what might
union leaders and trial lawyers prefer, or why might they
prefer the Democrats' joint employer standard?
Mr. King. This bill will have a very negative impact on
franchisees. Small businesses entities. There are hundreds of
thousands of these startup and successful business entities in
every community, subjecting them to litigation, and uncertainty
is going to chill the opportunity for them to continue, and
certainly chill the opportunity for growth in this area. The
only people that benefit from this proposal in H.R. 2474, with
respect to the independent contractor and joint employer, are
trial lawyers and some law professors that can write articles
about the complexities, as Mr. Griffin mentioned as law. This
is a terrible idea, as I mentioned in my opening statement.
This body rejected that approach and passed a bipartisan
proposal that is much fairer and much more even handed. That is
where we should go.
Mr. Walberg. Thank you. I am over time. I yield back.
Chairwoman Wilson. We will now hear from Ms. Wild of
Pennsylvania.
Ms. Wild. Thank you, Madam Chairwoman. Thank you to all of
you for being here to testify on this very important subject.
And in particular, Mr. Alvarez, I would like to thank you for
being here today. I assume you are missing a day of pay to be
here. Is that correct?
Mr. Alvarez. Yes.
Ms. Wild. You are only paid when you are working, driving,
is that fair to say?
Mr. Alvarez. Yes, that is correct.
Ms. Wild. I have grave concerns about the misclassification
of your status with XPO Logistics, which happens to have a
significant presence in my district in Pennsylvania.
And I also want to thank the Teamsters and the presence of
labor here in our committee room. I am sure they would welcome
you, Mr. Alvarez, as a member if you were able to collectively
bargain, but you are not able to. Is that right?
Mr. Alvarez. That is correct.
Ms. Wild. You don't have that ability because you are
classified as an independent contractor. And under the National
Labor Relations Act, independent contractors have no rights to
organize or collectively bargain. Isn't that right?
Mr. Alvarez. Yes.
Ms. Wild. And I don't have enough time here today to go
through the criteria for an independent contractor, versus an
employee, but I just want to highlight some of the things that
you have presented in both your oral testimony and your written
testimony, ways that you have told us that XPO dictates your
manner of work. And let me just reinforce, XPO classifies you
as an independent contractor, notwithstanding the fact that
they control all the relations with the customer. Is that true?
Mr. Alvarez. Yes, that is correct.
Ms. WILD. They get the customer, they determine the service
that is going to be provided, they negotiate the price, and
they schedule the pick-up, true?
Mr. Alvarez. Yes.
Ms. Wild. The truck that you now own has XPO painted on it,
true?
Mr. Alvarez. Yes.
Ms. Wild. And you wear a vest when you are driving that
says XPO on it, true?
Mr. Alvarez. I have it right on me right now.
Ms. Wild. That is what you are wearing now?
Mr. Alvarez. Yes.
Ms. Wild. And it does not say Alvarez Trucking, nor could
you wear a vest that said that. Could you?
Mr. Alvarez. It does not say Alvarez Trucking. It says XPO
on it.
Ms. Wild. And if you were to call your business quote,
unquote, ``Alvarez Trucking,'' you would not be eligible to
drive for XPO. Is that true?
Mr. Alvarez. That is correct.
Ms. Wild. And if you don't get enough work from XPO, you
can't go solicit another load from some other company. Can you?
Mr. Alvarez. No. My contract would be terminated.
Ms. Wild. Thank you, Mr. Alvarez.
So let me ask all of the witnesses. Is there anybody here
who disagrees that companies have an economic incentive to
classify individuals as independent contractors rather than
employees?
Mr. King. I disagree with that.
Ms. Wild. You disagree with that, Mr. King.
Mr. King. Yes.
Ms. Wild. I am not surprised that you do. And you believe
that there is no economic incentive for an employer, or for a
company, such as XPO, to classify their employees as
independent contractors?
Mr. King. We did a study of our members. Most of the
largest businesses in this country, their number one reason for
subcontracting, or outsourcing was efficiency, productivity,
and quality. Only 2 percent mentioned any avoidance of the
labor laws. This is a wrong premise.
Ms. Wild. And those members, Mr. King, are exactly the
entities that are classifying their employees as independent
contractors. Correct?
Mr. King. Those 2 percent, perhaps. And are we going to
write legislation to penalize the rest of the country for a few
rogue employers? I think not.
Ms. Wild. So Mr. King, I assume that you agree with the
recent NLRB decision in the SuperShuttle case that creates a
situation where workers will be considered independent
contractors if an analysis is done that says that the worker
has an entrepreneurial opportunity?
Mr. King. Not only do I agree, but the U.S. District Court
for the District of Columbia agrees.
Ms. Wild. I am just asking you if you agree?
Mr. King. Yes, I agree.
Ms. Wild. So you believe then that Mr. Alvarez here has an
entrepreneurial opportunity in driving for XPO.
Mr. King. Well, I looked at the facts of the case, and in
all due respect to Mr. Alvarez, they are much more complicated
than what you have been shared with this morning.
Ms. Wild. In fact, in the SuperShuttle case, many of those
drivers for SuperShuttle were actually subject to noncompete
clauses that prohibited them from pursuing entrepreneurial
opportunities at other companies, correct?
Mr. King. There was an element of that. The noncompete
issue is a wholly different issue. I would be happy to discuss
that with you.
Ms. Wild. Well, wouldn't you agree with me that an
entrepreneur should have the opportunity to compete in any
possible way? My colleague, Mrs. Foxx, talked about that being
the American spirit of competition. And yet, the drivers in the
SuperShuttle case aren't allowed to compete.
Mr. King. They are not allowed to compete in certain areas.
When we talk about competition, that is a wide-ranging word. So
we need --
Ms. Wild. Thank you. My time is up.
Chairwoman Wilson. Go ahead.
Now we will hear from the esteemed Dr. Roe.
Mr. Roe. Thank you, Madam Chair. And thank all the
panelists for being here today. And I want to say to start out,
that this is the best economy in my lifetime. It is good to see
Mr. Griffin and Mr. King again.
I do want to say just a couple of things before I get
started. I think one of the most important things in this free
society that we live in is a secret ballot. I put a uniform on
and left this country 46 years ago to serve in southeast Asia,
to be sure that you had a right to vote how you wanted to. And
I say this as a joke. I think my wife votes for me every time I
run, but it is a secret ballot, so I don't know for sure. She
says she does, but I am not sure that she does. So why
shouldn't -- that is how we are elected, how the President is
elected, how every legislature is elected, and how union
representatives are elected. People voting for the union should
absolutely have a right to a secret ballot, period.
Number two, on the sharing of private personal information.
As a physician, I tied myself in a knot with HIPPA being sure
that I protected all of that information was very private, and
patients could release whatever they wanted to. You should be
able to do the same thing.
Thirdly, on right-to-work laws, look, it is a right. I grew
up in a union household. My dad was in the United Rubber
Workers Union. He was a factory worker and he made shoe heels
for BF Goodrich Company, until he lost his job to Mexico. Right
now, fortunately those manufacturing jobs are coming back to
the U.S. and that is a very good thing for union workers. And
we should approve this USMCA. And I agree with my Democratic
friends who insisted that Mexican workers can have a secret
ballot protection. I agree with that. That was a right and
proper thing that they did. I want to share with you just a
very -- and by the way, there are 7.4 million unfilled jobs. I
had a truck driver walk up to me in a Wendy's the other day in
Dandridge, Tennessee. And he said, Listen, this is the best in
my lifetime. I made $164,000 driving a truck last year. I have
two trucking companies in my district, both of them are begging
for truck drivers. And when the President said he was going to
block the Mexican border, this trucking company went berserk,
and not because of the lost business, they were afraid they
would lose their drivers. They had 700-and-something drivers.
The most valuable thing in that business was -- were their
drivers, their personnel.
When I served as Chairman of the Health Subcommittee in
2015, we heard testimony about the effects of the Obama era,
Browning-Ferris joint employer status for Mr. Ed Braddy, who
owns a Burger King in inner city Baltimore. And all the men
that Mr. Braddy had hired at that store had a run-in with a
criminal justice system. All the women he hired had been on
some form of government assistance. And he hired people to give
them an opportunity at a better life, as he described it.
This ambiguous standard were implemented as the PRO Act
would do, the Burger King corporation would be liable for many
of the hiring decisions, or maybe Mr. Braddy. Why would we
expect any corporation to know a community better than someone
local, like Mr. Braddy? Wouldn't a corporate entity be more at
risk, adverse, and less likely to give people a second chance,
Mr. King?
Mr. King. That is part of the problem. That is a major
problem. How can a local business owner, Dr. Roe, like you
described, go through this complex litigation scenario that
could put them out of business? This bill is designed, from our
perspective, to chill the rights of employers, particularly
small employers, small business entities faced with potential
fines through the first time in the history of the National
Labor Relations Act, faced with the imposition of unionization.
This is a back-door card check bill. It will have a potential
devastating impact upon the small employers as a practical
matter.
Mr. Roe. Mr. King, wouldn't codifying the ABC test and the
Obama NLRB joint employer standard at the federal level
essentially eliminate the entire franchise industry as we know
it, which employs more than 7 million Americans nationwide,
including 21,000 in Chairman Scott's district?
Mr. King. I think the answer is yes. And the reason for
that is look at what is happening in California, Dr. Roe. As I
mentioned, the California legislature now is reconsidering this
entire ABC test. The courts out there are reconsidering it.
There is a considerable amount of tension back and forth. The
legislative body in California has had to carve out exceptions
already, just to have a discussion about this approach. It is a
very poor approach and it should be rejected.
Mr. Roe. I am going to finish, because my time is almost
expired, has expired. And I want to thank those folks sitting
out there that have their Teamsters shirts on. That is the
community I grew up in. I appreciate the hard work you do. And
as I said, every American has the right; if they want to
organize, they should be able to do that. If they don't, they
should also have that right.
I yield back.
Chairwoman Wilson. Thank you. And now the distinguished
Chair of the Ed and Labor Committee, Mr. Scott.
Mr. Scott. Thank you. Thank you, Madam Chair.
Mr. King, you indicated in your testimony that there are
several provisions that would overturn Supreme Court decisions.
Could you list those, and state whether or not the Supreme
Court ruling was based on statute, and statutory
interpretation, or constitutional right?
Mr. King. I list them, Mr. Scott, in footnote one, the Epic
Systems case, the Hoffman Plastic case, Mackay Radio case. And
I have added, after reading this, I mentioned Professor
Garden's testimony, the Retail Store Employees Union local
case, that is the secondary boycott case. All of those cases,
from my perspective, thoughtfully reviewed the statutes in
question and arrived at the right decision.
Mr. Scott. So if it was based on constitutional right, you
couldn't overturn it with a statute. If it is based on
statutory interpretation, a new act would be okay,
constitutionally okay?
Mr. King. Certainly from a policy perspective, we wouldn't
think it would be okay. But I understand your question.
Mr. Scott. Thank you. Ms. Garden, if a person was hired by
a temp agency and placed at a work site, could you say what the
implications of joint employer would be and secondary boycott
if there was a picket?
Ms. Garden. Absolutely. The first question would be whether
the National Labor Relations Board would agree that the work
site was the joint employer of these employees. The Browning-
Ferris test makes that determination more predictable by
allowing reserved or indirect control to be part of the
consideration.
So, if you instead required substantial direct/actual
control, then you could have a scenario in which the job site
has reserved, but not yet exercised control one week. Another
week they start to exercise control, and you would have that
entity shifting from being not a joint employer to a joint
employer. So the Browning-Ferris test is sort of easier to tell
at the outset and more stable in terms of whether or not
somebody is jointly employed.
Mr. Scott. And if they are not a joint employer, you can't
negotiate -- you don't have the right to negotiate with them,
even though they effectively set the salary by virtue of the
contract with the temp agency?
Ms. Garden. That is exactly right. And as the Preferred
case shows, workers who attempt to influence what the work site
pays them and how it treats them, face the sort of very
dangerous waters of negotiating what they can and can't say,
how they can and can't protest under section 8(b)(4).
Mr. Scott. And how does the secondary boycott issue apply
to that case, to that situation?
Ms. Garden. So in Preferred Building Services, there were
sort of two issues that the NLRB talked about. One was whether
the workers were in what is known as the Moore Dry Dock set of
presumptions. Moore Dry Dock provides a carve-out for workers
to engage in some secondary activity, including picketing at a
job site, as long as they meet some fairly detailed
requirements. The Board found that the workers lost the benefit
of that presumption, in part, because they distributed
handbills that called on building tenants to try to influence
the condition of ``their janitors.'' That choice of pronoun,
``their janitors,'' seems to me to say the janitors who clean
your office. Apparently, the Board saw it differently as
janitors you employ.
Whatever you think of those two possible interpretations,
it is hard to tell in advance what a Board is going to do, and
whether or not you are going to retain the protections of the
National Labor Relations Act if you are fired as a result of
your picketing.
Mr. Scott. Mr. Griffin, one of the provisions of the bill
allows the imposition of meaningful sanctions. Can you say why
the sanctions in present law are not sufficient, and why
sanctions such as backpay without reduction based on interim
earnings are insufficient?
Mr. Griffin. Yes. Currently, the rule of -- the general
rule, if someone is discharged, is that the remedy is backpay,
minus interim earnings, and reinstatement. Generally speaking,
because of the time that it takes to go through the process and
because of the hostility that has been generated as a result of
the discharge, the person is likely, or will be offered to
waive reinstatement as part of the resolution, so they won't go
back to work, number one.
Number two, they have an obligation to mitigate their
damages, and because most people work for a living, work
paycheck to paycheck, they have to do that. And that work for
another employer is counted against the money that is owed to
them, so that it is not a very serious deterrent to an employer
who discharges someone unlawfully, that they have to pay that
difference between what they make as they seek employment
elsewhere. So making sure that people are actually paid for the
result -- actually get paid and the employer has to pay for --
Ms. Wilson. Mr. Griffin, your time is up.
Mr. Griffin. Oh. My apologies.
Chairwoman Wilson. Thank you very much.
Mr. Taylor.
Mr. Taylor. Thank you, Madam Chair. I appreciate this
hearing. Thanks to the witnesses.
Mr. King, I just wanted to follow up with Dr. Roe's
question earlier about ABC in California. As a state legislator
in Texas, I certainly saw, over and over again, the number of
new businesses coming to Texas that talked about -- one of the
reasons they are relocating is because it is a right-to-work
state. And we have certainly been very successful in our job
creation in Texas, as companies leave union states to come to a
right-to-work State. I am very blessed to wake up in a city,
Plano, Texas, it is the highest per capita income city in North
America with over a quarter of a million people.
So clearly, we have been successful in creating high income
jobs in a right-to-work state. And it could be one of the
benefits of America is we have got 50 states, we have a
laboratory democracy, we are watching California, those are the
ABC test. Would you mind and since H.R. 2474 has the ABC test
word for word in it, and it has not yet been adopted as I
understand by the state of California, could you take us
through what that does and how it works?
Mr. King. Certainly, I would be happy to do so. The second
prong of the test is the one that you should focus on. It
states that you cannot be an independent contractor if you
provide services that are within the scope of the hiring
company. That, by and large, makes virtually anyone that would
perform a service for a hiring company, a user company, if you
will, an employee, that is very controversial. The other two
parts of the test would also have to be satisfied, but really
the focus has been on prong two.
Let's just think about that for a minute. A hospital, for
example, that brings in individuals that are at a nursing
agency, because they have a high census of patients. Those
agency nurses under the second prong of that test would be
employees, not independent contractors. That has never been the
law. That makes no sense. Then this whole premise that somehow
employers are using independent contractors to evade the law,
per the colloquy we just had, is incorrect. It is not based on
fact. Yes, there may be some rogue employers out there. They
should be brought to justice if they are misclassifying
individuals. We don't support that.
But this economy we have, it is doing so well, it is based
on so many different relationships every day. Even the smallest
business brings in independent contractors to do a variety of
things. They do so for efficiency reasons, productivity
reasons. Yes, they do control costs. So the California
legislature is starting to see this; we will see where that
goes. But no matter what California does, I would submit to you
that is not a good way to run our country. The laws in
California are some of the absolute worst for employers. And
many employers that I worked with over the years as a lawyer
exit that State for that very reason.
Mr. Taylor. Just to build on that, in my time in Collin
County, I have seen many employers using 1099 contractors to
take on a particular project they want to develop, particularly
with IT space. We have a lot of IT companies there. Hey, I want
to build a website, want to build an MIS system. It is a six-
month project, it is a one-year project. We are bringing in
some 1099 contractors so we can have greater control over what
we are actually doing, rather than bringing in a consulting
firm, that is sort of doing it off site, they can do it on site
with 1099 contractors. That has been very successful for them.
We have a lot of extremely well-paid people who are 1099
contractors, who have a very good lifestyle in Collin County
doing different MIS projects for different employers.
And it seems like what we are saying is that this would end
that, that at least my community, if 2474 became law, that
ability of the employers that I have in my district, they
wouldn't be able to do that anymore. The ability to use 1099
contractors for specific projects, those people work as 1099
contractors, which is what they want to do, that goes away. Is
that what you are saying?
Mr. King. Absolutely. Either stop it, or lead to litigation
and regulatory interference. And that is another dead end for
that kind of economic growth.
Mr. Taylor. Yeah, this is unfortunate, because I think to
have a successful economy, you need to have a sophisticated way
to be able to organize. And clearly, we have that now. And this
really takes away a whole series of tools that businesses are
using, with great success, to the benefit of the businesses and
to the employees who are working, and who I have the privilege
to represent here in Congress.
Mr. King. Absolutely. And many individuals prefer to be
independent contractors, frankly.
Mr. Taylor. Absolutely. Thank you.
Madam Chair, I yield back.
Chairwoman Wilson. Thank you. Mrs. McBath of Georgia.
Mrs. McBath. Thank you, Madam Chair. And thank you for each
and every one of you who are here giving your testimony today.
I am committed to truly protecting the rights of workers
throughout this country, while also being mindful of the effect
of these laws on small businesses. I have a lot of small
businesses within my district. I do not believe that the two
are mutually exclusive. Workers' protections make for better,
more productive employees, and better business. I do, however,
have concerns with actions taken by this administration, and
the adverse effects that they could leave on employees and
small business owners.
Mr. Griffin, the question of whether a worker is an
employee has historically been kind of governed by the common
law of agency. The Trump NLRB issued the SuperShuttle decision
on January 25, 2019, holding that they would apply the common-
law test -- and I am quoting -- ``through the prism of whether
the worker has entrepreneurial opportunity.''
Moreover, in that matter, the Board maintained the drivers
in that case were independent contractors, even though they had
been required to sign noncompete agreements. First, can you
speak to an agreed-upon definition of entrepreneurial
opportunity? How would you define it? What legal significance
does it hold?
Mr. Griffin. Well. If I may. The controversy over
entrepreneurial opportunity between the former Board and the
D.C. Circuit and the current Board's decision really turns on
whether or not it is a speculative hypothetical opportunity
that is never likely to come to fruition, or whether there is
evidence that the entrepreneurial opportunity has actually been
exercised. And so the Board, in its dispute with the D.C.
Circuit in the FedEx cases, it did not say entrepreneurial
opportunities shouldn't be considered. It said it should be
real exercise, actual evidence, as opposed to hypothetical,
speculative, paper documentation of potential opportunity,
never to be realized. And one of reasons this is important is
that most of these instances that result in these kind of cases
are not instances where an independent contractor comes in and
negotiates with the customer the terms of the provision of
service.
Rather, somebody shows up to do a job, they are handed a
document that is entirely drafted by the employer, that has a
bunch of provisions that talk about potential entrepreneurial
opportunity so they can paper up the independent contractor
theory, when, in fact, there is absolutely no evidence that
opportunity is actually going to be exercised. And if the
opportunity is going to be exercised, and has been exercised,
and there is evidence of that, then that is a legitimate factor
to be considered. But this kind of paper-speculative
hypothetical business is not really worthy of consideration, in
my opinion.
Mrs. McBath. Let me ask you also, how can a worker exercise
meaningful entrepreneurial opportunity while being prohibited
from engaging in competition?
Mr. Griffith. I think the short answer to that is they
can't. The notion that you are an entrepreneur, but you can't
compete, you can't go out and get other jobs, you have to work
for this employer would seem to demonstrate, at least fairly
strongly, that you are actually an employee of that employer,
not an independent contractor, not an independent business
person, not capable of going out, bidding on other jobs,
getting other work, seeking other customers.
Mrs. McBath. On June 28, 2019, The New York Times reported
that within the 600-page-long disclosure document given to
perspective Subway franchisees, that the franchisor reserves
the right to revise its rules at any time during the term of
franchise agreement, and that it can make changes under any
condition and to any extent. Subway franchisees could face harm
by the overwhelming control exercised by their franchisor.
If the Trump NLRB succeeds in narrowing the joint employer
standard, wouldn't that risk giving the franchisor more control
over franchisee's employees' terms and conditions of work,
while leaving franchisees on the hook for any violations of law
directed by the franchisor?
Mr. Griffin. Yes. What the franchisors in this context want
is to have their cake and eat it too. They want to be able to
control terms and conditions of employment, but have no
responsibility. The franchisee is always going to be the
employer. The question is whether if the franchisor engages in
certain codetermination of wages in terms in terms of
conditions of employment, whether they also will be responsible
for bargaining and for unfair labor practices.
So, to the extent that you narrow the joint employer
definition you leave the small business, the franchisee,
holding the bag entirely, and you allow the joint employer,
franchisor, to escape liability.
Mrs. McBath. Thank you. I yield back the reminder of my
time.
Chairwoman Wilson. Mr. Wright of Texas.
Mr. Wright. Thank you. Thank all of you for being here. Mr.
King, I represent most of Arlington, Texas. And as most people
know, Texans love trucks and freedom, not necessarily in that
order. And there is an abundance in Arlington because the
largest employer is the General Motors assembly plant, employs
over 4,000 people, good-paying union jobs. Fifteen minutes up
the road is Dallas/Fort Worth International Airport, one of the
largest in the country, again, with a lot of good-paying union
jobs. So Arlington is an excellent example of a place where
unions not only exist, but thrive in a right-to-work state.
Now, we hear from my friends on the other side that right-
to-work laws giving workers the freedom to decide for
themselves whether to join and pay a union somehow undermines
the right to organize. That would not seem to be the case in
Texas. But does giving workers this freedom a choice in any way
change the process, the union-organizing process?
Mr. King. Well, I think it certainly does, Mr. Wright. What
this bill does, as you know, is prohibit states like Texas from
having a right-to-work law. And that, in and of itself, is a
major problem. Further, unions can continue to organize in
right-to-work states as you mentioned, and have done so with
success. Again, this approach in 2474 is simply a bailout for
organized labor in other areas.
And let me just bear in on this right-to-work issue. If
this bill passes in your state, an individual that right now
has decided, for whatever reason, that she or he does not want
to pay union dues or fees, could be subject to termination if
the employer and the union insist that fee payment, reduced
payment be a condition of employment. So what you will be doing
with this legislation, if it passes, is putting people out of
work that have strongly held convictions. And back to your
point, shouldn't individuals have a right to choose for
themselves?
Mr. Wright. That, in fact, is one of reasons that Texas has
one of the best economies in the country, and why it is one of
the fastest growing states, why people from other states are
moving there, companies from other states are moving there.
That is one of the reasons. But in your experience, there is no
evidence at all, is there, that right-to-work laws somehow
undermine the right to organize?
Mr. King. Not at all, Mr. Wright. In fact, you can make the
argument just the opposite way, that when you have an
organizing campaign, and the right-to-work option is available,
some employees may say, Oh, I might even vote for the union
because I won't have to pay fees or dues. It could be used
against them for an organizing campaign, because I have seen
it.
So there is no correlation whatsoever. The lack of union
density in this country, as I pointed out in my testimony, is
right back at the union movement. They have not invested the
resources or the time. And the facts bear that out. We are at a
75-year low, I believe, regarding the number of petitions filed
by unions in this country. And as the testimony points out,
less than one-tenth of 1 percent of the eligible workers in
this country will have petitioned for last year are organized
labor. That is not a story that should be a predicate to
support this legislation.
Mr. Wright. Let me shift very quickly to franchises. You
mentioned it in your opening statement, Mr. Griffin, just
mentioned it a moment ago. Can you elaborate a little bit on
the obstacles to even starting a franchise that are presented
by this bill?
Mr. King. Of course there is the capital, and then there is
the support, whether it be in bookkeeping, legal structure,
what have you. And it is interesting to hear this discussion,
because small business owners don't want to be embroiled in
this kind of litigation. They don't want to be brought into
Fair Labor Standards Act or National Labor Relations Act
litigation. They want to run their business. And the
franchisors that I know and work with, they want no part of the
day-to-day operation of business, the direct control. I was
interested in Mr. Griffin's comment. He's looking for some type
of direct control in the independent contractor area, but I
don't think that is where he goes on joint employer. What we
are saying on joint employer is, there ought to be direct and
immediate involvement in the day-to-day business before anyone
is a joint employer. So these franchisees, that are small
business people, are trying to start a business, they need
help, obviously, from the franchisor.
But the reputation and integrity of the brand, training,
and auxiliary things should be furnished. But with these kind
of laws, you are going to chill that development and that is
bad for our economy, bad for your community, bad for everybody
involved in this discussion.
Mr. Wright. I would agree. I yield back. Thank you.
Chairwoman Wilson. Thank you, Mr. Wright.
Mr. Levin of Michigan.
Mr. Levin. Thank you so much, Madam Chairwoman. And thanks
for having this very important hearing.
I want to ask a question of Ms. Garden, but before I get
into that, I want to say a couple of things. Mr. Alvarez, we
will get justice for you. However long it takes, we will get
justice for you and other workers who are denied their freedom
of association because of these laws. I just want to tell you
that.
Mr. Alvarez. Thank you very much.
Mr. Levin. And thanks for coming here.
Mr. King, I am just making a comment, but you can turn your
mic on if you want. I am disappointed that you would
mischaracterize the position of someone who is no longer with
us. Mr. Kennedy was the original sponsor of the Employee Free
Choice Act in the Senate, as you well know. A bill that would
do away with the situation where workers have to have an
election against their boss just to decide to have a union at
work. And he was a champion of workers' freedom to form unions
without that American innovation. And so, I don't really
appreciate his name being used to oppose that policy.
Mr. King. Well, I --
Mr. Levin. I am not asking you to respond.
Mr. King. I worked with Senator Kennedy for many years on
the Senate side.
Mr. Levin. Sir, I am not yielding you time.
And I want to remind my friend, Mr. Taylor from Texas, who
spoke about high wages due to the right-to-freeload laws there.
Texas is about in the middle, according to BLS data from 2016,
$17.06 hourly wage for median wages. Not one of the top 10
States in these United States is a right-to-freeload State.
They are all States with high levels of union representation,
and none of them have right-to-freeload laws.
Ms. Garden, this committee has expressed a lot of interest
in the future of work. And it is especially interesting to us
how that relates to protecting workers' rights amid
technological change, the rise of the gig economy, more complex
contracting arrangements which have been used purposely by very
smart people like Mr. King to keep workers from forming unions.
How does protecting workers' First Amendment rights, in
particular, help them to adapt to the changes we are going
through in the economy, and protect their right to secure
better working conditions?
Ms. Garden. So as work evolves and the nature of works
changes, we sometimes find ourselves in situations where the
law has not yet caught up to those changes. And when that is
true, workers are on their own. Sometimes they are best, most
immediate recourse involves exercising their First Amendment
rights, right: their First Amendment right to engage in
picketing, their rights to engage in collective action in order
to try to get better treatment from the organizations that are
controlling their day-to-day lives and their ability to put
food on the table.
Mr. Levin. So let me ask you about a particular case. In
2012, Walmart workers without a union and collective bargaining
in 100 cities across 46 States participated in short strikes
and peaceful protests to fight for better wages and working
conditions. These protests did not prohibit anyone from
entering a store, or did not interfere with the operation of
facilities, and had really zero potential to force a union on
reluctant employers or workers. Nonetheless, workers who
participated were threatened with penalties under section
8(b)(7) of the NLRA, after Walmart alleged that they were
picketing in an effort to force Walmart to recognize the union.
Unfortunately, modern legal doctrine prevents workers from
peacefully picketing their employer to encourage recognition of
their union. How has the current legal precedent interpreting
section 8(b)(7) of the NLRA misconstrued congressional intent
behind the Taft-Hartley amendment?
Ms. Garden. Thanks for that question. So 8(b)(7) was aimed
at so-called blackmail picketing, prolonged shutdowns of
workplaces aimed at forcing an employer to accept union
representation for employees, regardless of what those
employees wanted. That could not be further from a situation
like the one you described, where unions picket a store that
continues to operate, demanding better treatment for workers.
That a complaint in a situation like that could gain a toehold,
shows how far the law has drifted from the blackmail picketing
that Congress was worried about.
Mr. Levin. Thank you so much.
You know, Madam Chairwoman, I just want to say to my dear
friend, the Ranking Member from our great State of Michigan, he
spoke about the delicate balance that has been created over the
decades. The Wagner Act was passed in 1935. There has not been
one sentence of federal law added by this Congress since then
that helps workers be free to form unions and bargain
collectively. The Taft-Hartley amendments in 1947 and the
Landrum-Griffin amendments eroded workers' power through their
own organizations. And it is high time that this Congress free
up workers in this country just to have a union and a better
say at work. We will not deal with income and wealth inequality
in this country until we do that.
Thank you. And I yield back.
Chairwoman Wilson. Thank you. Mr. Meuser of Pennsylvania.
Mr. Meuser. Thank you, Madam Chairwoman. Thank you all very
much for being here with us.
I am a former business company president, a business owner.
I, like many, have many, many good businesses, small businesses
throughout my district. Many are union, some are, many are
nonunion. I am entirely for, and my reason for being here is to
help businesses grow, help family incomes grow, participate in
actions to create environments for wage growth, for union and
nonunion, low unemployment, and just a fight for people and
represent their overall interests in our economy. But there are
some concerning points within this bill.
I would like to talk about privacy a little bit and the
bill requirement for access to employee's personal data without
consent. I don't really necessarily understand the value there.
So Mr. King, allow me to ask you: What are the dangers, what
are the reasons for such a provision to be in this bill?
Mr. King. Apparently, the rationale is for access of unions
to contact potential voters in a union election. In reality,
there is no ability for the employee to opt out, to say that
she or he does not want personal information to be shared.
There is no protection whatsoever, even if that information is
furnished to not have that information be a data breach, or
shared with third parties. In this day and age, the union
movement has any number of opportunities through social media
and other ways to contact potential voters. This is a
desperation move, it would appear, on behalf of organized
labor. There is no rationale for it. It is a bad idea.
Mr. Meuser. Like many here, I was at the tail end of my
business career, served as president of a company, but I was a
driver, I was a builder, I was a credit collector, I was in
sales, I was in marketing, I was in, you know, operations. So
during the course of that, you become conditioned to appreciate
the needs of all workers, everyone. Everyone has different
titles and different responsibilities, but you are all part of
the same team. That is why I also question why is it when we
had the USMCA discussion, an issue arose where in Mexico, the
management were the ones against the secret ballot, yet here,
the union leadership is against the secret ballot. Mr. King,
could you offer your opinion on that?
Mr. King. It is hard to reconcile. The USMCA negotiations
hopefully will result in an approval by this body, but
contained in those discussions is the right of the Mexican
worker to vote on whether she or he wants to be represented.
And as I mentioned earlier, in addition, whether the contract
that is being proposed by the Mexican labor union should be
accepted. It is really very contradictory. We have this bill
that will cut off rights of employees to vote and forced
unionization, but just the opposite south of the border.
Mr. Meuser. Thank you. I am going to yield the remainder of
my time to Mr. Walberg.
Mr. Walberg. I thank the gentleman.
And a lot of things I would like, Mr. King, to allow you to
respond to, especially relative to Senator Kennedy and the
assertions there. But let me ask you this one question: Under
current law, union organizers can make death threats and commit
acts of violence free of legal repercussions so long as these
actions are taken in the pursuit of ``legitimate union
objectives.'' Why is this the case? And would H.R. 2474 change
the law relative to this?
Mr. King. Unfortunately not. That type of rogue activity
would still be permitted. And Mr. Walberg, what is interesting,
the fines that are suggested in this suggested, not suggested,
proposed in this legislation, up to $100,000 only apply to the
employer. Unions are not subject to any of the fines for
misconduct that are articulated in this legislation. That makes
no sense whatsoever. You talk about bias, that is one of the
prime examples of this bill. It is only directed at employers,
but that strike misconduct still could occur.
Mr. Walberg. Which does not encourage unionization. I think
the beauty of the fact of the numbers going down is a fact that
unions have done some great things, and it has gotten better.
So thanks.
Mr. King. Mr. Walberg, I take personal offense of what was
just said. I worked for Senator Kennedy when I was --
Chairwoman Wilson. The time is up, sir. You have no time.
Mr. Walberg. I yield back.
Chairwoman Wilson. I recognize Mr. Courtney from
Connecticut.
Mr. Courtney. Thank you, Madam Chairwoman. And thank you to
all the witnesses for being here today.
Mr. Griffin, on page 9 of your testimony, you, again, dove
into what I think is accurately described as, there is no more
controversial issue than the joint employer role, and the
Browning-Ferris decision. We have had in numerous hearings over
the years on this committee. And I would like to just spend a
moment on that issue with you.
So, in 2015, Browning-Ferris decision found that a company
can be a joint employer if it has contractual control, or
exercises indirect control over another company's terms and
conditions at work. This decision was essential to workers who
are increasingly hired by staffing agencies and subcontractors
performing work for a company that often controls working
conditions while evading liability.
Browning-Ferris case was pending review at the D.C. Circuit
when the Trump NLRB began its rulemaking to overturn Browning-
Ferris. But the D.C. Circuit issued its decision last December.
In that decision, it explicitly upheld the Browning-Ferris
standard. And it also noted that the question is actually
governed by common law, which is not again, confined to indicia
of direct and immediate control as the NLRB under the Trump
administration was seeking to do.
And it also urged the NLRB against taking the first bite of
an apple that is outside of its orchard. So if the current
rulemaking is likely at odds with the D.C. Circuit, isn't the
Board wasting time and resources that could be better used
elsewhere?
Mr. Griffin. I think it is. I thank you for the question.
First of all, as you noted, the joint employer question is a
common -- the common law standard is applied. And typically,
and historically, the common law is something that develops in
the process of case-by-case adjudication, and rules emerge
based on review of multiple cases. And it is very odd to decide
to do a rulemaking proceeding where what you are trying to
address is a common-law standard. It is just -- it doesn't
comport with a notion of common law number one.
Number two, the D.C. Circuit said in its decision that the
Board gets no deference. You know, administrative agencies
under the Chevron doctrine got a certain amount of deference
under certain circumstances with respect to their decision. And
the D.C. Circuit said, Well, as to the common law, that is not
the statute, that is the common law, you get no deference to
that. And the D.C. Circuit interpreted the common law to
include a number of factors that the rulemaking process so far
discounts: indirect, reserved control, routine and regular
exercise of authority.
And rulemaking is prospective. The Board has a backlog of
cases, people who are hurting, who have allegations of unfair
labor practices against them, that are awaiting decision. The
Board should be deciding those cases and not spending an effort
contrary to what the D.C. Circuit said on a prospective
exercise.
Mr. Courtney. Thank you. I think, again, in terms of just
judicial review, obviously, the D.C. Circuit trumps -- to use a
bad pun -- the NLRB in terms of a settled issue.
Again, just real quickly, the PRO Act obviously touches on
this issue. I mean, that hopefully would bring total clarity in
terms of just, you know, the definition of a joint employer
rule. Is that right?
Mr. Griffin. What the PRO Act would do, it would
essentially codify the Browning-Ferris interpretation of the
common law factors, yes.
Mr. Courtney. Thank you. And again, I think, as I said, we
wasted, or spent a lot of time on this issue. And again, if the
common law is organically moving in a direction that the D.C.
Circuit embraced, I think, frankly, we should join them in that
effort as well with passage of this law.
Again, in my remaining time, again, I just want to thank
Mr. Alvarez for being here today and putting a human face on
this issue. This is not sort of just a political ``who is up,
who is down'' horse-race kind of issue, this affects real
people in real lives. And again, thank you for being here today
to really spotlight that.
And with that, I yield back.
Chairwoman Wilson. Thank you, Mr. Courtney. Mr. Allen of
Georgia.
Mr. Allen. Thank you, Chairwoman.
Mr. King, would you like to finish your comments regarding
Senator Kennedy?
Mr. King. Thank you. Thank you for your courtesy. Senator
John Kennedy did, in fact, support the 30-day period between
the petition filing and the election. And we will submit that
for the record.
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Mr. King. The second point I wanted to make is I worked in
the Senate with the Senate Health Committee many years ago, and
had the pleasure of working with Senator Ted Kennedy, including
the time he was Chair. My patronage was Senator Robert Taft,
Senators Taft, and Javits, and Kennedy worked together. So I do
have a strong admiration for the Kennedy family. Thank you for
your courtesy, sir.
Mr. Allen. Mr. King, Georgia is a right-to-work state. We
have been named the best state to do business in the last six
years to locate your business. Our reasons for that, obviously,
a skilled workforce is usually number one. So workers have a
choice in Georgia. But it was interesting, just this week, the
presidential campaign of a leading socialist Democrat, they
cosponsored the Senate version of H.R. 2474 was hit with an
unfair labor practice charge for recommending a pay raise
amidst collective bargaining negotiations. If this situation
occurred with H.R. 2474 signed into law, and the charge was
upheld, could Senator Sanders' presidential campaign be
assessed a civil penalty costing tens of thousands of dollars,
simply for trying to reward its employees with a pay raise?
Mr. King. Certainly, Mr. Allen, that would be a distinct
possibility. And I think this goes to show that our Nation's
labor laws are affected, they do work, they are alive, they are
well. And even someone at that level in our political system
has to abide by them.
Mr. Allen. The workplace changes, in fact, the business
world changes because of the e-commerce, and just everything
moves rapidly. And so does -- the workplace looks much
different than it did years ago, and so do benefits, so on and
so forth. Much of what the unions fought for has been codified
into law, eliminating issues from consideration and collective
bargaining.
One of the things unions still pride themselves on are
healthcare plans that they negotiate for their workers. The
Democratic member of this committee has introduced legislation
cosponsored by nearly 120 House Democrats to ban private health
insurance, including union plans, and force every American on
to a government-run healthcare. How might banning union
healthcare plans in a government takeover affect the value of
unions for workers?
Mr. King. This is another very poorly thought-out idea. The
H.R. Policy Association, where I am counsel, works closely with
our member companies, and we have found consistently that
employer-sponsored health plans are popular, and are very much
desired by the employees. And I believe as someone said
recently, if you turn anything over to the government, totally,
you have issues and that is exactly where we would be headed.
So I can say on behalf of the H.R. Policy Association, and
its member companies, and their employees, we should continue
with our highly favorable and well-received employer sponsored
healthcare plans in this country.
Mr. Allen. And then finally, with the remaining time, union
allies insist that right-to-work laws, giving workers the
freedom to decide for themselves whether to join and pay a
union to undermine the right to organize. Has giving workers
this freedom of choice in any way changed the union organizing
process?
Mr. King. I have not seen any data, Congressman, that would
connect the two thoughts. I don't know of any data that says
right-to-work undermines union organizing. In fact, it can be
just the opposite as I mentioned in a colloquy with one of your
colleagues. I think this is another fallacy that is being
stated here to support this legislation.
Mr. Allen. Well, we have the greatest economy in the world,
every business I have talked to is looking for workers. I
think, obviously, it is a great opportunity for those in the
work. I tell young people I have never seen opportunity like
this before in my lifetime. So we are grateful for that. And
thank you, and I yield back.
Chairwoman Wilson. Ms. Underwood of Illinois.
Ms. Underwood. Thank you, Madam Chair. I am so glad that we
are having today's hearing as part of the committee's ongoing
work to protect the basic rights that American workers have
fought so hard to win.
I would like to thank Mr. Alvarez for sharing his story,
and for so clearly describing the American Dream, and the
challenges and opportunities that you have gone through in your
career. And I appreciate your willingness to share it with the
committee today. Thank you.
I am incredibly proud to cosponsor the Protecting the Right
to Organize Act. We know that unions provide an essential
foundation for working families in Illinois's 14th District and
across the country. Recent research from the University of
Illinois, for example, highlights the link between unions and
better wages for all workers, even those who are not union
members.
And so, Mr. Griffin and Ms. Garden, in addition to better
wages, how do labor laws that empower unions that benefit
workers including -- I am sorry. How do labor laws empower
unions that benefit workers, including those that aren't union
members?
Ms. Garden. Thank you for that question. So I guess I would
emphasize that labor laws protect workers including non-union
workers by protecting their rights to engage in collective
activity at work, even short of electing a union to represent
them in bargaining. That can mean things like talking with
their coworkers about how much they earn, which could reveal
discrimination and pay practices that workers can then either
take to their boss and try to remedy, or take to court, if that
is appropriate.
When employers are aware that employees have the right to
talk to each other, it can also encourage them to behave
better.
Ms. Underwood. Thank you. And Mr. Griffin.
Mr. Griffin. The classic example of collective action in a
nonunion workplace is a fairly old Supreme Court decision
called Washington Aluminum, where people were working in a very
cold environment and they wanted heat. It was a complete
nonunion workplace. So, they walked off the job to force their
employer to provide heat in a frigid workplace; and they were
discharged. And the Supreme Court, in an opinion by Justice
Black, said they were engaging in conduct that any civilized
country would recognize as lawful, and the Supreme Court agreed
with the Board and ordered the reinstatement.
So, to Professor Garden's point, even in an unorganized
workplace, the right to engage together to address workplace
concerns, immediate workplace concerns, is protected under the
National Labors Relations Act, and very importantly so.
Ms. Underwood. Thank you. Some 60 percent of Americans have
a favorable view of unions, and some 48 percent of workers who
are not in a union would like to belong to one. However, only 6
percent of private sector workers belong to a union.
Mr. Griffin, why is there such a wide gap?
Mr. Griffin. I think there is essentially two reasons:
Organized corporate opposition, which manifests itself in both
legal opposition and illegal opposition: threats, firing, and
things like that. And the law's inability to translate, to
provide an efficient mechanism to translate people's desire to
be represented by a union into actual union representation. So,
I think there is really two reasons for it.
Ms. Underwood. Strong laws that protect and empower workers
must ensure that workers are clearly informed of their legal
rights.
Ms. Garden, in your testimony, you state that it is
difficult for anyone who is not a labor lawyer to know what is
allowed and what is not under Section 8(b)4 of the NLRA. How
will be the PRO Act bring clarity to this area of law?
Ms. Garden. Great. Thank you.
So, Section 8(b)4 is worded in complex language. The NLRB's
own website calls it mind-numbing. That level of complication
is exacerbated by, you know, several decades now of Supreme
Court and Board decisions putting glosses on 8(b)(4), often to
attempt to save the statute from unconstitutionality.
So, that means not only do you need to read and understand
this complex language, you then need to read a whole stack of
Board and court decisions to know what you can and cannot do.
This isn't a problem that can be solved by tweaking
8(b)(4), and so, the PRO Act appropriately just goes back to
the drawing board by getting rid of it.
Ms. Underwood. Thank you all so much to our witnesses for
being here today, and for our friends in the audience who fight
so hard on behalf working families every day.
We just heard one of our colleagues from another State lift
up that State as a great place to do business, and yet, workers
don't have the right to organize. They don't have the right to
come together and bargain for safe workplaces or vacation days,
as Mr. Alvarez said; and that, to me, cannot be a great place
to do business. We are talking about a place that limits
women's reproductive rights. That cannot be a great place to do
business, and so here in the House, I am so glad that we have
an opportunity to support legislation like this.
And with that, Madam Chairwoman, I yield back.
Chairwoman Wilson. Mr. Keller.
Mr. Keller. Thank you, Madam Chair.
And I would like to thank the panel for being here today.
Looking at H.R. 2474, the Protecting the Right to Organize Act,
Modernizing America's Labor Laws, people do have a right to
organize, and they also have a right not to organize if they
wish not to.
And that is what, Mr. King, I would like to sort of focus
on a little bit. There has been studies that show 90 percent of
workers are represented by a union today that have never voted
for that union to represent them in the first place. Last
Congress, committee Republicans held several hearings on
legislation reforming the National Labor Relations Act and the
Labor Management Reporting and Disclosure Act to make unions
more transparent and accountable to their membership.
Drawing from your background and experience, what are your
thoughts regarding the relationship between labor union
accountability and transparency and the steady decline of
unionization in this country?
Mr. King. There is a great schism. I am familiar with the
study you mentioned. It is a Heritage Foundation study where
90-plus percent of the workers that are represented today never
had an opportunity to vote.
As we have talked about here today, Mr. Keller, there is
less and less resources apparently being devoted by labor
organizations to organizing and member opportunity, and more
for political activity, which leads to the worker, the union
member, not having the attention that she or he should from
their organization.
I would disagree with Mr. Griffin in that the stats are
clear that we have a low, a 75-year low, of union petitions
being filed in this country; and as mentioned a couple of times
already today, less than one tenth of 1 percent of the eligible
workers in this country were sought for membership in 2018. So,
there appears to be a great disconnect. I don't know
necessarily why. I will leave that to the labor union leaders,
but I think your question is spot on.
Mr. Keller. Are there any things contained in H.R. 2474
that would reform or make reforms that make unions more
accountable to and transparent to their membership?
Mr. King. I could not find any. As I mentioned previously,
all of the legislative proposals in this bill harm employees
and employers, including only fines on employers. It is a very
one-sided proposal.
Mr. Keller. You mentioned fines on employers. H.R. 2474
undermines the original intent of the National Labor Relations
Act by imposing severe monetary penalties, up to a $100,000 on
employers for unfair labor practices, including on individual
officers. Unions can also commit unfair labor practices under
the NLRA such as earlier this year when the United Food and
Commercial Workers Union tried to punish a worker for choosing
to work rather than participate in a strike.
What are some other unfair labor practices unions can
commit?
Mr. King. Failure to refer in a hiring hall situation and
an individual that does not agree with the union for work;
failing to permit a rational way for a member to resign, we
have had numerous recent cases on that; failure of the union to
permit our democratic process of voting; failure of the union
to permit an individual to be a dissident and oppose the union
and retaliation for such resistance; failure to provide duty of
fair representation for the individual member in grievances and
arbitrations. That is just a partial list.
It is really remarkable to me, Mr. Keller, that this
legislation ignores totally any type of sanction on the union.
And, finally, per your point, not only do we have fines, this
bill also proposes punitive damages and attorney's fees, again,
only against employers.
Mr. Keller. That actually answered my last question because
my question was: Does the bill apply the same punishments to
unions and union bosses found guilty of unfair labor practices
as it levies on employers? And I guess the answer is -- the
answer is no on that.
Mr. King. And, Mr. Keller, if we are going to go down this
path of putting civil penalties in the National Labor Relations
Act, which I submit is not a good idea, but if we are going to
go down that path, let's do it on an equal basis. Let's at
least hold that rogue union responsible, just like the rogue
employer. We do have outliers. There are certain unions and
employers in this country that need to be held accountable, but
this is not the solution.
Mr. Keller. I would agree with that, and I thank you for
that.
I just want to make the important point that people in this
country do have a right to assemble. They also have the right
not to assemble and not to associate, and I think this bill
goes a long way in taking rights away from people to freely
assemble or not associate with certain organizations.
I yield back my time. I thank you.
Chairwoman Wilson. I thank you so much.
Mr. Morelle of New York.
Mr. Morelle. Thank you, Madam Chair, for holding this
important hearing.
And thank you to all the witnesses for being here to share
your expertise.
I grew up in a strong union home. My father was a proud
lifetime member of the Plumbers & Pipefitters Union Local 13 in
Rochester, New York, which instilled in me and my family a deep
appreciation for the benefits that unions provide American
workers across the country. However, for decades, we have seen
the erosion of workers' rights to organize and collectively
bargain, which is why this hearing is so important.
So, on behalf of my constituents in the 25th Congressional
District in New York, and the working men and women throughout
the country, I am proud to support the committee's work to
advance legislation that protects fundamental rights of the
Nation's workforce.
I have a couple of different questions. But first, if I
could just start -- and I think perhaps, Mr. Griffin, this
might -- you might be able to help me with this. I thought I
heard earlier, or there seemed to be the suggestion made that
workers who engage in violent behavior when picketing somehow
have some protections in this bill, or could not be prosecuted.
I don't think that is true. I know there has been bills
introduced, designed to outlaw what I think is already illegal
threats, robbery, physical violence.
Is there anything that you know of that protects a worker
from engaging in otherwise unlawful activities that relates to
organizing?
Mr. Griffin. No, I think -- thank you for the question.
No. I think what was being referred to was anyone who
engages in violent activity is prosecutable under various
statutes, certainly prosecutable under State law; and there is
nothing in this bill that addresses that in any way, shape, or
form.
I think what was being referred to was a decision in the
Supreme Court under the Hobbs Act, the Enmons decision, which
addresses whether, in addition to all the other ways you can be
prosecuted, you can also be prosecuted under the Hobbs Act if
you are a union member or agent, or for engaging in violent
activity in the course of achieving a legitimate union
objective, which was, in that instance, a collective bargaining
agreement. But there is nothing in this bill that addresses
that one way or the other.
Mr. Morelle. Good. I just wanted to make it clear, Madam
Chair, and to the members that -- I just wanted to clear that
up that there is no blanket protection for people engaged in
otherwise illegal or unlawful activities.
I want to go back, because there are barriers that often
restrict Americans from taking collective action for better
wages and benefits. When the NLRA was amended in 1947, it put
in place substantial restrictions, as I understand it, on
workers' free speech rights; and many of these have enabled the
National Labor Relations Board to prosecute workers in
situations where they were peacefully seeking to improve labor
conditions.
And we have seen crackdowns on even the simplest form of
collective bargaining actions organized by employees, and I
wanted to point out one example that occurred recently in the
case before the NLRB between the International Brotherhood of
Workers, IBEW Local 357, I believe, and the Desert Sun
Enterprise Limited. In the case, NLRB ruled that Local 357 made
an unqualified threat simply because it had copied a second
company on a letter regarding its plans to hold a picket at a
common situs shared with the company the union had a dispute
with. And they were deemed to be wrong, because the union did
not provide a Moore Dry Dock assurance.
I noticed, Professor Garden, you identified and addressed
earlier, both in the conversation with Chairman Scott and in
your testimony, the Moore Dry Dock assurance. But in my view,
it violates basic freedom of speech rights, because it means a
union's advanced notice of picketing may violate the law, even
if the actual picketing is completely lawful.
And I wonder -- the ruling denied, by the way, IBEW
workers, their fundamental right to take collective action
against an employer that paid its employees for far less than
the area standards confirmed by the local labor commissioner's
wage determination for electrical work.
So, if I can ask you -- and I apologize, you are going to
have to have a quick response. How does that Moore Dry Dock
standard impact workers' right to take collective action? Could
you just describe that?
Ms. Garden. Absolutely. Well, the case you are talking
about reveals this sort of fundamental irrationality, right?
So, a union sends a letter to a neutral employer, says, you
know, maybe it is just a heads-up, right, we are going to be
picketing a struck employer at your site.
Mr. Morelle. And that is a requirement of the law, or of
the standard?
Ms. Garden. Well --
Mr. Morelle. This --
Ms. Garden. So, the picketing would have to comply with
these Moore Dry Dock factors in order to be entitled to this
sort of safe harbor. The union can have every intention of
intending to comply and -- I apologize for going a little bit
over -- just may, nonetheless, find that it has committed an
unfair labor practice, because it didn't know it had to say oh,
and we are going to follow the law, right, something we don't
usually say when we are conveying information to another
person.
Chairwoman Wilson. Thank you.
Mr. Morelle. Thank you, Madam Chair.
Chairwoman Wilson. Ms. Stevens from Michigan.
Ms. Stevens. Thank you, Madam Chair.
And thank you to our witnesses for the second hearing on
the PRO Act that we are having here today. For many of us, this
is what we came here for.
I, coming from southeastern Michigan, a rich and profound
history of labor traditions, the birth of our middle class, and
the movement forward, join my colleagues in support of this
legislation, and also, the opportunity to promote a 21st
century labor movement that allows us to embrace the future of
work and its changes to regional economies, like the one I
represent.
As the cochair of the Future of Work Task Force in the New
Democratic Coalition, we are laser-focused on how to make sure
the rules around labor standards and work meet the realities of
this 21st century economy, and as work continues to evolve --
and it is also something that I monitor closely as a member of
the Science Committee -- and new types of worker arrangements
emerge, we must critically examine how the test for employment
interact with the ability for small businesses, emerging tech
companies, and tech companies writ large, to succeed in
innovation and employment growth as this legislation moves
forward.
So, Ms. Garden, I note that there is multiple exemptions
that are being sought to this ABC language, some of which is at
the State level. How can we ensure that employers have these
clear and reasonable instructions to classify employees while
also maintaining protections for workers?
Ms. Garden. I mean, the ABC test is really very clear.
People, it will help people to know whether they are an
employee or whether they are an independent contractor when
they start work. The previous test, the sort of multifactor
test from the restatement of agency, leads to gamesmanship. It
leads to protracted litigation as the sort of multiyear
litigation over whether FedEx drivers were independent
contractors are not revealed. So, the ABC test, I think, really
sort of helps everybody plan for the future by making it clear
who is an employee.
Ms. Stevens. And so just to be clear, does collective
bargaining allow employers flexibility in what they can bargain
for at the table with their workers?
Ms. Garden. Oh, absolutely. There is no such thing as a
one-size-fits-all collective bargaining agreement. That is the
nice thing about a system of private ordering like bargaining.
Ms. Stevens. And, Mr. Griffin, your testimony discusses the
value of protecting rights under the NLRA but what -- but those
rights have not been obviously fully exercised under, you know,
a number of cases and maybe for some reasons.
If you had to prioritize, what are the top three weaknesses
in the NLRA that would make the law more effective in
protecting the rights of workers to organize and collectively
bargain?
Mr. Griffin. Well, I think many of them are addressed in
this legislation; and the reason that they are addressed is
because they are not just my view, but they are pretty much
consensus view.
The first is the coverage of how many workers are covered.
There are a lot of different exemptions, and there is the
independent-contractor-complicated test that doesn't allow for
coverage of a lot of people who really are properly classified
as employees.
Secondly, the remedies under the Act are weak, and really
don't penalize employers sufficiently for engaging in unlawful
conduct.
And, third, there is a lack of people's understanding of
their rights. People don't know what their rights are, and this
law joins many of the other federal labor standards law by
adding a specific notice posting provision that requires people
to be advised of their rights in the workplace.
Ms. Stevens. Yeah, great. Thank you. Those are my
questions.
I yield back the remainder of my time.
Chairwoman Wilson. Thank you so much.
And now, since all of the committee members have spoken,
let's welcome Mr. Kennedy of Massachusetts.
Thank you.
Mr. Kennedy. Thank you, Madam Chair. I am grateful for the
opportunity to join you today. Thank you for holding this
important hearing and for this critical piece of legislation.
Over the past four decades, our economy has shifted
dramatically. Companies and corporations have opened,
shuttered, and opened again. Jobs have moved, jobs have
changed, and some have vanished. But if there is a defining
theme over the past four decades, it is the systematic assault
on worker clout that is leading to stagnant wages, historic
economic inequality, and all undermined by a sustained attack
on union labor and bargaining rights.
While CEOs, on average, make 287 times more than those they
employ, a minimum wage worker cannot afford a two-bedroom
apartment in any corner of our country. That is a crisis, a
crisis that will only grow worse if this government continues
to turn a blind eye or, even worse, continues to roll back
protections for workers; and no one in this country will feel
that pain more acutely than contract workers who are denied
decent protections and benefits.
At a moment when we are only years away from potentially
half of American workers being classified as contract workers,
we are on the precipice of an economic disaster. Instead of
pointing to market forces and ceding influence to corporations,
it is time that Congress stepped forward, protect our economy,
protect those employees.
So, Mr. Alvarez, to begin, do you know the personal stake
that the XPO CEO has in your company?
Mr. Alvarez. No, I don't.
Mr. Kennedy. About $2 billion.
Do you know how much he directed his company to spend in a
stock buyback this past year?
Mr. Alvarez. No, I don't.
Mr. Kennedy. About $2.5 billion.
Do you or any other additional contract workers, your
colleagues, benefit from the -- did they benefit at all from
that stock buyback through a bonus or a raise?
Mr. Alvarez. No.
Mr. Kennedy. A dime of that $2.5 billion?
Mr. Alvarez. No.
Mr. Kennedy. Mr. Alvarez, if I can ask, if you were to be
classified as a full employee from XPO, which, if I understand,
you wear XPO clothing labeled with XPO, do you not?
Mr. Alvarez. Yes.
Mr. Kennedy. And if you were actually classified as a full
employee of XPO, how much more would you earn annually?
Mr. Alvarez. That is something the coworkers will bargain
for.
Mr. Kennedy. And would XPO contribute to any sort of
retirement account for you?
Mr. Alvarez. What was the question?
Mr. Kennedy. Would you be able to benefit from a retirement
account if you were a full-on employee?
Mr. Alvarez. Yes.
Mr. Kennedy. Do you know how much they would make in that
contribution?
Mr. Alvarez. No, I don't. That was something we would
bargain for.
Mr. Kennedy. But at the moment, because, you are not
actually a full employee, but you are a contract employee, you
wear their apparel but do not benefit from that arrangement?
Mr. Alvarez. Correct.
Mr. Kennedy. So, let me start with Ms. Garden.
Professor, I would like to talk to you about an emerging
industry and the workforce it employs, our tech sector. Google
employs over 200,000 workers today. More than half of those
workers are classified as temporary workers or contractors.
Facebook employs roughly 15,000 contract moderators globally,
many working in poor or even dangerous conditions, doing some
of the worst content that exists on the Internet with very
little support, resources, or even job security.
So, Professor, could you explain to me how the PRO Act and
the end of employment classification could help us prepare for
this new workforce?
Ms. Garden. Yeah, absolutely.
One thing that has changed as work has evolved is the sort
of technology that companies use to control how work is done in
ways that the company say don't require them to take
responsibility for the welfare of those workers. So, the PRO
Act would help to change that by adopting a clear definition of
who is an employee that comports with most people's sort of
understanding of what their job is and who they work for.
Mr. Kennedy. Mr. Griffin, same question to you.
Mr. Griffin. I would give essentially the same answer.
I think that if Google is classifying people as
contractors, and if those people would be employees under the -
- likely be covered by the National Labor Relations Act, if
they were determined to be not independent contractors under
the ABC test, then they would be able to exercise rights that
they are not able to exercise currently.
Mr. Kennedy. Have you seen, in your opinion, sir, an
erosion of workers protections, worker clout over recent
American history?
Mr. Griffin. Yeah, well, I think what we -- what I saw, I
had a number of cases when I was the General Counsel that
involved gig economy employers that had classified people as
independent contractors, and I would note that in no instance
did they come forward and produce a legal opinion that went
through the 10 factors and said we considered this before we
classified the people. They just started out on the theory that
they wouldn't treat them as employees. They would not provide
them benefits or the protections of the National Labor
Relations Act; and so, yes, I have seen that in a number of gig
economy --
Mr. Kennedy. All this at a time when corporate profits are
at a historic high?
Ms. Garden. The facts are what the facts are.
Mr. Kennedy. Thank you.
I yield back.
Chairwoman Wilson. I thank you.
I remind my colleagues that pursuant to committee practice,
materials for submission for the hearing record must be
submitted to the committee clerk within 14 days following the
last day of the hearing, preferably in Microsoft Word format.
The materials submitted must address the subject matter of the
hearing. Only a member of the committee, or an invited witness
may submit materials for inclusion in the hearing record.
Documents are limited to 50 pages each. Documents longer
than 50 pages will be incorporated into the record via an
Internet link that you must provide to the committee clerk
within the required timeframe, but please recognize that years
from now, that link may no longer work.
Again, I want to thank the witnesses for their
participation today. What we have heard is very valuable.
Members of the committee may have some additional questions for
you, and we ask the witnesses to please respond to those
questions in writing. The hearing record will be held open for
14 days in order to receive those responses.
I remind my colleagues that, pursuant to committee
practice, witness questions for the hearing record must be
submitted to the majority committee staff, or committee clerk
within 7 days. The questions submitted must address the subject
matter of the hearing.
Before recognizing the Ranking Member for his closing
statement, I ask unanimous consent to enter the following
materials into the record: letters from the Amalgamated Transit
Union, the Labors' International Union of North America, and
the United Steel Workers in support of the PRO Act.
Without objection, so ordered.
[The information follows:]
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Chairwoman Wilson. I now recognize the distinguished
Ranking Member for his closing statement.
Mr. Walberg.
Mr. Walberg. I thank you, Madam Chair.
And I would vote for any of the pronunciations of that
word, and I would ask my staff never to put that in front of me
either.
I do ask unanimous consent to place in the record letters
from the following organizations opposing H.R. 2474: The
Coalition for a Democratic Workplace; the International
Franchise Association; the National Association of Home
Builders; the American Hotel and Lodging Association;
Associated Builders and Contractors; and the U.S. Chamber of
Commerce.
[The information follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Walberg. Thanks to the panel for being here, and
thanks, Madam Chair, for a good hearing. I say that because
this hearing, I think, at least I think, made crystal clear the
stark contrast of the competing agendas on whether union boss
success should be priority number one or employee/employer
success should be priority number one.
I truly believe that employees and employers being
successful together only extends the opportunity for success. I
would also hasten to say, as a former steel worker at U.S.
Steel South Works, south side of Chicago, No. 2 Electric
Furnace, that my job there was safer, my benefits were better
than they would have been, had not the union involved
themselves in providing some enhancements over the years to the
point of 1969, when I came there and worked. And there is a
place for that; but there is a place for each employee to make
the decisions on her best or his best self-interest, on the
basis of value, of what they purchase or join or involve
themselves with.
I believe the best way to bring success to the employee is
to also allow employers to succeed as well. Nothing that I see
in this bill, the PRO Act, H.R. 2474, I believe, offer that
opportunity for both sides. In fact, I think it takes us
backwards. Choice and flexibility are key, I believe, to
success, choice and flexibility. This bill offers no
flexibility, except to one side. That is not flexibility. It
takes away choice even for employees.
In my State, where the citizens supported a right to
choose, a right to work for employees in a longstanding union
state of Michigan, the home of the auto industry, motor capital
of the world, they made that choice and employees still have a
choice whether they can join or not join a union, and they make
those choices.
There were statements made today with broad-sweeping brush
strokes about the need to have this legislation because of
income levels, income inequality, the middle income going down,
and all of the rest. I would not hesitate to state they were
broad-brush statements not making apples-to-apples judgments,
but rather apples-to-oranges or banana judgments, and I am
pleased that we will insert in the record alternative
viewpoints with a much clearer understanding of what was there.
But let me just state median household income, for
instance, reached its fifth straight record high last year,
over $61,000, median income. Those are the middle-class workers
that I represent in my district, and I could go on and on with
actual statistics, not taking outside outliers and pulling them
in, and I think we need to understand that as well.
Mr. Alvarez, thank you for coming all the way here. You are
an individual at this point in time who is highly sought after.
I would encourage you to come to Michigan. I know you like
California. It is a lower-cost living state in Michigan, and
there are 60,000 not simply in Michigan, but at this point in
time the last number I saw was 60,000 truck seats unfilled. You
are highly sought after. I was put into the driver's seat of an
18-wheeler, and encouraged the double shift, double clutch a
lot better than I actually did. They didn't hire me but they
said they would train me and they would put me in a seat, and
these would be in seats in either Teamster union operations or
private contractor operations as well.
You have choices, and you have skills. Whether you go into
aviation or not, you have skills that are marketable now. This
legislation I don't believe would assist in that.
So, Madam Chair, I appreciate the chance to have this
crystal-clear difference hearing today, but I would certainly
hope we wouldn't go backwards, that we would not move this
legislation that I think would ultimately hurt the
opportunities for people to have those choices, make those
decisions, and have the flexibility to do what America has
always proposed.
Thank you, and I yield back.
Chairwoman Wilson. Thank you, Mr. Walberg.
I now recognize myself for the purpose of making a closing
statement.
I thank you, again, to all of our witnesses for your
testimonies today. Today, we heard compelling testimony on how
the changing relationship between employers and employees is
undermining workers' ability to exercise their collective
bargaining rights and negotiate for better wages, benefits, and
working conditions.
We heard from Mr. Alvarez how hard it is for him; and we
learned from Professor Garden as the number of subcontracted
freelance and third-party workers increase, employers are
incentivized to exploit loopholes in the National Labor
Relations Act to misclassify employees, subcontract work to
evade labor laws, and restrict workers' rights to peacefully
protest.
To make matters worse, the Trump administration is further
enabling employers to exploit these weaknesses in labor law.
From attempting to reverse the Browning-Ferris decision to
denying SuperShuttle workers the right to organize, Republicans
at the National Labor Relations Board continue to erode
workers' rights to join a union, and to negotiate with their
employers. But, more importantly, we discussed the long-overdue
steps that Congress can take, and should take, to ensure our
Nation's labor laws protect the right to organize.
By passing the PRO Act, we will provide workers with the
safeguards they need for a modern economy. This bill will
prevent workers from being misclassified as independent
contractors, and will prevent employers from evading their
obligations under the law. And we will repeal the provisions
that violate workers' First Amendment rights.
Once again, I thank the witnesses for being here. I thank
you, Ms. Garden, Mr. Alvarez, Mr. King, and Mr. Griffin.
And I thank my colleagues for a constructive HELP
subcommittee hearing.
If there is no further business, without objection, this
committee stands adjourned.
[Additional submission by Mr. King follows:]
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[Additional submissions by Mr. Walberg follow:]
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[Additional submission by Ms. Wilson follows:]
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[Questions submitted for the record and their responses
follow:]
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[Whereupon, at 12:52 p.m., the subcommittee was adjourned.]