[House Hearing, 117 Congress]
[From the U.S. Government Publishing Office]


                     REVIVING COMPETITION, PART 4:
                 21ST CENTURY ANTITRUST REFORMS AND THE 
                              AMERICAN WORKER

=======================================================================

                                HEARING

                               BEFORE THE

              SUBCOMMITTEE ON ANTITRUST, COMMERCIAL, AND 
                            ADMINISTRATIVE LAW

                                 OF THE

                       COMMITTEE ON THE JUDICIARY

                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED SEVENTEENTH CONGRESS

                             FIRST SESSION

                               __________

                      TUESDAY, SEPTEMBER 28, 2021

                               __________

                           Serial No. 117-40

                               __________

         Printed for the use of the Committee on the Judiciary
         
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]         


               Available via: http://judiciary.house.gov
               
                               __________

                    U.S. GOVERNMENT PUBLISHING OFFICE                    
48-614                     WASHINGTON : 2022                     
          
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                       COMMITTEE ON THE JUDICIARY

                    JERROLD NADLER, New York, Chair
                MADELEINE DEAN, Pennsylvania, Vice-Chair

ZOE LOFGREN, California              JIM JORDAN, Ohio, Ranking Member 
SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
STEVE COHEN, Tennessee               LOUIE GOHMERT, Texas
HENRY C. ``HANK'' JOHNSON, Jr.,      DARREL ISSA, California
    Georgia                          KEN BUCK, Colorado
THEODORE E. DEUTCH, Florida          MATT GAETZ, Florida
KAREN BASS, California               MIKE JOHNSON, Louisiana
HAKEEM S. JEFFRIES, New York         ANDY BIGGS, Arizona
DAVID N. CICILLINE, Rhode Island     TOM McCLINTOCK, California
ERIC SWALWELL, California            W. GREGORY STEUBE, Florida
TED LIEU, California                 TOM TIFFANY, Wisconsin
JAMIE RASKIN, Maryland               THOMAS MASSIE, Kentucky
PRAMILA JAYAPAL, Washington          CHIP ROY, Texas
VAL BUTLER DEMINGS, Florida          DAN BISHOP, North Carolina
J. LUIS CORREA, California           MICHELLE FISCHBACH, Minnesota
MARY GAY SCANLON, Pennsylvania,      VICTORIA SPARTZ, Indiana
SYLVIA R. GARCIA, Texas              SCOTT FITZGERALD, Wisconsin
JOE NEGUSE, Colorado                 CLIFF BENTZ, Oregon
LUCY McBATH, Georgia                 BURGESS OWENS, Utah
GREG STANTON, Arizona
VERONICA ESCOBAR, Texas
MONDAIRE JONES, New York
DEBORAH ROSS, North Carolina
CORI BUSH, Missouri

        PERRY APELBAUM, Majority Staff Director & Chief Counsel
               CHRISTOPHER HIXON, Minority Staff Director
                                 ------                                

                 SUBCOMMITTEE ON ANTITRUST, COMMERCIAL,
                         AND ADMINISTRATIVE LAW

                DAVID N. CICILLINE, Rhode Island, Chair
                PRAMILIA JAYAPAL, Washington, Vice-Chair

JOE NEGUSE, Colorado                 KEN BUCK, Colorado, Ranking Member
ERIC SWALWELL, California            DARREL ISSA, California
MONDAIRE JONES, New York             MATT GAETZ, Florida
THEODORE E. DEUTCH, Florida          MIKE JOHNSON, Louisiana
HAKEEM S. JEFFRIES, New York         W. GREGORY STEUBE, Florida
JAMIE RASKIN, Maryland               MICHELLE FISCHBACH, Minnesota
VAL BUTLER DEMINGS, Florida          VICTORIA SPARTZ, Indiana
MARY GAY SCANLON, Pennsylvania       SCOTT FITZGERALD, Wisconsin
LUCY McBATH, Georgia                 CLIFF BENTZ, Oregon
MADELINE DEAN, Pennsylvania          BURGESS OWENS, Utah
HENRY C. ``HANK'' JOHNSON, Jr., 
    Georgia

                       SLADE BOND, Chief Counsel
                      DOUG GEHO, Minority Counsel
                           
                           C O N T E N T S

                              ----------                              

                      Tuesday, September 28, 2021

                                                                   Page

                           OPENING STATEMENTS

The Honorable David Cicilline, Chair of the Subcommittee on 
  Antitrust, Commercial and Administrative Law from the State of 
  Rhode Island...................................................     2
The Honorable Ken Buck, Ranking Member of the Subcommittee on 
  Antitrust, Commercial and Administrative Law from the State of 
  Colorado.......................................................     4
The Honorable Jerrold Nadler, Chair of the Committee on the 
  Judiciary from the State of New York...........................     5
The Honorable Jim Jordan, Ranking Member of the Committee on the 
  Judiciary from the State of Ohio...............................     7

                               WITNESSES

Eric A. Posner, Kirkland and Ellis Distinguished Service 
  Professor of Law, Arthur and Esther Kane Research Chair, 
  University of Chicago Law School
  Oral Testimony.................................................    10
  Prepared Testimony.............................................    12
Brian Callaci, Chief Economist, Open Markets Institute
  Oral Testimony.................................................    23
  Prepared Testimony.............................................    25
Dan Gross, Feeder Driver, United Parcel Service; Member, 
  Teamsters Local 177
  Oral Testimony.................................................    33
  Prepared Testimony.............................................    35
Nila Payton, Medical Administrative Assistant, University of 
  Pittsburgh Medical Center
  Oral Testimony.................................................    38
  Prepared Testimony.............................................    40
The Honorable Christine S. Wilson, Commissioner, Federal Trade 
  Commission
  Oral Testimony.................................................    43
  Prepared Testimony.............................................    45
Bruce H. Kobayashi, Paige V. and Henry N. Butler Chair in Law and 
  Economics, Antonin Scalia Law School, George Mason University
  Oral Testimony.................................................    63
  Prepared Testimony.............................................    65

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

An article entitled, ``Trump to leave office with the worst jobs 
  record since Herbert Hoover,'' Fortune, submitted by the 
  Honorable David N. Cicilline, Chair of the Subcommittee on 
  Antitrust, Commercial and Administrative Law from the State of 
  Rhode Island, for the record...................................    20
Materials submitted by the Honorable Matt Gaetz, a Member of the 
  Subcommittee on Antitrust, Commercial and Administrative Law 
  from the State of Florida, for the record
  An article entitled, ``Tech Giants, Fearful of Proposals to 
    Curb Them, Blitz Washington With Lobbying,'' The New York 
    Times........................................................    76
  An article entitled, ``Tim Cook called Nancy Pelosi to warn her 
    against disrupting the iPhone with impending antitrust 
    bills,'' The Verge...........................................    81
  An article entitled, ``House Speaker Nancy Pelosi's husband 
    cashed in on Big Tech just as Congress was set to pounce,'' 
    Fortune......................................................    83
Materials submitted by the Honorable Darrell Issa, a Member of 
  the Subcommittee on Antitrust, Commercial and Administrative 
  Law from the State of California, for the record
  An article entitled, ``California's Occupational Licensing Laws 
    Shouldn't Kick People When They're Down,'' The Federalist 
    Society......................................................    94
  An article entitled, ``California Occupational Licensing: 
    Barriers to Opportunity in the Golden State,'' The Mercatus 
    Center.......................................................    98
Materials submitted by the Honorable David N. Cicilline, Chair of 
  the Subcommittee on Antitrust, Commercial and Administrative 
  Law from the State of Rhode Island, for the record
  An article entitled, ``Report Update | Eyes Everywhere: 
    Amazon's Worker Surveillance Continued,'' Open Markets 
    Institute....................................................   122
  Statement from Lina Khan, Chair, Federal Trade Commission......   141
  A letter from Greg Nowak, Director and Secretary-Treasurer, 
    Brewery and Soft Drink Workers Conference addressed to Amy 
    Greenberg, Director, Regulations and Rulings Division, 
    Alcohol and Tobacco Tax and Trade Bureau.....................   151
  Statement from the International Brotherhood of Teamsters, 
    Service Employees International Union, and the Strategic 
    Organizing Center............................................   152
  Statement from Richard T. Cassidy, Chair, ULC Drafting 
    Committee for Uniform Restricting Employment Agreement Act, 
    and Stewart J. Schwab, Reporter, ULC Drafting Committee......   161

                                APPENDIX

Statement from Kyle Bragg, President, Service Employees 
  International Local 32BJ, submitted by the Honorable David N. 
  Cicilline, Chair of the Subcommittee on Antitrust, Commercial 
  and Administrative Law from the State of Rhode Island, for the 
  record.........................................................   170
Materials submitted by the Honorable Matt Gaetz, a Member of the 
  Subcommittee on Antitrust, Commercial and Administrative Law 
  from the State of Florida, for the record
  An article entitled, ``Nancy Pelosi's husband up $700K on 
    CrowdStrike stock purchase,'' FOX Business...................   173
  An article entitled, ``6 Stocks Nancy Pelosi's Husband Is 
    Buying,'' 24/7 Wall St.......................................   176

 
                     REVIVING COMPETITION, PART 4:
         21ST CENTURY ANTITRUST REFORMS AND THE AMERICAN WORKER

                              ----------                              


                      Tuesday, September 28, 2021

                        House of Representatives

               Subcommittee on Antitrust, Commercial, and

                           Administrative Law

                       Committee on the Judiciary

                             Washington, DC

    The Subcommittee met, pursuant to call, at 10:04 a.m., in 
Room 2141, Rayburn House Office Building, Hon. David Cicilline 
[Chair of the Subcommittee] presiding.
    Present: Representatives Cicilline, Nadler, Jones, Raskin, 
Demings, McBath, Dean, Johnson of Georgia, Jordan, Buck, Issa, 
Gaetz, Johnson of Louisiana, Bishop, Fischbach, Spartz, 
Fitzgerald, Bentz and Owens.
    Staff Present: David Greengrass, Senior Counsel; Moh 
Sharma, Director of Member Services and Outreach and Policy 
Advisor; Cierra Fontenot, Chief Clerk; John Williams, 
Parliamentarian and Senior Counsel; Gabriel Barnett, Staff 
Assistant; Joseph Van Wye, Professional Staff Member and 
Legislative Aide; Slade Bond, Chief Counsel; Phillip 
Berenbroick, Counsel; Ella Yates, Minority Member Services 
Director; Douglas Geho, Minority Chief Counsel for 
Administrative Law; Elliott Walden, Minority Counsel; and Kiley 
Bidelman, Minority Clerk.
    Mr. Cicilline. This Subcommittee will come to order.
    Without objection, the Chair is authorized to declare 
recesses of the Committee at any time.
    Good morning, and welcome to today's hearing, the fourth in 
the Subcommittee's series focused on the development of 
legislative proposals to strengthen and modernize the antitrust 
laws. This hearing is an opportunity to examine competition in 
labor markets, as well as ways to promote the economic 
opportunity of hardworking Americans through robust enforcement 
of our antitrust laws.
    Before we begin, I would like to remind Members that we 
have established an email address and distribution list 
dedicated to circulating exhibit, motions, or other written 
materials that Members might want to offer as part of our 
hearing today. If you would like to submit materials, please 
send them to the email address that has been previously 
distributed to your offices, and we will circulate the 
materials to Members and staff as quickly as we can.
    I now recognize myself for an opening statement.
    Across the political spectrum, Americans know that the 
economy is not working for them. They feel it in every 
paycheck, every surprise medical bill, and every credit card 
payment. Nobel Laureate George Stigler described this as, and I 
quote, ``a widespread sense of powerlessness, both in our 
economic and political life. We seem no longer to control our 
own destinies.'' That is because wage consolidation in recent 
decades has led to the rise in market power among employers, 
decimating jobs and wages, and weakening the economy against 
the American worker, independent businesses, and entrepreneurs. 
In the midst of this trend, corporations are earning monopoly 
profits that are not being reinvested in higher wages or our 
economy, threatening the financial security of working people.
    As Professor Ioana Marinescu testified last Congress, the 
economic concentration of labor laws across the country has 
given employers market power over their workers. Employers with 
market power, also called monopsonies, have the incentive and 
ability to pay lower wages than they would in the competitive 
market. It is nearly impossible to overstate how harmful this 
is to the American worker.
    In the absence of competition, employers have virtually no 
incentive to pay fair wages to retain workers or track new 
talent. Workers are trapped in low-paying jobs. Many workers 
aren't able to escape low-paying jobs or find new jobs after 
being laid off simply because there are fewer alternatives than 
would exist in the competitive marketplace.
    As Professor Eric Posner will testify today, because 
employers push down wages by hiring fewer workers, fewer people 
end up working. That means there is less output which also 
results in higher prices for consumers.
    While the effects of economic concentration have been 
devastating for nearly all workers, it most severely harms 
workers in vulnerable groups, such as women and people of 
color, who have less bargaining power against wage 
discrimination and other forms of workplace inequality. This 
economic catastrophe has been compounded by the ubiquitous 
presence of noncompete and no-poach agreements in employment 
contracts.
    As Professor Evan Starr testified last congress, these 
restraints have become, and I quote, ``so pervasive that even 
volunteers in nonprofit organizations in states that do not 
even enforce them are asked to sign away their post-employment 
freedom.''
    Unfortunately, these trends have only worsened in the wake 
of the pandemic. Last year, despite record levels of 
unemployment, employers continued to go to court to enforce 
noncompete clauses that prevented workers they had laid off 
from taking new positions. For example, as Bloomberg Law 
reported, in Pennsylvania, a sports retailer laid off a 
salesman who had worked there for 31 years and then tried to 
keep him and other sales staff from taking new positions. A 
medical provider sued to keep a Houston doctor from opening new 
offices.
    This, of course, is bad for business. From engineers to 
healthcare workers, the presence of noncompete clauses in 
employment contracts has undoubtedly contributed to labor 
shortages that have weakened America's economic recovery from 
the pandemic. There's also no shortage of examples of collusion 
among employers to fix wages or agree not to hire workers in 
competing firms. Even though these restraints are criminally 
illegal, noncompete clauses appear in everyday employment 
contracts including nearly 60 percent of agreements among major 
franchises in the United States, driving down wages and 
preventing workers from moving to better job opportunities.
    Finally, nearly a third of jobs require licensure, 
including many jobs that have little impact on public health or 
consumer safety. Although there are many benefits associated 
with establishing credentials for professions, particularly 
those with important public health and safety considerations, 
excessive licensing can create barriers to entry in the 
workplace, impose additional costs on workers, and result in 
job losses. Moreover, because these standards differ by State, 
licensing barriers can disproportionately harm military 
families which are ten times more likely to relocate across 
State lines than other working families.
    As the late economist, Alan Krueger, has explained, and I 
quote, ``the most common jobs for military spouses are nurses 
and teachers who often have to get licensed in the new State 
when they move, pay a licensing fee, and by the time they're 
committed to working in those states, they often move again.''
    Although some States have eased the burdens of interstate 
compacts on healthcare workers, this continues to be a problem 
today. In recent years antitrust enforcers under both 
Republican and Democratic leadership have begun paying more 
attention to the effects of economic concentration on labor and 
producers.
    Under the Obama Administration, the antitrust agencies 
issued joint guidelines, clarifying that no-poach agreements 
and wage fixing could be criminally prosecuted. This important 
work continued under the prior Administration and continues to 
be a priority of the Biden Administration.
    In July, President Biden issued Executive Order 14036 which 
outlines a pro-worker, anti-monopoly agenda for the 21st 
century. As the order states, excessive market concentration 
threatens the economic welfare of workers, a while competitive 
marketplace creates more high-quality jobs and the economic 
freedom to switch jobs or negotiate a higher wage.
    Earlier this month, Vanita Gupta, the Associate Attorney 
General of the Justice Department, said that the Antitrust 
Division will make ending collusion among employers a top 
priority. As she said, and I quote, ``American workers who are 
struggling to make ends meet may not always be able to stand up 
to their employer, but the department can and will.''
    Congress also has an important role to play. Although more 
vigorous enforcement in competition rulemaking can address some 
of these concerns, the antitrust agencies cannot change the law 
on their own. Moreover, in recent years courts have shown 
hostility to bold enforcement activity in this area in the 
absence of legislative guidance. As Professor Posner will 
testify today, legislation that more clearly lays out the 
elements of labor's antitrust claims would help push the courts 
in a positive direction.
    As I've said before, I firmly believe that we must explore 
every path to create economic opportunity for all working 
Americans as we Build Back Better. This must be a national 
priority. With that in mind, today's hearing is an opportunity 
to examine these concerns and explore potential legislative 
solutions.
    I look forward to hearing testimony from our esteemed panel 
of witnesses on these matters, as well as potential paths 
forward for fixes these problems.
    I now recognize the distinguished gentleman from Colorado, 
the Ranking Member of the Antitrust Subcommittee, Mr. Buck, for 
his opening statement.
    Mr. Buck. I thank the Chair.
    I have to admit to the Chair that I'm a little baffled by 
this hearing. I'm not sure what specific legislation we're 
going to take up today or in the future based on the opening 
statements and the nature of this hearing. Certainly, those of 
us on this side of the aisle have done our best to work with 
the Chair and others on this Committee when it comes to big 
tech and when it comes to reforms in the pharmaceutical 
industry. This, frankly, is baffling to me.
    We do know that the Biden Administration has taken a number 
of steps that have hurt workers in the economy. For example, 
we've learned through the Obama Administration and the really 
measly economic growth that occurred during the Obama 
Administration is that you offer individuals unemployment 
benefits, and they can stay home and make a living off of 
unemployment benefits and other benefits, they won't go into 
the workplace. We've seen that. We saw also that when we have 
millions upon millions of illegal immigrants in this country 
and they are driving down wages for all American workers, it is 
significant.
    When we look at what's happening on the border with the 
Biden Administration, we see an open border. We see a really a 
sad situation, a humanitarian situation where we are inviting 
people into this country by sending all the wrong signals. We 
have as a result this crisis. We have a Border Patrol that's 
overwhelmed. We have a country that is now accepting tens of 
thousands, if not hundreds of thousands, of people into our 
country on top of the millions who are already here illegally. 
We don't deal with an immigration issue. We don't deal with the 
unemployment benefits and their effect on our economy.
    We also saw from the Trump Administration that if we really 
want to raise workers' wages and we want to help our economy, 
we lower taxes. This week we may very well be taking a step 
towards raising corporate taxes, raising other taxes. When we 
lowered taxes, what we saw was a significant investment from 
overseas coming into this country. Even companies and 
individuals in this country that had their money on the 
sidelines were willing to invest that money because there was a 
climate and an optimism about our economy that doesn't exist 
anymore.
    We also saw the Trump Administration reduce regulations 
significantly. We saw at one point in time there were 27 
regulations repealed for every one new regulation that was 
enacted. The Biden Administration's going the exact opposite 
direction. We're seeing the effects of that on our economy.
    We also know that it's important to have strong trade 
agreements, and those trade agreements lift American workers' 
wages and create a robust economy. The disastrous surrender, 
not withdrawal but surrender, from Afghanistan has put the U.S. 
in a situation where we are weak or we are perceived as being 
weak by our allies and, frankly, adversaries also. So, the idea 
that we will strengthen workers' positions with noncompete 
agreements or changing the nature of noncompete agreements or 
tinkering around the edges of antitrust is laughable when you 
look at how far this Administration has gone in the wrong 
direction.
    Last but certainly not least, by spending the trillions of 
dollars, $6 trillion on COVID alone, what we see is inflation. 
If there's one thing that eats away at workers' ability to 
improve their life, it's inflation. We see inflation. It's 
going to be with us, and it's going to be part of the new 
reality of this Biden economy. I think it's terribly sad.
    I have faith that the Chair is holding this hearing in good 
faith and wants to accomplish some worthy goals. I really think 
that our time would be much better spent battling against the 
$1.2 trillion infrastructure bill, the $3.5 trillion 
reconciliation bill, dealing with the immigration crisis at our 
border, talking about how we need to get people back to work 
and stop giving them unemployment benefits. I think we have to 
make sure that we lower taxes, not raise taxes, that we reduce 
regulations, and that we do everything we can to improve our 
trade agreements.
    With that, Mr. Chair, I yield back.
    Mr. Cicilline. I thank the gentleman for yielding back.
    Before I recognize our next Witness, I should have done 
this at the beginning. I would remind everyone on the current 
guidance of the Office of the Attending Physician it is this 
Committee's policy that Members and staff in the room wear face 
coverings at all times, except when they've been recognized to 
speak.
    I now recognize the Chair of the Full Committee, the 
gentleman from New York, Mr. Nadler, for his opening statement.
    Chair Nadler. Thank you, Mr. Chair.
    Mr. Chair, as we all well know, America's economy has 
become highly concentrated in recent decades. A small number of 
firms dominate a variety of markets that Americans rely on 
including pharmaceuticals, airlines, broadband, online 
platforms, and meatpacking. Just as consolidation in other 
markets tend to result in higher prices and lower quality in 
the goods we buy, consolidation has led to high levels of 
concentration in labor markets.
    As in any other market, when a lack of competition gives 
employers excessive power over workers, employers have the 
incentives and the ability to abuse that power. In many 
industries, these dynamics have led to depressed wages and 
opportunity, limited worker mobility, misclassification of 
workers, and discrimination against the most vulnerable.
    Employers of market power can abuse their power over 
workers in several ways. Some have imposed anticompetitive 
terms in employment contracts such as noncompete agreements 
that ban workers from finding a better job or starting a 
competing firm. Others collude with rivals to fix wages to 
prevent workers from changes jobs. With the rise of the gig 
economy, we see a rising number of employers misclassifying 
employees as independent contractors. These practices harm 
workers. They exacerbate wealth inequality. They frustrate the 
ability of workers to earn a living wage and to support their 
families. These practices have no place in a free and fair 
economy.
    For decades, the antitrust agencies have been too weak or 
too timid to vigorously enforce the antitrust laws to stop and 
deter abuses across the economy. As Professor Eric Posner will 
testify today, these trends have been worse in labor markets 
where enforcement has been virtually nonexistent until very 
recently. These failures have undermined opportunity in the 
financial security of American families and small businesses. 
In the wake of the pandemic, the impacts of these developments 
have hit our frontline workers the hardest. Healthcare workers, 
delivery drivers, grocery workers, meatpackers, and other 
frontline workers have been heroes, keeping us safe and keeping 
our economy going under the most challenging of circumstances.
    Unfortunately, where these workers have saved us during the 
pandemic, all too often our society has failed them. Many of 
these workers, where many industries are overwhelmingly made up 
of women or people of color, often work for wages that are too 
low and in conditions that are unsafe. In many cases, they are 
stuck working for corporations that have cornered the market, 
undermining their ability to find better jobs or higher wages 
in their field because they simply do not exist.
    For example, as Ms. Payton will testify today, 
consolidation in the hospital and physician market in western 
Pennsylvania has led to lower wages and fewer choices for 
employment. As she notes, there is almost nowhere else to work 
if you're a healthcare worker. Moreover, as other Witnesses 
will testify today, many of these workers are subject to 
anticompetitive restrictions on their mobility, such as 
noncompete and no-poach agreements. These abusive contracting 
practices have become ubiquitous in the workforce, further 
entrenching the power of employers over workers, and preventing 
the unemployed from getting a new job.
    This must change, and I am encouraged by recent steps by 
the Biden to address this problem meaningfully through all 
available tools. In July, President Biden issued Executive 
Order 14036, a sweeping and historic approach to building an 
economy that works for everyone through the benefits of 
competition. As this order States, quote, ``consolidation has 
increased the power of corporate employers, making it harder 
for workers to bargain for higher wages and better working 
conditions.''
    In response to this concern, the President's order 
encourages the antitrust agencies to undertake a series of 
actions that will protect workers and promote competition in 
labor markets. These include adopting rules to curtail the use 
of noncompete and other agreements that unfairly limit worker 
mobility, as well as policing collusive behavior among 
employers such as wage fixing. This is a critical effort, and I 
look forward to updates from the Federal Trade Commission and 
the Antitrust Division at the Department of Justice on their 
work to combat market concentration and abuses to market power 
that harm workers.
    Congressional action is also necessary. There is a pressing 
need to update the antitrust laws to ensure the antitrust 
agencies have the necessary tools to stop and deter 
anticompetitive conduct and mergers that harm workers.
    As I have said before, it will also take a comprehensive 
set of reforms to recover economic opportunity and dignity for 
working people. These problems must be addressed with lasting 
solutions like guaranteeing equal pay for equal work, 
prohibiting forced arbitration agreements in employment 
contracts, establishing a living wage, stopping worker 
misclassification, and strengthening unions. The legislation 
that will revive competition in labor markets competition is a 
critical part of this agenda.
    I want to thank all our Witnesses for testifying this 
morning, and I especially want to thank Ms. Payton and Mr. 
Gross for appearing today and for sharing their testimony. We 
appreciate that working, in the healthcare and logistics and 
delivery industries, you have been on the front lines during 
the COVID-19 pandemic. Without you and workers in other 
frontline professions, our economy and our society cannot 
function. So, I thank you.
    I also thank the Chair for holding today's hearing on this 
very important topic.
    With that, I yield back the balance of my time.
    Mr. Cicilline. I thank the gentleman.
    I now recognize the Ranking Member of the Full Committee, 
the gentleman from Ohio, Mr. Jordan, for his opening statement.
    Mr. Jordan. Thank you, Mr. Chair.
    Before President Biden, before Democrats controlled all of 
government, there was never a better time for American workers. 
Manufacturing was on the rise. According to one estimate, 
President Trump's first 30 months, manufacturing jobs were up 
314,000 over where they were under President Obama. We had low 
employment, In fact, the lowest in 50 years. Wages were booming 
across the board, and we saw massive job growth across all 
sectors of our economy. Anyone paying attention knows that, 
even with the virus, our job market is resilient.
    Drive through any town in America, anywhere. You will see 
dozens of hiring signs, with many offering high starting wages 
and signing bonuses. Talk to any employer right now, and their 
biggest problem is actually getting people to come to work.
    So, the biggest threat to the American worker is not any of 
the things you brought up in your opening statement. Frankly, 
the biggest threat to the American workers are far left 
Democrat policies.
    Democrats are using the pandemic to have a government 
takeover of our economy. They want to make permanent the 
extraordinary welfare programs enacted in the last 18 months. 
On top of that, they want to ram through trillions of dollars 
more of spending. We have seen an eviction moratorium, vaccine 
mandates, paying people not to work, not to mention higher 
taxes, rampant inflation, and undoing much of the Trump 
Administration's regulatory reform.
    I mean, the Democrats' economic plan seems to be lock down 
the economy, spend like crazy, pay people not to work, tell 
them they can't be evicted. Then for everyone who is working 
and is paying their rent, oh, they're going to raise your 
taxes. Such a deal. Maybe the dumbest economic plan I've ever 
heard of, but that's their plan. Make no mistake, the Biden 
economy is not helping American workers unless these workers 
are Federal bureaucrats in Washington.
    The radical Democrat policies are leading to higher prices 
for American consumers in the short run, and in the long run 
they will only increase the already crushing debt burden we're 
placing on our children and grandchildren. That's not even to 
mention what Democrats on this Committee have imposed doing, 
including empowering the Biden Administration's radical Federal 
Trade Commission to attack our freedom-in-price system by 
overhauling antitrust laws and upsetting precedent that applies 
to the economy as a whole.
    You thought corporate America was in bad shape now. Just 
wait until Lina Khan and other Biden bureaucrats get more 
power. The chair of the FTC is already abusing the power she 
does have and is ruling the FTC in an authoritarian compassion 
in a total departure from the way the commission has worked for 
the last half century. In fact, I look forward to hearing from 
Commissar Wilson on some of these concerns.
    This Committee ought to be conducting far more oversight of 
the FTC and how it has moved away from its original mission. 
The best thing we can do for the American worker is getting 
were wash off their back. I look forward to today's discussion, 
and I want to thank all our Witnesses for being here today.
    Mr. Chair, I yield back.
    Mr. Cicilline. The gentleman yields back.
    It's now my pleasure to introduce today's Witnesses.
    Our first Witness is Eric Posner, the Kirkland and Ellis 
Distinguished Service Professor of Law and the Arthur and 
Esther King Research Chair at the University of Chicago Law 
School. He's been a member of the faculty at the University of 
Chicago since 1988.
    Before teaching in Chicago, Professor Posner spent five 
years as a Professor of Law at the University of Pennsylvania 
and one year as an Attorney Advisor at the Office of Justice's 
Office of Legal Counsel. He's written a number of highly-
regarded books including ``Law and Social Norms'' and ``How 
Antitrust Failed Workers.'' Professor Posner is a fellow at the 
American Academy of Arts and Sciences and a member of the 
American Law Institute. Mr. Posner received his bachelor's and 
master's degree from Yale University and his J.D. from Harvard 
Law School.
    Today's second Witness is Brian Callaci, the Chief 
Economist at Open Markets Institute. He's a leading expert in 
worker's rights issues and has served as senior research 
analyst for both the Service Employees International Union and 
the Change to Win Strategic Organizing Center, as well as a 
consultant for the Communications Workers of America.
    Additionally, Dr. Callaci has extensive experience as a 
union leader, having held multiple leadership posts with the 
Graduate Employee Organization and the Washington-Baltimore 
Newspaper Guild. His work has been featured in journals 
including the Journal of Law & Political Economy and the Labor 
Studies Journal.
    Dr. Callaci received his bachelor's degree from Franklin & 
Marshall College and both his master's and Ph.D. from the 
University of Massachusetts Amherst.
    Our third Witness, Dan Gross, is a feeder driver at the 
United Parcel Service and a member of Teamsters Local 177 in 
New Jersey. Mr. Gross has been an active union member since he 
began his employment at UPS 22 years ago. Mr. Gross knows 
firsthand how important collective bargaining, direct action, 
and organization are to the American worker.
    Because of his Membership in the teamsters, Mr. Gross has 
been able to build a career with an upward trajectory at UPS 
and to earn a stable living. Mr. Gross is a prominent leader in 
his union community, serving as shop steward for Local 177.
    Our fourth Witness is Nila Payton, a medical administrative 
assistant at the University of Pittsburgh Medical Center. She's 
worked at UPMC for almost 16 years and is the primary 
breadwinner for her family.
    Since 2015, Ms. Payton has been a vocal advocate for 
improved pay and benefits, expanding workers' rights and 
unionization at UPMC. She helped to organize Hospital Workers 
Rising, an organization of hospital workers in western 
Pennsylvania dedicated to improving their working conditions.
    Ms. Payton has spoken at multiple rallies and panels, 
submitted testimony to her wage review board, and organized her 
colleagues to build support for forming a union at the medical 
center. In 2017, she was included on The Incline's ``Who's 
Next'' list of community leaders and activists working to build 
a better Pittsburgh.
    Our fifth Witness, the Honorable Christine Wilson, is a 
Commissioner at the Federal Trade Commission. She was sworn in 
by former President Donald Trump in 2018. Before her nomination 
to the FTC, Commissioner Wilson served as the Senior Vice 
President of Legal, Regulatory, and International at Delta 
Airlines. She also practiced antitrust law at Kirkland Ellis, 
LLP, and O'Melveny & Myers, LLP.
    During the Bush Administration, Commissioner Wilson served 
at the FTC as Chair Tim Muris' Chief of Staff. Commissioner 
Wilson received her bachelor's degree from the University of 
Florida and her JD from the Georgetown University Law Center.
    Today's last Witness, Bruce Kobayashi, is the Paige V. and 
Henry N. Butler Chair in Law and Economics at George Mason 
University's Antonin Scalia Law School. Most recently Professor 
Kobayashi served as the director of the Federal Trade 
Commission's Bureau of Economics. Additionally, he's worked as 
an economist with the FTC, a senior research associate with the 
United States Sentencing Commission, and an economist at the 
Department of Justice.
    He's widely published, with works appearing in highly 
regarded publications including Competition Policy 
International and the Journal of Competition Law & Economics. 
Professor Kobayashi received his bachelor's and master's 
degrees, as well as his Ph.D., at the University of 
California--Los Angeles.
    We welcome all our distinguished Witnesses, and we thank 
them for their participation.
    I will begin by swearing in our Witnesses. I would ask our 
Witnessing testifying in person to rise and ask our Witnesses 
testifying remotely to turn on their audio and make sure I can 
see your face and you raise your right hand while I administer 
the oath.
    Do you swear or affirm, under penalty of perjury, that the 
testimony you're about to give is true and accurate to the best 
of your knowledge, information, and belief, so help you God?
    Let the record show the Witnesses answered in the 
affirmative.
    Thank you and you may be seated.
    Please note that your written statements will be entered 
into the record in their entirety. Accordingly, I ask that you 
summarize your testimony in five minutes. To help you stay 
within that timeframe, there's a timing light in WebEx. When 
the light switches from green to yellow, you have one minute to 
conclude your testimony. When the light turns red, it signals 
that your five minutes have expired.
    I now recognize Professor Posner for five minutes.

                  TESTIMONY OF ERIC A. POSNER

    Mr. Posner. Thank you, Mr. Chair. It is truly an honor to 
be invited to speak to you. I am sorry not to be there in 
person. Unfortunately, for pandemic-related reasons I was asked 
to stay here, although I'm perfectly fine.
    As you mentioned, I recently published a book called ``How 
Antitrust Failed Workers.'' The book is the result of several 
years of research into this topic, and I'll spend a couple of 
minutes telling you what I found.
    Let's start with the simple example which I'm sure other 
people will talk about as well. Imagine that we have in a small 
town, two hospitals. The hospitals would like to merge. Now, 
traditionally, if the hospitals want to merge in America, they 
may need to obtain the consent of the government, the FTC, or 
the DOJ.
    The FTC and DOJ will look at whether the merger will have 
negative effects on what's called the product market, that is, 
the price and quantity of medical services to the surrounding 
population. If the two hospitals are very large, the government 
may well try to block the merger. The merger would be illegal 
because it would predictably raise prices and reduce medical 
services.
    What the government agencies have virtually never done, I 
guess literally never done, is look and see whether the merger 
might have negative effects on labor markets. If two hospitals 
merge, they employ, most of them, nurses and doctors, medical 
technicians, and other specialists in the area.
    According to economic theory, if the hospitals are very 
large, one would expect the merger to result in lower wages, 
less employment of the professionals, less output, and so 
ultimately higher prices.
    Labor market-oriented anticompetitive behavior is just as 
bad as product market-oriented anticompetitive behavior. It's 
also a violation of the antitrust laws. I'm not just talking 
about mergers. I'm talking about conventional forms of 
collusion. There's price-fixing on the product market side, 
wage fixing on the labor market side. There are market 
divisions on the product market side.
    There are no-poaching agreements on the labor market side. 
These are all equally harmful types of conduct, harmful for 
workers, and harmful for consumers. Of course, workers and 
consumers are the same people.
    Now, antitrust law, just as it is on the books and as it 
has been recognized by the courts, applies in the same way to 
labor markets as it does to product markets. Yet--and this is 
what my book is about--there have been virtually no labor 
market cases.
    There have been a handful in this country. Yet, there have 
been no merger reviews that resulted in a merger being blocked 
because of the labor market effects. In fact, there's been 
virtually no consideration at all the labor market effects of 
mergers.
    Similarly, there's been very, very little antitrust 
litigation that deals with no-poaching agreements, wage-fixing 
agreements, covenants not to compete, and other forms of 
anticompetitive behavior by employers.
    There literally are zero cases involving true monopsonies 
where you have a very large employer who uses its monopsony 
power, its market power over the labor market to suppress 
wages, to prevent competition.
    This is a puzzle, given that the law applies equally. The 
puzzle is not easily answered. This probably is the result of 
certain historical traditions including the primary 
responsibility of unions to protect workers.
    Of course, union density has declined significantly over 
the last 50 years. So, they're no longer able to do that to the 
same extent as they did in the past.
    The explanation for this difference, what I call litigation 
gap, between antitrust litigation focused on product markets 
and antitrust litigation focused on labor markets does not have 
anything to do with market structure. This is the conclusion of 
research by Ioana Marinescu and her colleagues and, by now, 
dozens and dozens of labor economists who have found with 
complete consistency that many labor markets in this country 
are extremely highly concentrated.
    Other economists have found that anticompetitive 
arrangements like noncompetes and no-poaching agreements are 
extremely common. So, there does seem to be a problem with 
labor markets that antitrust law should be used to address, and 
yet until very recently this has not been done.
    The FTC to its credit, by the way, during the Trump 
Administration issued a public comment on a merger in Abilene, 
Texas, where they did point out that, as a result of the 
merger, the merged entity, the hospital, would control 94 
percent of the labor market for nurses. So, there has been some 
movement recently.
    I see that I'm out of time, but I'd be happy to answer 
questions and provide my ideas about what Congress can do about 
this.
    [The statement of Mr. Posner follows:]
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    Mr. Cicilline. Thank you, Professor Posner. Although you're 
not in the room, I want you to know you're here in spirit 
because I have your book.
    I do want to, before I introduce our next Witness, I do 
want to ask unanimous consent to place into the record a 
Fortune Magazine article to respond to Mr. Jordan's 
representations that is entitled, ``Trump to Leave Office With 
the Worst Job Record Since Herbert Hoover.''
    Without objection.
    [The information follows:]    

                      MR. CICILLINE FOR THE RECORD

=======================================================================

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    Mr. Cicilline. I now recognize Dr. Callaci for five 
minutes.

                 TESTIMONY OF DR. BRIAN CALLACI

    Mr. Callaci. Thank you.
    My name is Brian Callaci. I'm Chief Economist at the Open 
Markets Institute. I want to thank Chair Cicilline, Ranking 
Member Buck, and the other Members of the Subcommittee for the 
opportunity to participate in this hearing. I will just say at 
the beginning I feel a little bit at home here.
    I grew up in Cranston, Rhode Island just outside of Chair 
Cicilline's district. Just yesterday, I was in Crowley, 
Colorado, visiting my in-laws in Ranking Member Buck's 
district, these problems are happening all across the country.
    So many of the issues we're discussing today have been 
around really as long as there have been markets for labor, as 
long as there have been labor markets. Back in 1776, Adam Smith 
argued that there was a baseline power imbalance between 
employers and workers.
    Furthermore, Smith was outraged that parliament, the 
British parliament, put its thumb on the scales in favor of the 
employer, for example, by authorizing employers to get together 
and lower wages, while prohibiting workers from getting 
together, what we now call unionizing, to attempt to raise 
wages.
    Now, since that time, our laws have evolved quite a bit to 
address some of the issues that troubled Smith we left the 
United Kingdom and Great Britain, for example. Congress passed 
antitrust laws specifically to prevent and restrain 
combinations of capital. Then it passed laws allowing, and even 
encouraging, workers to legally combine into unions. Congress 
also legislated specific labor protections to regulate wages 
and working conditions.
    However, over the past few decades, antitrust has 
unfortunately taken a step backwards toward the conditions that 
so outraged Adam Smith. In particular, antitrust has largely 
missed the boat as large corporations have consolidated buyer 
power over both local labor markets and entire supply chains, 
suppressing wages and worsening working conditions throughout 
the supply chain.
    Recent research shows that local labor market concentration 
is high, has been increasing over time, and is especially 
damaging to works lacking a union's protection. Meanwhile, 
recent research has also found that buyer power in supply 
chains accounts for about 10 percent of wage stagnation since 
the 1970s. Even with these facts, no merger has ever been 
blocked for its effects on labor markets.
    Second, antitrust has also been relatively absent as 
employers have supercharged their baseline monopsony power over 
employees through restrictive contracts like noncompete 
clauses, mandatory arbitration, and no-poaching agreements that 
artificially suppress wages. The effects from this course of 
contracts, as the Chair pointed out, have been doubly large for 
women and nonwhite workers.
    Finally, in a series of court decisions since the late 
1970s, antitrust courts have facilitated large corporations' 
use of restrictive contracts to dominate and control 
nonemployee independent contractors and small business.
    For example, Amazon outsources local deliveries to so-
called independent delivery service partners. Amazon sets the 
rates that these independent businesses can charge, the routes 
they have to drive, even their labor practices. This kind of 
domination and control hurts workers, too.
    Small businesses with no control over their own prices, 
costs, and profits have little room to improve the wages of 
working conditions they offer workers, while employees of these 
firms lack legal rights against the corporation that actually 
controls their working conditions.
    Even worse is the so-called gig economy where similar 
restrictive contracts are used to misclassify workers as 
independent businesses, stripping workers of all employment 
rights. These workers risk treble damage and trust prosecutions 
and lawsuits if they try to unionize.
    So, to return balance to the economy, action is urgently 
needed to disburse concentrated power and prevent the abuse of 
workers. In recent months Congress and the Executive Branch 
have taken important steps in this direction. The July 
Executive Order on promoting competition in the American 
economy contains a number of positive components by including a 
directive to the USDA to consider issuing new rules under the 
Packers and Stockyards Act to combat buyer power in food supply 
chains, and the directive to the FTC to consider issuing rules 
banning noncompete clauses.
    The FTC should further consider, however, using its section 
5 rulemaking powers to restrict the use of exclusionary 
contracts and other vertical restraints and restrictive 
contracts by dominant firms to control nonemployee independent 
contractors.
    The package of bills that the House Judiciary Committee 
passed out of Committee in June, addressed to competition 
issues posed by dominant tech platforms, are a vitally 
important step in the right direction to restraining corporate 
power.
    However, since problems of economic concentration and 
coercive contracts extend well beyond tech platforms, general 
antitrust legislation is needed as well. Such legislation 
should explicitly protect workers and suppliers from monopsony 
power, prevent judges from allowing wage suppression in the 
name of consumer welfare, expand labor exemptions from 
antitrust prosecution to independent contractors, and finally 
close those loopholes allowing corporations to enjoy a control 
over their business empires but without employment 
responsibilities through the use of these restrictive 
contracts.
    I see that I'm about out of time. So, thank you. I look 
forward to answering any questions.
    [The statement of Mr. Callaci follows:]
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    Mr. Cicilline. Thank you, Dr. Callaci.
    No surprise that you're bragging about your Rhode Island 
roots. So, thank you for being here today.
    I now recognize Mr. Gross for five minutes.

                   TESTIMONY OF DANIEL GROSS

    Mr. Gross. Thank you, Chair Cicilline, Vice Chair Jayapal, 
and Ranking Member Buck. My name is Dan Gross, Madison, New 
Jersey. I'm 49 years old, husband and father of four. I drive a 
tractor-trailer in the feeder network for United Parcel 
Service. I'm also a proud union member and been active in 
Teamsters Local Union 177 since I started with UPS 22 years 
ago. I'm honored to speak with you today about why reforming 
our antitrust laws is important to me and my fellow American 
workers.
    My career at UPS started in June of 1999. Like most of us 
at UPS, I started as a part-timer. I transferred into a full-
time combination job in 2000. These combo jobs were the direct 
result of our national negotiations and the three-week strike 
with UPS in 1997, which created tens of thousands of full-time 
jobs by combining multiple part-time jobs.
    After two years in the combination job, my seniority 
enabled me to transfer to a package car driver position where I 
delivered packages to businesses and homes in one of those 
familiar brown trucks.
    In October of 2005, again using my seniority, I was able to 
transfer to my current job as a feeder driver. As a feeder 
driver, I drive tractor-trailers, transporting trailers full of 
packages between UPS delivery hubs to and from other large UPS 
customers.
    I've seen firsthand what large corporations try to get away 
with due to corporate greed when workers don't have a 
collective voice to demand decent pay and working conditions. 
My union has provided that collective voice at UPS for nearly 
100 years.
    Unfortunately, our standards and those of hundreds of 
thousands of United States postal workers are also under attack 
by a new type of company, a company that uses its dominant 
presence in e-commerce to exert power over its contractors and 
workers. The threat to the industry I work for is Amazon.
    I know that this Committee has passed bills that are trying 
to take on the special threats of Amazon and other tech 
companies. I'm not here to speak to those businesses. I want to 
use Amazon as one example of why you should pass antitrust laws 
to address how the largest, most powerful companies have too 
much power over their workers and how those effects and directs 
employees and all the other workers in the industry.
    As a feeder driver, it's common practice for us to be 
offered access to the customers' facilities while we're waiting 
for our loads. Amazon stopped this practice to limit our 
interaction with direct Amazon drivers and drivers working for 
Amazon subcontractors or independent contractors. It seems 
clear to us feed drivers that Amazon did this to exert control 
over the information the employers and contractors can share 
with each other about route deliveries, but also paying working 
conditions.
    In addition, Amazon uses drivers that are paid varying 
rates that are below industry standards, possibly by as much as 
half, even before benefits are factored in. I have even been 
told that sometimes Amazon restricts the ability of so-called 
independent contractors to carry backhaul loads, forcing them 
into nonpaying empty loads on their return trip. Amazon's 
dominant position as an e-retailer enables Amazon to exert its 
power in business relationships in ways that encroach upon the 
teamster's collective bargaining agreement with UPS and 
directly impact my working conditions.
    The constant threat of losing or diminishing delivery 
volume has forced UPS to comply with Amazon's demand to utilize 
subcontractors and independent operators who are now subject to 
the collectively bargained rules that are designed to keep 
drivers in the public safe.
    Collective bargaining is the antidote to corporate 
dominance. My Local Teamsters 177 has won grievance settlements 
to address the above subcontracting, and similar contract 
violations against UPS currently has multiple pending 
grievances.
    However, we have limited ability to impact Amazon's 
continuing demands that UPS modify its procedure to retain the 
Amazon business.
    Similarly, also based on my experience as a package car 
driver and shops throughout UPS, I notice the growth of 
Amazon's last-mile delivery network. While the drivers are in 
Amazon-branded vehicles and now wear Amazon colors, they are 
not Amazon employees but employees of more than nearly 1,000 
deliver service partner contractors.
    These DSPs work solely for Amazon. Amazon set this system 
up to exert total control, while shifting all their risk and 
responsibility onto smaller businesses and, of course, workers.
    A direct impact of Amazon's demands can be seen in the 
creation of classifications of workers to sacrifice Amazon's 
insistence that its contractors provide service on the 
weekends.
    In 2012, the contract that the USPS negotiated with Postal 
Service unions created a noncareer letter carrier position to 
do Amazon package delivery on the weekends. In our UPS national 
agreement in 2018, a new delivery job classification was also 
created to accommodate the demands of Amazon for weekend 
delivery.
    If Amazon has the ability to dictate terms to entities like 
the United States Postal Service and UPS, imagine the control 
it has over small businesses like DSPs.
    I feel fortunate to be working in a field where workers 
have fought for and won industry-leading pay and benefits 
standards through collective bargaining. I encourage you to 
consider antitrust policy reforms that help to rebalance the 
power that corporations like Amazon have over labor markets.
    If we don't do something now, workers will be forced into 
dead-end, unsafe, and high-turnover jobs instead of enriching 
careers that allow our families to thrive.
    Thank you, and I look forward to your questions.
    [The statement of Mr. Gross follows:]
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    Mr. Cicilline. Thank you very much, Mr. Gross, for being 
here and for your testimony.
    I now recognize Ms. Payton for five minutes.

                    TESTIMONY OF NILA PAYTON

    Ms. Payton. Good morning. My name is Nila Payton. I'm an 
administrative assistant in the pathology department at UPMC 
Presbyterian hospital. I want to start by thanking the 
Committee for inviting me to testify today.
    I live in Pittsburgh with my two children. My older son, 
Ty-Jahn, goes to a Pittsburgh public school. My youngest, 
Roman, goes to a Pittsburgh public preschool. I do my best to 
keep up with school announcements and participate in school 
board meetings because I want them to have a great, quality 
education.
    I have worked at my job for almost 16 years. I trained for 
it at the Bidwell Training Center where a lot of administrative 
assistants and UPMC workers can get their training. The 
pathology department is important to everything we do at UPMC. 
I make sure test requests and results get to the right place.
    So, I have to understand medical terminology. I also make 
sure that our department remains HIPAA compliant. I'm really 
good at my job, I have good relationships with everyone, and I 
bring a positive attitude to work. I like knowing that my work 
helps sick people.
    My job does not pay as it should, and I'm not treated with 
the dignity and respect I deserve. After 15 years on the job 
and several promotions, I make $19 an hour. That might sound 
like a lot, but a living wage for my family type in Pittsburgh 
is $28 as hour. People just starting in my position or in a 
service position make $15.
    Every service worker I know struggles to make ends meet. 
Our medical insurance is very high, and we have to use UPMC 
facilities. I have medical debt to my employer, and so do many 
of my coworkers. That mean we skip or postpone treatment 
because co-pays and bills are just too high.
    Management knows we are struggling. They sometimes send us 
tips for stretching our budget. One time they told us to save 
on transportation costs by riding our bikes to work, something 
I don't plan to do in the snow, especially with a small child. 
They direct us to apply for government assistance, which some 
of us workers make just too much to qualify for. We also have 
an internal UPMC food bank. Where is the dignity in that?
    As for respect, here's an example. In the last big wave of 
the pandemic, I told my manager that workers wanted better PPE 
and information so we could stay safe in the hospital. When I 
expressed that I thought we should get hazard pay, my employer 
told me that because we work in healthcare that we signed up 
for this and I should stop complaining. I'm sorry. Nowhere in 
my orientation did it mention putting my life on the line.
    I understand that we have to make a hospital run in a 
pandemic, but ``you signed up for this'' is not the right 
answer. The right answer is your life is valuable. Let's do 
everything in our power to make sure you are informed and safe. 
UPMC did not even apply for the hazard pay that the State was 
offering.
    Sometimes people ask, ``Why don't you just get another job 
if you don't like the one you have?'' I love what I do, and 
this is where you need to understand just how big UPMC is. Two 
decades ago, there was no UPMC. Pittsburgh had many independent 
hospitals. Over the past 20 years UPMC has grown from one 
hospital, Western Psych, to become a $23 billion company. It 
now owns Mercy, Presbyterian, Montefiore, Shadyside, 
Children's, Magee, McKeesport, East, and St. Margaret's. That's 
just in the Pittsburgh area.
    We all have the same corporate policies. So, what's the 
point of going from Presby to Magee? There's almost nowhere 
else to work if you're a healthcare worker. UPMC is so big that 
they actually affect the whole labor market, even outside of 
healthcare.
    Last week I looked at administrative assistant jobs not at 
UPMC. There were 800 of them in our region. I eliminated the 
part-time jobs. I eliminated the part-time jobs, then all the 
jobs that paid the same or less than mine. There were 40 left. 
Then I eliminated the nightshift jobs, because I have children, 
and the jobs so far where you need to have a car. There were 
just two jobs left.
    UPMC employs 92,000 workers. Nobody else has enough jobs to 
force them to compete for our time and our skills. Instead UPMC 
sets the ceiling for everybody. That's why leaving UPMC is not 
a better--not a realistic path to a better life. Leaving just 
means that we have to start all over again.
    I do not want to waste time, looking for something that 
does not exist. I want to work to improve the job that I have. 
I want to improve all the jobs that thousands of my UPMC 
coworkers have.
    Two generations ago, Pittsburgh has an employer as big and 
impactful as UPMC. It was called U.S. Steel. Workers at U.S. 
Steel had their union. So, instead of a worker starting at $15, 
a worker started their first day at over $21 an hour in today's 
money and went up from there. A steelworker with my years of 
service would be vested in a pension and making $33 an hour.
    Steel jobs lifted up every other job around because, if 
employers wanted workers, they had to compete with U.S. Steel. 
If we create good jobs for workers at UPMC, we can do the same 
thing and create good jobs for everyone. That's what I want to 
do.
    Thank you for listening and have a great day.
    [The statement of Ms. Payton follows:]
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    Mr. Cicilline. Thank you, Ms. Payton.
    I now recognize Commissioner Wilson for five minutes.

         TESTIMONY OF THE HONORABLE CHRISTINE S. WILSON

    Ms. Wilson. Chair Nadler, Ranking Member Jordan, Chair 
Cicilline, Ranking Member Buck, and Members of the Committee, 
thank you for the opportunity to testify.
    I will first provide context for the labor issues we're 
discussing today. Then I will address antitrust issues 
pertaining to labor markets. Finally, I'll touch on procedural 
irregularities at the FTC that regrettably have precluded a 
robust dialogue on these and other policy issues.
    Our antitrust laws are more than 100 years old. 
Periodically we ask: Are they capable of addressing new 
industries and dynamic markets? Previous periods of reflection 
have led us to answer yes. Many ask the same question now, but 
the current version of the question is notably different.
    First, concerns about the dynamic tech industry are not 
limited to antitrust. Some focus on the collection and use of 
consumer data. Federal privacy legislation, I believe, is the 
solution. Others are concerned about content curation and 
censorship. Reforms to section 230 may be appropriate.
    These concerns merit discussion, but just because we hold 
the hammer of antitrust law in our hands does not mean we 
should treat every concern as a nail, or we risk bludgeoning 
our entire economy. Each concern deserves the appropriate tool. 
For antitrust law, the many enforcement actions and 
investigations against big tech confirm that process has begun. 
We should let those cases play out before overhauling our 
antitrust laws.
    The second difference is that current concerns about 
antitrust extend beyond the dynamic tech industry. Today's 
hearing on labor in monopsony highlights one of those broader 
goals. The antitrust laws as they exist today embody concepts 
like monopsony and prohibit no-poach agreements and 
unreasonable noncompetes. Antitrust enforcement as it exists 
today reaches anticompetitive conduct that harms labor and 
middlemen, not just the end customer.
    Today's antitrust reformers propose changes that would 
transform not just our antitrust laws but our economy. 
Substituting our sound economic-based approach from one that 
picks winners and losers will incentivize rent-seeking and 
regulatory gamesmanship instead of competition and innovation. 
Everyone including American labor will suffer.
    Turning to monopsony and labor issues, let's start with 
occupational licensing. Licensing regimes may advance 
legitimate health and safety goals, but frequently those who 
are already licensed use those regimes to insulate themselves 
from competition. The FTC has sued when incumbents suppressed 
competition through State boards. The FTC has also submitted 
hundreds of comments and amicus briefs, urging policymakers to 
consider the impact of licensing restrictions on competition, 
especially in the healthcare sector.
    Federal and State restrictions were relaxed during the 
pandemic to boost the availability of scarce healthcare 
personnel. I hope policymakers assess the impact of those 
changes and permanently eliminate unnecessary restrictions, and 
I thank America's health-care workers like Ms. Payton for their 
service to us during the pandemic.
    Regarding monopsony, the FTC and DOJ have prevailed in 
monopsony cases and so have private litigants. Both mergers and 
business practices may create unlawful monopsony power, even 
when ultimate downstream markets are not impacted. I would 
welcome the opportunity to discuss the FTC's scrutiny of 
mergers from monopsony issues in recent years including a 
challenge to a merger involving the sale of blood plasma by 
donors.
    With respect to noncompete provisions, State jurisprudence 
and common law provide rich guidance on noncompetes. Some 
States have laws explicitly prohibiting employee noncompetes, 
and other States like Pennsylvania are considering laws on this 
topic. States AGs have had notable successes in this area. For 
now, given that economic evidence is mixed regarding the impact 
of noncompetes on employees and the ancillary impact of 
noncompetes like investments in employee training in R&D are 
relevant as well, I believe we should listen to Justice 
Brandeis and let the states continue acting as laboratories of 
democracy.
    The final labor issues pertain to no-poach agreement. FTC-
DOJ guidance warrants that wage fixing and no-poach agreements 
may be prosecuted criminally. Both Federal and State 
enforcements have been active in this area, and the FTC brought 
a case involving home health staff in 2018.
    Turning to my third topic, the issues we'll discuss today 
and other potential antitrust reforms merit thoughtful 
discussion. Traditionally, the FTC has played a leading role in 
the antitrust policy debate largely because of its strong 
bipartisan dialogue which has benefited from the vibrant input 
from stakeholders. Regrettably new FTC leadership has made 
meaningful dialogue among commissioners and between the 
commission and its stakeholders difficult.
    In closing, I thank the Committee for this opportunity to 
testify. I look forward to answering your questions.
    [The statement of Ms. Wilson follows:]
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    Mr. Cicilline. Thank you, Commissioner.
    I now recognize Professor Kobayashi for five minutes.

                TESTIMONY OF BRUCE H. KOBAYASHI

    Mr. Kobayashi. Thanks. I thank the Committee for inviting 
me to testify today.
    I want to say at the outset that ensuring that the 
antitrust laws protect both workers and consumers from the 
effect of monopsony should be an important goal of antitrust. 
The effects of classical monopsony results in harm to both 
workers, consumers by simultaneously reducing output, 
decreasing workers' wages, and increasing prices to consumers.
    My testimony today will focus on proposals to use the 
Federal antitrust laws to control the use of noncompete 
agreements, irrespective of the context in which they are used. 
Any suggestions should be based on robust and systematic 
evidence of the negative effect and ubiquitous effect of NCAs 
on both workers and consumers.
    While there certainly is some evidence that the application 
of noncompete agreements in some settings harm workers--and 
Evan Starr has done great work in this area--there is also 
evidence that noncompete agreements, especially when 
accompanied by notice and consideration, result in benefits 
that both workers and firms achieve. In addition, noncompete 
agreements can simultaneously increase worker mobility and 
wages but also harm consumers.
    There's a recent article by Gurun, Stoffman, and Yonker 
published this year in the Journal of Financial Economics which 
studies Membership in the Broker Protocol. Protocol member 
firms agree not to enforce post-employment restrictions by 
promising not to sue departing brokers for taking their client 
information with them to other member firms. One effect was 
that the brokers were happy.
    They had increased mobility, and they achieved higher 
wages. Consumers were harmed. The authors present evidence that 
consumers paid higher prices to protocol firms and suffered 
higher levels of broker misconduct.
    Second, to the extent that problematic uses of noncompete 
agreements and other restrictive employment agreements have 
been identified, the preferred solution would be to address 
these identified problems specifically, rather that enact a 
widespread ban through the use of the Federal antitrust laws.
    Legislative solutions to specific issues should be 
identified by robust and credible research based on the well-
developed body of State law, as Commissioner Wilson just said, 
actually follows an approach that recognizes the mixed and 
potentially beneficial use of NCAs.
    I think that the Committee should pause and make sure that 
it is not going to interfere with the robust and widespread 
approach of the States where the vast majority of States allow 
the reasonable use of NCAs but ban the unreasonable use. The 
Uniform Law Commission just passed at the end of July a uniform 
law which would take many of the protections in the majority of 
States and apply them in a uniform law, if enacted.
    Just as it would be wrong for antitrust policies solely to 
focus on output markets and monopoly and ignore the effect of 
monopsony, it is also wrong to base antitrust policy only on 
the effect on workers without considering the downstream 
effects.
    I think that what--one example that Eric mentioned was 
hospital mergers. There's actually a great article by Prager 
and Schmitt that I think was just published in the American 
Economic Review that shows that hospital mergers that occurred 
from 2000-2010 caused wage stagnation for skilled hospital 
workers.
    You have to sort of understand the context of the data they 
have. The period right before their dataset, the 1990s, was a 
period in which the Federal agencies challenged but lost seven 
straight hospital mergers. In response to that, then Chair 
Yaris in 2002 convened a task force.
    The task force looked at the causes of these losses 
including problems with market definition and got the Bureau of 
Economics to produce retrospective studies to show that these 
mergers caused double-digit price increases. As a result of 
this, things were turned around. It's not surprising that these 
mergers which were allowed to harm consumers also harmed 
workers.
    I look for to your questions.
    [The statement of Mr. Kobayashi follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Cicilline. Thank you, Professor.
    We'll now proceed under the five-minute rule with 
questions. I'll begin by recognizing the Chair of the Full 
Committee, Mr. Nadler, for five minutes.
    Chair Nadler. Thank you, Mr. Chair.
    Ms. Payton, I was particularly struck by your testimony. 
You told your manager that workers in your hospital needed more 
information and better personal protective equipment to stay 
safe during the pandemic. Your manager said that you signed up 
for this because you work in healthcare, and you should stop 
complaining.
    Do you think your employer could be so dismissive about 
providing PPE if there was more competition for healthcare 
employees in Pittsburgh, and did you and your colleagues sign 
up for an unsafe work environment?
    Ms. Payton. No, we did not sign up for an unsafe work 
environment. We signed up to provide quality patient care. If 
we had a union at UPMC, we would be able to voice our opinion 
about getting better PPE and we would have that option.
    Chair Nadler. Thank you.
    Mr. Gross, in your testimony, you mentioned that changes in 
the logistics and delivery industry are putting pressure on 
employers to reduce pay and benefits and make other changes 
that reduce standards that make these jobs safe. What are the 
changes in your industry that are having a negative effect on 
wages, benefits, and working conditions, and are these changes 
endangering workers' safety? Are they endangering the public?
    Mr. Gross. Thank you, Congressman Nadler. I think the 
biggest change right now in our industry is large corporations 
like Amazon being allowed to use third-party workers and 
subcontractors instead of actually utilizing their own 
employees. So, it's putting downward pressure on wages, 
industry standards, and benefits.
    Chair Nadler. Are these changes endangering workers' safety 
and endangering the public?
    Mr. Gross. I believe that it does endanger workers' safety 
because they hold them to such high levels of productivity that 
it forces the workers to rush and cut corners, and they don't 
follow the same safety and training that we receive at UPS or 
at other unionized corporations.
    I'm also aware of some of the dangers to the public would 
be the DSP third-party providers that they utilize. Amazon 
leans on them, pushes them, and wants them to perform. They cut 
corners as far as like vehicle safety maintenance, things of 
that nature, because it's under constant pressure to get out 
there on the road and deliver, deliver, deliver. They're scared 
of losing their business. I do believe that, in that effect, it 
does cause a safety hazard to the
public.
    Chair Nadler. Thank you.
    Mr. Posner, you wrote an op-ed last week in the New York 
Times in which you explained that monopolists use their market 
power in labor markets they hire fewer workers, leading to 
unemployment and lower economic growth. Because there are fewer 
workers, these firms supply fewer goods resulting in higher 
prices for consumers.
    Other than higher prices, are there nonprice effects that 
harm consumers, and how are the antitrust enforcers responding 
to evidence of the highly concentrated labor markets harming 
workers and consumers?
    Mr. Posner. Yes. Well, one will expect that if its 
employers want to save labor costs, they can do so by 
reducing--sorry, if they want to save money in the product 
market, they can do so by producing lower quality goods as well 
as more expensive goods. There is economic evidence of that, 
but I wouldn't be able to cite off the top of my head
    Now, in antitrust law, there tends to be a rule that you 
only look at the market directly affected by the defendant's 
behavior. So, if workers bring an antitrust case, you look at 
the impact of workers; if consumers bring an antitrust case, 
you look at the impact on consumers.
    So, normally, if workers brought an antitrust case, you 
would not look at the impact to consumers. In a way it doesn't 
matter, because, generally speaking, if monopolists reduce 
employment, as they appear to do, then you would expect lower 
output and higher prices and, as you say, lower-quality goods.
    Chair Nadler. Thank you.
    Mr. Callaci, mergers that enhance market power can have 
non-price effects on worker safety. For example, Ms. Payton and 
Mr. Gross testified about worker and workplace safety issues. 
Do antitrust enforcers typically consider non-price effects in 
labor markets as part of an agency's merge review, and if not, 
why not?
    Mr. Kobayashi. When I was bureau director, we did have a 
focus on--
    Mr. Cicilline. Excuse me, sir, I believe this question was 
for Mr. Callaci.
    Mr. Kobayashi. Oh, Callaci, sorry.
    Mr. Cicilline. Yes. My fault, but also the time of the 
gentleman has expired, but I'll give the Chair just a--the 
Witness a few seconds to answer the question.
    Mr. Callaci. Yes. Just very briefly, there is a new paper 
relatively new from Aaron Sojourner, Ioana Marinescu, and I 
forget their coauthors, showing that monopsony has effects on 
non-wage aspects of work, including violations of safety laws.
    There was also a report in the Washington Post that the 
Amazon subcontracted delivery service partners have higher 
injury rates than even Amazon itself, so that would seem to 
back up what Mr. Gross was saying.
    As my knowledge, effects on worker health and safety of 
mergers have not been considered. I'd have to do a deeper 
check, but I don't think that's been considered but it should 
be.
    Mr. Cicilline. Thank you.
    Chair Nadler. Thank you. I yield back.
    Mr. Cicilline. Thank you. The Chair yields back.
    I now recognize the gentleman from Colorado, Mr. Buck.
    Mr. Buck. With Chair's permission, I defer to Mr. Gaetz 
from Florida.
    Mr. Cicilline. Mr. Gaetz is recognized.
    Mr. Gaetz. Thank you, Mr. Chair.
    This is my favorite Subcommittee in my half decade in 
Congress and in no small part because of the way you've lead 
it. I am incredibly proud of the work we've done to address 
some of these anticompetitive practices of these monopolistic 
entities.
    I was primarily persuaded by the testimony of Mr. Gross 
regarding how that market power of big businesses like Amazon 
can limit the ability of workers to have any type of meaningful 
negotiation.
    Congresswoman Jayapal led legislation that the Chair of the 
Committee, the Chair of the Subcommittee, Mr. Buck and me 
supported that would force the breakup of companies like Amazon 
into smaller entities. I wanted Mr. Gross' perspective on that. 
Do you believe, as a negotiator, that would improve the 
position of workers to break up companies like Amazon and other 
big tech companies into smaller entities?
    Mr. Gross. Well, I'm not an expert on this field. 
Obviously, I'm just a driver at UPS and a shop steward for my 
union. What I would say though is that it might not necessarily 
be necessary to break up the size of the company but just to 
allow or force the company or encourage the company to employee 
the workers that it's utilizing.
    So, instead of using third-party individuals and leaning on 
them and chewing them up and spitting them out, have real 
employees give them real wages, allow them to have a collective 
bargaining unit agreement, and I think that way you would get 
more productivity out of them in the long run and still be able 
to run a successful business.
    Mr. Gaetz. I appreciate that perspective. My concern is 
that if they're able to stay so big, even if we used the 
awesome powers of the Federal government to force these 
relationships out of independent contractor relationships into 
employment relationships, they're still so big that they could 
reduce the contributions of those employees with the strength 
that they have.
    It is one of the reasons why we had bipartisan support on 
this Committee for those bills. Mr. Chair, I'm deeply 
disappointed that those bills haven't been called up for a 
vote. It seems a bit odd to be here talking about positive 
impacts of legislation the Subcommittee has passed when the 
Full House has had the opportunity in prior weeks to take up 
these bills and they haven't, and I have to wonder why that has 
happened.
    So, Mr. Chair, I seek unanimous consent to enter into the 
record a piece from the New York Times entitled, ``Tech Giants, 
Fearful of Proposals to Curb Them, Blitz Washington With 
Lobbying.''
    So, that could be a reason, the power of lobbyists in this 
town to make things tougher for workers. I guess there could be 
other reasons too.
    Mr. Chair, I would seek to enter into the record a piece 
from Yahoo News entitled, ``Tim Cook Reportedly Called Pelosi 
to `Deliver a Warning' About Congress' Antitrust Bills.''
    So, maybe it's the lobbyists, maybe it's the power of these 
very powerful CEOs making personal calls, but it could even be 
something more sinister.
    Mr. Chair, I seek unanimous consent to enter into the 
record a Fortune.com piece entitled, ``Speaker Nancy Pelosi's 
Husband Cashed in on Big Tech Just As Congress Was Set to 
Pounce.''
    Mr. Cicilline. Without objection.
    [The information follows:]    

                        MR. GAETZ FOR THE RECORD

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[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

    Mr. Gaetz. In that article, there is discussion of the 
spouse of the Speaker of the House making a $6 million call on 
stocks that netted $5.3 million while we're not moving these 
bills. So, I thought that was a little odd. I thought that was 
weird. We move bipartisan legislation out of this Subcommittee, 
and just as we're considering it and it might be bad for big 
tech, the Speaker's spouse goes and buys all this big tech 
stock.
    Then lo and behold, here we are with the bills not called 
up. It just makes you wonder, did somebody know something? Is 
somebody acting on information? It could have been the power of 
the lobbyists and all the money that they donate to Members of 
Congress on both sides. It could've been people like Tim Cook 
calling.
    Here's what we know, these bills aren't coming to the 
floor. If they were coming to the floor, they would have been 
on the floor in prior weeks. So, now we sit here with this 
great work likely extinguished in its tracks for one of these 
unfortunate reasons.
    Mr. Chair, I know we have got Chair Nadler's MORE Act 
coming up soon. One thing we learned in the marijuana movement 
is sometimes you've got to lose votes on the floor. Sometimes 
you've got put up the votes, you've got to lose, and then year 
after year you make a little progress, you get further down the 
road.
    Even if these tech bills can't pass, I would encourage you 
to talk to the Speaker and put them up for a vote. I know she 
said she won't put up votes that don't pass, but if it could at 
least give us a measuring tool to be able to come back and work 
to persuade our other Members.
    I thank the Chair for his indulgence for going over time 
and I yield back.
    Mr. Cicilline. Yeah. I want to reassure the gentleman that 
I am working very closely with the Ranking Member of the 
Subcommittee to be sure that our colleagues who have not had 
the benefit of the 16-month study that we conducted where we 
learned a lot about this marketplace, understood what these 
complicated bills do.
    We want to be sure that our colleagues are fully briefed 
up, and we are committed to making certain these bills come to 
the floor, not just for a vote but for a vote that prevails 
because of the hard work that's been done. We are grateful for 
your ongoing and strong support.
    This is an important priority for me, I know for all the 
Democrats in our caucus, and certainly for the Chair of the 
Full Judiciary Committee and working very closely with Mr. Buck 
to be sure we get to that point. Thank you again for your 
support of our investigation and the legislation.
    With that, I now go to the gentleman from New York, Mr. 
Jones, for five minutes.
    Mr. Jones. Thank you, Mr. Chair, and to the Chair of the 
Full Committee, Nadler, for holding this important hearing.
    Thanks as well to our Witnesses and especially to Ms. 
Payton and Mr. Gross for your courageous testimony.
    It's about time that we confronted the power the biggest 
corporations wield over workers, monopsony power. Just as 
monopoly power enables corporations to dictate the prices and 
quality of the things that we buy and the services that we rely 
on, so monopsony power enables corporations to set our wages 
and our working conditions dominating the job market.
    Today's testimony makes one thing clear, that restoring 
competition in the labor market is essential to restoring 
economic and democratic power to the American people, to making 
sure that everyone gets their fair share of pay and say.
    As to Commissioner Wilson's concerns about the FTC's 
process, let me just say this, the Subcommittee only received 
the commissioner's testimony around 8:00 p.m. last night even 
though this hearing was postponed by a week. So, it's somewhat 
surprising to hear complaints about the process at the FTC at a 
hearing on protecting the economic liberty of American workers. 
We have frontline workers who have taken time off to testify 
about their experiences today, and that is what we should be 
focusing on in this hearing.
    Professor Posner, as you have testified, mergers are a 
central cause of corporations' tremendous power over workers. 
Ms. Payton has experienced that firsthand. Yet, the DOJ and the 
FTC have never challenged a merger to protect workers, not even 
once. How should we strengthen merger review to empower workers 
and prevent corporate power from consolidating even further?
    Mr. Posner. The example of UPMC, which Ms. Payton provided, 
is truly an amazing story. As she mentioned, the current 
hospital is the result of dozens and dozens of mergers. The 
single company controls 40 hospitals, more than 40 hospitals in 
the Pittsburgh area and thousands of clinics. It's a true 
monopolist and a monopsonist. How all those mergers could've 
gone through when we nominally have a merger review process is 
a mystery to me.
    So, to answer your question, I think the answer is actually 
straightforward. The Justice Department and the FTC currently 
have what are called merger guidelines where they provide 
certain rules or guidelines that regulate when mergers are 
permitted and when they're forbidden. The guidelines are 
probably too weak at the moment even with respect to product 
markets, but they say nothing about labor markets.
    So, if Congress were to direct the FTC and the DOJ to add a 
section on labor market or Congress could just legislate this 
directly, and what it could do is it could provide certain 
thresholds when certain mergers occur that have major labor 
market effects and this connection be quantified to be very 
precise.
    A merger will be presumptively blocked and would be only 
permitted if the merging companies can prove to the 
satisfaction of a court that as a result of the merger 
efficiencies would be produced that would result in higher 
wages and better working conditions than if the merger did not 
take place.
    There is a lot of experience on the product market side 
with this type of analysis. I think it would be fairly simple 
for regulators to use this type of analysis for the labor 
market effects of mergers.
    Mr. Jones. Thank you so much.
    Dr. Callaci, in your written testimony you said that we 
should set out clear, bright line rules that make it easier to 
block harmful mergers. Would you please elaborate?
    Mr. Callaci. Sure. So, actually this is a great follow-up 
to Dr. Posner's point. A lot of those sort of fact-intensive 
demonstrations of efficiency allow both parties to hire 
economic consultants, to hire law firms. Judges are not 
specialists in economics, so those sorts of processes allow the 
consultants can muddy the waters, make it very difficult for 
judges to reach a clear decision.
    So, I would say it would be better to have very clear rules 
and clear guidelines that apply to these situations rather than 
relying on--allowing defendants to make the case for the 
deficiencies that tend not to really arise. So, the product 
market, to me, actually shows how the labor market should not 
follow the product market case.
    Mr. Jones. Thank you, Doctor.
    Mr. Chair, I yield back.
    Mr. Cicilline. The gentleman yields back.
    I now recognize the gentleman from California, Mr. Issa, 
for five minutes.
    Mr. Issa. Thank you, Mr. Chair. I'd now ask unanimous 
consent that two articles be placed in the record, one that's 
entitled, ``California's Occupational Licensing Laws Shouldn't 
Kick People When They're Down''; the second one is from the 
Mercatus Institute, and it says, ``California Occupational 
Licensing: Barriers to Opportunity in the Golden State.''
    Mr. Cicilline. Without objection..
    [The information follows:]     

                        MR. ISSA FOR THE RECORD

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[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

    Mr. Issa. Thank you, Mr. Chair. Mr. Chair, I want to thank 
you for your opening remarks that also touched on the need to 
reign in the inevitable growth by government of regulating and 
wanting a license for everything.
    My home State has managed to reduce the number of 
entrepreneurs, reduce the number of people who get to work for 
themselves, and increase the number of people waiting to work 
for anybody based on licensing.
    At a time of COVID they managed to have a situation in 
which you could go to school, you could get the education, but 
you couldn't get your license because people who were being 
paid full pay by the State were not granting testing for more 
than a year. This does create an opportunity for a bipartisan 
effort to define when and how particularly private entities can 
require licensing. I look forward to working with you on that.
    I'd like to now shift to Commissioner Wilson. Commissioner, 
you, in your opening remarks, did talk about, and in your 
written statement, about the North Carolina State Board Dental 
Examiners where dentists conspired to exclude--or to include 
teeth whitening under their purview to the detriment of people 
being able to do something that you and I could go to the 
drugstore and buy the same materials but would not be able to 
have it done for us. Could you expand on that case and why it 
begs for the kind of reform that I think we're talking about 
here today?
    Ms. Wilson. Thank you for the question. So, that case is 
one notable case in which incumbents, the dentists on the 
dental board--I believe six of the eight people on the dental 
board were dentists--erected barriers to entry to keep 
competitors out of the market.
    We also at the Federal Trade Commission brought a similar 
case against South Carolina dentists who actually interfered 
with the delivery of preventative dental services to 
economically disadvantaged children in public schools.
    The hygienists had been going to public schools and 
providing teeth cleaning for economically disadvantaged 
children, and the dentists decided that they were going to 
enter a regulation that said that hygienists could not practice 
without having basically a dentist looking over their shoulder, 
and the Federal Trade Commission challenged that as well.
    So, you are absolutely right to focus on these issues. 
Absolutely, States have an interest in protecting the health 
and safety of their constituents, but sometimes incumbents 
actually use those regimes to insulate themselves from 
competition as opposed to protecting consumers, and that's 
where the FTC gets involved.
    Mr. Issa. Well, I appreciate that. Commissioner Wilson, you 
may not be prepared to opine on this, but in California where 
AB5 became law it dramatically reduced competition because it 
eliminated the ability for massive classes of individuals to 
form their own sole proprietorships or small companies. Isn't 
that another example, at least in principle, where competition 
is reduced anytime government limits the ability of people to 
essentially start companies?
    Ms. Wilson. So, you are right, sir, that I am not familiar 
with that legislation. Traditionally the Federal Trade 
Commission has been very interested in economic liberty type 
issues ensuring that people, who are interested in practicing a 
trade or moving across State lines or practicing to the full 
extent of services for which they're licensed, have the 
opportunity to do that so that they can have the dignity of 
earning a living wage. Anything that inhibits that, unless it 
is directly tied to protecting health and safety, would be and 
should be suspect.
    Mr. Issa. Well, and finally, many of the comments made here 
today are about moving--that the Federal Trade Commission and 
other Federal organizations move the bias from the government 
proving that competition is somehow hurt to the individual 
company proving that it is enhanced, whether in labor or in 
other competition. Do you think that is a dangerous trend or 
direction?
    Ms. Wilson. I do. That does not comport with our innocent-
until-proven-guilty approach to law in this country.
    Mr. Issa. Thank you. I yield back.
    Mr. Cicilline. I thank the gentleman. I look forward to 
working with you on the licensure issue also hope that the 
example of California that bans noncompetes in its entirety 
might also inform our work together.
    Now, I'll yield to the gentleman from Maryland, who has 
been a leader on the impact of excessive licensure on American 
workers, Mr. Raskin, for five minutes.
    Mr. Raskin. Mr. Chair, thank you so much. Thanks for 
calling this important hearing.
    I'm concerned about the rampant misclassification of 
employed workers as independent contractors to evade and 
undermine worker protections, especially in the so-called gig 
economy. Even though section 6 of the Clayton Act shields the, 
quote,

        labor of a human being from general antitrust scrutiny, 
        courts have narrowly construed the exemption so that it doesn't 
        include independent workers, ranging from independent doctors 
        and lawyers to for-hire drivers.

    Mr. Callaci, can you explain how the rampant 
misclassification of employees as independent contractors 
exposes working people to attack under the antitrust laws?
    Mr. Callaci. Sure. So, basically, yes, section 6 of the 
Clayton Act and the Norris-La Guardia Act and the National 
Labor Relations Act all attempted to exempt workers from 
antitrust prosecutions for coming together to collectively 
bargain.
    So, of course, there is an incentive for companies to 
misclassify their employees as independent contractors, so 
those workers don't have access to those rights, and they can, 
in fact, be prosecuted for collusion.
    So, if we were able to get the labor law side get those 
workers classified properly as the employees that they are and 
on the antitrust side stop going after these small players, 
church organists, independent contractors, that would remove 
the incentive to misclassify.
    Mr. Raskin. Over the last few years, antitrust enforcers 
over both Democratic and Republican leadership have committed 
to policing anticompetitive conduct in labor markets. How can 
the antitrust agencies bolster enforcement in labor markets 
under current law?
    Mr. Callaci. So, we can revise the merger guidelines to 
more explicitly take into account effects on workers.
    Mr. Raskin. Earlier this year, Judge Diane Woods testified 
that Congress intended the antitrust laws to apply to the 
harmful effects of concentrated economic power and not just 
short-term reductions in consumer welfare or economic output. 
How has the shift in recent decades away from this legislative 
purpose of the antitrust laws towards the goal of just narrowly 
promoting consumer welfare harmed workers and small businesses 
in the political economy generally?
    Mr. Callaci. Yeah, so it makes it more difficult to get at 
anticompetitive conduct, unfair methods of competition, unfair 
conduct that harms workers. So, you can get at harms to workers 
indirectly if the monopsony power results in a decline in 
output, but that is not always the case, right.
    There are times when--particularly there's an excellent 
recent paper by Hemphill and Rose showing that there are cases 
where monopsony power may not result in a decrease in output 
but rather a redistribution from employers to employees.
    So, we need to be able to take those into account, and the 
current application of the antitrust laws does not allow us to 
do that because we're so wedded to this idea of either--we call 
it either consumer welfare or output maximization. It does not 
allow us to address these harms to workers.
    Mr. Raskin. Well, then how are you recommending that 
Congress amend the antitrust laws to reassert the primacy of 
protecting against abuses of concentrated economic power 
including in the labor markets themselves?
    Mr. Callaci. Gotcha. Sorry for not getting so directly to 
your point the first time. So, one way to do that is to not 
allow offsets, right. So, if workers' wages decline, if their 
injury rates decline or--as a likely result of a merger or 
because of employer collusion, that could be the--I lost my 
train of thought. Hold on. Yeah, so not allowing that to be 
offset against gains to consumers or to another party, counter 
party in the market.
    Mr. Raskin. You've noted that the narrow lens for antitrust 
policy over the last few decades has loosened restraints on 
franchising to the detriment of workers. How could changes to 
the antitrust laws address the harmful consequences of this 
franchising model on small businesses and on employees?
    Mr. Callaci. Sure. So, that gets to Representative Issa's 
point about entrepreneurship. So, what antitrust has allowed 
since basically the 1970s is allowed large corporations to 
control and really dominate nonemployee independent contractors 
and small businesses through contract.
    So, rather than having a chain of McDonald's, each 
restaurant is owned by a so-called independent contractor who 
has no control over their business practices. That means that 
they can't raise the prices. That means they can't control--
choose their own suppliers. So, they have no room to raise 
wages.
    In fact, the McDonald's franchisee told, I think it was, 
the Washington Post that McDonald's told her to just pay your 
workers less when she complained about these kinds of vertical 
restraints.
    Mr. Raskin. Gotcha. Thank you very much for your testimony.
    I yield back to you, Mr. Chair.
    Mr. Cicilline. The gentleman yields back.
    I now recognize the gentleman from Louisiana, Mr. Johnson, 
for five minutes.
    Mr. Johnson of Louisiana. Thank you, Mr. Chair. Appreciate 
that. Grateful to the Witnesses for sharing their insights 
today.
    My colleagues on the left often talk about how 
consolidation and corporate concentration are bad for American 
workers, but they sometimes seem to miss the point that 
increasing regulations on businesses actually leads to 
consolidation of industry power in these big mega companies.
    Professor Kobayashi, what do you think of the proposition 
that unnecessary regulatory hurdles create barriers to entry 
and reduces competition?
    Mr. Kobayashi. Thank you for the question, Congressman. 
Certainly it is a reality that often large firms are better 
able to deal with onerous regulations or regulations that are 
just costly. A good example is Catherine Tucker's work on 
privacy regulation. Who best is able to deal with that type of 
cost and complexity? It's Google, and it makes Google stronger, 
and it also makes it harder for small firms to compete.
    That's not saying that Google has done anything wrong, 
but--I use it all the time because I think it's the best search 
engine. It does, in many cases, cause asymmetric abilities to 
deal with cost and promotes larger firms over smaller ones.
    Mr. Johnson of Louisiana. Often government has good 
intentions, but when you have to actually apply it in 
practicality it is counterproductive.
    Instead of focusing our discussion today on implementing 
more regulations, shouldn't we be focusing on real reforms, and 
if so, what would be the primary focus? I mean, where should we 
put our attention first?
    Mr. Kobayashi. Well, one thing that is important in my 
years being the bureau director at the FTC the problems--we 
would get problems. We would see research. We would get 
questions from Congress. The Chair would ask us to deal with 
these issues. Even before I got to the FTC. Joe Simons, who was 
the Chair when I was there, we had many conversations in the 
period before we both got to the FTC about labor monopsony. He 
very concerned about it.
    One of the things we did to address labor monopsony in 
mergers was we put specs in the Hart-Scott-Rodino questions to 
sort of deal with labor monopsony issues, not just looking at 
product markets but actually making the firms give us data 
about commuting zones and labor wages and the like.
    We also continued to do retrospectives. When I was there, 
there's a State--a bunch of States have these certificate of 
public advantage programs which we want to block mergers, but 
they say that, no, we're going to allow the merger that you 
think is anticompetitive under our COPA laws.
    What we do is we study them. What one of my economists at 
the time actually then went to CMS and asked for data on labor 
wages just so we can actually have some idea of what the 
effects were in having an evidence-based basis for antitrust 
policy changes that we're going to make.
    Mr. Johnson of Louisiana. Those are good ideas. I've got 
just a little over a minute left. Let me just ask you quickly, 
how will a top-down arbitrary regulation, such as President 
Biden's vaccine mandate on businesses with a 100 or more 
employees, affect the marketplace?
    Mr. Kobayashi. Well, a bit out of my expertise, but my 
guess is that the use of top-down mandates are often well 
intentioned, but you'd want to know what the unintended 
consequences might be. There are some people who would not want 
to take those into account, and there are some who will have a 
hard time dealing with it. I think the marketplace is--my 
university has vaccine mandates, and we have to wear masks, 
so--
    Mr. Johnson of Louisiana. Well, what we're seeing in 
practice across the country is large-scale resignations and we 
have any number of industries that are really struggling right 
now at the worst possible time the mandate hits, and so it's a 
real problem. I'm out of time. I'll yield back.
    Mr. Cicilline. The gentleman yields back.
    I now recognize the gentlelady from Florida, Ms. Demings, 
for five minutes.
    Ms. Demings. Well, thank you so much, Mr. Chair. Thank you 
to all our Witnesses for joining us today for this very, very 
important hearing.
    Dr. Posner, you said that there is no consideration at all 
of merger's effect on labor. Let me just say, that's a powerful 
statement that--that's a powerful realization and one that I 
certainly believe is sad but true.
    Do you believe that non-compete agreements are freely 
entered into by workers, and do many workers have the 
bargaining power to negotiate these agreements?
    Mr. Posner. Thank you for the question. Research suggests 
that certainly for lower-income, less-educated workers who are 
required by their employers to enter noncompetes, those workers 
do not understand what the noncompetes mean. Often, they don't 
even learn about the noncompetes until they show up at work. 
They're not in a realistic position to say, okay, but you have 
to pay me more. I mean, that's just not how the world works, 
and that's been confirmed by academic research.
    For quite sophisticated people, like executives who can 
hire lawyers to advise them, they appear to be informed about 
these noncompetes and may very well be compensated for the 
restrictions that they impose on them.
    I do want to add that even when people voluntarily consent 
to noncompetes and receive wage premium as a result, that can 
have serious anticompetitive effects, and I'll give a quick 
example. Imagine a hospital in a small town, it ties up all the 
physicians and nurses with noncompetes and compensates them. 
Now, a new hospital or clinic wants to enter the town and needs 
workers. Well, it can't compete for those workers because 
they're tied up for a year or two, and they would have to quit 
and not work in their profession for a couple of years before 
they could work for the new employer. So, these noncompetes, 
even when voluntarily consented to, can have serious, negative 
effects on competition.
    Ms. Demings. Thank you so much, Professor.
    Mr. Gross, you said something at the beginning of your 
testimony too, and it was maybe viewed as small, but I thought 
it was also powerful. As you talked about the workers, you said 
fellow American workers. It was just something that was good to 
hear in this political climate where we tend to like to pick 
and choose winners and losers. I think our responsibility on 
this Committee is to leave no American worker behind, and so I 
just thank you for being here and testifying today.
    You mentioned the stark difference in prevailing wages 
between unionized UPS drivers and Amazon drivers. Why do you 
think there is such a big difference in the wages? I know you 
talked a little bit about that, but if you could just drive 
that home, that point home for us, please.
    Mr. Gross. Thank you, Congresswoman. I think one of the 
biggest differences is that unionized workers, we are employees 
of the corporation, and where Amazon is using these DSP 
delivery drivers, they're not actually Amazon's employees. So, 
in that essence, it allows Amazon to save money and not share 
in its profits with the people that are actually making the 
money for Amazon. So, that's definitely one of the ways.
    Ms. Demings. How would you respond to people who would say 
that consumers really like Amazon and they want two-day 
delivery, and that Amazon's practices are reducing prices for 
consumers, and workers who dislike it should just find a 
different line of work? How would you respond to that?
    Mr. Gross. Well, I don't think there's anything wrong with 
consumers liking Amazon and liking two-day service. We provide 
second-day air at UPS. We were the ones that were providing the 
service behind the scenes for Amazon for a long time. What was 
the question again?
    Ms. Demings. What would you say to people who seem to want 
to ignore, you know, the differences in wages, working 
conditions, and all those things because they like the service 
that Amazon gives?
    Mr. Gross. Oh, yeah, right. Yeah.
    Ms. Demings. I think it goes back to the way you do 
business matters too.
    Mr. Gross. Yes, the way you do business matters. I would 
say, there's nothing wrong with liking Amazon, but you would 
like them a lot more if they had employees that were unionized 
and that were able to provide excellent service that unionized 
workers are able to provide.
    Ms. Demings. Thank you so much, Mr. Gross.
    Mr. Gross. You're welcome.
    Ms. Demings. Thank you to all our Witnesses. Mr. Chair, I 
yield back.
    Mr. Cicilline. The gentlelady yields back.
    I now recognize the gentlelady from Minnesota, Ms. 
Fischbach, for five minutes.
    Ms. Fischbach. Thank you, Mr. Chair.
    I've got just a couple of questions for Commissioner 
Wilson. Commissioner Wilson, in this Subcommittee there's been 
quite a bit of talk about the proper focus for and the limits 
of antitrust law. One premise of this hearing seems to be that 
antitrust is responsible for and can solve many of the issues 
that American workers are facing. I just wonder if you could 
take just a couple of minutes to talk a little bit about what 
antitrust focus has been in the past and what it is today.
    Ms. Wilson. Thank you for the question. So, I would start 
by saying that the analytical framework that we use is called 
the consumer welfare standard. So, in our analysis, at the 
forefront of our mind certainly is how consumers will be 
impacted by conduct or by mergers that is not limited to an 
analysis of short-term price effects. In fact, we also think 
about innovation. We think about quality. We think about 
choice. We think about whether barriers to entry will be 
erected that will inhibit new entrants from coming in and 
further lowering prices.
    So, even though it's called the consumer welfare standard, 
it is--and is characterized as being focused on short-term 
price effects, that is actually incorrect.
    First, as I've described, we do think about innovation and 
quality and choice.
    Second, in the Weyerhaeuser case, I think it's a great 
example of how we actually do look at impacts of monopsony 
power even if there is no impact on output. So, I just wanted 
to respond to Dr. Callaci's statement that, in fact, he said we 
can only challenge monopsony power under existing antitrust 
laws if there is a decline in output, but, in fact, in the 
Weyerhaeuser case that was not true.
    Also, in the Horizontal Merger Guidelines, section 12 
explicitly says that we can look at monopsony power even if 
there is no impact on output or an effect downstream. So, to 
package all this together, I would say that we look at the 
impact on consumers, but we also need to remember, of course, 
that consumers are employees and consumers are sometimes 
shareholders. I think it is perhaps an arbitrary and artificial 
approach to impose these silos.
    That said, as Dr. Kobayashi mentioned, during the Trump 
Administration, for three years we looked long and hard for 
labor monopsony issues particularly in hospital mergers and the 
impact on nurses. So, within the existing analytical framework, 
without setting up special separates goals for antitrust, we 
actually do consider all these issues.
    What we find, in fact, is that typically when you address 
the underlying anticompetitive issues of a merger you resolve 
both potential harms to consumers and potential harms to labor. 
In certain circumstances where that's not the case, the Federal 
Trade Commission has actually gone directly after harms--
monopsony harms, including in our Griffold case that was 
brought just recently where there was a merger of human-source 
plasma companies.
    The Federal Trade Commission challenged the merger in part 
because it was going to create monopsony power for blood plasma 
donors in various cities. In other words, donors of blood were 
going to get lower fees because of monopsony power until the 
Federal Trade Commission challenged that.
    Also, in the healthcare field, the Federal Trade Commission 
in a conduct case challenged an agreement between therapists 
staffing service providers for home health agencies where they 
agreed to set prices for therapists, in other words suppressing 
wages.
    So, while I think it is important for us to focus on the 
economically based consumer welfare standard that we have, it 
is actually a rich and robust analysis that allows us to look 
at a variety of different factors including labor.
    Ms. Fischbach. Thank you very much, Commissioner. I 
appreciate your input.
    Given that I've only got a few seconds left, I will yield 
back, Mr. Chair. Thank you.
    Mr. Cicilline. The gentlelady yields back. Thank you.
    I now recognize the gentlewoman from Georgia, Ms. McBath, 
for five minutes.
    Ms. McBath. Thank you so much, Mr. Chair.
    Ms. Payton, I just want to thank you so much for your work 
as part of our healthcare system. As a cancer survivor, and I'm 
a two-time cancer survivor, I know well that behind the many 
doctors and nurses there are also dozens of technicians and 
clerks and administrative assistants and sanitation staff that 
are making sure that everything always runs smoothly, and 
patients get the care that they need.
    You are all frontline workers, so I want to thank you, 
first and foremost, for your really hard work. I find your 
experience really, really troubling. So, how do the wages and 
working conditions that you've experienced affect morale among 
you and all of your coworkers?
    Ms. Payton. Working for UPMC, it's one of those with two-
edged swords. It's good because I actually have a job to go to, 
but it's bad because it's like my coworkers and I, we can't 
afford to feed our families when we need to, pay all our bills 
when we're scared of the medical debt.
    UPMC controls the labor market in Pittsburgh, and we need a 
union that gives some of that power back to the workers. They 
have too much power in fact, and we need the union to balance 
that power. That way we'll be able to afford to live 
comfortably and sustain our families.
    Ms. McBath. Thank you for that.
    Mr. Gross, thank you also for being here. Your employer, 
UPS, is headquartered in my district, which is Georgia's 6th 
Congressional District, so I'm so pleased to hear of your 
positive experiences as a UPS employee and also member of your 
union.
    Like hospital staff Ms. Payton, you work in an industry 
where accidents can cause real harm. You mentioned that your 
union worked to secure rules that were beneficial to drivers 
and also promote public safety. Can you expand on that, please?
    Mr. Gross. Thank you, Congresswoman. I mean, UPS puts us 
through an extensive training program as far as driving and our 
workers inside the hub. So, I think that's one of the ways that 
UPS helps keep its workers safe, unionized workers safe. I 
don't think that workers that are at Amazon or other part-time 
non-employees, subcontractors, they don't get the opportunity 
to have that same training and safety.
    Ms. McBath. So, do you think you would have been able to 
get these rules that keep you and the public safer if you were 
bargaining with your employer or by yourself?
    Mr. Gross. I think that the collective bargaining agreement 
is what levels the playing field with companies, and I think 
that would definitely allow workers to have an opportunity to 
have a voice and a say and to be safer on the job.
    Ms. McBath. Thank you.
    Ms. Payton--I'm running out of time--you testified that you 
asked your employer to provide you with more PPE and that they 
told you that this is what you signed up for. Did you feel like 
you had any recourse whatsoever, any other actions that you 
could have taken at that point?
    Ms. Payton. Being that we're not a union at UPMC, it was 
kind of difficult to even go further in that. We do deserve 
better PPE and more information because we are putting our 
lives on the line. We're putting our family's lives on the 
line. If we had a union, it would just make our lives 
essentially better. Like instead of feeling expendable we 
should feel essential, like the essential workers that we are.
    Ms. McBath. Ms. Payton, you testified--excuse me, Mr. 
Gross, your testimony mentioned that Amazon no longer lets 
drivers like you come into the facility, and that you and your 
fellow drivers think this is about controlling the information 
that Amazon employees and contractors get. Can you tell us more 
about what led you to that conclusion, and what would you tell 
an Amazon driver based on these experiences that you have had?
    Mr. Gross. I would just say that Amazon doesn't want us 
talking to those employees because they don't want them to 
understand the power of our collective bargaining agreement. 
They don't want them to understand the rights and the wages and 
the standards that we enjoy in the industry. I don't think they 
want them to know their worth in the industry. So, I would tell 
them that--be open minded and learn and strive to have a 
collective bargaining agreement.
    Ms. McBath. I think I'm just about out of time but thank 
you so much to each of you for being here today, and thank you 
so much for being so candid and honest with us. I yield back 
the balance of my time.
    Mr. Cicilline. The gentlelady yields back.
    I now recognize the gentleman from Ohio, Mr. Jordan, for 
five minutes.
    Mr. Jordan. Thank you, Mr. Chair.
    Mr. Gross, do higher prices hurt workers? I notice in your 
testimony you said you are married, four children. When The 
price of eggs, bread, milk, gas, when that goes up, does that 
hurt workers?
    Mr. Gross. Thank you, Congressman. I'm not an economist, 
but I know the higher prices hurt everyone--
    Mr. Jordan. Yeah.
    Mr. Gross. --everyone from workers--
    Mr. Jordan. Union workers? Non-union workers?
    Mr. Gross. Workers, consumers, and everyone.
    Mr. Jordan. You've got less purchasing power, so even if 
your wages go up but you've got--in real terms you've got less 
purchasing power, that's going to hurt. I mean, my dad was a 
union worker. He worked--I appreciate what you do. My dad 
worked 30 years for General Motors International Union of 
Electrical Workers. My mom cleaned houses. When the price of 
goods and services goes up, it's tough on families. Isn't that 
true?
    Mr. Gross. I believe that it's tough on everyone, yes.
    Mr. Jordan. How about higher taxes? Democrats are getting 
ready to--they're going to try to pass a huge spending bill, 
$3.5 trillion. They're going to have a bunch of tax increases 
in there. When your taxes go up, not to mention we've got 
inflation at a 40-year high, so the price of everything you 
purchase as a family has gone up, now they are going to raise 
your taxes. Is that going to hurt families? Is that going to 
hurt workers?
    Mr. Gross. Well, to that I would like to defer to one of 
the economists.
    Mr. Jordan. No, I'm just asking in simple terms. If you 
have to give more of your hard-earned money to the government 
in the form of taxes, is that going to be tough on families 
especially when you couple with it the fact that we're now at a 
40-year high inflation rate?
    Mr. Gross. I understand what you are saying, Congressman, 
but I don't feel comfortable with that because I'm not an 
expert.
    Mr. Jordan. How about COVID lockdowns? Did that hurt 
workers when the economy was locked down, typically done by 
Democrat governors, Democrat mayors? Does that hurt families?
    Mr. Gross. Well, again, Congressman, I appreciate your 
question, but I'm not qualified to answer that.
    Mr. Jordan. I think you are very qualified as someone who 
had your union and working hard for your family. How about 
mandates? We have got the State of New York, the Chair's home 
State, the governor announced last night that they're going to 
fire healthcare workers because they won't comply with the 
mandate. The same healthcare workers, by the way, who a year 
ago were heroes for all the hard work they've done over the 
last year. Do these kind of mandates, do you think those harm 
workers, Mr. Gross?
    Mr. Gross. I appreciate your confidence in me, Congressman, 
but I would have to get back to you with a response on that.
    Mr. Jordan. I appreciate your answers, Mr. Gross.
    Ms. Wilson, let me switch subjects--excuse me, I'm sorry, 
Commissioner Wilson. In your written testimony, Commissioner, 
near the end, I don't think you said this in your oral 
testimony, but in your written testimony you said new agency 
leadership--I'm reading from I think one of the last 
paragraphs. Then you give a bunch of examples--new agency 
leadership unfortunately has made meaningful dialogue among 
commissioners and between the Commission and its stakeholders 
difficult by--and then you list a bunch of things--muzzling 
staff internally and externally, stifling the flow of agency 
records and information from staff to commission, and there's 
lack of transparency, giving minimal notice to commissioners 
and the public of sweeping policy change--you go on giving no 
written explanation of sweeping policy changes--until those 
changes are actually implemented by the Trade Commission, 
evading meaningful dialogue at the Commission level, voting 
against notice and comment of all other policy, and on and on 
it goes. Tell me about this, if you would, Commissioner. What's 
going on at the FTC?
    Ms. Wilson. Thank you, Congressman. I appreciate the 
opportunity to address this issue. I have served at the Federal 
Trade Commission on three different occasions. This is my third 
stint at the FTC, and what has always made the Federal Trade 
Commission special and powerful is its long bipartisan 
tradition of collegiality, observing norms and traditions, 
carrying on a rich dialogue at the Commission but also with 
stakeholders.
    As I enumerated in my written submissions with extensive 
footnotes to other statements that I've made, this observance 
of norms and traditions that facilitates bipartisanship and a 
robust and rich dialogue, not just within the Commission, but 
also with all our stakeholders--my cat is coming into the 
picture--has taken a huge hit under new leadership.
    I'd like to note the distinction here. When Acting Chair 
Slaughter was serving as the chair of the FTC, she continued to 
absorb the norms and traditions that allowed for a bipartisan 
discussion. It is only with the arrival of Chair Khan that 
decades of tradition have been thrown out the window to the 
detriment of our and consumers.
    Mr. Jordan. So, this is new. We all know we function in a 
body where process matters. Process impacts policy. If you 
don't have the right process in place, sometimes you can lead 
to serious mistakes and serious, serious problems. Should we 
give the Commission more power?
    Ms. Wilson. I am very concerned about giving the Agency 
more power under current leadership. A system can only 
withstand the force that it is designed to channel, and right 
now we are seeing the limits of the force that we can 
withstand.
    Mr. Jordan. Thank you, Mr. Chair.
    Mr. Cicilline. The time of the gentleman is expired.
    Mr. Gross, just so you are not left with a misimpression, 
the proposal that's before the Congress will actually cut your 
taxes because you have four children, provide lower costs of 
healthcare, prescription drugs, paid family leave, and a number 
of other--childcare, et cetera. So long as you don't make more 
than $400,000, you are getting a big, gigantic tax cut. So, I 
didn't want you to leave this hearing worried about a tax 
increase based on Mr. Jordan's question.
    Mr. Johnson of Louisiana. Mr. Chair? That's fake news. No, 
I'm just--
    Mr. Cicilline. The Chair now recognizes the gentlelady from 
Pennsylvania, Ms. Dean, for five minutes.
    Ms. Dean. I thank Chair Cicilline and Chair Nadler for 
bringing forth this hearing that centers on complex nuance 
antitrust law, but it centers on the impact--I'm over here, 
sorry--on everyday Americans.
    Mr. Gross, I'm from neighboring Pennsylvania. My nephew, 
one of my nephews was a proud Teamster for more than a decade 
with Pepsi. Pennsylvania, like New Jersey, has been a leading 
voice in organized labor dating back to the 18th century.
    I appreciate your focus, and I won't hit you again on this 
because you've spoken so well about it, but we often focus on 
the financial benefits of collective bargaining, higher wages, 
health insurance, pension contributions, and the like, and we 
don't talk enough about safety and the hazard implications to 
workers and to the rest of us on the roads or whatever it 
happens to be. So, thank you for your eloquent testimony on 
that.
    So, if I could, I'd like to move to Dr. Callaci. You also 
talked about workplace safety and workplace conditions. Can you 
explain, from your work, how the lack of collective bargaining 
impacts safety in the day-to-day of the average American worker 
in other industries?
    Mr. Callaci. Sure. So, I would imagine, I don't know, I 
haven't seen the contract, but that Mr. Gross has a health and 
safety Committee at his workplace with joint representation 
from labor and management to talk over these issues and come to 
solutions.
    So, when workers don't have a lot of options for 
alternative employers because of concentration and when they're 
otherwise restrained and employers are restrained from 
competing for their jobs by these kinds of contracts we've been 
talking about, that really limits their bargaining power to be 
able to gain wages. Even an individual worker, of course, can't 
get those safety committees without a union. That is a really 
key element that collective bargaining brings to the table.
    Ms. Dean. How does that trickle down to the safety for you 
and for me?
    Mr. Callaci. Well, I mean, who is more affected? Who is 
going to notice a safety hazard first, especially in the 
healthcare sector where we have these externalities, as 
economists call them, of how pathogens move around from the 
workplace to the patients to throughout the community.
    So, yeah, absolutely, workers are the first to notice when 
there's a safety problem. They're the first harmed. So, they 
really need to be empowered, and collective bargaining is the 
best institution we have to empower workers to bring those 
concerns to the floor and not be afraid to speak up.
    Ms. Dean. Thank you, and I wanted to ask you another 
question in a different area. Are women and people of color 
more likely to face negative effects of labor monopsony and 
why?
    Mr. Callaci. Yeah. So, we do see--I'm trying to remember if 
I can--because I want to make sure I'm sticking to the 
empirical evidence. In terms of certainly noncompetes, we have 
very good evidence through a couple of papers now that non-
White and women workers are more harmfully affected by these 
agreements, because basically it's workers that are more 
vulnerable with lower bargaining power to begin with are more 
harmed by these kinds of restraints.
    We saw, also, the Krueger and Ashenfelter study on no 
poaching agreements in franchising which show that those 
agreements were more common with low-wage, high-turnover 
workforces where the employer was--I've been talking about sort 
of this notion of baseline monopsony where basically almost 
every employer has some level of control and power over their 
workers, but this stuff gets supercharged by these agreements 
by things like noncompeting agreements.
    So, it would stand to reason that if workers are more 
negatively affected by--if the evidence shows that for non-
compete agreements, that monopsony would also have a more 
harmful effect.
    Ms. Dean. Thank you.
    Ms. Payton, I was struck by your testimony, I think, as 
everyone here was. What shines through is your pride in your 
work, your pride in earning, working hard for an organization, 
doing worthwhile work, and, of course, the pride in raising a 
family. You are hampered in that, 15 years and not making even 
north of $20 an hour.
    I wondered, is there anything else you wanted to add to 
your story that has not come out, and also, are you able to 
talk to us about how your aspirations for organizing are coming 
along?
    Ms. Payton. I just want to add that we have been talking to 
elected officials about this for a long time, and we are 
hopeful that there will be action. Having a union is definitely 
the way to go because UPMC has too much power, and we 
definitely need the union to give some of that worker--the 
power back to us workers.
    Ms. Dean. That's terrific. With that, Mr. Chair, I thank 
you and I yield back.
    Mr. Cicilline. The gentlelady yields back.
    I now recognize the distinguished gentleman from North 
Carolina, Mr. Bishop.
    Mr. Bishop. Thank you, Mr. Chair.
    Mr. Gross, I was listening to your description about the 
Amazon workers. You said that they--I wrote it down--lower 
wages. They have to do weekend work. Then you say they cut 
corners on safety. You said that there's a lot of pressure. Why 
do folks choose, drivers choose to go to work there instead of, 
say, UPS?
    Mr. Gross. Well, I mean, drivers have an opportunity to go 
straight into driving with Amazon. So, with UPS, it's a good 
place to work. It's a solid place to work. You can raise a 
family there. You can pay your bills. You can be a homeowner, 
follow the American dream, you know.
    That's what everybody wants. There's a process that you 
have to follow. You can't just jump right up into the driver's 
seat. So, a lot of people don't want to take the time to follow 
the process to get to where they want to go. I think that's 
really one of the main reasons.
    Mr. Bishop. Okay. So, do you think they ought to be able to 
make a choice like that, or should that choice just not really 
be available?
    Mr. Gross. I don't really think they're aware of the choice 
they're making when they originally become an employee for the 
DSP. I don't think they really understand.
    You see Amazon as this big corporation with these boxes 
with smiley faces and everyone's happy and everyone enjoys 
getting stuff online and shopping. That's euphoric, but I don't 
really think they understand what they're getting into.
    There are certain things about our industry. It's a tough 
job. It's a worthwhile job, and it's a tough job.
    Mr. Bishop. No doubt about it.
    Mr. Gross. One of my coworkers once coined the phrase we're 
industrial athletes. So, I think it's--you need to be 
compensated as such.
    Mr. Bishop. Yeah. Okay, sir. Thank you.
    Ms. Payton, I was struck by something that you said and 
it's interesting. The place I come from, Charlotte, North 
Carolina, and also is a case there that the healthcare system 
is the largest employer. I think you said that about UPMC, 
University of Pittsburgh Medical Center, that you work for. In 
your testimony you made the point that--and, unfortunately, we 
got your--all these--the testimony got passed out, I think, to 
everybody late last night or at least to me. So, I didn't get 
to read it all in full.
    Ms. Payton, I was struck. You said that--how did you put 
it--I can't remember exactly. You were talking about U.S. Steel 
and that there--it's no longer as big and impactful an employer 
as UPMC that you work for and that it was unionized and it 
promised and paid a lot of benefits that people liked and gave 
a good standard of living.
    Why do you think that is that U.S. Steel's no longer around 
but now the hospital system is the biggest employer rather than 
a company that's making stuff?
    Ms. Payton. U.S. Steel was big and impactful, but slowly 
the eds and med started taking over the city of Pittsburgh. The 
U.S. Steel tower now has UPMC at the top of that tower which 
goes to show that UPMC is one of the biggest factors in this 
city.
    Mr. Bishop. Ms. Payton, I was just curious. Given a lot of 
the discussion lately, Has UPMC ordered employees to take 
vaccines against COVID?
    Ms. Payton. No, they have not.
    Mr. Bishop. Do you think the employer should have the power 
to impose that decision on you and your fellow employees?
    Ms. Payton. I think a worker should have a choice, but I 
also do believe that everyone getting the vaccine will help 
people stay safe.
    Mr. Bishop. Thank you, ma'am. That's very sensible to me.
    It's interesting and more broadly and to some of the 
academics that are in the hearing. Seems to me that the 
majority fails--the Democratic majority fails to reconcile or 
even to apparently to recognize inconsistency in their own 
policies.
    Back in 2009, I guess it was, the Congress adopted the 
Affordable Care Act, also known as Obamacare. As experts widely 
recognize, it promoted consolidation among insurance companies. 
It's no surprise really that then led to consolidation among 
hospital systems, and that led to consolidation in the 
ownership of physician practices. Now, we're talking about--but 
then hospital consolidation became an enforcement priority for 
FTC.
    Isn't much of this--and I think maybe I'll direct this to 
Professor Posner. Isn't much of this the result of inconsistent 
policymaking by the Congress that would tend to promote 
consolidation, at the same time punish other entities for 
consolidating?
    Mr. Posner. Well, I think one would have to look at it case 
by case. Broadly speaking, I don't agree. Congress has a lot of 
legitimate different policy goals, and in some cases certain 
policies will benefit larger companies. You also need a very 
strong antitrust law at the same time to prevent excessive 
consolidation from occurring and from the large companies 
abusing their monopoly power.
    Mr. Bishop. Thank you, sir.
    My time has expired, Mr. Chair.
    Mr. Cicilline. The time of the gentleman has expired.
    I now recognize myself for five minutes.
    Before going to my questioning, I ask unanimous consent to 
include in the record an article from Open Markets Institute 
entitled, ``Eyes Everywhere: Amazon Worker Surveillance 
Continued,'' without objection, and also a letter from the 
chair of the Federal Trade Commission, Lina Khan, dated 
September 28th, 2021, without objection.
    [The information follows:]   

                      MR. CICILLINE FOR THE RECORD

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    Mr. Cicilline. Mr. Callaci, in a letter to the 
Subcommittee, which I just introduced for today's hearing, FTC 
Chair Lina Khan explains that in recent decades the agency has 
largely neglected monopsony concerns and harm to workers. She 
underscores that this will change and that under her leadership 
the agency will scrutinize mergers that lessen competition in 
labor markets and restraints in worker pay and mobility may 
violate the law.
    How do you respond to that? Are there additional steps our 
antitrust enforcement should take?
    Mr. Callaci. So, yeah, I fully applaud that effort to take 
a closer look at competition and to look at course of contract. 
Yeah, I think in terms of--I have this in my testimony.
    A couple of other additional steps we need to look at are 
the effective buyer power not just directly on employees, but 
actually sort of the case that Mr. Gross referenced where you 
have buyer power in a supply chain, whether that's Amazon 
putting the squeeze on the parcel delivery companies or those 
kinds of things. We do have evidence that also affects wages, 
so taking into account those down or upstream effects.
    Then, dealing with these coercive contracts that try to 
control and dominate nonemployee independent contractors. We 
have employment law, labor employment law, because we know that 
workers are at a disadvantage in the bargaining with employers. 
We have tons of labor laws, labor regulations, because we 
recognize that. Companies being able to get that same control, 
that same just have an employment relationship with an Uber 
driver or with a delivery service partner without incurring 
those duties and responsibilities an employer is meant to 
burden, is that another area, getting at those course of 
contracts that are sort of substitutes for employment.
    Mr. Cicilline. Thank you.
    Mr. Posner, in your testimony you explained you are not 
optimistic that courts would be receptive to antitrust 
enforcement to address labor market harms. Why are courts 
skeptical of labor-sought antitrust claims, and how do you 
propose we update the antitrust laws to address harms to labor 
competition including nonpricing effects?
    Mr. Posner. To emphasize, I think they're skeptical under 
current law. I'm not arguing that courts don't like workers or 
anything like that. If law were updated, I think that it would 
be more receptive to claims by workers against employers.
    So, what can be done? I think, for starters, updating the 
laws that regulate mergers, because there's merger litigation 
in, ways that make clear that rules restricting mergers apply 
to mergers that affect labor markets.
    I also think that some of the technical detail, which I 
discussed in various places, but the courts have been 
unreceptive to some of the no-poaching cases against franchises 
because of these kinds of silly doctrines that have developed 
in antitrust law about the difference between vertical and 
horizontal relationships. There can certainly be technical 
legislation that would correct that error.
    Then, lastly, I would suggest that section 2, the provision 
of antitrust law that applies to monopolies, I think that could 
be improved so that certain types of antilabor practices would 
be explicitly identified as anticompetitive practices including 
the use of noncompetes, misclassification, perhaps unfair labor 
practices.
    I'm not saying that employers would never have defenses. If 
courts saw this kind of codification of these ideas, they would 
be much more receptive to this type of important litigation.
    Mr. Cicilline. Thank you.
    Mr. Posner, Commissioner Wilson and Dr. Kobayashi argue 
that there's not enough evidence on the effect of noncompete 
agreements on wages and workers, worker mobility to support 
restrictions on these types of post-employment restrictions. It 
seems clear to me that noncompete agreements hurt workers, 
especially low-income workers. What is the effect of these 
agreements on workers and on consumers?
    Mr. Posner. Well, as I think Professor Kobayashi 
acknowledged, there's been substantial evidence now that 
noncompetes harm lower-income workers. The evidence is a little 
more ambiguous for higher-income workers. There's a study that 
looks at workers in Hawaii who are low-paid, and they were 
harmed as a result of noncompetes.
    I tend to agree with critics that we probably don't have 
enough evidence yet to completely abolish noncompetes under all 
circumstances. My more limited claim is that they should 
certainly be the subject of antitrust litigation. There are, 
after all, called covenants not to compete. Right? They're 
areas of trade, and yet there have been a total of zero cases 
in the history of this country where people tied up by 
noncompetes have successfully challenged them on antitrust 
grounds.
    So, whatever the proper role is, we need to move rapidly in 
a more restrictive direction.
    Mr. Cicilline. Thank you.
    Finally, Ms. Payton and Mr. Gross, I know you both took the 
day off to be with us. Thank you very much for being here. We 
often talk about these issues in the abstract. Your testimony 
helps us recognize what the impact is of an absence of 
competition in labor markets and how it affects actual people 
and their lives. So, thank you for that.
    If there's anything that hasn't been said that you'd like 
to say in response, I'd like to give you both an opportunity to 
do that. I know we're going over a little, but my Republican 
friend will indulge me. I'll give him a little additional time, 
too.
    Mr. Gross. Thank you, Chair Cicilline. I would just like to 
thank you for having us and giving us the opportunity to tell 
our story. So, thank you.
    Ms. Payton. Yes. I'd also like to thank you for having me. 
It has been an honor to be able to share my story.
    Mr. Cicilline. It's an honor to hear both of you, of 
course.
    I now recognize the gentleman from Wisconsin for five 
minutes and 30 seconds.
    Mr. Fitzgerald. Thank you, Mr. Chair.
    I just wanted to revisit--I know some of this might be a 
little redundant, but I just wanted to revisit labor and labor 
markets related to the merger stuff.
    So, Ms. Wilson, you can comment.
    Mr. Kobayashi, again, feel free to chime in.
    There have been reports regarding FTC sending companies 
questions that are kind of far outside what you would expect 
traditional inquires to be about as a result of the merger 
investigations.
    An example is--and I know this could be kind of dismissed 
as, boy, I've never heard about that before. So, I'm trying to 
raise the profile of it. The FTC staff has inquired about how 
mergers would affect unionization, as well as some 
environmental and social issues. This is--it's my understanding 
this is a departure from typically what you may see as what we 
would consider traditional questions. Some of the other 
Witnesses on the panel have discussed the need to change 
antitrust laws so that the effects on labor markets are 
considered. It seems to make sense to me.
    You both served at the FTC and understand the relationship 
between the mergers and demand in the labor markets. Can either 
of you discuss how current antitrust laws and enforcement 
considerations already account for this issue?
    Ms. Wilson, would you like to?
    Ms. Wilson. Sure. So, so thank you and I'm sure that Dr. 
Kobayashi will also have interesting comments here. So, to be 
clear, the horizontal merger guidelines actually do say right 
now that monopsony power should be investigated within the 
course of merger analysis. So, as Bruce outlined, for at least 
three years under Chair Simons, we did look for labor monopsony 
issues in mergers. So, we included specs, specifications in the 
so-called second request for information of merging parties, 
that sought to analyze the impact of mergers on hiring.
    What is happening now, I believe, is going further afield 
and looking not at what happens for competition for labor but 
for other social values. I disagree with expanding the scope of 
antitrust beyond competition which is a load that it is 
designed to carry. We are not equipped to evaluate the other 
factors that are now being shoehorned into antitrust analysis.
    Mr. Fitzgerald. Thank you.
    Professor.
    Mr. Kobayashi. Yeah, I want to comment maybe on some of the 
comments saying that we ought to do something to maybe make 
thresholds for labor market.
    If you go back to the Prager and Schmitt article, which is 
a very good article, I want to make two points. One, if you 
look at what mergers--and they base their concentration numbers 
on commuting zones. So, it's not a product market. It's a 
commuting zone. You have to go into sort of the extreme 
quartile. That's Herfin-
dahl's of about 6,000s with changes to about 2,000s of the 
mergers that sort of generate the wage stagnation.
    The other thing that you have to look at is that there are 
no--they test for output effects and the effects of classical 
monopsony. They don't find anything. It might be that there are 
bargaining effects. It's not sort of classical monopsony where 
you have independent decreases in employment, and then it's 
limited to skilled workers.
    If you were based it on the evidence, you would basically 
put those thresholds at 6,000s which are basically a three-to-
two merger. Those mergers probably will get blocked on product 
market grounds or on the standard tools that we have.
    As I said and as Commissioner Wilson just reiterated that 
we have adjusted our enforcement procedures including the HSR 
specs where we get information to actually look at product 
market and labor market issues. I don't know what else you do 
if you want an evidence-based enforcement of the antitrust 
laws. We try to get the evidence.
    Mr. Fitzgerald. Very good.
    Thank you. I would yield back.
    Mr. Cicilline. The gentleman yields back.
    I would like to now ask unanimous consent to introduce into 
the record a letter from Greg Nowak, director of the Brewery 
and Soft Drink Workers, to Amy Greenberg, Director of 
Regulations and Rulings Division, Tobacco Tax Trade Bureau 
without objection; a statement, for the record, from the 
International Brotherhood of Teamsters, the Service Employees 
International Union, and the Strategic Organizing Center, 
without objection; and a statement for the record from the 
Uniform Law Commission, without objection.
    [The information follows:]    

                      MR. CICILLINE FOR THE RECORD

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    Mr. Cicilline. I now recognize the gentleman from Oregon, 
Mr. Bentz, for five minutes.
    Mr. Bentz. Thank you, Mr. Chair.
    Commissioner Wilson--and thanks to all the Witnesses. 
Incredibly interesting conversation.
    Commissioner Wilson, the standard--I would like to go back 
to your comments about going beyond competition and trying to 
apply other standards. This sounds like a kind of a step 
backwards in what your FTC had been doing in the fifties and 
sixties. I just was looking at an article that was commenting 
on the policies in those years, and someone called it an 
incoherent mess.
    I think maybe that's what you were getting at when you were 
talking about trying to shoehorn some of these new standards 
concerning labor into whatever the standard--well, the consumer 
standards.
    So, could you comment on that just a little more? Because 
what I'm interested in knowing is if you're asked as the FTC to 
bring labor standards into this, what are you going to use as 
the proper measure of success?
    Ms. Wilson. You raise a fantastic question.
    If we introduce additional goals into antitrust 
enforcement, we are going to have a situation in which the 
current system, which is predictable, administrable, 
incredible, is undermined. So, if we are pursuing one goal 
which is the preservation of competition, whether it be for the 
sale of services or for the purchase of services including 
labor, that is an assessment that can be done rigorously with 
evidence, with the assistance of people like Professor 
Kobayashi who can crunch the numbers and look at the data.
    If we introduce additional goals, we are then in a 
situation where we have to decide which goals to prioritize. In 
different circumstances we may be pushed to prioritize 
different goals. Antitrust loses its predictability, its 
credibility, and its administrability. It becomes very subject 
to politicization and to rent seeking, and I submit to you that 
is not a good way to run the government.
    Mr. Bentz. Just a bit of a follow-up. I was trying to--you 
guys go into this in great detail and incredible complexity. 
So, forgive the shallowness of this question. It seems to me 
that the price concept that you would--that you do apply now, 
consumer benefit standards, would be in conflict with trying to 
drive up the prices by helping those who are working for these 
companies get greater job benefits.
    So, how would you the balance those two competing goals if, 
indeed, you were charged with this challenge of bringing labor 
into the conversation?
    Ms. Wilson. So, you're absolutely right. That is the 
problem with multiple and potentially competing goals. If the 
goal of antitrust is to prevent any job loss through merger, 
then we are going to have difficulty assessing that impact and 
at the same time balancing the impact on consumers. So, it is 
better to focus antitrust on a single goal competition which 
also includes the wages that labor is being paid.
    So, if there is monopsony power, if a merger is going to 
involve, say, the only two hospitals in a city that will 
suppress wages, then we step in. We prevent that merger which 
benefits both consumers and the nurses and others who work at a 
hospital.
    Let me just add to what Professor Kobayashi said about 
hospital mergers. He indicated that there was significant focus 
on figuring out why the FTC and DOJ were losing so many 
hospital mergers, and I had the privilege of serving as Chief 
of Staff to Tim Muris when he launched the hospital merger 
retrospective to figure out why.
    The economists and the lawyers at the Federal Trade 
Commission study the issue, figured out how to try cases in a 
way that launched us on many, many wins. Over the last 17 years 
we have had only one loss when we challenge a hospital merger.
    The problem with hospital mergers is so many are below the 
age threshold. So, we are very interested in identifying 
hospital mergers that do not need to be notified to Federal 
Trade Commission and assessing whether those are causing 
anticompetitive effects including suppressing wages for nurses 
and physicians and others who work for those hospitals.
    Mr. Bentz. Thank you, Commissioner.
    Mr. Chair, I yield back.
    Mr. Cicilline. The gentleman yields back.
    I now recognize the gentleman from Utah, Mr. Owens, for 
five minutes.
    Mr. Owens. Thank you, Mr. Chair. I thank you. I thank all 
the Witnesses for joining us today.
    I, like so many of my colleagues here, deeply concerned 
about the Biden Administration's general approach to 
regulations and economic policies and particularly the impact 
that those policies are having on businesses and workers back 
in my home district. I also share concerns expressed today on 
both sides of the aisle regarding monopoly on organizations 
like Amazon.
    Mr. Gross and I have different backgrounds--his with the 
union, mine as a small business owner. We probably would 
respectfully disagree, agree to disagree on some of the 
solutions how to get there. We both emphatically have the same 
end game, that is, the protection of the small business, the 
small middle class--I mean, sorry--protection of the middle 
class.
    Only through the free-market competition can that happen. 
As we see the big tech and other monopolies across many 
industries, there's absolutely no tolerance for small business 
innovation, service, and the drive to reach the middle class.
    I'm thankful for the leadership of the Ranking Member, Mr. 
Buck, and for taking on the big tech monopolies and others that 
we are addressing as we come to become aware of in 2020.
    Commissioner Wilson, on page 5 of your written testimony 
you mention how the American economy is struggling to recover 
from the COVID-19 pandemic. You also suggested adopting a 
highly interventionist competition policy at this time will 
harm everyone including American workers.
    What about the Biden Administration's general approach to 
regulations and economic policies and particularly the impact 
on those, again, workers and businesses from my own district? 
Today in this hearing we're not simply talking about proposals 
that would impact a particular sector or industry. We're 
talking about broad policy changes that would even override 
some State law.
    Do you have any reaction to these concerns, especially as 
they relate to labor markets?
    Ms. Wilson. I completely agree with your concerns about 
regulation and the cost that those impose and the chilling 
effect that they have on innovation. I would note, with respect 
to emerging from the economic devastation of COVID, one step 
that the Federal Trade Commission has taken is throwing out the 
vertical merger guidelines with essentially no notice, no 
opportunity for input. It's expressed intent to take a much 
stronger enforcement approach for vertical mergers.
    Here's the problem. Supply chain vulnerabilities were 
exposed during COVID. To shore up the supply chain, many 
companies are seeking to bring the vulnerable aspects of the 
supply chain in-house so that they have control. Now, we have a 
situation in which there's an express intent to enforce 
vertical merger law much more aggressively, and at the same 
time there's no guidance.
    People don't understand what the new policy is with respect 
to vertical mergers, and we have been told by the majority of 
the commission that there will be onerous penalties for 
bringing what they perceive as any competitive deals to our 
doorstep.
    So, we have removed guidance from the business community 
which is seeking to emerge from the COVID economic devastation 
but we're going to double the penalties if they cross the line, 
but they don't know where the line is. So, it's problematic.
    Mr. Owens. Can you describe the role of State attorney 
generals in challenging unlawful no-approach agreements and 
whether they have been successful in that role?
    Ms. Wilson. I think the State AGs have been very 
successful. The Washington State AG has, I believe, brought 
cases that have affected close to 200,000 locations across the 
country, not just in Washington. This goes back to the point I 
made in my written testimony, in particular, that there is a 
very rich, robust set of State law and common law that governs 
noncompetes and no-approach agreements. The State AGs are 
active.
    My understanding is that in the same State, Pennsylvania is 
looking to pass a law on noncompetes. These State legislatures 
are very responsive to the needs of their constituents and the 
facts on the ground. They are very active.
    Mr. Owens. Thank you. Thank you so much.
    I yield back.
    Mr. Cicilline. The Chair yields back.
    This concludes our hearing. I think we've covered everyone.
    Just as a reminder that Members will have five legislative 
days to submit additional materials for the record.
    I want to again thank our Witnesses for their really 
helpful testimony that I think will allow this Committee to 
move forward in a very productive way to make certain we can 
really promote competition in labor markets that will benefit 
American workers. Thank you again to everyone for their 
testimony.
    With this, the hearing is now concluded.
    [Whereupon, at 12:29 p.m., the Subcommittee was adjourned.]      

                                APPENDIX

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