[House Hearing, 112 Congress]
[From the U.S. Government Printing Office]



 
                   EXAMINING PROPOSALS TO STRENGTHEN
                    THE NATIONAL LABOR RELATIONS ACT

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

                                HEARING

                               before the

                        SUBCOMMITTEE ON HEALTH,
                     EMPLOYMENT, LABOR AND PENSIONS

                         COMMITTEE ON EDUCATION
                           AND THE WORKFORCE

                     U.S. House of Representatives

                      ONE HUNDRED TWELFTH CONGRESS

                             SECOND SESSION

                               __________

             HEARING HELD IN WASHINGTON, DC, JULY 25, 2012

                               __________

                           Serial No. 112-67

                               __________

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                COMMITTEE ON EDUCATION AND THE WORKFORCE

                    JOHN KLINE, Minnesota, Chairman

Thomas E. Petri, Wisconsin           George Miller, California,
Howard P. ``Buck'' McKeon,             Senior Democratic Member
    California                       Dale E. Kildee, Michigan
Judy Biggert, Illinois               Robert E. Andrews, New Jersey
Todd Russell Platts, Pennsylvania    Robert C. ``Bobby'' Scott, 
Joe Wilson, South Carolina               Virginia
Virginia Foxx, North Carolina        Lynn C. Woolsey, California
Bob Goodlatte, Virginia              Ruben Hinojosa, Texas
Duncan Hunter, California            Carolyn McCarthy, New York
David P. Roe, Tennessee              John F. Tierney, Massachusetts
Glenn Thompson, Pennsylvania         Dennis J. Kucinich, Ohio
Tim Walberg, Michigan                Rush D. Holt, New Jersey
Scott DesJarlais, Tennessee          Susan A. Davis, California
Richard L. Hanna, New York           Raul M. Grijalva, Arizona
Todd Rokita, Indiana                 Timothy H. Bishop, New York
Larry Bucshon, Indiana               David Loebsack, Iowa
Trey Gowdy, South Carolina           Mazie K. Hirono, Hawaii
Lou Barletta, Pennsylvania           Jason Altmire, Pennsylvania
Kristi L. Noem, South Dakota         Marcia L. Fudge, Ohio
Martha Roby, Alabama
Joseph J. Heck, Nevada
Dennis A. Ross, Florida
Mike Kelly, Pennsylvania

                      Barrett Karr, Staff Director
                 Jody Calemine, Minority Staff Director

         SUBCOMMITTEE ON HEALTH, EMPLOYMENT, LABOR AND PENSIONS

                   DAVID P. ROE, Tennessee, Chairman

Joe Wilson, South Carolina           Robert E. Andrews, New Jersey
Glenn Thompson, Pennsylvania           Ranking Member
Tim Walberg, Michigan                Dennis J. Kucinich, Ohio
Scott DesJarlais, Tennessee          David Loebsack, Iowa
Richard L. Hanna, New York           Dale E. Kildee, Michigan
Todd Rokita, Indiana                 Ruben Hinojosa, Texas
Larry Bucshon, Indiana               Carolyn McCarthy, New York
Lou Barletta, Pennsylvania           John F. Tierney, Massachusetts
Kristi L. Noem, South Dakota         Rush D. Holt, New Jersey
Martha Roby, Alabama                 Robert C. ``Bobby'' Scott, 
Joseph J. Heck, Nevada                   Virginia
Dennis A. Ross, Florida              Jason Altmire, Pennsylvania


                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on July 25, 2012....................................     1

Statement of Members:
    Andrews, Hon. Robert E., ranking member, Subcommittee on 
      Health, Employment, Labor and Pensions.....................     4
    Roe, Hon. David P., Chairman, Subcommittee on Health, 
      Employment, Labor and Pensions.............................     1
        Prepared statement of....................................     3

Statement of Witnesses:
    Kane, Tim, chief economist, Hudson Institute.................    28
        Prepared statement of....................................    30
    Messenger, William L., staff attorney, National Right to Work 
      Legal Defense Foundation...................................    10
        Prepared statement of....................................    11
    Porter, Hon. Robert Odawi, President, Seneca Nation of 
      Indians....................................................     6
        Prepared statement of....................................     8
    Virk, Devki K., Bredhoff & Kaiser, P.L.L.C...................    19
        Prepared statement of....................................    20

Additional Submissions:
    Mr. Andrews:
        PowerPoint slide, ``% Unionized Labor vs. Unemployment 
          (6/12)''...............................................    52
        Letter, dated May 11, 2012, to Chairman Kline............    52
    Mr. Kane, PowerPoint slide, ``The Zero Recovery''............    32
    Miller, Hon. George, senior Democratic member, Committee on 
      Education and the Workforce:
        Letter, dated May 11, 2012, to Chairman Kline............    52
        Memorandum, dated March 19, 2012, from David P. Berry, 
          Inspector General, National Labor Relations Board......    54
        Memorandum, dated April 30, 2012, from Mr. Berry.........    67
    Rokita, Hon. Todd, a Representative in Congress from the 
      State of Indiana, letter, dated July 24, 2012, from Brett 
      McMahon....................................................    37


   EXAMINING PROPOSALS TO STRENGTHEN THE NATIONAL LABOR RELATIONS ACT

                              ----------                              


                        Wednesday, July 25, 2012

                     U.S. House of Representatives

         Subcommittee on Health, Employment, Labor and Pensions

                Committee on Education and the Workforce

                             Washington, DC

                              ----------                              

    The subcommittee met, pursuant to call, at 10:02 a.m., in 
Room 2175, Rayburn House Office Building, Hon. David P. Roe 
[chairman of the subcommittee] presiding.
    Present: Representatives Roe, Wilson, Rokita, Noem, Ross, 
Andrews, Kucinich, Kildee, Tierney, and Holt.
    Also present: Representatives Kline and Miller.
    Staff present: Adam Bennot, Press Assistant; Casey Buboltz, 
Coalitions and Member Services Coordinator; Molly Conway, 
Professional Staff Member; Ed Gilroy, Director of Workforce 
Policy; Benjamin Hoog, Legislative Assistant; Marvin Kaplan, 
Workforce Policy Counsel; Barrett Karr, Staff Director; Brian 
Newell, Deputy Communications Director; Krisann Pearce, General 
Counsel; Linda Stevens, Chief Clerk/Assistant to the General 
Counsel; Alissa Strawcutter, Deputy Clerk; Loren Sweatt, Senior 
Policy Advisor; Tylease Alli, Minority Clerk; Jody Calemine, 
Minority Staff Director; John D'Elia, Minority Staff Assistant; 
Jonay Foster, Minority Fellow, Labor; Brian Levin, Minority New 
Media Press Assistant; Celine McNicholas, Minority Labor 
Counsel; Megan O'Reilly, Minority General Counsel; Michele 
Varnhagen, Minority Chief Policy Advisor/Labor Policy Director; 
and Michael Zola, Minority Senior Counsel,
    Chairman Roe. A quorum being present the Subcommittee on 
Health, Employment, Labor, and Pensions will come to order. 
Good morning, everyone.
    I would like to thank the witnesses for being here with us. 
We have a distinguished panel and look forward to their 
testimony.
    Over the last year this committee has taken action on 
numerous occasions to defend the rights of workers and 
employers from the harmful agenda of the National Labor 
Relations Board. Most notably, we have passed legislation that 
would prohibit the NLRB from dictating the location of American 
businesses and advanced a bill that would preserve longstanding 
union election procedures that protect employer free speech and 
worker free choice.
    I hope our colleagues in the Senate will soon see the value 
in these positive proposals and hold a vote without further 
delay. In the meantime, this committee must continue examining 
labor policies that affect the strength and competitiveness of 
America's workplaces. Toward that end, we will review today a 
number of decisions by the board and examine their impact on 
the workforce and discuss legislative solutions offered by 
members of the committee.
    As we all know, foremost on the minds of many workers are 
the ongoing challenges they face in this tough economy. Roughly 
13 million Americans are unemployed and searching for work.
    Those fortunate to have a job watch helplessly as higher 
food and energy prices take more out of a paycheck that hasn't 
increased significantly in the recent years. In fact, hourly--
average hourly wage earnings for private sector employees has 
risen less than $1 over the last 2 years.
    No individual that works hard and earns a higher wage 
should be denied the fruits of his or her labor. Yet federal 
labor policy actually prevents union workers from receiving 
higher wages if they are not included in a collective 
bargaining agreement or agreed on--to by the union. Over the 
years the board has found employees in violation of the law for 
signing bonuses, expanding pay for commissioned associates, and 
implementing incentive programs that reward good work.
    I am pleased to support a bill introduced by our colleague 
from Indiana, Representative Todd Rokita, which would amend the 
NLRA--National Labor Relations Act and permit employers to pay 
higher wages to their employees. The RAISE Act is a common 
sense reform that would provide relief to countless working 
families.
    Workers are not only concerned about policies to keep their 
wages down; they also worry about the effects to undermine the 
democratic rights of the workplace. In its 2007 Dana decision 
the NLRB strengthened worker access to a secret ballot in the 
event their employer voluntarily recognized a union. 
Recognizing that intimidation and coercion often associated 
with card-check campaigns undermine employee free choice, the 
board's decision provided employees 45 days to request a secret 
ballot election.
    Remarkably, the Obama NLRB reversed this important pro-
worker decision. Once an employer decides it is--is it in his 
or her best interest to voluntarily recognize the union, some 
workers will be forced to wait years before participating in a 
free and fair union election.
    We often hear the Obama board has been diligently promoting 
the workers--the rights of workers. However, its decision to 
restrict access to the secret ballot exposes the harsh reality 
behind such false rhetoric.
    The Secret Ballot Protection Act will end the assault on 
the secret ballot once and for all. The bill, which I 
introduced and am proud to have the support of 69 of my House 
Republican colleagues, amends the National Labor Relations Act 
to ensure unions have to first win the vote in a secret ballot 
election before they can represent workers. And every person on 
this dais, including the president, is elected by secret 
ballot.
    Finally, the board is simultaneously advancing policies 
that restrict employer rights while also working to expand its 
jurisdiction over the sovereign affairs of Indian tribes. In 
the 2004 landmark San Manuel Indian Bingo and Casino decision 
the board overturned nearly 30 years of precedent in order to 
impose its authority on commercial activities owned and 
operated by Native Americans. The decision was issued with 
bipartisan support of the board members, which demonstrates 
that just because something is bipartisan doesn't mean it is 
good public policy.
    We are honored to have today with us President Robert 
Porter, of the Seneca Nation of Indians, to discuss his 
experience with the board's flawed interpretation of the law 
and to express his support for the Tribal Labor Sovereignty 
Act. This important legislation, championed by our colleague 
from South Dakota, Representative Kristi Noem, would reassert 
the authority of tribal leaders over tribal affairs, free from 
the NLRB intrusion.
    There is a great deal of work to be done to make NLRA more 
responsive to today's needs in the workplace. I look forward to 
working with all of my colleagues in that important effort.
    And I will now recognize my distinguished colleague, Rob 
Andrews, senior Democrat member from the subcommittee, for his 
opening remarks?
    [The statement of Chairman Roe follows:]

  Prepared Statement of Hon. David P. Roe, Chairman, Subcommittee on 
                 Health, Employment, Labor and Pensions

    Good morning, everyone. I would like to thank our witnesses for 
being with us. We have a distinguished panel and we look forward to 
their testimony.
    Over the last year, this committee has taken action on numerous 
occasions to defend the rights of workers and employers from the 
harmful agenda of the National Labor Relations Board. Most notably, we 
have passed legislation that would prohibit the NLRB from dictating the 
location of American businesses and advanced a bill that would preserve 
long-standing union election procedures that protect employer free 
speech and worker free choice.
    I hope our colleagues in the Senate will soon see the value in 
these positive proposals and hold a vote without further delay. In the 
meantime, this committee must continue examining labor policies that 
affect the strength and competitiveness of America's workplaces. Toward 
that end, we will review today a number of decisions by the board, 
examine their impact on the workforce, and discuss legislative 
solutions offered by members of the committee.
    As we all know, foremost on the minds of many workers are the 
ongoing challenges they face in this tough economy. Roughly 13 million 
Americans are unemployed and searching for work. Those fortunate to 
have a job watch helplessly as higher food and energy prices take more 
out of a paycheck that hasn't increased significantly in recent years. 
In fact, average hourly earnings for private-sector employees has risen 
less than $1 over the last two years.
    No individual that works hard and earns a higher wage should be 
denied the fruits of his or her labor. Yet federal labor policy 
actually prevents union workers from receiving higher wages if they are 
not included in a collective bargaining agreement or agreed to by the 
union. Over the years, the board has found employers in violation of 
the law for signing bonuses, expanding pay for commissioned associates, 
and implementing incentive programs that reward good work.
    I am pleased to support a bill introduced by our colleague from 
Indiana, Representative Todd Rokita, which would amend the National 
Labor Relations Act and permit employers to pay higher wages to their 
employees. The RAISE Act is commonsense reform that would provide 
relief to countless working families.
    Workers are not only concerned about policies that keep their wages 
down, they also worry about efforts to undermine the democratic rights 
of the workplace. In its 2007 Dana decision, the NLRB strengthened 
worker access to a secret ballot in the event their employer 
voluntarily recognized a union. Recognizing that intimidation and 
coercion often associated with card-check campaigns undermine employee 
free choice, the board's decision provided employees 45 days to request 
a secret ballot election.
    Remarkably, the Obama NLRB reversed this important pro-worker 
decision. Once an employer decides it is in his or her best interest to 
voluntarily recognize the union, some workers will be forced to wait 
years before participating in a free and fair union election. We often 
hear the Obama board has been diligently promoting the rights of 
workers. However, its decision to restrict access to the secret ballot 
exposes the harsh reality behind such false rhetoric.
    The Secret Ballot Protection Act will end the assault on the secret 
ballot once and for all. The bill, which I introduced and am proud to 
have the support of 69 of my House Republican colleagues, amends the 
National Labor Relations Act to ensure unions have to first win the 
vote in a secret ballot election before they can represent workers.
    Finally, the board is simultaneously advancing policies that 
restrict employer rights while also working to expand its jurisdiction 
over the sovereign affairs of Indian tribes. In the 2004 landmark San 
Manuel Indian Bingo & Casino decision, the board overturned nearly 
thirty years of precedent in order to impose its authority on 
commercial activities owned and operated by Native Americans. The 
decision was issued with bipartisan support of the board members, which 
demonstrates that just because something is bipartisan doesn't mean it 
is good public policy.
    We are honored to have with us today President Robert Odawi Porter, 
of the Seneca Nation of Indians, to discuss his experience with the 
board's flawed interpretation of the law and to express his support for 
the Tribal Labor Sovereignty Act. This important legislation, 
championed by our colleague from South Dakota Representative Kristi 
Noem would reassert the authority of tribal leaders over tribal 
affairs, free from NLRB intrusion.
    There is a great deal of work to be done to make the NLRA more 
responsive to the needs of today's workplaces. I look forward to 
working with all of my colleagues in that important effort. I will now 
recognize my distinguished colleague Rob Andrews, the senior Democratic 
member of the subcommittee, for his opening remarks.
                                 ______
                                 
    Mr. Andrews. Mr. Chairman, thank you and good morning. We 
appreciate the good-spiritedness which you conduct all the 
affairs of the subcommittee.
    Good morning, ladies and gentlemen. Thank you for coming to 
testify with us this morning.
    This is a hearing that I think starts from the premise of a 
story that isn't true, or an era that doesn't exist. The basic 
narrative here is that the so-called Obama labor board has run 
amuck and has made all sorts of radical decisions that are 
undermining the health of the U.S. economy. And it makes for 
good television.
    But when you examine the facts of what has happened with 
the NLRB in the last couple years they tell a very different 
story. First of all, the labor board in the last couple of 
years has had a far higher percentage of unanimous decisions 
than the labor board did in the Bush years. So if there is such 
a radical and a huge divide within the board why is it that the 
board has had more unanimous decisions in the last 3 years than 
it did under the prior board?
    Second is the Boeing case is part of this narrative, in 
which the board is characterized as, quote--``dictating where 
businesses can locate.'' Nothing could be a further 
mischaracterization of the Boeing case. In the Boeing case the 
board filed a complaint alleging that Boeing had threatened to 
move work because of the collective bargaining activities of 
unions in the state of Washington.
    The case settled. Boeing and the board looked at the 
matter, they settled the case amicably, and the case is over. 
That is what the case was about.
    There is no rule, there is no decision, there is no statute 
that says that any business must or must not locate in any 
place in the United States.
    And so we are going to have a hearing this morning about 
other ideas about the National Labor Relations Board. I would 
respectfully suggest that what the Congress ought to be doing 
is three things that would address the problems I think most of 
us hear about when we go back to our communities and our 
districts.
    First is, the president in September of 2011 proposed the 
idea that small businesses that hire people should get a tax 
cut for doing so. We have never taken a vote on that proposal. 
We should.
    Second is that although the private sector economy--
businesses have added 4.3 million private sector jobs since 
March of 2010, public sector employment has dropped by over 
600,000 people--teachers, firefighters, police officers, public 
works employees. There are a lot fewer of them than there were 
2 years ago.
    The president proposed a modest program of help to states 
and cities and localities to help rehire some of those police 
officers and firefighters and teachers. We have never taken a 
vote on that proposal and I think we should.
    And finally, there is an unmitigated crisis in rural 
America because of the worst drought in decades. It is 
devastating the economy of rural America as we speak.
    Republicans and Democrats working together on the 
Agriculture Committee passed a farm bill, and there are things 
in that bill I like and things in that bill that I do not like. 
But they passed a bill to help with this crisis in rural 
America.
    The Congress is scheduled to adjourn next Friday for 6 
weeks. As of now, from what we are hearing from the majority 
leadership, there won't be a vote on the farm bill either, as 
rural America suffers.
    Now, I am not suggesting that the bills that our colleagues 
have put forward are not worth consideration. They are put 
forward in good spirit and good faith and they should be looked 
at.
    What I am suggesting is in the wake of the continuing 
chronic problem of unemployment that the ideas the president 
has put forward should merit a vote. And at a time of great 
economic crisis in rural America the farm bill, that both 
Republicans and Democrats supported in the Agriculture 
Committee, should at least be voted on before we leave town for 
6 weeks.
    That seems to me to be a higher order of business for the 
Congress, and I would urge that we reconsider on that grounds.
    Mr. Chairman, again, I appreciate the chance to be with you 
and to hear from the witnesses and look forward to their 
testimony.
    Chairman Roe. Thank you, Mr. Andrews.
    Pursuant to Committee Rule 7c, all members will be 
permitted to submit written statements to be included in the 
permanent hearing record. And without objection, the hearing 
record will remain open for 14 days to allow such statements 
and other extraneous material referenced during the hearing to 
be submitted for the official hearing record.
    It is now my pleasure to introduce our very distinguished 
panel. First, the Honorable Robert Porter is the president of 
the Seneca Nation of Indians.
    Welcome, Mr. President.
    Mr. William Messenger is a staff attorney at the National 
Right to Work Legal Defense Foundation, located in Springfield, 
Virginia.
    Ms. Devki Virk is a member of the--member of Bredhoff & 
Kaiser, PLLC, in Washington, D.C.
    And I hope I pronounced your name correct--correctly.
    Dr. Tim Kane is the chief economist at the Hudson Institute 
here in Washington, D.C.
    Before I recognize you to provide your testimony let me 
briefly explain the lighting system. You have 5 minutes to 
present your testimony. When you begin the light in front of 
you will turn green; with 1 minute left the light will turn 
yellow; and when your time is expired the light will turn red, 
at which point I will ask you to wrap up your testimony as best 
you can.
    And after everyone has testified members will each have 5 
minutes to question the panel.
    Well, first I would like to thank the witnesses for being 
here today, and now I will start with President Porter?
    Is your mic on?
    Mr. Porter. Oh, how about that?
    Chairman Roe. Better.

       STATEMENT OF HON. ROBERT ODAWI PORTER, PRESIDENT,
                    SENECA NATION OF INDIANS

    Mr. Porter. Excellent.
    Nya-weh Ske-no. In our language, I am thankful that you are 
well, I am thankful to be here.
    I am pleased to appear before you today to testify on how 
you might strengthen the National Labor Relations Act while at 
the same time strengthening respect for tribal sovereignty by 
enacting H.R. 2335, the Tribal Labor Sovereignty Act. I ask 
that my written testimony be placed in the record on behalf of 
the Seneca Nation of Indians, which I lead as its elected 
president.
    The Seneca Nation is one of America's earliest allies, 
historically aligned with the other members of the Six Nations 
Iroquois Confederacy and living in peace with the American 
people since the signing of the Canandaigua Treaty over 217 
years ago. In that treaty the United States made several key 
promises to the Seneca Nation. Of direct relevance to this 
hearing today, the United States recognized the Seneca Nation 
as a sovereign nation and assured us that our property and 
activities on our territory would not be interfered with.
    Because of this treaty-protected sovereign freedom, both 
our nation government and individual Seneca citizens have 
benefitted from the opportunity to resume our trade relations 
with non-Indians, especially during the last 40 years, focusing 
primarily on available businesses involving tobacco, gaming, 
hospitality, and related ventures. Key to our economic success 
has been our governmental sovereignty--our right to govern in 
our own way what happens in our own land.
    Unfortunately, many aspects of our treaty-recognized 
freedoms have been eroded over time. Each of the three branches 
of the federal government has, from time to time, overturned 
decades of precedent in federal Indian law. A prime example of 
this legal regression can be found in the recent tribal labor 
management decisions taken by the National Labor Relations 
Board and the federal courts in the 2007 San Manuel case.
    As you know well, the NLRA is the primary law governing 
relations between unions and employers. The NLRA defines 
employer as ``any person acting as an agent of an employer, 
directly or indirectly,'' but does not include within the term 
the United States, state governments, or any political 
subdivision thereof.
    In San Manuel the NLRB asserted jurisdiction over tribal 
government employees in a case brought against the San Manuel 
Band, a federally recognized Indian tribal government, by a 
union competing with another union for the right to organize 
tribal government employees. Upon appeal by the tribe the 
federal courts found against the tribe, holding that the NLRB 
may apply the NLRA to tribal government employees. This was 
their holding despite the fact that there had been no 
intervening change in the NLRA statute for 70 years and despite 
the fact that the NLRB had ruled otherwise for decades.
    The court's rationale was, in reality, a political policy 
decision, concluding that because the San Manuel tribal 
government casino employees--employs many non-Indians and 
caters primarily to non-Indian customers that it must be 
treated like a commercial rather than a governmental 
enterprise. That rationale was wrongheaded, both as a matter of 
law and of policy. For the Seneca Nation, as you can safely 
assume for all American Indian tribal governments, it is an 
affront to be told that our own tribal labor management laws, 
enacted as an expression of our own sovereignty on our own 
tribal lands, are not sufficient to protect our tribal 
government employees.
    The Seneca Nation is proud of our labor policies and 
practices and cedes ground to no one, including the NLRB and 
the federal government, in our demonstrated commitment to 
workplace fairness, security, and benefits. For example, we 
have often exercised our sovereign right to utilize union labor 
in the construction of our casinos, and our government 
buildings, and our other public works projects. Our exercise of 
our sovereign control of our labor management relations 
reflects the fact that good government labor policy is good for 
business.
    When a regulatory body like the NLRB or a reviewing court 
conjures up a new interpretation of longstanding statutory law 
in violation of the federal laws and treaties dealing with 
Indian nations we believe it is the duty of the Congress to 
enact a clarifying amendment which makes the statute reflect 
the original congressional intent, consistent with the 
Constitution and treaties of the United States.
    This is why we urge you to include in your labor reform 
legislation the provisions of H.R. 2335, the Tribal Labor 
Sovereignty Act. This would clarify the NLRA to once again be 
interpreted to expressly exempt tribal government employers 
from the reach of the NLRA and the NLRB. I want to personally 
thank the sponsor of H.R. 2335, Congresswoman Kristi Noem, and 
her 63 co-sponsors, as well as the chairman of this committee, 
Chairman Roe, and the chairman of the full committee, Mr. 
Kline, for your support for this legislation.
    Tribal self-determination has long been the goal of federal 
Indian policy, dating back to at least July of 1970, when 
President Nixon issued his ``Special Message to Congress on 
Indian Affairs.'' Since then much progress has been made toward 
restoring recognition and respect for tribal sovereignty and 
self-determination, but the NLRB's decision in the San Manuel 
case to override tribal authority and allow a federal takeover 
in this area of tribal governance is an outrage and it must be 
corrected.
    By acknowledging the governmental status of Indian tribes 
H.R. 2335 will respect Indian nation governments as other 
governments are respected for purposes of the NLRA with regard 
to tribal government activities on tribal lands. The promise of 
labor law reform will positively impact Indian country only if 
it advances the first principles that are at the foundation of 
federal Indian policy at its best, that tribal nations are 
governments whose exclusive authority to govern all economic 
activity in our territory should be fully respected as a matter 
of federal law.
    Resurrecting this tribal territorial sovereignty approach 
should be the urgent focus of any new labor law reform efforts. 
H.R. 2335 would do just that and deserves your support through 
to enactment.
    Thank you for the opportunity to provide this testimony and 
I ask that it be made part of the record of the hearing. Nya-
weh.
    [The statement of Mr. Porter follows:]

       Prepared Statement of Hon. Robert Odawi Porter, President,
                        Seneca Nation of Indians

    Nya-weh Ske-no.
    Chairman Roe, Ranking Member Andrews, and members of the 
Subcommittee, I am thankful that you are well and I am pleased to 
appear before you today to testify on how you might strengthen the 
National Labor Relations Act (NLRA) while at the same time 
strengthening respect for tribal sovereignty by enacting H.R. 2335, the 
Tribal Labor Sovereignty Act of 2011.
    I ask that my written testimony be placed in the record on behalf 
of the Seneca Nation of Indians, which I lead as its elected President.
Background on the Seneca Nation of Indians
    The Seneca Nation of Indians (``Nation'') is one of America's 
earliest allies, historically aligned with the other members of the 
historic Haudenosaunee (Six Nations Iroquois) Confederacy and living in 
peace with the American people since the signing of the Canandaigua 
Treaty over 217 years ago on November 11, 1794, 7 Stat. 44. Our Nation 
has entered into numerous treaties and agreements with the United 
States since that time. We have always sought to live up to our 
commitments, despite the fact that, repeatedly, the United States has 
not reciprocated in kind.
    The United States made several key promises to the Seneca Nation in 
our Canandaigua Treaty. Of direct relevance to this hearing today, was 
a federal treaty recognition that the Seneca Nation is a sovereign 
nation and a federal treaty assurance that our property and activities 
on our Territory would not be interfered with. In particular, the 
United States expressly guaranteed that we would retain the ``free use 
and enjoyment'' of our lands. This promise has served as the basis for 
the unparalleled level of freedom possessed by the Seneca people today.
    Because of our treaty-protected sovereign freedom, our Seneca 
Nation has been able to achieve some success in recovering from nearly 
200 years of economic deprivation inflicted upon us by the United 
States due to devastating losses of our lands and resources. Both our 
Nation government and individual Seneca citizens have benefited from 
the opportunity to resume our trade relations with non-Indians during 
the last 40 years, focusing primarily on available business involving 
tobacco, gaming, hospitality, and ancillary ventures.
    Key to our economic success has been our governmental sovereignty--
our right to govern, in our own way, what happens on our land.
Federal labor law must be clarified to respect tribal sovereignty
    Many aspects of our treaty-recognized freedoms have been eroded 
over time. All three branches of the federal government--judiciary, 
executive, and legislative--have directly caused or allowed this 
erosion to occur, sometimes even by overturning decades of precedent.
    A prime example of this legal regression can be found in recent 
tribal labor management decisions taken by the National Labor Relations 
Board (NLRB) and the federal courts in the San Manuel Indian Bingo and 
Casino v. NLRB case, 475 F.3d 1306 (D.C. Cir. 2007).
    As you know full well, the National Labor Relations Act (NLRA), 29 
U.S.C. Sec.  160 et seq., is the primary law governing relations 
between unions and employers and guarantees the right of employees to 
organize, or not to organize, a union and to bargain collectively with 
their employers. The NLRA applies to ``employers,'' and Section 2(2) of 
the Act defines ``employer'' as ``any person acting as an agent of an 
employer, directly or indirectly,'' but does not include the United 
States, State governments, or any political subdivision thereof.
    In San Manuel, the NLRB asserted subject-matter jurisdiction over 
tribal government employers in a case brought against the San Manuel 
Band of Serrano Mission Indians, a federally recognized Indian tribal 
government, by a union competing with another union for the right to 
organize tribal government employees. The San Manuel Band appealed to 
the federal courts, which found against the San Manuel Band, holding 
that the NLRB may apply the NLRA to tribal government employees at a 
casino the San Manuel Band operates on its lands. Despite the fact that 
there had been no intervening change in the NLRA statute, the NLRB and 
the courts reversed 70 years of precedent to find that Indian tribal 
governments are not exempt from NLRA requirements because they 
concluded that the NLRA statutory language contains no express 
exemption as it does for the federal and state governments. We believe 
this holding was unfounded and violative of our Treaty rights.
    The judicial rationale was in reality a political policy 
rationale--the NLRB and the courts as a matter of policy concluded that 
because the San Manuel tribal government casino employs many non-
Indians and caters primarily to non-Indian customers, it and all other 
similar tribal government enterprises should be treated like a 
commercial rather than governmental enterprise.
    That rationale was wrong-headed, both as a matter of law, and of 
policy. For the Seneca Nation, as you can safely assume for all America 
Indian tribal governments, it is an affront to be told our own tribal 
labor management laws, enacted as an expression of our own tribal 
sovereignty, on our own tribal lands, are not sufficient to protect our 
tribal government employees.
    The Seneca Nation is proud of our labor policies and practices. 
Seneca Nation employees are offered a compensation and benefits package 
that is more than competitive within our market, with best in class 
protections for employee rights and personnel procedures. We have also 
chosen to rely heavily on union labor, through project-labor 
agreements, in the construction of our gaming facilities. We cede 
ground to no one, including the NLRB and the federal government, in our 
demonstrated commitment to workplace fairness, security and benefits. 
Our exercise of our sovereign control of our labor management relations 
reflects the fact that good government labor policy is good for 
business. So you can imagine our displeasure and disappointment with 
the contrary judgment in the San Manuel case.
    At issue in that case was whether the exclusions in the NLRA 
(``[t]he term `employer' * * * shall not include the United States or 
any wholly owned Government corporation * * * or any State or political 
subdivision thereof * * *.'') were intended to cover tribal government 
employers. The Court said the ``Board could reasonably conclude that 
Congress's decision not to include an express exception for Indian 
tribes in the NLRA was because no such exception was intended or 
exists.'' Id. at 1317.
    When a regulatory body like the NLRB or a reviewing court conjures 
up a new interpretation of longstanding statutory law in violation of 
federal laws and treaties dealing with Indian nations, we believe it is 
the duty of the U.S. Congress to enact a clarifying amendment which 
makes the statute reflect the original congressional intent, consistent 
with the Constitution and treaties of the United States.
    The Seneca Nation and other tribal governments have always sought 
to have key federal statutes consistently reflect and honor our treaty 
agreements and our governmental status. We have always insisted that 
federal law treat our tribal governments as it treats other 
governments. When court decisions or federal officials reinterpret 
longstanding statutory provisions to treat tribes as something other 
than governments, Congress should enact clarifying amendments to the 
law.
    This is why we urge you to include in your labor reform legislation 
the provisions of H.R. 2335, the Tribal Labor Sovereignty Act of 2011, 
which would clarify the NLRA to once again be interpreted to expressly 
exempt tribal government employers from the reach of the NLRA and the 
NLRB. The Seneca Nation thanks the sponsor of H.R. 2335, Congresswoman 
Kristi Noem, and her 63 co-sponsors, including you, Chairman Roe, as 
well as the Chairman of the full Committee, Mr. Kline.
Conclusion
    Tribal self-determination has long been the goal of federal Indian 
policy, dating back at least to July, 1970 when President Nixon issued 
his ``Special Message to Congress on Indian Affairs.'' Since then much 
progress has been made toward restoring recognition and respect for 
tribal sovereignty and self-determination. But the NLRB's decision in 
the San Manuel case to override tribal authority and allow a federal 
takeover in this area of tribal governance is an outrage and must be 
corrected.
    By acknowledging the governmental status of Indian tribes, the Noem 
bill, H.R. 2335, will respect Indian nation governments as other 
governments are respected for purposes of the application of the NLRA 
to tribal governmental activities on tribal lands.
    The promise of labor law reform will positively impact Indian 
Country only if it advances the first principles that are at the 
foundation of federal Indian policy at its best--tribal nations are 
governments whose exclusive authority to govern all economic activity 
on our territory is fully respected as a matter of federal law. 
Resurrecting this tribal territorial sovereignty approach should be the 
urgent focus of any new labor law reform efforts. H.R. 2335 would do 
just that, and deserves your support through to enactment.
    Thank you for this opportunity to provide testimony and I ask that 
it be made part of the record of this hearing. We also thank you for 
holding this hearing today. We hope it leads to prompt enactment of 
H.R. 2335.
    Nya-weh.
                                 ______
                                 
    Chairman Roe. Thank you, President Porter.
    Mr. Messenger?

  STATEMENT OF WILLIAM L. MESSENGER, STAFF ATTORNEY, NATIONAL 
             RIGHT TO WORK LEGAL DEFENSE FOUNDATION

    Mr. Messenger. Thank you, Chairman Roe, Ranking Member 
Andrews, distinguished committee members. Thank you for the 
opportunity to testify today on proposals to amend the National 
Labor Relations Act.
    While the act needs to be improved in a number of areas I 
would like to focus today on the importance of protecting the 
right to a secret ballot election. I am a staff attorney with 
the National Right to Work Legal Defense Foundation. Since it 
was established in 1968 the foundation has provided free legal 
aid to thousands of individuals employees whose rights have 
been violated as a result of compulsory unionism.
    Among other things, my colleague and I have represented 
many employees and actions to protect their right to a secret 
ballot, including the Dana and Lamons Gasket cases. 
Regrettably, the National Labor Relations Act is predicated on 
forcing individual employees to associate with unions based on 
the desires of a majority of their coworkers.
    This in and of itself is wrongful. The right of each 
citizen to freely associate should not be subjected to the 
tyranny of the majority.
    Congress should end this policy by amending the National 
Labor Relations Act to prohibit exclusive representation and 
compulsory dues requirements with the National Right to Work 
Act. However, to the extent that this policy persists, at a 
bare minimum Congress should ensure that at least a majority of 
employees desire union representation, and the best way to do 
this is to make a secret ballot election a condition for 
unionization.
    The secret ballot is clearly superior for ascertaining 
employee free choice than its alternative, which is employer 
recognition pursuant to a card-check. Individuals are obviously 
more apt to vote their conscience in the privacy of a voting 
booth than when being solicited by a union organizer to sign a 
card. It is no accident that secret ballot elections are the 
cornerstone of all democratic systems.
    But secret ballots are also inherently superior to employer 
recognition for another reason, because only they are conducted 
and supervised by the board itself. In an election the board 
has actual knowledge of whether or not individual employees 
have voted for or against unionization before it is imposed.
    This is not true of employer recognition. It is truly a 
private agreement in which an employer decrees a particular 
union to be the exclusive representative of its employees.
    The board is not privy to this agreement and has no 
knowledge whatsoever of whether or not it reflects employee 
free choice. And in particular, the board has no knowledge of 
how those cards were obtained from individual employees.
    And there are compelling reasons to suspect that employer 
recognition does not necessarily reflect employee free choice, 
but rather only the perceived self-interests of the union and 
the employer. And indeed, most employer recognition in and of 
itself is the product of a prearranged agreement between the 
employer and union before the union becomes a representative of 
employees.
    Congress should not blindly entrust employees' 
associational rights to unions and employers. It is akin to 
putting the foxes in charge of the henhouse. Instead, Congress 
should require that a federal agency, the board, independently 
verify whether a majority of employees desire union 
representation in a secret ballot election before they are 
unionized.
    And in addition, Congress should also amend the National 
Labor Relations Act to protect employees' rights after they are 
unionized--their right to be decertify or remove a union that 
is currently acting as a representative that the employees no 
longer support. As I discussed in my written testimony, the 
National Labor Relations Board has erected an increasing number 
of bars and obstacles to employees exercising their right to 
decertify a union they no longer support, and these bars and 
obstacles make it exceedingly difficult for employees to remove 
unions that they no longer support. I believe that Congress 
should also remove these bars to effectuate employee free 
choice.
    Thank you. I would like to move that my written testimony 
be included in the record as part of this committee hearing, 
and my oral statement. And I look forward to answering any 
questions you may have.
    [The statement of Mr. Messenger follows:]

      Prepared Statement of William L. Messenger, Staff Attorney,
            National Right to Work Legal Defense Foundation

    Chairman Roe and distinguished Representatives: Thank you for the 
opportunity to testify today in this hearing to examine proposals to 
strengthen the National Labor Relations Act. While the NLRA needs to be 
improved in a wide number of ways, I would like to focus my testimony 
today on the importance of protecting employees' right to a secret 
ballot election.
    I am a Staff Attorney with the National Right to Work Legal Defense 
Foundation. Since the Foundation was founded in 1968, it has provided 
free legal aid to employees who choose to exercise their right to stand 
apart from unions and their agendas. Foundation attorneys, including 
myself, have represented numerous employees in cases that involve 
protecting their right to a secret ballot election or protecting 
employees from the abuses of top-down union organizing.\1\
    Protecting employees' privacy with a secret-ballot election is the 
very least that should be done to ameliorate the harm the government 
inflicts on employees through its policies of monopoly representation 
and compulsory unionism. The NLRA is predicated on forcing individuals 
to associate with unions. It does so by empowering unions to act as 
``exclusive representatives'' of all employees in a bargaining unit 
under Sec.  9(a) of the Act, 29 U.S.C. Sec.  159(a), irrespective of 
whether each employee desires this ostensible representation, and by 
permitting unions to force employees to support them financially upon 
pain of losing their jobs. See 29 U.S.C. Sec.  158(a)(3).
    The federal government forcing individual employees not only to 
accept union representation against their will, but also to pay for 
this unwanted representation, is an affront to each individual's right 
to choose with whom he or she associates. This compulsion is wrong 
irrespective of whether or not the individual's co-workers desire to 
associate with a union. Each citizen's fundamental right to freedom of 
association should not be subjected to the tyranny of the majority. 
Thus, Congress should amend the NLRA to repeal monopoly representation 
or prohibit compulsory unionism with a national Right to Work Act.
    However, to the extent that the federal government insists on 
imposing monopoly representation and compulsory unionism on workers 
under the NLRA, at a minimum it must ensure that a majority of workers 
truly support this imposition. The best and most obvious way to 
guarantee that a majority of employees want union representation is a 
secret ballot election.
    Regrettably, the NLRA currently permits unionization based on 
private agreements between unions and employers, and without a secret-
ballot election. See 29 U.S.C. Sec.  159(a). Additionally, the National 
Labor Relation's Board is actively pursuing policies to deprive 
employees of their existing statutory right to a secret-ballot election 
to decertify unions that they no longer support. See, e.g., Lamons 
Gasket, 357 NLRB No. 72 (2011). Congress should thereby amend the NLRA 
to permit unionization based only on the results of a secret-ballot and 
to remove all Board-imposed bars on employees' right to a 
decertification election.
I. Secret-Ballot Elections Must Be Required Under the NLRA Because They 
        Are Superior to Employer Recognition of a Union
    That the superiority of secret-ballot elections could require 
extended argument is itself remarkable. Every American understands 
instinctively that such elections are the cornerstone of any system 
that purports to be democratic. Thus, the Supreme Court has long 
recognized that Asecret elections are generally the most satisfactory--
indeed the preferred--method of ascertaining whether a union has 
majority support.@ NLRB v. Gissel Packing Co., 395 U.S. 575, 602 
(1969).
    Of course, the merit of any procedure must be evaluated in 
comparison to its alternatives. The alternative to the secret-ballot is 
``employer recognition'' or ``voluntary recognition,'' whereby an 
employer decrees that a particular union shall be the exclusive 
representative of its employees. This grant of recognition is generally 
predicated on an assertion that a majority of employees signed cards 
authorizing the union to act as their representative.
    Secret-ballot elections are superior to employer recognition not 
only for the most obvious reason--that individuals are more apt to vote 
their conscience in the privacy of a voting booth than when being 
pressured by union organizers to sign an authorization card. See 
Section I(C), infra. Secret-ballot elections are also superior to 
employer recognition because the Board conducts and supervises the 
elections. By contrast, employer recognition is a private arrangement 
between a union and employer to which the Board is not privy. The Board 
has no actual knowledge of whether an employer's recognition of a union 
reflects the employees' free choice. See Sections I(B), infra. And 
there are compelling reasons to suspect that it will not. See Section 
I(C), infra. Given that Congress cannot trust the associational rights 
of employees to the self-interests of union officials and employers, 
unionization should only be permitted pursuant to a Board-conducted 
election.
            A. The Board Does Not Know if an Employer-Recognized Union 
                    Has the Support of a Majority of Employees
    Secret-ballot elections differ from employer recognition in that 
the latter is not conducted or supervised by the Board. Employer 
recognition is simply a private agreement in which an employer agrees 
to recognize a particular union as the exclusive representative of its 
employees. The Board is not a party to a recognition agreement. It does 
not review recognition agreements either before or after employers and 
unions enter into them. The Board has no actual knowledge whether or 
not an employer-recognized union actually enjoys the true support of a 
majority of employees.
    Unions and employers generally claim in their recognition 
agreements that the union has the support of a majority of employee 
based on authorization cards allegedly signed by employees. But the 
Board has no independent knowledge as to the truth or falsity of this 
claim. Most importantly, the Board has no knowledge of the conditions 
under which the cards were procured from employees.\2\
    Accordingly, the NLRA's current policy of granting legal validity 
to employer-recognized unions, see 29 U.S.C. Sec.  159(a), is 
predicated on the blindly trusting that a private agreement between a 
union and employer accurately reflects what employees actually desire. 
This is untenable, as the mere ``fact that an employer bargains with a 
union does not tell us whether the employees wish to be represented by 
the union.'' Seattle Mariners, 335 NLRB 563, 567 n.2 (2001) (Member 
Hurtgen, dissenting).
    Of course, in a secret-ballot election, the Board controls the 
conditions under which votes are cast and counts the ballots itself. In 
an election, unlike a card check, the Board has independent and actual 
knowledge as to whether a majority of those voting want union 
representation. For this reason alone, Board-conducted elections are 
inherently superior to card check recognition.
            B. That an Employer Makes a Union the Representative of its 
                    Employees Is Not a Reliable Indicator of Whether 
                    Employees Support that Union
    Not only does the government not know if employer-recognized unions 
actually have the uncoerced support of a majority of employees, there 
are several compelling reasons to believe that employee free choice is 
not reflected in private recognition agreements. Instead, the 
agreements reflect little more than the union and employer's perceived 
self-interests.
    First, at their most basic level, recognition agreements are 
agreements in which two parties agree to take something from a third-
party. Specifically, Party A (the employer) and Party B (the union) 
agree that a third-party (employees) shall surrender rights to Party B. 
The very construct of this arrangement makes it an inherently 
unreliable indicator of the desires of the third-party employees, as 
both parties to the agreement can satiate their self-interests at the 
expense of employees who are not privy to the agreement.
    Second, unions and employers have a number of self-interested 
reasons to enter into recognition agreements that have nothing to do 
with effectuating employee free choice. Indeed, there is a long and 
sordid history of employers recognizing unions that lack the uncoerced 
support of a majority of employees.\3\
    A union's self-interest in being recognized by an employer as its 
employees' representative is obvious. It is to acquire more members, 
more compulsory dues payments (in non-Right to Work states), more 
contributions to underfunded pension and welfare plans, and more power 
for union officials. Gaining more dues-paying members is a top priority 
for union officials, as union membership has been in general decline 
for decades.\4\ Unions have an overwhelming self-interest in being 
recognized as monopoly representatives irrespective of whether or not 
employees actually support them.
    Employers are apt to recognize unions to satiate perceived business 
interests, and not to effectuate employee free choice. These business 
interests include getting a union to cease waging a coercive 
``corporate campaign'' against the employer, which involve a ``wide and 
indefinite range of legal and potentially illegal tactics,'' such as 
``litigation, political appeals, requests that regulatory agencies 
investigate and pursue employer violations of state and federal law, 
and negative publicity campaigns aimed at reducing the employer's 
goodwill with employees, investors, or the general public.'' Smithfield 
Foods v. UFCW, 585 F.Supp.2d 789, 795 (E.D. Va. 2008) (quoting Food 
Lion, Inc. v. UFCW, 103 F.3d 1007, 1014 n.9 (D.C. Cir. 1997)).\5\ 
Employers have also agreed to make unions the representative of their 
employees to obtain their political assistance;\6\ to cut off 
organizing campaigns of unions less-favored by the employers;\7\ to 
obtain bargaining concessions at the expense of other employees that 
the unions represent;\8\ and to obtain union concessions at the expense 
of employees whom the unions organize in the future.\9\
    Employers motivated by these and other perceived interests are 
obviously apt to recognize unions irrespective of employee support for 
them. Employees are little more than chattel in these arrangementsCthe 
consideration the employer is willing to trade to get something from 
the union. Given that unions and employers can be counted on to pursue 
their own perceived self-interests, it is irrational for the federal 
government to defer to their private decisions about whether or not 
employees want to be unionized.
    Third, employer recognition of a union is usually the product of a 
pre-negotiated ``organizing agreement'' between the employer and union. 
In an organizing agreement, an employer agrees in advance to assist a 
particular union with organizing its employees. This employer 
assistance generally includes gag-clauses on any employer speech about 
the union or unionization, granting the union access to employees' 
workplaces for organizing, the release of private information about 
nonunion employees to the union, such as their home addresses and 
contact information, and a ban on secret-ballot elections conducted by 
the NLRB.\10\
    These private organizing agreements establish conditions 
inhospitable to employee free choice. For example, to ensure that 
employees make informed decisions about whether to support or oppose 
unionization, Congress amended the NLRA to facilitate an ``uninhibited, 
robust, and wide-open debate'' between employers and unions. Chamber of 
Commerce v. Brown, 554 U.S. 60, 67-68 (2008) (citation omitted).\11\ 
Indeed, employees have an implicit ``underlying right to receive 
information opposing unionization'' under the NLRA. Id. at 68. Yet, 
organizing agreements generally include gag-clauses on employer speech 
regarding unionization.\12\ Some organizing agreements go even further, 
requiring that employers speak and conduct captive audience meetings on 
behalf of the union.\13\ The intent and effect is to deprive employees 
of their ``right to receive information opposing unionization,'' so 
that employees hear only one side of the story during organizing 
campaigns--that spun by the union.
    Similarly, Congress did not grant unions any right to campaign in 
employees' workplace, see Lechmere v. NLRB, 502 U.S. 527, 532-34 
(1992), or any right to personal information about employees prior to 
petitioning for an election. See Always Care Home Health Serv., 1998 WL 
2001253 (NLRB G.C. 1998). Organizing agreements generally provide 
unions with both forms of employer assistance to allow union organizers 
to approach and harass employees in both their workplace and at their 
homes to sign union authorization cards.
    Overall, the procedure prescribed by private organizing 
agreements--a systematic campaign jointly implemented by a union and 
employer against employees in their workplace and homes and in an 
environment devoid of relevant information about the union--are 
antithetical to employee free choice. These procedures are deliberately 
designed to ensure that employees sign cards that make the union their 
monopoly representative. It is unconscionable for Congress to blindly 
assume that the employer recognitions that are the fruit of this 
poisonous tree actually reflect the free will of employees.
    Finally, the Supreme Court warned decades ago that deferring to 
even ostensibly ``good faith'' employer and union beliefs about 
employee preferences ``would place in permissibly careless employer and 
union hands the power to completely frustrate employee realization of 
the premise of the Act--that its prohibitions will go far to assure 
freedom of choice and majority rule in employee selection of 
representatives.'' International Ladies' Garment Workers v. NLRB, 366 
U.S. 731, 738-39 (1961) (emphasis added); cf. Auciello Iron Works v. 
NLRB, 517 U.S. 781, 790 (``There is nothing unreasonable in giving a 
short leash to the employer as vindicator of its employees' 
organizational freedom''). The D.C. Circuit reiterated this warning in 
Nova Plumbing, Inc. v. NLRB, 330 F.3d 531 (D.C. Cir. 2003), when it 
overruled a Board decision that deferred blindly to a recognition 
agreement between an employer and union without independently verifying 
whether employees actually supported the union. ``By focusing 
exclusively on employer and union intent, the Board has neglected its 
fundamental obligation to protect employee Sec.  7 rights, opening the 
door to even more egregious violations than the good faith mistakes at 
issue in Garment Workers.'' Id. at 537.
    Indeed, an ostensible purpose of the NLRA is to protect employee 
rights from employers and unions. Section 7 of the Act grants 
Aemployees@ the right to choose or reject union representation. 29 
U.S.C. Sec.  157. Sections 8(a) and 8(b) protect employee Sec.  7 
rights from the machinations of employers and unions. 29 U.S.C. 
Sec. Sec.  158(a-b). To blindly trust employer and union decisions 
about how employees want to exercise their Sec.  7 rights inverts the 
structure of the NLRA. It is akin to putting the foxes in charge of the 
henhouse. Congress must change this irrational policy.
            C. Voting in the Privacy of a Voting Booth Effectuates Free 
                    Choice Better Than Being Solicited to Sign a Card 
                    By a Union Organizer
    In addition to the fact that elections are conducted and supervised 
by the Board, the procedure of a secret-ballot election is also far 
superior to that of a card check. Casting a ballot in the privacy of a 
voting booth is far more conducive to free choice than being solicited 
to sign an authorization cards in their presence of one or more union 
organizers. Only in secret-ballot elections are employees given the 
privacy and space to vote their conscience free from immediate external 
pressure.
    Moreover, once an employee has made the decision ``yea or nay'' by 
voting in a secret-ballot election, the process is at an end. By 
contrast, a choice to ``vote'' against the union by not signing an 
authorization card does not end the decision-making process for an 
employee in the maw of a card check drive. Often, it represents only 
the beginning of the harassment. Union organizers can solicit 
individuals again and again (and again) until they break down and sign 
a card.
    Employee experience confirms that union organizers frequently 
harass, mislead, and threaten employees to make them sign union cards. 
Testimony and statements by employees who have been subjected to card 
check campaigns can be found in the appendix to this testimony. In the 
course of counseling employees who have been subjected to card-check 
campaigns, my colleagues and I at the Foundation are also familiar with 
the tactics used by union agents to cajole employees into signing 
cards: incessant home visits; informing employees that signing a card 
is just for more information, to merely express interest in the union, 
or to obtain a secret-ballot vote; promising employees unrealistic 
benefits after unionization; falsely informing employees that the union 
already has a majority and will soon be in power; and threatening 
employees with future discrimination when the union does come into 
power.
    Union organizers have a strong incentive under current Board law to 
use these and other deceitful and unlawful tactics. Under current law, 
a signed card is presumptively valid. To invalidate a card used to 
support employer recognition, an unfair labor practice charge must be 
filed with the Board within six months (which is itself a daunting task 
for individuals unfamiliar with administrative procedures and labor 
law). The employee then has the burden of presenting clear and 
convincing evidence that the card was obtained through a material 
misrepresentation or coercion.\14\ This burden is exceedingly difficult 
to meet because most union misrepresentations will not invalidate a 
card, to include union claims that signing a card is necessary to have 
a meeting, to get more information, or to have an election (unless the 
employee is expressly told that the card can only be used for this 
purpose).\15\ And usually the only evidence of what a card signer was 
told will be their recollection of a conversion--i.e., ``he-said, she-
said'' testimony--that union agents can easily deny. Even if an 
employee surmounts all of these burdens, only the particular card at 
issue will be invalidated and not the union's entire card-check 
campaign (unless the invalidated card or cards deprives the union of 
its majority). Given the low probability that pressuring and misleading 
employees will invalidate a card-check campaign, union organizers have 
little disincentive to using such unscrupulous to get employees to sign 
a card.
    Perhaps the strongest evidence of the superiority of a secret-
ballot election to a card check is that conduct that interferes with 
employee free choice in elections is inherent to any card check. In an 
election, the Board attempts to ensure that ``laboratory'' conditions 
exist in which the uninhibited desires of the employees can be 
ascertained. See General Shoe, 77 NLRB 124, 127 (1948). Conduct by 
employers and unions that upset these laboratory conditions will result 
in the election being overturned, even if that conduct does not rise to 
the level of an unfair labor practice. Id. Conduct that will result in 
the overturn of a Board election includes:
    (1) electioneering activities, or even prolonged conversations with 
prospective voters, at or near a polling place because, among other 
things, ``[t]he final minutes before an employee casts his vote should 
be his own, as free from interference as possible,'' Milchem, Inc., 170 
NLRB 362, 362 (1968);\16\
    (2) the union or employer keeping a list of employees who vote as 
they enter or exit the polling place (other than the official 
eligibility list);\17\ and
    (3) a union official handling cast ballots, even in the absence of 
proof of tampering, because, where ``ballots come into the possession 
of a party to the election, the secrecy of the ballot and the integrity 
of the election process are called into question,'' Fessler & Bowman, 
Inc., 341 NLRB 932, 933 (2004).
    This sort of objectionable conduct occurs in all card check 
campaigns. When an employee signs (or refuses to sign) an authorization 
card, he is in the presence of the union organizer(s) who is attempting 
to get him to sign that card. In all cases the employee's decision is 
not secret because the union has the cards and maintains a list of who 
has signed one and who has not. Union officials handle these cards, as 
they are the individuals who collect them. Conduct that would not be 
tolerated in a Board-conducted election occurs in any card-check 
campaign.
    The Board recognized this failing of employee-signed cards and 
petitions in Underground Service Alert, 315 NLRB 958 (1994). There, a 
majority of employees voted for union representation in a 
decertification election. However, before the electoral results were 
known, a majority of employees delivered a signed petition to their 
employer stating their opposition to the union. The Board held that the 
petition was a ``less-preferred indicator of employee sentiment,'' 
particularly as compared to ``the more formal and considered majority 
employee preference for union representation which was demonstrated by 
the preferred method--the Board-conducted secret-ballot election.'' Id. 
at 961. This is because an election, typically * * * is a more reliable 
indicator of employee wishes because employees have time to consider 
their options, to ascertain critical facts, and to hear and discuss 
their own and competing views. A period of reflection and an 
opportunity to investigate both sides will not necessarily be available 
to an employee confronted with a request to sign a petition rejecting 
the union.
    Id. at 960 (citation omitted). Moreover, ``[n]o one disputes that a 
Board-conducted election is much less subject to tampering than are 
petitions and letters.'' Id.
    Thus, even the rare card check drive that does not involve unfair 
labor practices committed against employees does not approach the 
laboratory conditions guaranteed in Board-conducted elections. In a 
card-check, union agents directly solicit employees to sign 
authorization cards (and thereby cast their ``vote''), stand over them 
as they ``vote,' know with certainty how they ``voted,'' and then 
physically collect and handle these purported ``votes.'' The 
superiority of Board supervised secret-ballot elections for protecting 
employee free choice to such a coercive procedure is beyond 
peradventure. Congress should thereby amend the Act to permit 
unionization only pursuant to a secret-ballot election.

II. The Right of Employees' to Remove a Union by Secret-Ballot Election 
        Should Be Protected from the Board's Invention of Bars and 
        Other Obstacles to Decertification Elections
    Section 9(c)(1)(A)(ii) of the NLRA expressly grants employees the 
right to petition for a decertification election to remove the union 
currently acting as their representative. 29 U.S.C. Sec.  
159(c)(1)(A)(ii). Congress saw fit to prohibit the conduct of such 
elections only when ``within * * * the preceding twelve-month period, a 
valid election shall have been held.'' 29 U.S.C. Sec.  159(c)(3).
    Notwithstanding that the NLRA provides for only one bar to the 
conduct of elections, the Board has invented numerous new bars to 
prevent employees from decertifying unions that they no longer support. 
This includes:
    (1) a ``contract bar,'' which precludes employee petitions for 
decertification elections during the first three years of a collective 
bargaining agreement, save a 30-day window period near the end of that 
period, see Waste Management of Maryland, 338 NLRB 1002 (2003);
    (2) a ``recognition bar,'' which precludes employee petitions for 
decertification elections for up to one year after an employer 
recognizes a union as its employees' representative, see Lamons Gasket, 
357 NLRB No. 72 (2011); and
    (3) a ``successor bar,'' which precludes employee petitions for 
decertification for up to one year after an employer is succeeded by 
another employer, see UGL-Unicco Services, 357 NLRB No. 76, *9 (2011).
    The latter two election bars were reinstituted by President Obama's 
Board appointees to reverse prior decisions that permitted employees to 
request a secret-ballot election for a certain time period after 
employer recognition, see Dana Corp., 351 NLRB 434 (2007), overruled by 
Lamons Gasket, and after a change in the identity of their employer, 
see MV Transportation, 337 NLRB 770 (2002), overruled by UGL-Unicco.
    In addition to erecting flat prohibitions on decertification 
elections, the Board has also instituted policies to make 
decertification effectively impossible for many employees. This 
includes, among other things, maintaining a ``merger doctrine'' under 
which, if an employer and union agree to merge one or more bargaining 
units into a single multi-location unit, any employee-filed 
decertification petition must cover the entire merged unit. 
Decertification petitions filed by employees that cover only the 
facility at which they are employed will be dismissed, even if that is 
the unit in which the employees were organized.\18\
    The result of this doctrine is that unions can organize employees 
one facility at a time--or even one department at a time under a new 
Board ruling \19\--and then merge their unit into a much larger one 
that employees can never hope to decertify because merely requesting a 
decertification election requires a showing of interest signed by 30% 
of employees in the unit. Meeting this threshold, much less winning the 
election, is beyond the capabilities of most employees if their unit 
consists of thousands employees at multiple facilities.\20\
    For example, assume that a grocery store chain has 20 area stores 
and 100 employees at each store. With the employer's complicity, a 
union can organize the employees of each store, one-at-a-time, by 
merely obtaining authorization cards from 51 store employees. The union 
can then merge each newly-organized store with all other organized 
stores into one combined unit. If the union organizes all stores, it 
can create a combined unit of 2,000 employees spread across 20 
locations. An employee at a given store who wishes to decertify the 
union will face the herculean task of obtaining a showing of support 
for decertification from 667 employees scattered amongst multiple 
locations.
    This example actually understates the true breadth and effect of 
the merger doctrine because some merged units are nationwide in scope. 
For example, the Teamsters have merged over 1,000 facilities of United 
Parcel Service (UPS) into a single unit.\21\ Even if all employees of a 
particular facility, or even numerous facilities, wanted absolutely 
nothing further to do with the Teamsters, they are without any viable 
recourse to vote the union out of power.
    Taken together, the combined effect of the Board's various election 
bars and merger doctrine is to deny employees their statutory right to 
choose, by secret-ballot election, whether or not they wish to continue 
to be represented by a particular union. An employer's recognition of a 
union will bar an election for up to one year.
    The union's subsequent signing of a collective bargaining agreement 
will then bar an election for another three years, during which time 
the union can compel all employees to support it financially (except in 
Right to Work states). The merger of the employees' bargaining unit 
into a larger unit will effectively prevent the employees from ever 
voting on whether they desire union representation. Under this regime, 
unions and employers can squelch employees' right to reject unwanted 
union representation.
    Congress should not permit the Board to turn union representation 
into a proverbial ``roach motel,'' where employees can check in, but 
can never check out. To protect the right of employees to a secret-
ballot election to decertify unions that they no longer support, 
Congress should amend:
    (1) NLRA Section 9(c)(3), 29 U.S.C. Sec.  159(c)(3), to provide 
that ``This limitation is the only limit that may be placed on the 
conduct of elections;'' and
    (2) NLRA Section 9(c), 29 U.S.C. Sec.  159(c), to include a new 
section 6 that provides that ``In an election requested under 
subsection (1)(A)(ii), a bargaining unit that consists of represented 
employees at a single facility shall always be considered an 
appropriate unit notwithstanding the merger or inclusion of the 
employees in a larger, multi-facility, or multi-employer bargaining 
unit.''

Conclusion
    For these reasons, Congress should amend the NLRA so that exclusive 
union representation can be imposed pursuant only to a secret-ballot 
election, and amend the NLRA to ensure that employees can choose to 
reject union representation via a secret ballot election at any time 
other than within one year after a prior election. If employees' 
freedom to associate with a union is going to be subjected to the 
tyranny of the majority, at a minimum Congress should ensure that a 
majority of employees truly want to associate with that union.
                                endnotes
    \1\ See, e.g., Lamons Gasket, 357 NLRB No. 72 (2011); Dana Corp. 
(Int'l Union, UAW), 356 NLRB No. 49 (2010), on appeal, No. 11-1256 (6th 
Cir.); Dana Corp., 351 NLRB 434 (2007); Mulhall v. Unite Here, 667 F.3d 
1211 (11th Cir. 2012); Adcock v. Freightliner LLC, 550 F.3d 369 (4th 
Cir. 2008).
    \2\ Similarly, third party arbitrators often used by employer and 
unions to verify card checks have no knowledge of how the union 
authorization cards were obtained from employees. These third parties 
are little more than human calculators whose role is merely to count 
the cards provided by the union against a list of employees provided by 
the employer. The verification of a card check by an arbitrator says 
nothing about the conditions under which the union or employer obtained 
the cards from employees, or the validity of the employer's list.
    \3\ See e.g., Duane Reade, 338 NLRB 943 (2003); Fountain View Care 
Center, 317 NLRB 1286 (1995), enf'd, 88 F.3d 1278 (D.C. Cir. 1996); 
Brooklyn Hospital Center, 309 NLRB 1163; Famous Castings Corp., 301 
NLRB 404 (1991); Systems Mgmt., 292 NLRB 1075 (1989), remanded on other 
grounds, 901 F.2d 297 (3rd Cir. 1990); Anaheim Town & Country Inn, 282 
NLRB 224 (1986); Meyer's Cafe & Konditorei, 282 NLRB 1 (1986); SMI of 
Worchester, 271 NLRB 1508 (1984); Price Crusher Food Warehouse, 249 
NLRB 433 (1980); Vernitron Electrical Components, 221 NLRB 464 (1975), 
enf'd 548 F.2d 24 (1st Cir. 1977); Pittsburgh Metal Lithographing Co., 
158 NLRB 1126 (1966).
    \4\ See Laura J. Cooper, Privatizing Labor Law: Neutrality/Check 
Agreements and the Role of the Arbitrator, 83 Ind. L.J. 1589, 1591 
(2008).
    \5\ See, e.g., Cooper, 83 Ind. L.J. 1589, 159-93; Daniel Yager & 
Joseph LoBue, Corporate Campaigns and Card Checks: Creating the Company 
Unions of the Twenty-First Century, 24 Empl. Rel. L.J. 21 (Spring 
1999); Herbert R. Northrup, Union ``Corporate Campaigns'' as Blackmail: 
the RICO Battle at Bayou Steel, 22 Harv. J.L. & Pub. Pol=y 771, 779-93 
(1999); Pichler v. UNITE, 228 F.R.D. 230, 234-40 (E.D. Pa. 2005) 
(corporate campaign for organizing agreement), aff'd, 542 F.3d 380 (3d 
Cir. 2008); Smithfield Foods v. UFCW, 585 F. Supp. 2d 789, 795-97 (E.D. 
Va. 2008) (same).
    \6\ See, e.g., Mulhall v. UNITE HERE Local 355, 618 F.3d 1279, 1289 
(11th Cir. 2010).
    \7\ See, e.g., Price Crusher Food Warehouse, 249 NLRB 433 (1980).
    \8\ See, e.g., Adcock v. Freightliner, LLC, 550 F.3d 369, 372 (4th 
Cir. 2008); Aguinaga v. UFCW, 993 F.2d 1463, 1471 (10th Cir. 1993); 
Kroger Co., 219 NLRB 388 (1975).
    \9\ See, e.g., Charles I. Cohen et al., Resisting its Own 
ObsolescenceBHow the National Labor Relations Board Is Questioning the 
Existing Law of Neutrality Agreements, 20 Notre Dame J.L. Ethics & Pub. 
Pol=y 521, 533-34 (2006); Majestic Weaving Co., 147 NLRB 859 (1964), 
enforcement denied on other grounds, 355 F.2d 854 (2nd Cir. 1966); 
Patterson v. Heartland Indus. Partners, 428 F. Supp. 2d 714, 716 (N.D. 
Ohio 2006) (moot on appeal); Dana Corp. (Int'l Union, UAW), 356 NLRB 
No. 49 (2010), on appeal, Case No. 11-1256 (6th Cir.); Plastech Eng. 
Prod., (Int'l Union, UAW), 2005 WL 4841723, *1-2 (NLRB Div. of Advice 
Mem. 2005); Thomas Built Buses (Int'l Union, UAW), No. 11-CA-20038 
(NLRB Div. of Advice Mem. 2004) see also Jonathan P. Hiatt & Lee W. 
Jackson, Union Survival Strategies for the Twenty-First Century, 12 
Lab. Law. 165, 176-77 (``Negotiations over non-Board recognition 
procedure often spill over to discussing the terms of a future 
collective bargaining agreement.'').
    \10\ See Cohen, 20 Notre Dame J.L. Ethics & Pub. Pol'y at 522-23; 
A. Eaton & J. Kriesky, Union Organizing Under Neutrality and Card Check 
Agreements, 55 Indus. & Lab. Rel. Rev. 42, 47-48 (2001). It is doubtful 
whether it is lawful for employers to agree to provide this valuable 
organization assistance to unions. Compare Mulhall v. Unite Here, 667 
F.3d 1211 (1lth Cir. 2012) with Adcock v. Freightliner, LLC, 550 F.3d 
369 (4th Cir. 2008).
    \11\ See also 29 U.S.C. Sec.  158(c) (speech cannot constitute an 
unfair labor practice absent threat or promise of benefit); Southwire 
Co. v. NLRB, 383 F.2d 235, 241 (5th Cir. 1967) (``The guaranty of 
freedom of speech and assembly to the employer and to the union goes to 
the heart of the contest over whether an employee wishes to join a 
union. It is the employee who is to make the choice and a free flow of 
information, the good and the bad, informs him as to the choices 
available.''); NLRB v. Pratt & Whitney Air Craft Div., 789 F.2d 121, 
134 (2d Cir. 1986) (employer speech Aaids the workers by allowing them 
to make informed decisions while also permitting them a reasoned 
critique of their unions' performance@); NLRB v. Lenkurt Elec. Co., 438 
F.2d 1102, 1108 (9th Cir. 1971) (``It is highly desirable that the 
employees involved in a union campaign should hear all sides of the 
question in order that they may exercise the informed and reasoned 
choice that is their right'').
    \12\ See Cohen, 20 Notre Dame J.L. Ethics & Pub. Pol'y at 522-23; 
Eaton & Kriesky, 55 Indus. & Lab. Rel. Rev. at 47-48.
    \13\ See, e.g., Dana Corp. (Int'l Union, UAW), 356 NLRB No. 49 
(2010), on appeal, Case No. 11-1256 (6th Cir.); Thomas Built Buses 
(Int'l Union, UAW), Case No. 11-CA-20038 et seq., at 4-5 (NLRB Div. of 
Advice Mem. 17 Dec. 2004).
    \14\ See Photo Drive Up, 267 NLRB 329, 364 (1983).
    \15\ See Montgomery Ward & Co., 288 NLRB 126, 128 (1988), rev'd on 
other grounds, 904 F.2d 1156 (7th Cir. 1990); Levi Strauss & Co., 172 
NLRB 732, 733 (1968); see also Mid-East Consolidation Warehouse, 247 
NLRB 552, 560 (1980) (falsely informing employees that everyone was 
signing union cards did not invalidate card).
    \16\ See also Alliance Ware, Inc., 92 NLRB 55 (1950) 
(electioneering activities at the polling place); Claussen Baking Co., 
134 NLRB 111 (1961) (same); Bio-Medical of Puerto Rico, 269 NLRB 827 
(1984) (electioneering among the lines of employees waiting to vote); 
Pepsi-Cola Bottling Co., 291 NLRB 578 (1988) (same).
    \17\ Piggly-Wiggly, 168 NLRB 792 (1967).
    \18\ See, e.g., Westinghouse Elec. Corp., 227 NLRB 1932 (1977); 
General Elec. Co., 180 NLRB 1094 (1970); W. T. Grant Co., 179 NLRB 670 
(1969); Arrow Unif., 300 NLRB 246 (1990).
    \19\ Specialty Healthcare and Rehabilitation Center of Mobile, 357 
NLRB No. 83 (2011).
    \20\ Westinghouse, 227 NLRB 1932, illustrates this application of 
the merger doctrine. In that case, the Board certified the union as a 
representative of employees at one particular plant in North Carolina. 
Slightly over one year later, the employees petitioned to decertify the 
union. The Board dismissed the petition because the North Carolina 
plant had been merged into a single nationwide unit consisting of all 
of the employer's plants. Thus, according to the Board, the only way 
the North Carolina employees could decertify would be on a nationwide 
basis.
    \21\ See United Parcel Service, 325 NLRB 37 (1997).
              appendix of employee tesimony and statements
Congressional Testimony of Mike Ivey (2/8/2007)
    http://www.nrtw.org/pdfs/Ivey.pdf
Congressional Testimony of Karen Mayhews (2/8/2007)
    http://www.nrtw.org/pdfs/Mayhew.pdf
Statement by Freightliner Employee Katherine Ivey (1/24/2006)
    http://www.nrtw.org/pdfs/20060124rico_ivey.pdf
Statement by Freightliner Employee Timothy Cochrane (1/24/2006)
    http://www.nrtw.org/pdfs/20060124rico_cochrane.pdf
Declaration by Dana Corp Employee Clarice Atherholt (1/13/2004)
    http://www.nrtw.org/neutrality/ClariceAtherholt.pdf
Statement by Dana Corp Employee Donna Stinson (5/12/2004)
    http://www.nrtw.org/neutrality/Stinson-Statement.pdf
Statement by Thomas Built Bus Employee Jeff Ward (5/12/2004)
    http://www.nrtw.org/neutrality/Ward-Statement.pdf
Statement by Collins & Aikman Employee Edna Dawson (5/12/2004)
    http://www.nrtw.org/neutrality/Dawson-Statement.pdf
Declaration by Renaissance Hotel Employee Faith Jetter (11/19/2003)
    http://www.nrtw.org/neutrality/FaithJetter.pdf
Declaration by Renaissance Hotel Employee David Harlich (11/19/2003)
    http://www.nrtw.org/neutrality/DavidHarlich.pdf
                                 ______
                                 
    Chairman Roe. Thank you, Mr. Messenger.
    Ms. Virk?

              STATEMENT OF DEVKI K. VIRK, MEMBER,
                  BREDHOFF & KAISER, P.L.L.C.

    Ms. Virk. Chairman Roe, Ranking Member Andrews, and members 
of the committee, thank you for inviting me to appear before 
you today.
    The title of this hearing is, ``Examining Proposals to 
Strengthen the National Labor Relations Act.'' Unfortunately, 
based on my 15 years of experience as a lawyer mainly 
representing workers and their representatives, a review of 
these legislative initiatives shows that they are anything but. 
Indeed, in my view these measures actively undermine the 
fundamental structure of federal labor management relations 
policy.
    The central premise of the NLRA is a simple one: that 
workplaces better serve all the stakeholders and better serve 
our society when employees as well as employers meaningfully 
participate in shaping their shared futures. That means, as the 
act recognizes, not only that those who create jobs but those 
who do those jobs deserve to be heard and deserve the right to 
insist that they be heard.
    By allowing workers an effective voice in their economic 
future, collective bargaining serves as an important 
counterweight to ever-increasing wealth concentration and 
allows workers, families, and their communities to sustain 
economic stability even through difficult times, and to grow 
and advance in times of prosperity.
    U.S. workers today in virtually every industry face a 
challenging economic climate: rising costs, stagnant or 
decreasing wages, employment levels that have yet to fully 
recover from the 2008 collapse. And employers live and operate 
in this same difficult environment.
    Successful, mature collective bargaining relationships are 
those in which the representatives of both workers and 
management recognize that they are both invested in the success 
of the enterprise and that their best hope to solve difficult 
problems, be they economic or operational, is to make every 
effort to do so together. These are relationships in which both 
employers and employees recognize the fundamental truth, which 
is that they are in it together. Employees depend on the 
employer for their jobs; and the employer depends on employees 
to get the job done.
    Employers and employees in collective bargaining 
relationships face challenges together, and in a successful 
relationship, one that involves give and take, ones in which 
both workers' and employers' views are considered and 
respected--they build a record of quietly remarkable 
accomplishment. In times of stability and growth employers 
invest in their workers' futures and their families. In tough 
times workers may forego negotiated economic gains to save 
jobs, permit the company to refinance debt, invest in 
infrastructure.
    The shared prosperity and shared sacrifice occurs as 
demanded by ebbs and flows in the economy. The most visible 
recent example of the latter, of course, is the American auto 
industry. But compromises, albeit on a smaller scale, are made 
by workers and employers every day to ensure the success of the 
operation as well as the success of the people who work there.
    In my work I have had the opportunity to meet and advocate 
on behalf of people whose lives and those of their families 
were changed by the protections they were able to collectively 
bargain--scores of people who were unfairly fired, who would 
have lost their livelihoods if not for the due process 
protection required under their contracts; men and women who 
were able rise through the ranks because promotions were made 
on neutral, objective criteria rather than on who the hiring 
manager personally favored; countless workers who, but for the 
leave protections in their contracts, would have been subject 
to termination for taking time off to care for sick children, 
aging parents, or to address their own health.
    The National Labor Relations Act framework is only that--a 
framework. It sets out ground rules for workers and employers 
to engage on reasonably equal footing. It does not prescribe 
outcomes. That is left for the parties in any individual 
collective bargaining relationship using creativity, 
leadership, and sheer determination in many cases to make 
things work. These are all traits, I would argue, that have 
historically been among the most valued in our national 
character.
    Unfortunately, the proposals we are examining today do 
nothing to strengthen the NLRA's framework of self-
determination. How can proposals that allow employers to ignore 
their workers' wishes to be represented, to destroy their 
rights to meaningful recourse and effective enforcement, would 
divest the board even of the jurisdiction to enforce the 
federal laws that created it be said to strengthen the NLRA? 
Only in an Orwellian sense.
    That is bad for workers, of course, but the absence of 
meaningful workers' voice from the crucial decisions in their 
workplaces also means that those voices are largely absent from 
the national discourse to shape economic policies that will 
affect the future of our country for decades to come. And that 
is bad for all of us.
    I thank the members for their time, and I welcome the 
committee's question and request that my written testimony be 
submitted as part of the record.
    [The statement of Ms. Virk follows:]

    Prepared Statement of Devki K. Virk, Bredhoff & Kaiser, P.L.L.C.

    Chairman Roe, Ranking Member Andrews and Members of the Committee, 
thank you for your invitation to appear here today. My name is Devki 
Virk and I am a Member of the law firm of Bredhoff & Kaiser, P.L.L.C., 
in Washington, D.C. Since joining Bredhoff & Kaiser in 1996, I have 
represented labor organizations and workers in the public and private 
sector in a wide array of industries, including hospitality, 
manufacturing, public safety (fire and police), railway, and 
construction. My practice involves both federal and state court civil 
and administrative litigation, ranging from complex multi-party cases 
to individual employment matters, as well as arbitration. And much of 
my work is devoted to providing day-to-day advice regarding the rights 
of workers and their unions, and participating in collective bargaining 
and contract enforcement. After graduating from the University of 
Chicago in 1989, I worked for several years for a Chicago-based non-
profit organization, and then obtained a law degree from the University 
of Illinois College of Law in Urbana-Champaign, graduating with honors 
in 1995 and serving as a law review editor and a teaching assistant for 
first-year contracts and the Uniform Commercial Code (UCC). Following 
law school, I clerked for the Honorable Martin L.C. Feldman, U.S. 
District Judge for the Eastern District of Louisiana in New Orleans 
from 1995-1996 before joining Bredhoff and Kaiser as an associate.

Workers and employers face challenging economic times
    U.S. workers today in virtually every industry face a challenging 
economic climate: rising costs, stagnant or decreasing wages, and 
employment levels that have yet to fully recover from the 2008 
collapse. Employers, too, live and operate in this same difficult 
environment. And, although the stereotypical construct of labor-
management relations usually involves unions unreasonably insisting on 
``more'' without regard to the employer's future financial health, the 
Committee should not be surprised to hear that, at least in my 
experience, that stereotype--like most stereotypes--has little to do 
with the reality of labor-management relations today. Indeed, it is my 
experience that successful, mature labor management relationships are 
those in which the representatives of both the workers and management 
recognize that they are both invested in the success of the enterprise, 
and that their best hope to solve a difficult problem, be it economic 
or operational, is to make every effort do so together. These are 
relationships in which both employers and employees recognize the 
fundamental truth, which is that they are in it together: that 
employees depend on the employer for their jobs--paychecks to keep body 
and soul together or raise a family, and benefits with which a person 
can live and retire with dignity--and that the employer depends on the 
employees to get the job done.
    That is not to say that solving problems is easy, even in an 
``adult'' relationship. Far from it: in many instances, these are 
discussions that progress inch by painful inch, with stops and starts, 
and steps backwards and sideways, both sides pushing not only their 
counterparts, but themselves, and holding their breath. Furthermore, 
the more difficult the problem, usually the more difficult the range of 
solutions: creativity, the ability to maintain an open mind, strong 
leadership, and, above all, perseverance, must be present on both sides 
to reach a workable agreement. The precise traits necessary to succeed 
in this process--innovation, open-mindedness, decisiveness, leadership, 
and sheer determination--closely mirror those that, I would argue, have 
historically been among the most valued in our national character. This 
is the process that I know as collective bargaining.
    Employers and employees who face challenges in collective 
bargaining face them together and, in a successful relationship--one 
that involves give and take, and one in which both workers' and 
employers' views are considered and respected--build a record of 
quietly remarkable accomplishments. In times of stability and growth, 
employers invest in the futures of workers and their families, agreeing 
to offer dependent health care and to set aside a portion of 
compensation to fund workers' retirement. In tough times, workers may 
forego negotiated economic gains, or agree to concessions to save jobs, 
to permit the company to refinance debt, to invest in infrastructure. 
This shared prosperity--and shared sacrifice--occurs as demanded by the 
ebbs and flows of the economy: the most visible recent example of the 
latter, of course, is in the American auto industry. But compromises, 
albeit on a smaller scale, are made by workers and employers every day 
to ensure the success of the operation, as well as that of its people.
    In the private sector, it is the framework supplied by the National 
Labor Relations Act that--by making employees' collective voice a 
right, and not a privilege, and by requiring employers to sit down in 
good faith and on reasonably equal footing with the representatives 
chosen by their workers--permits this process to succeed. In turn, the 
bargaining process expressly ties together the fortunes of workers and 
employers, allowing workers the right to negotiate a fair share of the 
wealth they help to create, and requiring both employers and workers to 
make tough compromises to sustain the long-term growth of the 
organization.

The role of workers' rights in strengthening the economy
    The central premise of the NLRA is that workplaces better serve all 
stakeholders when employees, as well as employers, meaningfully 
participate in shaping their shared futures. That means, as the Act 
recognizes, that not only those who create the jobs, but those who do 
them, deserve to be heard, and deserve the right to insist that they be 
heard. That premise has largely been borne out over the last 75 years: 
studies show that when workers can come together in the workplace and 
bargain with their employer, the middle class is stronger, poverty is 
lower, racial and gender wage disparities are reduced, and health and 
educational outcomes are better.\1\ Workers who have a collective voice 
on the job earn more, on average, than those without such a voice, have 
more access to health care and are more likely to be able to retire. 
Historically, when more workers were in collective bargaining 
relationships, our country's middle class was by allowing workers an 
effective voice in their economic future, collective bargaining serves 
as an important counterweight to ever-increasing wealth concentration, 
and allows workers, families, and their communities to sustain economic 
stability even through difficult times, and to grow and advance in 
times of prosperity. In my work, I have had the opportunity to meet and 
advocate on behalf of people whose lives, and those of their families, 
were changed by the protections that they were able to collectively 
bargain:
     Scores of people who would have lost their livelihoods if 
not for the due process required under their contracts. Among them--a 
cashier wrongfully fired for a single error after more than twenty 
years of faithful service--an error that we were able to prove she did 
not even make. Firefighters--who had in fact saved lives, and who time 
and again had shown not only their willingness, but their eagerness, to 
sacrifice on behalf of others--facing termination based on incorrect 
facts and negative publicity. Waiters and waitresses fired based on the 
unfounded complaint of a single dissatisfied customer or an anonymous 
internet review.
     Dishwashers and housekeepers who were able to see their 
lifetime of backbreaking, dirty work pay off as they raised themselves 
out of poverty, and even were able to send their children to college;
     Men and women who were able to rise through the ranks 
because promotions were made based on neutral, objective criteria--
rather than on who the hiring manager personally favored;
     Countless workers who, but for the leave protections in 
their contracts, would have been subject to termination for taking time 
off to care for sick children, aging parents, or to address their own 
health problems;
     People who, after a lifetime of working with dangerous 
chemicals, were able to preserve their collectively bargained right to 
retire with affordable health care.
    Unfortunately, I have also encountered people whose attempts to 
seek similar protections were repeatedly frustrated, blocked, and, 
ultimately, punished; these are people whose lives changed for the 
worse when they were unable to obtain timely or effective recourse from 
the Board.
    The trials of one group of workers, employed by a hotel here in 
Washington, D.C., illustrates just how substantial and real the hurdles 
to self-organization can really be. This group, mostly immigrant women 
and men who clean rooms, prepare and serve food, and assist guests, 
approached the union in May 2003. Housekeepers (the women who clean up 
after guests) were alarmed by the mounting workload, which had risen to 
thousands of square feet per day. Most of these workers earned between 
$9.50 and $10.50 an hour for their labor, and could not afford the 
premium payments charged for health insurance. They also could not 
afford to stop working, and at least one woman had miscarried on the 
job. Restaurant servers, on the other hand, were concerned by their 
supervisors' apparent tendency to give busier sections and more hours 
to those he favored. These workers were so desperate for better 
conditions that even after they were illegally threatened with closure 
of the hotel, even after they were granted benefits to dissuade them 
from unionizing, and even after one of their leaders, a restaurant 
server, was illegally fired, they still voted by a margin of 2-1 to 
unionize.
    The employer engaged in extensive pre and post-election litigation, 
contesting the composition of the bargaining unit, and filing and 
litigating--and losing--objections and unfair labor practices following 
the election. At the end of June 2004, almost one year after the 
election petition was initially filed, the Board finally certified the 
results. Within a few days, the employer announced that it was closing 
the restaurant for an indefinite period and laying off all of the 
workers (including the brother of the worker who had been illegally 
fired). Following the restaurant closure, the employer systematically 
ignored the union's requests for basic information about the unit 
(names of employees, current wage rates and classifications, current 
employee handbook and rules) and its requests to set a meeting date. 
Finally, after the union threatened to file charges with the NLRB, the 
employer agreed to a single bargaining date. That date was cancelled by 
the employer, as were subsequent dates, and the parties did not, in 
fact, sit down for the first time until March 30, 2005--nine months 
following certification, eighteen months following the election, and 
almost two years after the workers first began their organizing effort.
    Once dragged to the table, the employer employed a series of 
tactics designed to frustrate the process, including refusing to put 
proposals in writing, refusing to schedule more than one session at a 
time, and delaying or refusing to provide necessary information. But at 
the same time as it was impeding workers from obtaining their goals at 
the table, the employer was also using a mixture of threats and bribes 
in the hotel to undermine collective bargaining, including intimidating 
workers, and promising substantial rewards--including a wage increase 
of $2.50, a hike of between 15 and 25% for most--if workers signed a 
petition disavowing their support for the union. Shortly after the one-
year anniversary of the NLRB certification, the employer advised the 
union that it was withdrawing recognition. It then held a meeting in 
the hotel and granted the workers the promised wage increase.
    Unfair labor practice charges were filed and, following 
investigation, the Region not only issued complaint, but advised that 
it would take the highly unusual step of seeking injunctive relief in 
federal district court, to get the employer promptly back to the table. 
Following a trial, the Board prevailed on its motion, and an injunction 
indeed issued on June 5, 2006: just about three years after the 
election petition was filed. It should surprise no one that, although 
the employer indeed finally returned to the bargaining table, the 
workers no longer believed that they would ever realize the gains they 
had hoped--at least not without risking further firings, intimidation, 
and delay. As a consequence, no contract was reached.
    I share this experience with the Committee not to provide an 
example in which the system failed. To the contrary: the ``system,'' 
such as it is, worked as well as it could in this case. The Board dealt 
with the election litigation as promptly as its caseload permitted. 
Charges were filed and investigated, and complaint issued well within 
usual administrative processing timelines. And, indeed, this was one of 
the rare cases in which the Board authorized, and obtained, injunctive 
relief. And, although the employer did file pre and post-election 
litigation, it did not, in fact, take advantage of every lawful appeal 
or avenue of delay available to it. The process still took three years. 
I, for one, cannot blame workers for losing faith in a system under 
which, in the best case scenario, they still must wait three years 
simply for the employer to be ordered to recognize their chosen 
representative.
    My experiences with workplace problems and solutions, both at and 
away from the bargaining table, have convinced me that real 
improvements to people's lives, and real economic and social progress, 
can be made when workers and their employers come together under the 
framework of the NLRA. That is why, as I explain in more detail below, 
I am alarmed by several of the measures being proposed which, it 
appears to me, attempt to fundamentally alter this framework and, in 
doing so, will effectively deprive workers of meaningful opportunities 
to participate in shaping not only their own futures, but the economic 
future of the country. I am also aware that the limitations of the 
current NLRA processes for self-organization are so extreme as to 
render it, even when it works as well as it can, practically 
ineffective. That is also why I believe that the modest efforts made by 
this NLRB to advise workers of their rights under the law and to 
streamline the process by which workers may choose a representative are 
worthwhile, if small, steps that make it slightly more likely that more 
workers who so choose will be able to have meaningful involvement in 
the vital decisions that affect not only their workplaces and their 
families, but their communities and, ultimately, our economy.

Recent NLRB initiatives to increase the effective enforcement of 
        workers' rights
    As this Committee is aware, the NLRB is the sole forum in which 
workers and their representatives may enforce the rights conferred by 
the NLRA. It should go without saying that a functional, fully-funded 
agency is essential to effective enforcement of these important federal 
rights. In addition to working diligently to clear its docket and more 
efficiently administer its business, the NLRB recently initiated two 
modest steps to increase effective enforcement of the Act's 
protections.
            Election Rulemaking
    Last December the NLRB issued a final rule to improve the process 
through which workers decide whether to form a union.
    The Board's election procedures have been roundly criticized as 
antiquated, delay-ridden and easily susceptible to manipulation.\3\ 
Changes were proposed by the Board in a Notice of Proposed Rule Making 
which issued in 2011. The Board held a two-day public comment hearing 
last July, and received testimony from numerous witnesses, as well as 
tens of thousands of written comments. In late November, the Board 
decided to issue a final rule on only certain portions of the proposed 
rules and did so on December 22, 2011. A federal district court judge 
recently ruled that the statute's quorum requirement was not satisfied 
on the day the rule was issued. Chamber of Commerce v. NLRB, Civil No. 
11-2262 (D.D.C.) (May 14, 2012) (Boasberg, J.). I understand that the 
Board subsequently submitted a motion for rehearing, detailing the 
workings of its electronic system of voting and how Board Members are 
present in and participate in that process. That motion has not been 
decided, but while it remains pending, the rules have not been applied.
    That is unfortunate. The new rules are aimed at ensuring that when 
workers are seeking an election to decide whether or not to choose a 
representative, they will have an election, not an endless series of 
litigation. These changes are aimed at creating a uniform, standardized 
process for resolving pre- and post-election disputes so that workers 
who want a vote get one as promptly as possible. The current system 
has, over time, incorporated processes that delay finality of 
elections, sometimes for years, and create obstacles for workers who 
want to use the process. The new rules minimize opportunities for 
delay, and discourage frivolous and duplicative litigation. Further, 
the rules modernize the process to reflect changes in the ways in which 
people communicate, and also harmonize practices across the Board's 
Regions.
    Specifically, the new election rules address the following:
     Ensure that administrative hearings are devoted to those 
issues relevant to determining an appropriate bargaining unit and other 
questions relating to whether an election should be conducted. 
Currently, parties can and do raise issues at the hearing which are not 
relevant to these issues and which result in unnecessary, expensive and 
time-consuming litigation which unduly burdens both this government 
agency as well as the parties.
     Consistent with many other administrative and judicial 
systems, provides the Board with discretion over its review of cases, 
including the extent to which briefing is allowed; the current system 
increases parties' litigation costs by mandating Board review of all 
post-election cases and requiring legal briefing regardless of the 
routine nature of the issues involved.
     Reduces litigation by consolidating appeals. Current rules 
require parties to file two separate appeals to seek Board review of 
pre-election issues and issues concerning the conduct of the election. 
These two appeal processes are consolidated, which reduces costs to all 
and avoids appeals which become moot as a result of the election 
results.
            Notice Posting Rule
    The Board also took an important step towards making its processes 
accessible and enhancing enforcement when it issued a requirement that 
a notice of employee rights be posted in workplaces covered by the 
statute. Enforcement of the Act's protections is dependent on workers 
knowing their rights. Yet, to the extent that workers know of the NLRA, 
they believe it applies only in already-unionized workplaces.\4\ That, 
of course, is not the case. The NLRA applies in every workplace, 
unionized or not, and allows workers to engage in such basic activities 
as sharing information about their pay, banding together to petition 
for a change in policy, or asking for improved safety, and to do so 
free of reprisal.
    In order to make sure that both workers and employers know the 
rights and obligations set forth in the Act, in late 2010, the Board 
issued a Notice of Proposed Rule-Making and, on August 30, 2011, a 
final rule, requiring NLRA-covered employers to post a Notice of 
Employee Rights in the workplace. This Notice is virtually identical to 
the notice already required by the Department of Labor for federal 
contractors, except that the NLRB Notice adds, in the introductory 
sentence describing workers' rights, the right to ``refrain from 
engaging in any of the above activity.'' The Notice gives examples of 
violations of the law by both employers and unions and lists NLRB 
contact information. In does not, in any manner, instruct workers how 
to form a union.
    Workers cannot be expected to exercise rights that they do not know 
about; by the same token, employers cannot be expected to respect such 
rights. It is difficult for me to construe legislation that would 
forbid the Board from implementing any rule requiring the posting of a 
notice of rights as anything other than an attempt to keep workers in 
the dark.

Recent House initiatives that diminish workers' ability to have a 
        meaningful voice in the workplace
    The House has before it a number of initiatives to rework the NLRA 
that would further undermine workers' economic rights and, by doing so, 
make it less and less likely that the voices of workers will 
meaningfully count as we struggle to rebuild our economy and achieve a 
sustainable recovery. The following paragraphs address a few of those 
initiatives:
            Undermining the Right to Bargain Collectively
                h.r. 4385, the rewarding achievement and
           incentivizing successful employees (``raise'') act
    The stated purpose of this bill is to reverse the NLRB's supposed 
``ban on individual raises'' by permitting unionized employers to 
negotiate and provide wage improvements to individual employees above 
and beyond those offered to or negotiated through the union. In my 
experience, however, employers who believe strongly in fairly rewarding 
productivity or quality, or who wish to offer workers opportunities to 
earn beyond their base salary, easily find ways to do so within the 
NLRA's collective bargaining framework. Agreements in many industries 
contain incentive pay or bonuses, profit-sharing, production bonuses, 
additional compensation for work above and beyond the employee's 
regular duties, or rewards for innovation or exceptional quality. And 
merit increase systems, where increases are based on the employer's 
annual reviews or ratings, are not at all uncommon, particularly in 
professional or technical occupations. There is no ``ban'' on such 
provisions, so long as they are mutually agreed. But that is the key: 
mutual agreement by structurally independent, freely chosen 
representatives. That principle is, as noted above, the premise on 
which the NLRA is built. Both the employer and the workers must agree 
that such a provision is in their interest.
    This bill would erase the workers' voice from that determination, 
and leave such wage increases completely in the hands of employers. 
Employers alone would decide who was deserving of extra money and who 
was not, and could do so free of any statutory standard (indeed, the 
statute does not even require that the raises it permits in fact be 
tied to individual achievement or success at all), without any 
objective, measurable metrics--and without any review or recourse by 
employees who felt that they were unfairly passed over.
    One of the most commonly voiced reasons that workers want a binding 
contract is to ensure that the rules by which economic benefits and 
opportunities are apportioned are clear, objective, and uniformly 
applied; that is, to take these critical decisions out of the 
employer's sole discretion. This bill permits employers to unilaterally 
set the rules and apply them as they see fit--to institutionalize 
favoritism and employer discretion--and to do so regardless of the 
desires of the workers as a group. If the workers thought the exercise 
of such discretion was in their interest, they would agree to it, and 
any need for the proposed legislation would disappear. Indeed, it is 
only in those circumstances where workers would not agree that the 
legislation would have any effect, and would permit the employer to 
step in and override their wishes.
    This legislation strikes at the core of the NLRA's framework of 
self-determination by workers, and active engagement on equal footing 
between workers and their employers. If enacted, it would essentially 
render collective bargaining on wages meaningless: why bargain 
collectively if, in the end, the employer maintains complete discretion 
over individual rewards?
            Undermining the Right to Self-Organize
    Despite its title, H.R. 3094, Workplace Democracy and Fairness Act, 
this bill would place further hurdles in the path of workers' right to 
self-organize. It would change the NLRB's election process to mandate 
that workers wait months and years for a vote by encouraging wasteful 
litigation and impose arbitrary waiting periods, even if the parties 
involved want to proceed sooner. It would incentivize marathon 
litigation by requiring that any and every issues be fully litigated 
and resolved before workers can have an opportunity to vote--regardless 
of whether the issues are even relevant to the election. Other 
provisions in the bill overthrow decades of Board rules that have been 
formulated in response to the needs of specific industries and, 
instead, applies a limited, inflexible, ``one size fits all'' standard 
to determine which groups of workers can be represented together. It 
will flood the Board with frivolous appeals, which will require 
additional funds and needlessly waste taxpayer monies.
    Moreover, the bill would further restrict the already extremely 
limited ability of unions to contact workers. In most circumstances 
under current law, labor organizations are not allowed in the 
workplace--indeed, they are often not even allowed outside the 
workplace if that area is private land--and are relegated to contacting 
workers during their non-work time and in non-work locations. This bill 
would permit a labor organization only a single method by which to 
reach each worker (it envisions each worker selecting the method and 
disclosing that selection to the employer, to pass on to the NLRB), in 
contrast to the addresses that have routinely been required by law 
since the 1960s. Of course, all the while, employers have unlimited 
access to these same workers during their work-days, can compel their 
attendance at meetings to communicate their views, can compel them to 
furnish personal contact information, and can use that information to 
further communicate their views. These revisions undermine, rather than 
promote, fairness.
    H.R. 2810, the Employee Rights Act, among other aspects, sets 
minimum (but no maximum) timelines for holding administrative hearings 
and elections, and prohibits the Regional Offices as well as the NLRB 
from exercising any discretion to move their dockets and streamline 
procedures. Further, notwithstanding the wealth of scholarly research 
and literature on the abuses of workers' rights by companies during 
organizing efforts set forth in the endnotes, this proposal actually 
imposes additional penalties only on union misconduct. Even a cursory 
review of NLRB data reveals that the vast majority of unfair labor 
practice charges involve employer, not union, misconduct;\5\ those 
claims also are found sufficient to issue complaint at a far higher 
rate.\6\ Of 1,166 formal actions taken by the NLRB in Fiscal Year 2010 
(the most recent year for which I was able to find data), 1,028 of 
those actions, almost 90%, were taken against employers. Further, the 
bill would change the rule that has governed workplace elections for 
more than 75 years--a rule that honors the choice of a majority of 
voting workers--to require a majority vote of the entire affected 
workforce. We do not apply such a rule when we elect our Congressional 
representatives; why, then, is it necessary in all of our workplaces, 
other than to make workers' selection of a representative even more 
difficult a task?
    The Secret Ballot Protection Act, H.R. 972, is another measure that 
would strip workers of current rights. Since 1935, workers have had the 
right to decide whether to form a union through either an NRLB-
conducted election process or to demonstrate their support for a union 
through signing cards or a petition authorizing a union to represent 
them in collective bargaining. This right has been endorsed by Congress 
and by the U.S. Supreme Court. This bill eliminates that right. Even if 
a majority of workers tell their employer that they want a union, and 
even if the employer wants to accede to their wishes, this bill 
nevertheless inflexibly injects a government agency into the process, 
expending time and resources, and delaying achievement of the parties' 
shared goal. It is difficult to understand the rationale for such a 
requirement. Nothing under current NLRA law that I am aware of requires 
an employer to recognize a labor organization without an election, even 
upon an unquestioned showing of majority support. Those employers who 
do agree to recognize without an election therefore do so voluntarily. 
This bill seeks, as I understand it, to categorically forbid such 
voluntary arrangements, even though the employer thought it a desirable 
alternative to the burdensome, expensive, and friction-laden NLRB 
election process.
    The push to eliminate voluntary recognition as an option on grounds 
that unions ``coerce'' workers to sign cards is puzzling. According to 
the most recent data released by the Board, charges brought against 
labor unions account for just over one-quarter of all unfair labor 
practice charges filed (6,330, in comparison to over 17,000 charges 
brought against employers).\7\ The Board finds merit and issues 
complaint in only a very small percentage of all cases filed--about 
1,200 in FY 2010 \8\--and, only about 10% of charges brought against 
unions on any theory resulted in a complaint, much less a determination 
of culpability. The fraction of claims found to have merit is even 
lower in the objections setting: only 3 were sustained out of the 92 
objections filed in representation cases disposed of in FY 2010.\9\ I 
am not aware of research showing that there exists any significant 
difference between the rate of coercion claims against unions in 
connection with card-signing initiatives as opposed to elections; 
certainly, in both situations, the rate of such claims is extremely 
small, and the likelihood that they have merit smaller yet.
            Weakening Workers' Entitlement to Redress for Wrongful Acts
    The House recently passed a proposal that takes broad aim at 
workers' rights by further weakening already ineffective remedies. H.R. 
2587, titled ``Protecting Jobs from Government Interference,'' would 
prohibit the NLRB from ever ordering an employer to reinstate work that 
was illegally eliminated--for example, closing and subcontracting of a 
department believed to be spearheading an organizing campaign, or 
abolishment of an individual workers' job because she exercised her 
federally protected right to challenge harsh working conditions. To be 
sure, the workers involved might receive some backpay. But the bill 
will immunize the employer from undoing its wrongful act, 
notwithstanding an adjudication that it violated federal law. For 
employees who have illegally lost their jobs, a right without a 
reinstatement remedy is hollow indeed. Most workers and their families 
rely on each paycheck for housing, food, and other essentials; little 
fat is left in most families' budgets these days. Yet, under this law, 
even when an employer decimates that family's budget by illegally 
outsourcing that worker's job, the employer need only pay what will 
amount, in most cases, to a modest fine: an amount equal to the fired 
worker's wages for the time period in question, but crediting back to 
the employer all of the money actually earned by the worker from other 
sources during that period. As most workers who have been fired or laid 
off can attest, a check is not a job: it is a band-aid, not a lasting 
solution. What rational worker, particularly when, as now, unemployment 
is high, would take the already substantial risk of protesting 
workplace conditions or lending support to an effort to organize a 
union, if he or she knew that no meaningful recourse was available for 
wrongful retaliation?
            Other Impediments to Meaningful Enforcement of Workers' 
                    Rights
    Several current proposals, such as H.R. 2854, forbid the NLRB from 
ever requiring employers to post notices informing employees about 
their federal rights under the NLRA. Other proposals are wholesale 
efforts to eliminate the NLRB as an enforcement agency. H.R. 2118 
appears aimed at divesting the NLRB of the authority to enforce the 
Act's protections against contrary state law.
    Other proposals either drastically restrict, or eliminate entirely, 
the NLRB's ability to enforce the law. H.R. 2978 reduces the agency to 
an investigative body, while providing for enforcement of unfair labor 
practice provisions of the Act exclusively through private rights of 
action. Theoretically, such a revision could provide workers with a 
more potent tool with which to enforce their rights; however, given the 
substantial expense of federal court actions and the relatively unequal 
resources of workers and employers, absent a cost-shifting provision 
similar to what is found in other federal workplace laws, that tool 
would, unfortunately, remain out of reach for the vast majority of 
workers who need it. Written on a broader scale, H.R. 2926 simply 
eliminates the Agency.

Conclusion
    None of the legislative measures discussed will do anything to 
further the central purposes of the NLRA: to grant workers a meaningful 
opportunity to join together, if they wish, to better their own lives 
and those of their families and communities, and to insist on their 
right to be heard in workplace decisions that affect them. Indeed, 
taken together, it is difficult to view these measures as anything 
other than a broad-based, politicized attack on these purposes. 
Furthermore, these measures do not address the economic issues that I 
believe are most vital to our country, in both the short and the long 
term: the need for good jobs that can sustain generations and anchor 
our communities, and the growing concentration of wealth in the hands 
of a small proportion of the population. It is my hope that future 
hearings will focus on those urgent matters.

                                ENDNOTES

    \1\ John Schmitt, Unions and Upward Mobility for Latino Workers, 
Center for Economic and Policy Research, September 2008; http://
www.cepr.net/index.php/publications/reports/unions-and-upward-mobility-
for-latino-workers/; Unions and Upward Mobility for African-American 
Workers, Center for Economic and Policy Research, April 2008; http://
www.cepr.net/documents/publications/unions--2008--04.pdf; Unions and 
Upward Mobility for Young Workers, October 2008; http://www.cepr.net/
index.php/publications/interactive-reports/unions-and-upward-mobility-
for-young-workers/; Unions and Upward Mobility for Women Workers, 
Center for Economic and Policy Research, December 2008; http://
lcc.aflcio.org/WhatsNewDocuments/EFCA/CEPRupwardwomenworkers2008.pdf; 
The Union Wage Advantage for Low-Wage Workers, Center for Economic and 
Policy Research, May 2008; http://lcc.aflcio.org/WhatsNewDocuments/
EFCA/LowWageWorkers.pdf.; Shawn Fremstad and John Schmitt, Unions 
Improve Jobs at the Bottom, November 29, 2007, http://
www.policyinnovations.org/ideas/commentary/data/unionization. Bureau of 
Labor Statistics, 2006 Employment Benefits Survey, available at: http:/
/data.bls.gov/PDQ/servlet/
SurveyOutputServlet;jsessionid=f03045af62dfW$3F$08$.
    \2\ An Analysis of the Distribution of Wealth Across Households, 
1989-2010, Linda Levine, Specialist in Labor Economics, Congressional 
Research Service, July 17, 2012
    \3\ Dropping the Ax: Illegal Firings During Union Election 
Campaigns, 1951--2007, John Schmitt and Ben Zipperer, Center for 
Economic and Policy Research, March 2009: http://www.cepr.net/
documents/publications/dropping-the-ax-2009-03.pdf; No Holds Barred: 
the Intensification of Employer Opposition to Organizing, Kate 
Bronfenbrenner, Economic Policy Institute and American Rights at Work 
Education Fund, 2009; http://www.epi.org/publications/entry/bp235; 
Unfair Advantage: Workers' Freedom of Association in the United States 
under International Human Rights Standards, Human Rights Watch, 2000: 
http://lcc.aflcio.org/WhatsNewDocuments/EFCA/UnfairAdvantage.pdf; 
Neither Free Nor Fair: The Subversion of Democracy Under National Labor 
Relations Board Elections, Gordon Lafer (American Rights at Work, July 
2007): http://www.americanrightsatwork.org/publications/general/
neither-free-nor-fair.html; Consultants, Lawyers and the `Union Free' 
Movement in the USA Since the 1970s, John Logan, Industrial Relations 
Department, London School of Economics, 2002: http://
www.americanrightsatwork.org/dmdocuments/OtherResources/Logan-
Consultants.pdf.
    \4\ See, e.g. Ronald Meisburg and Leslie E. Silverman, Why Should a 
Non-Union Company Care About the NLRB?, Society for Human Resource 
Management (August 11, 2010); see also Jonathan A. Segal, Labor Pains 
for Union Free Employers: Don't be caught unaware of nonunion 
employees' labor law rights, HR Magazine, Vol. 49, No. 3 (March 2004) 
(``Because these [Section 7] rights are granted under the NLRA--a law 
that HR professionals working in nonunion environments may be 
relatively unfamiliar with--they may come as a surprise to many 
employers that operate without unions.'').
    \5\ See Table 1A.--Unfair Labor Practice Cases Received, Closed, 
and Pending, Fiscal Year 2010, NLRB, available at: http://www.nlrb.gov/
sites/default/files/documents/3580/table--1a.pdf
    \6\ Out of a rough total of 17,000 charges filed against employers, 
according to Table 1A, 1,028, or 6%, resulted in a formal complaint, 
according to Table 3A. In contrast, less than 2% of the 6,300 charges 
filed against unions resulted in complaint. Table 3A.--Formal Actions 
in Unfair Labor Practice Cases, Fiscal Year 2010, NLRB, available at: 
stronger, and wealth distribution less concentrated than it today. As 
documented in a recent Congressional Research Service study, the top 
10% of the population held about two-thirds of the nation's wealth in 
1989.stronger, and wealth distribution less concentrated than it today. 
As documented in a recent Congressional Research Service study, the top 
10% of the population held about two-thirds of the nation's wealth in 
1989.stronger, and wealth distribution less concentrated than it today. 
As documented in a recent Congressional Research Service study, the top 
10% of the population held about two-thirds of the nation's wealth in 
1989. http://www.nlrb.gov/sites/default/files/documents/3580/table--
3a.pdf.
    \7\ See Table 1A.--Unfair Labor Practice Cases Received, Closed, 
and Pending, Fiscal Year 2010, NLRB, available at: http://www.nlrb.gov/
sites/default/files/documents/3580/table--1a.pdf
    \8\ See Table 3A.--Formal Actions in Unfair Labor Practice Cases, 
Fiscal Year 2010, NLRB, available at: http://www.nlrb.gov/sites/
default/files/documents/3580/table--3a.pdf
    \9\ Table 11-D., Disposition of Objections in Representation Cases 
Closed, Fiscal Year 2010, available at: http://www.nlrb.gov/sites/
default/files/documents/3580/table--11d.pdf
                                 ______
                                 
    Chairman Roe. Thank you.
    Dr. Kane?

          STATEMENT OF DR. TIM KANE, CHIEF ECONOMIST,
                        HUDSON INSTITUTE

    Mr. Kane. Chairman Roe, Ranking Member Andrews, and 
distinguished members, thank you for this opportunity to 
testify today.
    As an aside, Congressman Kildee, it is a particular honor 
to speak before you today. I know my grandfather would be 
proud.
    I will share an analysis I have done of the RAISE Act, 
sponsored by Congressman Rokita, of Indiana. The views 
expressed in this testimony are mine alone and do not 
necessarily represent those of the Hudson Institute.
    As the grandson of an elected Democrat, Edward Kane, who 
was inspired by FDR to run for office in the city of Wyandotte, 
Michigan during the Great Depression, won, and served for 
decades in Michigan, I can promise you that I represent a 
family that puts the working man first. Also, I am honored to 
share my perspective as an economist and an entrepreneur.
    I would like to thank all the members here for your 
tireless efforts to pull the U.S. economy out of the recession. 
The truth is that the policies put in place since 2009 have 
been an abject failure in terms of creating a jobs recovery 
despite the promises of the Obama administration's leading 
economists.
    Recent calculations I did show that the employment-to-
population ratio collapsed by a staggering 4 percent and has 
not recovered at all in the last 3 years. The employment ratio 
averaged 63 percent for 2 decades before the current recession, 
but it crashed to a modern low level of 58.2 where it has held 
steady, representing a permanent loss of 12 million jobs.
    On the screens is a chart I recently put together in a 
Hudson report. My analysis of this ratio shows a complete 
recovery in four of the last five recessions, back to 1970. 
There was a 0 percent recovery today. The status quo is a 
powerful reminder that policies in place have prevented a 
recovery of 12 million jobs.
    Turning to workers' rights, what are workers' rights? There 
is no economic or logical reason to require workers to 
surrender their individual rights when they bargain 
collectively or merely consent to a collective agreement. A 
collective agreement should be understood to establish minimum 
standards for all, not the maximum potential for anyone.
    Unfortunately, U.S. labor law now allows collective 
bargaining rights to mean the suppression of individual 
bargaining rights. Now, as an economist, not a specialist in 
labor law, I had no idea that giving higher pay to union 
workers is illegal under the National Labor Relations Act.
    In 2009, for example, the Brooklyn Hospital Center was 
ordered to stop giving $100 gift cards to its top nurses. This 
fails the common sense test and the economic test as well.
    To predict the economic effects of the RAISE Act the key 
variable is what will happen to labor productivity. A 2003 
academic study by David Metcalf found that a unionized firm's 
labor productivity was 14 percentage points more likely to be 
below the union--or pardon me, the industry average.
    Now, in theory a unionized workforce will have positive 
effects and negative effects on productivity. Metcalf outlines 
four negative and five positive channels.
    On the negative side, and I am quoting directly, ``First, 
unions may be associated with restricting work practices. 
Second, industrial action may have an adverse impact. Third, 
union firms may invest less than non-union firms. Fourth, if 
unions are associated with an adversarial style of industrial 
relations the consequent low trust and lack of cooperation 
between the parties may lower productivity.''
    On the positive side--unions have a positive effect--
``First, firms' responses to union relative wage effects may 
result in higher labor productivity, but this should not be 
interpreted as raising the welfare of society''--again, quoting 
directly. ``Second, unions may play a monitoring role on behalf 
of the employer. Third, the familiar collective voice arguments 
may have favorable consequences. Fourth, it is sometimes held 
that a union presence may make managers less lethargic. And 
finally, unions stop the exploitation of labor, resulting in 
improved productivity.''
    So which of these wins out? Well, the RAISE Act has 
potential to remove some of the negative effects on 
productivity, but I don't see how it removes any of the 
positive effects.
    The most important negative effects this act will remove is 
the ban on performance incentives. One study found that 20 
percent of workers employed through CBAs, which include 7.6 
million private sector union employees, operate under contracts 
that allow performance-based pay. This means 80 percent aren't 
allowed that pay. I think it is safe to assume a 10 percent 
productivity increase across the board for all 7.6 million 
union workers affected by the RAISE Act, which would be given 
directly--would mostly be given directly to workers in the form 
of higher pay.
    Other economic effects that the act will make possible 
include higher firm revenues. Because the marginal productivity 
of labor will increase, affected firms will soon move to hire 
more workers in two waves.
    Bottom line, I estimate a 200,000 new job estimate because 
of the RAISE Act over the next few years. Again, let me 
emphasize, the legislation has no potential to hurt jobs or 
wages.
    Thank you.
    [The statement of Mr. Kane follows:]

   Prepared Statement of Tim Kane, Chief Economist, Hudson Institute

    Chairman Roe, Ranking Member Andrews, and Distinguished Members of 
the Congress: Thank you for this opportunity to testify today on the 
vital issue of worker rights, jobs, and the U.S. economy. I will share 
an analysis I have done of the RAISE Act, sponsored by Congressman 
Rokita of Indiana, which would allow employers to lift the ``seniority 
ceiling'' on workers' wages by allowing employers to pay individual 
workers more--but not less--than a Collective Bargaining Agreement 
(CBA) specifies. The views expressed in this testimony are mine alone 
and do not necessarily represent those of the Hudson Institute.
    As the grandson of an elected Democrat, Edward Kane, who was 
inspired by President Franklin Delano Roosevelt to run for office in 
the city of Wyandotte, Michigan during the Great Depression, won, and 
served for decades in Michigan, I can promise you that I represent a 
family that has long put the American working man first and foremost. 
Also as the son of the president of a small manufacturing company, I 
can promise you that I bring the perspective of someone who appreciates 
how jobs are truly created. I've spent my career studying the U.S. 
economy, but have also founded and run a few software companies, so I 
am honored to share my perspective as an economist and entrepreneur.
    I'd like to thank all of the Members here for your tireless efforts 
to pull the U.S. economy out of the recession. I know you share with me 
some frustration that the recession may have technically ended years 
ago, but job market remains mired in recession. We need to face the 
truth that the policies put in place since 2009 have been an abject 
failure in terms creating a recovery in U.S. employment, despite the 
promises of the Obama administration's leading economists.
    Recent calculations I did show that the employment-to-population 
ratio collapsed by a staggering 4 percent during the recession, and it 
has not recovered at all in the last three years. Other measures of 
labor utilization such as the unemployment rate or payroll jobs created 
are not demographically neutral, masking elements such as worker 
discouragement and population change. The employment-population ratio 
averaged 63 percent for two decades before the current recession, but 
crashed to a modern low level of 58.2 percent in late 2009. In the most 
recent report from the Labor Department, it remains stuck 58.6 percent, 
where it has held steady for two and a half years, representing a 
permanent loss of 12 million jobs under this policy regime.
    My analysis of employment-to-population shows a complete recovery 
after 54 months in 4 of the last 5 recessions going back to 1970. There 
was a 50% recovery after 2001 and a zero percent recovery today. The 
status quo is a powerful reminder that the policies in place today have 
prevented what should be by now a recovery of all 12 million jobs.
Worker rights
    If I may turn the clock back in time to 1934 when my Grandfather 
ran for tax assessor in Wyandotte, the labor movement then was fighting 
to promote workers' rights against the abuses of some corporations. The 
abuses were real and the eventual victory of workers' rights 
represented what I believe was true progress.
    What are workers' rights? Some say that workers have a right to 
bargain collectively, and I agree. Some say this is the limit of 
workers' rights, and I disagree. There is no economic or logical reason 
to require workers to surrender their individual rights when they 
bargain collectively, or merely consents to a collective agreement. A 
collective agreement should be understood to establish minimum 
standards for all, not the maximum potential for everyone.
    Unfortunately, U.S. labor law has regressed over the decades such 
that the existence of collective bargaining rights now means the 
suppression of individual bargaining rights. To be honest, I am an 
economist, not a specialist in labor law, so I had no idea that giving 
higher pay to union workers is illegal under the National Labor 
Relations Act of 1935. The Supreme Court has actually upheld the law in 
extreme cases, and the NLRB routinely blocks companies that attempt to 
give individual raises. In 2009, for example, the NLRB ordered the 
Brooklyn Hospital Center to stop giving $100 gift cards to its top 
nurses. This fails the common sense test, and I believe it fails the 
economic test as well.
Economic analysis
    I've conducted an analysis of the RAISE Act on the U.S. economy and 
would like to share the results briefly here. The RAISE Act--remarkable 
in its brevity--would allow companies with unionized workforces to 
offer bonuses and higher wages to some or all its workers than the 
current baselines contract. That is the whole matter at hand.
    To predict the economic effect of the RAISE Act, the key variable 
is what will happen to labor productivity. The economic literature on 
unionization and productivity is mixed. A widely respected 1984 book by 
Freeman and Medoff (What Do Unions Do?) asserted a positive effect of 
unions on productivity in the U.S., but the claim has not held up well 
to more sophisticated statistical analysis in more recent studies, and 
has not been substantiated by any other broad-based studies. Barry 
Hirsch revisited the question in a 2004 paper published by the Journal 
of Labor Research and cited numerous other papers, notably Clark (1984) 
which find a negative relationship. For example, a 2003 study by 
Metcalf found that a unionized firm's labor productivity was 14 
percentage points more likely to be below the industry average.
    In theory, a unionized workforce will have positive and negative 
effects on productivity, which is why disentangling them across 
multiple industries and legal-market contexts is muddled. All 
economists agree and empirical data show that unions hurt firm 
profitability. That effect also is known to limit productivity growth, 
if not initial levels, which may be why the private sector industries 
with high unionization rates have declined so dramatically since the 
1980s. Metcalf outlines four negative channels and five positive 
channels. On the negative side:
    First, unions may be associated with restrictive work practices. 
Second, industrial action may have an adverse impact. Third, union 
firms may invest less than non-union firms. Fourth, if unions are 
associated with an adversarial style of industrial relations the 
consequent low trust and lack of cooperation between the parties may 
lower productivity.
    On the positive side:
    First, firms' responses to union relative wage effects may result 
in higher labor productivity, but this should not be interpreted as 
raising the welfare of society. Second, unions may play a monitoring 
role on behalf of the employer. Third, the familiar collective voice 
arguments may have favorable consequences. Fourth, it is sometimes held 
that a union presence may make managers less lethargic. Finally, unions 
should stop exploitation of labor, resulting in improved productivity.
    It is important to understand that none of the positive effects of 
unionization would be diminished by the Act. Indeed, the worst-case 
outcome of passing RAISE is a completely neutral effect on the economy. 
However, the Act has potential to remove some of the negative effects 
of unions on productivity. The most important negative effect this Act 
will remove is the ban on performance incentives. Metcalf discusses 
incentives, but I believe this merits consideration as one of the main 
productivity inhibitors of unionization. Seniority, rather than work 
effort and competence, is the dominant consideration for promotion and 
raises under most union rules.
    Economic research shows that workers respond to incentives, with 
estimates of the increase in worker earnings ranging from 6 to 10 
percent when pay is performance-based. The productivity gain is at 
least that high, but possibly much higher. We can imagine the effect 
will be even larger in firms which have never had merit-based pay. One 
study found that only 20 percent of workers employed through CBAs, 
which includes 7.6 million private sector union employees, operate 
under contracts that allow performance-based pay. That means 80 percent 
(6.1 million) of union workers have a wage ceiling enforced by U.S. law 
that makes individual performance bonuses and raises illegal, but would 
be legal after passage of the RAISE Act. I think it is safe to assume a 
10 percent productivity increase across the board for all 7.6 million 
union workers affected by the RAISE Act, most which would be given 
directly to workers in the form of higher pay. The typical union worker 
will get a 5-10 percent raise in take-home pay.
    Other economic effects that the Act will make possible include 
higher firm revenues. Because the marginal product of labor will 
increase, affected firms will soon move to hire more workers in two 
waves. The first wave will be to hire workers rather than expand 
capital investment because of labor's increased relative productive 
impact, but the second wave will be in response to higher profit 
potential as the firm expands. A conservative estimate is that each 
wave will increase employment by 1-2 percent above current levels, or 
roughly 200,000 new jobs over the next few years. Union jobs. The 
effects could be much higher. Again, let me emphasize the legislation 
has no potential to hurt jobs or wages.
Conclusion
    Currently, the National Labor Relations Act allows collective 
bargaining agreements (CBAs) that suppress individual bargaining 
rights. Specifically, CBAs can set wage floors and wage ceilings, 
barring merit-pay, even barring across the board raises by the employer 
to all workers. A better approach would not put collective rights at 
odds with individual rights, but to allow both to be realized.
    The RAISE Act--less than 200 words of legislation--will restore the 
upside of individual worker rights and allow firms to give individual 
bonuses and raises.
    Lifting the pay cap on union workers across America would provide a 
much needed boost to our economy. I estimate the RAISE Act will 
generate an average raise of 10 percent to union workers in response to 
new productivity gains based on new incentives. The follow-on effects 
will lead to increased firm revenues and the creation of an additional 
200,000 union jobs in the United States.
                               references
Clark, K. (1984) `Unionisation and Firm Performance: The Impact on 
        Profits, Growth and Productivity', American Economic Review, 
        Vol.74 (5), December, pp.893-919.
Freeman, R. B., and J. L. Medoff (1984): What Do Unions Do? New York: 
        Basic Books.
Hirsch, B. T. (2004): ``What Do Unions Do for Economic Performance?'' 
        Journal of
Labor Research, 25, 415-456.
Metcalf, D. (2003): ``Unions and Productivity, Financial Performance 
        and Investment:
Evidence,'' International Handbook of Trade Unions, pp. 118-171.
Sherk, James, and Ryan O'Donnell (2012): ``RAISE Act Lifts Pay Cap on 
        Millions of American Workers.'' Heritage Foundation. 2702, 1-6.
                                 ______
                                 
                                 
                                 
                                ------                                

    Chairman Roe. I want to thank all the witnesses for being 
under the time--amazing. So thank you all.
    I am going to start by just going through three things very 
quickly. These are three very simple bills, and I will start 
with President Porter.
    You know, first of all, I want to--basically to apologize 
to the Seneca Nation for the abysmal treatment that the federal 
government has done--U.S. government has done--it is 
embarrassing--over the 200 years of--it really is. I have 
reviewed your nation's history, and I come from an area where 
the Cherokee Nation in East Tennessee, and I am not sure what a 
sovereign nation is, and does this country keep a treaty.
    So I wholeheartedly agree that you have a right on your 
nation's land to follow your nation's laws, and we have a 
treaty that said you could do that. So I want to----
    Mr. Porter. Appreciate that, Mr. Chairman.
    Chairman Roe [continuing]. I want to make that statement to 
start with.
    Secondly, I can't think of anything more precious than a 
secret ballot. I put a uniform on, left this country, spent 13 
months in a foreign nation to help allow people to have that 
right.
    And I have said many, many times on here, I am a--the son 
of a union labor--I grew up in a union household. And I can't 
think of anything more important than you as an individual--I 
exercised this right a week ago when I went and voted for 
myself. Our election is next week and we have early voting. So 
no one was behind that booth with me.
    I say this, my wife claims she votes for me but I don't 
really know. It is a secret ballot. And she says she does, 
but--that is the importance of it. No one can intimidate you 
when you are back there.
    If you want a union that is fine. It is a right in this 
country. You can do that.
    But it is also your right not to have a union, and you 
should be free of any intimidation from an employer or an--the 
union to make that decision. A worker should have that right.
    And lastly, I am astonished. I didn't know this either, 
that as an employer--we--I have a non-union workplace; we have 
450 employees in my medical practice, and if I were unionized, 
I didn't know either, Dr. Kane, that it was illegal for me to 
take a good employee and incentivize them. And there are great 
employees in every business, there is no question about it.
    As a matter of fact, I would not have had a successful 
medical practice for over 30 years without the great people I 
worked with. They helped make me what I was. It wasn't me; it 
was the people who worked directly with me every day. And I 
didn't look at them as working for me, they worked with me 
because our purpose was to take care of patients.
    So that is the attitude I have about employees, is that 
they are the most valuable thing you have. And you reward the 
most valuable thing you have and you take care of it. And I 
think one of the great rewards you can have is to give that 
person a raise and help them during these times.
    So just three statements, and one other statement, Dr. 
Kane, you made, which I found as the employment-to-population 
ratio--that is an amazing statistic. And I guess another way to 
put it, I have heard, in 2000--we have 11 million more people 
living today than we did in 2000 in this nation but we have 
500,000 less people that are employed than we did in 2000. So I 
think that says basically a different way the same thing.
    President Porter, just your comments on your relationship 
with the--with what has happened to you and how this affects 
the running of your businesses in your nation.
    Mr. Porter. Well, thank you, Mr. Chairman, for the 
question.
    We have a very strong relationship with our workforce, both 
in our government services side and also our revenue side. You 
know, the businesses that we operate exist because we don't 
have a tax base in our nation.
    And so we have been wrestling with this specter that 
through this San Manuel decision and the changes in the NLRB 
that there will be a union-organizing activity that will occur 
in a way that would be inconsistent with the policies and goals 
of our government approach. We are a good employer. We provide 
good benefits to our workers and we have had a very positive 
working relationship during that time.
    The interference with our sovereignty is of great concern 
in the abstract as well as in what might be the application in 
the future, and that is why I am here today and I am glad to 
have a chance to testify.
    Chairman Roe. Thank you.
    And, on the secret ballot, Mr. Messenger?
    Mr. Messenger. Yes. The secret ballot is obviously 
something that should be protected--the right of each 
individual employee to vote in the privacy of the voting booth. 
As you said, you know, an individual--there is no one behind 
them when they are----
    Chairman Roe. Is there any reason not to do it?
    Mr. Messenger. Not that I can think of, Mr. Chairman.
    Chairman Roe. Okay. Thank you.
    And, Dr. Kane, on the RAISE Act, I can't--it is a 200-word 
bill. I can't see any reason why you wouldn't take good 
employees and give them a raise. I can't imagine why anybody in 
the union would mind.
    Mr. Kane. Exactly, Congressman. I was--Mr. Chairman--I 
tried to analyze this economically and look what the negative 
effects on productivity would be. I couldn't see them.
    So outside of the productivity conversation I am open to 
hearing ideas but, you know, there are these conflicting 
pressures on productivity, some positive, some negative. This 
bill, it is all positive.
    And as you said, it is 200 words. There is no hiding the 
ball in there.
    Chairman Roe. I thank you.
    I yield my time now to Mr. Andrews?
    Mr. Andrews. Thank you, Mr. Chairman.
    I thank the witnesses for their excellent preparation this 
morning.
    Mr. Messenger, you are in favor of repealing exclusive 
representation for unions. Is that correct?
    Mr. Messenger. Yes, sir.
    Mr. Andrews. And do you think that--is it a fair statement 
that you assume that that repeal would help to create more 
economic growth and more jobs in the country?
    Mr. Messenger. I believe that it would.
    Mr. Andrews. Dr. Kane, do you agree with that conclusion? 
Do you think that the abolition of the exclusive representation 
rights of unions would create more jobs and more economic 
growth?
    Mr. Kane. Abolition of rights--I don't follow, sir.
    Mr. Andrews. Well, Mr. Messenger's testimony says that he 
thinks that the monopoly representation that is achieved when a 
union is recognized should be repealed and that all members of 
the bargaining unit should have the right to opt out of that. 
Do you think that that would lead to more jobs and more 
economic growth?
    Mr. Kane. Congressman, the way I looked at it--if I can 
limit myself to the RAISE Act, and I don't know if I can----
    Mr. Andrews. Well, you could answer my question.
    Mr. Kane. Yes, sir.
    Mr. Andrews. If you don't have an opinion, tell us. But do 
you think it would engender more economic growth, or less, or 
the same?
    Mr. Kane. I don't think it would hurt growth, but I 
disagree with the premise, sir, that there is a conflict 
between collective rights and individual rights.
    Mr. Andrews. You don't think it would hurt growth. Do you 
think it would encourage more economic growth?
    Essentially, this is what is I guess known in the political 
parlance as ``right-to-work.'' So right-to-work laws, do you 
think that they encourage or discourage economic growth?
    Mr. Kane. I think right-to-work laws encourage economic 
growth.
    Mr. Andrews. Okay.
    I want to ask you, do you know--assuming that position, 
then, I assume you would think that unemployment rates would be 
lower in right-to-work jurisdictions than in non-right-to-work 
jurisdictions. Is that right?
    Mr. Kane. Depends on too many factors to make a claim like 
that.
    Mr. Andrews. So you don't think it necessarily will be the 
driving force?
    Mr. Kane. I think if I did an econometric analysis I might 
be able to isolate an effect that it would be--right-to-work 
would have a net positive effect, but I don't think you can do 
a simple analysis. California has got a lot of negative weight 
on it----
    Mr. Andrews. Do you know what the median unemployment rate 
is in right-to-work states?
    Mr. Kane. No, sir.
    Mr. Andrews. Do you know how it compares to the median 
right-to-work--median unemployment rate in unionized states?
    Mr. Kane. No, sir.
    Mr. Andrews. Would it surprise you to know that the median 
unemployment rate in right-to-work states is 7.8 percent and 
the unemployment rate--median rate in the non-right-to-work 
states is lower, is 7.5. That contradict your conclusion?
    Mr. Kane. Absolutely not. I mean, you can look for a cure 
for cancer and say it affects one race of people more than 
another race and it is somehow their fault. You have to look at 
a lot of factors.
    Mr. Andrews. That is true, although I am not sure what the 
aberrant factor would be. You are a very skilled economist. You 
know what a regression analysis is, right?
    Mr. Kane. Sure.
    Mr. Andrews. When you look at a correlation coefficient--am 
I correct, because I am an amateur at this--assuming that if 
the correlation coefficient is one you have a perfect match 
between a cause and an effect, basically; and if it is zero you 
have no relationship at all.
    Mr. Kane. Yes, sir.
    Mr. Andrews. I am going to submit for the record this 
graph, in which we plotted the unemployment rates in right-to-
work states against the unemployment rates in states that do 
not have right-to-work statutes. Could you guess for us what 
the correlation coefficient is?
    Mr. Kane. Based on where you are leading I can guess.
    Mr. Andrews. What do you think it is?
    Mr. Kane. Well, this would be what we call--you are leaving 
out--you have omitted variable bias when you do a direct chart 
like that. You are omitting variables that matter for the 
unemployment rate that would then isolate the actual effect. So 
I would actually suggest that----
    Mr. Andrews. So you must disagree with Mr. Messenger, then, 
who said that he thinks that the repeal of exclusive 
representation authority of unions would promote economic 
growth. You disagree with him?
    Mr. Kane. I don't think I disagree with him, but I----
    Mr. Andrews. You agree with him?
    Mr. Kane. Sorry, sir. I am still----
    Mr. Andrews. He says that right-to-work laws encourage more 
job growth. Do you agree or disagree?
    Mr. Kane. Absolutely, I agree.
    Mr. Andrews. So how do you explain a correlation 
coefficient of 0.05 when you look at right-to-work--when you 
actually look at the percentage of unionized workforce----
    Mr. Kane. Yes.
    Mr. Andrews [continuing]. And you plot that against the 
unemployment rate in the state the correlation is 0.05. How do 
you explain that?
    Mr. Kane. Well, barring a lecture on econometrics I would 
explain it by----
    Mr. Andrews. Well, you are barred from giving such----
    Mr. Kane. Yes, sir. I would say one, it has omitted 
variable bias; two, it depends on the timeframe. So I am 
curious what the timeframe of the chart is.
    Mr. Andrews. What might some of those variable biases be? 
What else would cause--you would admit that at least looking at 
these two factors there is no correlation whatsoever between 
the percentage of the unionized workforce and the unemployment 
rate, right?
    Mr. Kane. Well, sir, I would say one of the omitted 
variables would be a hurricane. So, for example, New Orleans--
you know, weather--droughts, as you mentioned.
    Mr. Andrews. What about the other 49 states that didn't 
have a hurricane, or 47 that didn't----
    Mr. Kane. Absolutely. So there are so many factors that go 
into this that it is hard to say just one thing. You would have 
to consider them all and then do a chart based on that.
    But also, the timing matters. So is this over the last 10 
years, the last 20 years? I could probably get a chart for you 
10 years before that one that would show a different 
relationship.
    Mr. Andrews. I would love to see that.
    Thank you.
    Chairman Roe. Thank you.
    Mr. Rokita?
    Mr. Rokita. Thank you, Mr. Chairman.
    Real quickly, Dr. Kane, did you want to respond any more to 
Mr. Andrews' line of questioning before I went on?
    Mr. Kane. No, sir. Thank you.
    Mr. Rokita. Okay, thank you.
    I want to thank all the witnesses for being here today. I 
want to thank the chairman for holding this hearing, as it 
regards the RAISE Act. I want to thank my--so many of my 
colleagues, including Ms. Noem, Mr. Ross, and the chairman for 
co-sponsoring the RAISE Act.
    I want to quickly read some excerpts from a letter sent by 
a firm called Miller & Long, which is a contracting firm here 
in the D.C. area. And Mr. Brett McMahon says, ``Even though we 
are not a union company I have met plenty of hardworking union 
members. However, their contracts do not permit their employers 
to reward their effort. The RAISE Act would allow union 
employers to grant individual merit raises to employees covered 
by a collective bargaining agreement. I cannot think of 
anything more fundamental, logical, or conducive to greater 
productivity and job satisfaction than loosening the unfair 
constraints on individual achievement. The RAISE Act would 
reward hard work. It seems so simple to say that hard work 
should be rewarded in this country. It is a sad testimony on 
the nature of our politics that such a bill does not enjoy 
unanimous support. Every working person deserves a chance to 
get ahead and to have their individual effort justly 
rewarded.'' Mr. Chairman, I ask for inclusion in the record.
    [The information follows:]

                                                     July 24, 2012.
Hon. Phil Roe, 419 Cannon House Office Building,
U.S. House of Representatives, Washington, DC 20515.
    Dear Representative: I am proud to say that Miller & Long DC is a 
merit shop company. Advancement in rank and compensation is earned 
through individual effort and hustle. One of my primary tasks is to 
continuously evaluate each person. I seek out those that go the extra 
mile. It makes us a more productive, positive and profitable place to 
work. The younger people entering the business need to know that they 
can get ahead, and that their hustle will be rewarded. The more 
experienced folks enjoy working with people whose efforts have garnered 
their respect.
    I firmly believe that these values are universal. Even though we 
are not a union company, I have met plenty of hard-working union 
members. However, their contracts do not permit their employers to 
reward their effort. Union organizers have targeted Miller and Long in 
the past, but our employees have consistently decided that remaining a 
merit shot best served their interests. I am concerned that--if a 
future organizing campaign succeeded--a union contract would prevent us 
from rewarding hustle and hard work. This would undercut our 
productivity and would be a serious threat to the health of our 
business.
    I was disappointed, but not shocked when the union leadership's 
political arm decided to oppose the RAISE Act. The RAISE Act would 
allow union signatory employers to grant individual merit raises to 
employees covered by a collective bargaining agreement. I cannot think 
of anything more fundamental, logical, and conducive to greater 
productivity and job satisfaction than loosening the unfair constraints 
on individual achievement.
    The RAISE Act would reward hard work. It seems so simple to say 
that hard work should be rewarded in this country. It is a sad 
testimony to the nature of our politics that such a bill does not enjoy 
unanimous support. Every working person deserves a chance to get ahead 
and to have their individual effort justly rewarded.
            Sincerely,
                                  Brett McMahon, President,
                                             Miller & Long DC, Inc.
                                 ______
                                 
    Chairman Roe. Without objection, so ordered.
    Mr. Rokita. Now, the reason I took some time to state that 
is because I am in complete association with the chairman's 
remarks when he started the questioning and I can't do any 
better by them. But the moral imperative that he laid out here 
with regard to these three bills is exactly on point.
    Given that then, starting with Dr. Kane, can you give me 
specific examples of unions telling a company not to pay 
workers more? Because given what I just read that seems like a 
strange objection.
    Mr. Kane. Yes, sir. I read a few examples. There is a 
background paper from the Heritage Foundation--I forget the 
publication--by James Sherk that lists a few examples that 
surprised me.
    One example had a firm that wanted to give everyone in the 
company the exact same raise and the union objected to it. It 
was taken to the NLRB, and the NLRB, in I think what might have 
been a unanimous decision, to Mr. Andrews' point, agreed with 
what the law says today that the firm wasn't allowed to make 
that raise. So I would probably vote the same way on the NLRB 
even though I disagree with the law.
    So it is up to Congress to free companies and to free 
workers to get these merit raises.
    Mr. Rokita. Well, how can an employer provide a 
performance-based pay increase? How often are provisions 
allowing the performance-based pay increases found in 
collective bargaining agreements, and why are they excluded?
    Mr. Kane. The analysis I have seen by--in a paper by David 
Metcalf in 2003 that 20 percent of CBAs already allow merit 
pay, so it is not an extraordinary thing. But the fact that it 
is already allowed means it should be logical and that it could 
be spread to the other 80 percent of workers under unions 
without harming those unions.
    In fact, I would predict this would be a shot in the arm 
for unions, which have been declining. So if you care about 
union health over the future U.S. economy this would be a bill 
you would support, as well.
    Mr. Rokita. Okay, so just to be clear, union contracts 
don't raise wages, or do they, or how often?
    Mr. Kane. I don't think you can make a claim one way or the 
other. I think the fact that there is a collective bargaining 
agreement raises wages across the board, but having the RAISE 
Act in place would also allow that collective right to still 
exist and individual raises to occur, as well.
    Mr. Rokita. And why would businesses pay more if they did 
not have to?
    Mr. Kane. Well, let's look at the minimum wage. Two percent 
of the American workforce gets paid the minimum wage, so it is 
this great puzzle: Why do 98 percent of the workers get more 
than that when firms don't have to?
    As a former employer, I pay people what they are worth, 
especially if a worker is extremely talented and gets a job 
offer from somewhere else, I want to be able to give them a 
raise to retain them. And in fact, we see that happen to 
unions, that the--there are losses of talented workers and the 
firms and the unions aren't able to retain those individuals. 
The RAISE Act would change that.
    Mr. Rokita. And what kind of data do you have--and again, 
if it was in your testimony, if you can repeat it--do you have 
to show how much performance pay raises wages, by percentage 
or----
    Mr. Kane. That is my analysis. My analysis is the 
productivity difference between firms that have incentive pay 
and don't, that--what effect it would have where it is barred. 
I analyzed 10 percent increase, maybe a 200,000 job increase--
union job increase as a result of the RAISE Act. But that is my 
analysis.
    As far as citation about losing workers, I can get that to 
you and add it to the testimony.
    Mr. Rokita. Okay. And percent pay increase?
    Mr. Kane. Well, if we have a 10 percent increase in 
marginal productive labor you could say it is half and half--
half goes to the workers, half goes to the firm. But I think 
that will filter back into hiring more workers, as well.
    Mr. Rokita. Thank you.
    Mr. Chairman, my time is expired. Thank you for having the 
hearing.
    Chairman Roe. I thank the gentleman for yielding.
    Mr. Miller?
    Mr. Miller. Thank you, Mr. Chairman.
    For the past 75 years, as has been discussed here in this 
hearing, the decision was made that the right to form a union 
belonged to the workers themselves, and the exercise of these 
rights has served, I believe, this country well. I believe that 
they contributed to the building of the middle class and to 
ensure the prospect that our children can build even a better 
life for themselves, and that there--better than their parents.
    Certainly I have been dedicated to the idea of 
strengthening the National Labor Relations Act to make sure 
that, in fact, this decision rested with the workers. And yet, 
throughout this entire Congress we have seen the majority here 
continue to propose legislation--and throughout the hearings 
here--to really take away much of the say the workers have over 
their workplace.
    We have seen them pass the Outsourcers Bill of Rights, 
which eliminated the National Labor Relations Board authority 
to order an employer to restore job and production after 
employers unlawfully retaliate. You don't get to retaliate for 
people exercising their rights under the law, and yet that is 
what that legislation would do.
    Republicans passed the Election Prevention Act, which 
effectively delays and ultimately prevents union elections. How 
does that strengthen the National Labor Relations Act? How does 
outsourcing jobs strengthen the National Relations Act?
    Republicans introduced the Secret Ballot Protection Act, 
which eliminates the ability of employers to voluntarily 
recognize unions based upon the showing of majority support. 
And yet, we see in many instances where in workplaces that is 
done the working relationships are better among those 
organizations with their employees.
    The Republicans--the RAISE Act that is just under 
discussion here, which lets employers avoid discussing wage 
increases with employees, going around the employer 
organization, offering wage increases to selected individuals 
to break down the strength of the union under the National 
Labor Relations Act. And it doesn't require any wage increases 
at all.
    Ms. Vick--Virk--excuse me, Ms. Virk, in your opinion, you 
have listened to this back and forth here, do you believe that 
this is strengthening the National Relations Act?
    Ms. Virk. No, sir, I do not. In fact, I believe it 
fundamentally alters the structure of self-determination that 
the--that is the very premise of the act. As you pointed out, 
the notion that has been in place for 75 years is that workers 
themselves have a right to choose--a federally enforceable 
right to choose whether or not they want to deal with their 
employers individually or whether they wish to deal with their 
employers collectively. And if the workers choose to deal with 
their employers collectively the act provides that the 
employers must respect that choice so that the workers can 
insist that their voices be heard.
    Mr. Miller. That is the premise of the law.
    Ms. Virk. That is the premise of the law.
    Mr. Miller. This decision belongs to the workers.
    Ms. Virk. That is exactly right. And legislation such as 
the RAISE Act, which was just under discussion, what it does is 
effectively take wages, which are obviously a critical 
component of any collective bargaining negotiation, and takes 
that decision and puts it back exclusively, essentially, in the 
hands of the employer.
    It destroys or it takes exclusive representation and chips 
at it. It goes a ways towards Mr. Messenger's proposal, or what 
he would like to see happen, which is the death of exclusive 
representation and having everybody atavistically individually 
bargain.
    That is not the premise of the National Labor Relations 
Act. The premise of the act is that if people want to join 
collectively and want to deal with their employer collectively 
they have the absolute right to do so.
    Mr. Miller. Well, I am just struck by the fact that as we 
title this hearing, ``Strengthening the National Labor 
Relations Act,'' and as we talk about that throughout the year, 
this committee has let go unaddressed probably the most 
corrosive scandal in the board's history that has not been 
addressed at all by this committee despite repeated requests. 
Are you familiar with reports by the board's inspector general 
as regarding member Hayes and member Flynn?
    Ms. Virk. I am generally familiar with them, yes, sir.
    Mr. Miller. So we have two reports of the passage of 
confidential deliberative material now from former member 
Terence Flynn to select private parties outside the board. You 
represent people in these contests all the time. Can you 
imagine that you would--it would be appropriate to pass 
deliberative, confidential information from the board to the 
outside parties?
    Ms. Virk. No. I can't see why that would be proper.
    Mr. Miller. Do you know what--for what use these documents 
were used that they were passed outside of the board?
    Ms. Virk. I can't imagine.
    Mr. Miller. Mr. Kane, do you know for what purposes these 
documents were used that were passed outside the board?
    Mr. Kane. I am not familiar with it, sir.
    Mr. Miller. Mr. Porter, do you know for what reasons these 
documents were used when they were passed outside the board?
    Mr. Porter. I am not familiar with the issue.
    Mr. Miller. Mr. Messenger, do you know?
    Mr. Messenger. No, sir. I do not know.
    Mr. Miller. And neither does this committee. And yet, in 
fact, the processes of the board were violated by members of 
the board, according to the inspector general, and we find no 
interest in this committee at all. You talk about undermining 
the law is when people start leaking deliberative information 
to lawyers and to others outside the board.
    We tried to contact--Mr. Andrews tried to contact the 
lawyer to get Mr. Chambler here to attend this hearing to 
explain this and his lawyer can't find him. Apparently he is 
hiding from his attorney. But he said to send the message that 
he wasn't turning down the request to appear; he just couldn't 
find him. So I guess he is hiding in a culvert somewhere while 
his attorney searches for them.
    But it is just unbelievable that this committee would 
engage in this activity of undermining the board and not deal 
with the scandal going on on the--in the board at the same 
time. Thank you.
    Chairman Roe. Thank the chairman for yielding back.
    Mrs. Noem?
    Mrs. Noem. Thank you, Mr. Chairman, for holding this 
hearing today on all these issues regarding the National Labor 
Relations Act. While I am supportive of all the bills that are 
being heard today, obviously the Tribal Labor Sovereignty Act 
highlights an issue that is very dear to me and the tribes in 
South Dakota and others across the country.
    So I want to thank you, President Porter, for being here 
and for your testimony on this legislation. I found it very 
insightful, and a hands-on experience is always good insight to 
have when we are talking about policy and what happens in real 
life.
    The NLRB decision from several years ago is an affront to 
the principle of tribal sovereignty, which is referenced in the 
Constitution. It is especially concerning given the activist 
stance that the NLRB has taken. While the Tribal Labor 
Sovereignty Act stands to defend the constitutionality 
protected principle of tribal sovereignty, I believe it would 
also go a long way in continuing to promote economic 
opportunities and development on tribal lands by eliminating 
ambiguity that exists in current law.
    One of the things I hear most from businesses in my state, 
tribally owned and others, is the need for certainty from the 
government, that they will know what the rules are and what 
they will be in the future and can plan accordingly. And I 
believe that this is one of the glaring examples of the need 
for certainty and agree with you, President Porter, in--that 
clarification is needed.
    On behalf of the federal government and this hearing, this 
is a step in the right direction.
    So for you, President Porter, I have a question: You 
mentioned in your testimony that the Seneca Nation has strong 
employee rights protections in place and procedures as well. 
And I think that this gets to the heart of what the Tribal 
Sovereignty Act is all about, allowing tribes to govern their 
own affairs in accordance with their sovereignty. So could you 
talk about how those policies were implemented within your 
nation and within your tribal government?
    Mr. Porter. Thank you, Congresswoman.
    Our nation does have due process and protections for our 
workforce in a couple of different ways. Our nation's council, 
or legislature, has established laws, you know, that govern the 
regulation of workers in the--in our government.
    We have created separate governmental bodies that have 
administered our workforce in our casinos and other businesses. 
They have also their own policies and procedures that have been 
adopted by which employees have a definition of their rights 
and also a recourse, through grievance procedures, by which 
they can be heard in the event of disagreement between them and 
their immediate supervisors.
    So we do our best. As our businesses have grown they have 
grown very rapidly, and my prediction is that over time and in 
the years to come they will continue to evolve and advance as 
the needs of workers grow and our government continues to 
mature in this responsibility.
    Mrs. Noem. So what has been the response by tribal members 
and employees that have been working for the tribally owned 
government?
    Mr. Porter. Well, I have learned, you know, in my short 
time in elected office that it is difficult to make everyone 
happy. But it is true that we have provided, I think, a 
mechanism that provides a substantial degree of responsible 
employer relations, that, you know, we have a recourse, 
disputes are addressed. You know, people go to work every day. 
They are happy that they have jobs.
    We have created 4,000 jobs in the last 10 years and it has 
been a very significant benefit for not just our nation but for 
all of the people in Western New York who want to work. And 
from that standard I think it is working very well for us.
    Mrs. Noem. Is there an opportunity for them to give 
feedback to you into those policies and procedures so that you 
can work to put changes in place that they would recommend as 
employees?
    Mr. Porter. Absolutely. You know, I receive a lot of just 
unsolicited requests from members of our own nation as well as 
some of our employees about different problems that they have. 
I always try to work within the chain of command in terms of, 
you know, taking it back to the executives or the directors who 
are responsible for the workforce.
    But we do find a way in our small society of decision-
makers to be able to address concerns that our people as well 
as our workers are raising.
    Mrs. Noem. Have you found it--you know, that ability to 
dynamically react and meet the needs of the employees has been 
of benefit to you in setting up some of these policies and----
    Mr. Porter. Absolutely. We have fantastic businesses. Our 
gaming business does well. The private sector businesses--the 
individually owned businesses are struggling to continue to 
improve, and people have choices, you know, when it comes to 
where they want to work within our nation government 
businesses, the private sector, or even off the territory.
    So I think it is working as best as it can. After most of 
the last 200 years of our people living in abject poverty we 
have done an awful lot over the last 40 years and I hope to 
continue that growth in the future.
    Mrs. Noem. Great. I just was curious, what--do you know 
what the standard was that was used by the NLRB to determine 
whether it had jurisdiction over a tribal enterprise before San 
Manuel?
    Mr. Porter. As to why they continue to recognize our 
sovereignty?
    Mrs. Noem. What the standard was before that decision----
    Mr. Porter. I think it was common sense, quite honestly, 
because we are governments, and no differently than the statute 
reads that the United States or state governments are exempted 
from the coverage of the law, I think it was a common sense 
understanding that tribal governments would also be exempted. 
And I think it is only because we decided to grow businesses 
and generate monies for our people that the board, frankly, 
without almost no principle, changed the standard.
    Mrs. Noem. Well, thank you. Thank you for being here.
    Chairman Roe. Dr. Holt?
    Mr. Holt. I thank the chair.
    I would point to the statements of Mr. Miller and Mr. 
Andrews at the beginning of this hearing that there are things 
that we should be dealing with today, whether it is leaks that 
completely undermine the ability of the NLRB to function, or 
whether it is ways to have more workers employed. And I think 
Mr. Andrews at least laid the groundwork for the case that 
moving to right-to-work is not going to result in more workers 
being employed; and I think Mr. Miller made the case that if we 
are going to have a functioning NLRB we have to exert some 
oversight.
    Ms. Vick--Virk, I beg your pardon--first one specific 
question that I would like to clear up: It has been repeatedly 
stated that it is now illegal for a unionized employer to give 
bonuses to their employees. Is that true?
    Ms. Virk. I thank you for the opportunity to speak on that 
question. No, it is not true. It is only unlawful if the 
employer does not deal with the representative chosen by the 
workers if the workers have chosen a representative. Is----
    Mr. Holt. Thank you.
    Well, now I wanted to talk a little more generally, Ms. 
Virk, about why we are even talking about a representation for 
a group of workers collectively. Without the body of law and 
precedent associated with the NLRB, that whole body, do you 
think workers have equal footing with employers when it comes 
to wages and working conditions, benefits and the other matters 
of employment?
    Ms. Virk. Do you mean, are workers--do they exercise the 
same level of bargaining power----
    Mr. Holt. I guess I am asking, why was the National Labor 
Relations Act and associate--and associated law passed in the 
first place? Historically, are workers on an equal footing with 
their employers?
    Ms. Virk. No, they are not. And that is the reason that 
Congress gave them an enforceable right to act collectively if 
they so chose.
    Mr. Holt. So in this legislation that the majority has laid 
out today for our consideration, the legislation that would 
eliminate the NLRB's authority to order an employer to restore 
jobs as part of a--if an employer unlawfully retaliates against 
employees, or legislation that would delay union elections, or 
what is called the Secret Ballot Protection Act, or the so-
called RAISE Act that we were talking about that would allow an 
employer to set wages outside of the collective bargaining 
agreement, or legislation that would restrain the enforcement 
of any state law on grounds that it is preempted by or 
conflicts with the National Labor Relations Act--in other 
words, a state could pass laws in direct conflict to federal 
labor law--do you see, in any or all of these bills, any anti-
union bias or pro-union bias? In other words, is this really 
about making the NLRB more efficient, more functional, or is it 
really to get at whether unions can operate in the interest of 
workers?
    Ms. Virk. I guess the way that I would see it, Congressman, 
is that these measures taken individually or collectively 
undermine workers' rights, and in doing so they undermine the 
rights of workers' chosen representatives, which in many cases 
where workers have chosen collective representation are labor 
unions. But what they really do is chip away at individuals' 
rights or allow employers to ignore individuals' own wishes to 
be represented collectively, or their own wishes at the 
bargaining table, or their own wishes as to whether to be 
represented at all.
    Mr. Holt. So let's take, for example, the Secret Ballot 
Protection Act. How does that reduce workers' rights?
    Ms. Virk. Well, voluntary recognition, which this act would 
eliminate, has been in place and has been a part--a historical 
part of the National Labor Relations Act since its inception in 
1935. Thousands and thousands and thousands of workers have 
freely and easily chosen to be represented by an agent 
collectively for the purpose of bargaining with their employer 
and have done so simply by signing a card or signing a petition 
that have been presented to their employer, and their employers 
have agreed to respect their workers' wishes without an 
election.
    The act permits secret ballot elections and many thousands 
of employees have also been organized, if they so choose, by 
secret ballot election.
    What the Secret Ballot Protection Act, as I understand it, 
would do is take away that first option of voluntary 
recognition--take away the option of employees to simply come 
together and say, a majority of them, ``We want a union,'' and 
present a petition or cards to their employer saying exactly 
that and allow the employer the right to respect that. That is 
what it would take away.
    Mr. Holt. Thank you.
    Chairman Roe. Thank you.
    Mr. Tierney?
    Mr. Tierney. Thank you.
    You know, I took your point, Ms. Virk, on the notion that 
most of these statutes that are being proposed seem to be more 
about taking away the strength of the National Labor Relations 
Act than increasing it, but one--aside from one of the statutes 
here, one that always got me was the provision--the ruling of 
the board that there would be a notice posted which would 
inform members of unions of their right to join or to refrain 
from joining a union. And my understanding is that that notice 
could be downloaded for free of charge off the Labor Relations 
Board's site and then need only to be posted the same place 
that all other work notices are posted.
    Can you explain to me what the problem with that seems to 
be, for people that object to that?
    Ms. Virk. I don't understand why anyone would take a 
position that people should remain ignorant of rights that 
they--clearly are enshrined in federal law. And I would say, 
member Tierney, that in fact, the notice posting is required in 
all workplaces, union and non-union, to inform non-union people 
of their rights.
    And in fact, you know, given that most non-union workers 
don't even know that they have the right to act collectively, 
don't even know that they have a right to discuss wages or 
working conditions or complain about those conditions to each 
other or to their employer to try to seek redress, seems to me 
that informing those non-union workers, which are an ever-
growing percentage of our workforce, of their rights, I really 
see no reason not to do that.
    Mr. Tierney. Well, part of the charge of the National Labor 
Relations Board, of course, is to enforce its own statutes, 
rules, and regulations. Is that correct?
    Ms. Virk. That is correct.
    Mr. Tierney. And how would a--how would not posting this or 
not giving people information about their own rights strengthen 
the board's position or ability to do that?
    Ms. Virk. I don't see how it could strengthen it at all. I 
could only see that it would further undermine people's 
knowledge and, therefore, their enforcement of those rights 
that they absolutely have.
    Mr. Tierney. With respect to the so-called RAISE Act, my 
understanding under current law--and correct me; you are the 
expert here--under current law collective bargaining agreements 
already provide for merit pay raises if people--increases if 
people want to do that?
    Ms. Virk. If the parties mutually agree to it. And member 
Tierney, I mean, member Rokita said--asked of witness Kane how 
often are these arrangements of merit pay allowed, and I think 
the real answer to that is--Mr. Kane said 20 percent of 
agreements. I don't know whether that is right or not.
    But the real answer is, as often as both parties agree to 
that. And that is the beauty of the act is that it sets up a 
process and then the parties who are involved in--the 
bargaining parties themselves select what provisions work for 
them under their particular circumstances. It is as often as 
those parties decide there should be.
    Mr. Tierney. Can you explore a little bit broadly for us, 
how does changing that and passing the RAISE Act, how would 
that undermine the purpose of the statute?
    Ms. Virk. As I understand it, it would, as I said before, 
take away the union's right or labor organization's right to 
exclusively represent workers with regard to wages. Wages are a 
critical--perhaps the most or one of the most critical economic 
components in any package, and it would allow the employers to 
agree with the workers' chosen representative to one thing and 
then go, without consulting with the union, behind the backs of 
workers' chosen representative to decide in their discretion 
who was deserving of additional money and who was not.
    And if a majority of the workers in that workplace don't 
believe that employers' discretion to decide who is deserving 
and who is not is in their interest, that wish should be 
respected. And that is what the RAISE Act undermines.
    Mr. Tierney. Well, currently under the existing law, if a 
state were to pass any legislation that conflicted with or 
undermined or preempted federal law under the National Labor 
Relations Act does the board have the authority to take any 
action?
    Ms. Virk. It is my understanding that the general council 
has the authority to sue in federal court.
    Mr. Tierney. And that strengthens their position of being 
able to enforce their own rules and regulations in the National 
Labor Relations Act, is that the theory here?
    Ms. Virk. Certainly. And strengthens the national labor 
policy of uniform federal labor law.
    Mr. Tierney. So could you explain to me how passage of H.R. 
2118 would--which would strain them from taking such action, 
would say that they cannot go in and challenge a state who does 
that, how does that somehow strengthen the National Labor 
Relations Act?
    Ms. Virk. As I said, really only in an--the Orwellian 
sense, in that it does the opposite.
    Mr. Tierney. Seems there is a lot of that going around here 
today.
    Thank you. I yield back.
    Chairman Roe. Mr. Kildee?
    Mr. Kildee. Thank you, Mr. Chairman.
    First of all, Tim, it is good to see you again. You come 
from a great family. I have great memories of your grandfather.
    Mr. Kane. Thank you, sir.
    Mr. Kildee. We may not agree on these issues, but I 
certainly respect you personally.
    Mr. Virk, how have the recently enacted rules of the NLRB 
improved the efficiency of union elections and reduced delays?
    Ms. Virk. As I understand those rules, sir, they have been 
enacted but not enforced. They would do two main things.
    They would streamline the pre-election and post-election 
hearing processes, which currently can be, even in the best 
case scenario, very long, drawn-out affairs in which an 
employer pre-hearing, pre-election, after a majority of 
employees have decided that they want a representative or 
decided that they want an election, an employer can stall that 
process for weeks and even months on end, raising any number of 
issues that are irrelevant to the--that might be irrelevant to 
the ultimate outcome of the election.
    What the new rules do--and they can do the same thing post-
election. After an election is held an employer has a right--a 
union has a right, as well--to file objections as to the 
conduct of the election and another hearing process is held. 
Both of those outcomes of those processes can be separately 
appealed to the labor board. They are held in front of an 
administrative law judge and the outcomes can be appealed to 
the labor board, which again adds additional delay both on the 
front end and on the back end.
    You know, the example that is in my written testimony is 
actually sadly an example in which the board did every single 
thing they could and the union, which was voted in by a two-to-
one margin by the employees, did not actually receive 
certification until almost a year after the election petition 
was filed. The new rules that the board wanted to promulgate 
would streamline that so they would consolidate appeals and 
have certain timelines that would have to be met, and also 
limit the kinds of issues that could be raised pre-election so 
that the purpose is that the employees want an election, they 
get an election and they get an election promptly, again, 
trying to respect the wishes of the workers whose rights are 
protected by the NLRA.
    The second thing that they would do is, as I understand it, 
under current law the employer is required to provide names and 
addresses of employees only. Most people these days communicate 
most often by phone or by e-mail, and under the board's rule 
there would be additional information provided to the--to a 
labor organization about how to communicate with the individual 
employees within the bargaining unit. Mind you, the employer, 
of course, has access to all of that information as well as 
access to each and every member of the bargaining unit every 
day, day in and day out, because they work there and the 
employer controls their time when they work.
    All the new rules would do would be to give a labor union 
who sought to organize that workforce an additional method of 
communication--essentially, to modernize the methods of 
communication. That is my understanding as to the two major 
parts of that rule.
    Mr. Kildee. Thank you.
    I yield the balance of my time to the gentleman from New 
Jersey.
    Mr. Andrews. I thank my friend for yielding.
    I want to ask Mr. Messenger a question: My understanding of 
the present law is that if a majority of workers in a 
bargaining unit sign a card or petition to say they don't want 
the union anymore and the employer then unilaterally says, 
okay, I am going to stop collectively bargaining, that the law 
doesn't require a secret ballot to decertify the union, does 
it?
    Mr. Messenger. It does not. However----
    Mr. Andrews. I mean, you spoke movingly about your devotion 
to secret ballot. Would you have a secret ballot in that 
circumstance?
    Mr. Messenger. Yes.
    Mr. Andrews. You would?
    Mr. Messenger. Yes.
    Mr. Andrews. Is that in the bill that is before the 
committee, or does that omitted--is that change omitted?
    Mr. Messenger. I don't know off the top of my head. I would 
have to look----
    Mr. Andrews. My reading of the bill is that it does not 
create that situation. So would it be your recommendation that 
if the bill before the committee does not require a secret 
ballot to decertify the union that be added?
    Mr. Messenger. Yes. However----
    Mr. Andrews. Thank you.
    I yield back.
    Chairman Roe. Mr. Kucinich?
    Mr. Kucinich. Thank you very much, Mr. Chairman.
    Question for Ms. Virk: In Mr. Kane's testimony he argues 
that current labor law suppresses individual bargaining rights. 
Can you tell this committee or subcommittee, how have 
collective bargaining rights affected the living standards of 
the middle class since the enactment of the National Labor 
Relations Act?
    Ms. Virk. I am not an economist like Mr. Kane, but my 
understanding is that historical trends show quite clearly than 
when workers choose to join together in any given workplace or 
industry they better themselves. When there are profits to 
distribute workers get a share of that; when there is income to 
the farm workers get a share of that if they bargain 
collectively. And they are much more likely--and more workers 
as a group are more likely to get more when they bargain 
together.
    And that is, I think, has been, historically, since 1935 
when the Labor Act was passed in the depths of the Depression, 
it was viewed as an engine to stimulate wage growth, to 
stimulate and increase economic stability within communities--
--
    Mr. Kucinich. Well, wait a minute. You know, you say 
stimulate wage growth. You are speaking not only the organized 
workforce but the part of the workforce that is not organized, 
their wages go up as well because there is such a thing as 
patterns that are set in organized labor----
    Ms. Virk. That is exactly correct, Mr. Kucinich. There is 
essentially a halo effect. Miller & Long, the employer whose 
letter member Rokita put into the record, compete regularly in 
the Washington, D.C. area with construction employers who are 
unionized, and one of the reasons, perhaps, that they pay good 
wages is because the unionized construction industry in 
Washington, D.C. pays good wages.
    And it is a rising tide when there is an industry that has 
significant unionization, and it is a rising tide that lifts 
all the boats in that industry.
    Mr. Kucinich. So as someone who is involved in negotiating 
collective bargaining agreements, the people who you work on 
behalf of, as their counselor explain to us what they tell you 
why it is important to them.
    Ms. Virk. Why it is important to them to have that----
    Mr. Kucinich. Yes. To have that right.
    Ms. Virk. I think for two reasons, fundamentally. First, 
they believe that they--if they band together that they will be 
able to share when an employer prospers, and that they will--
secondly, I think, that they will have a meaningful voice in 
workplace decisions other than economic decisions that affect 
them in their everyday working life. Respect and dignity on the 
job are two things that I think most lawyers who represent 
labor organizations and workers hear as one of the main reasons 
that people want to unionize.
    Mr. Kucinich. Thank you, Ms. Virk.
    Mr. Chairman and members of the committee, we are looking 
at a particular right here that workers have, the right to 
collective bargaining, but really it is part of a penumbra of 
rights: the right to organize, the right to collective 
bargaining, the right to strike, the right to decent wages and 
benefits, the right to a safe workplace, the right to a secure 
retirement. These are part and parcel of rights that workers in 
a democratic society have.
    And so what we are speaking about here is not simply the 
economics that may become involved. There is a very powerful 
social and even moral statement here that has to do with the 
rights of workers. And there is a moral tradition that is 
connected with the annunciation of those rights.
    I thank the chair.
    Chairman Roe. Thank you for yielding.
    I will now yield time to Mr. Andrews for his closing 
statement?
    Mr. Andrews. Well, thank you, Mr. Chairman. I, again, would 
like to thank you for conducting the hearing and the ladies and 
gentlemen for their preparation this morning.
    I think what the American people want us to do is to work 
together to create the conditions where jobs can be created by 
entrepreneurs and employers in the country. That is their 
agenda. And I think that the litmus test we have to run 
anything we do here through is that.
    And although the legislative proposals made are certainly 
important and made in good faith, I think they fail that litmus 
test of really addressing the problem of jobs in the country.
    As I said earlier, there are many other things that the 
Congress could be doing that we are ignoring, and frankly, the 
evidence--the record here is devoid of any evidence that the 
enactment of these bills would engender economic growth; I 
think some of the evidence points in the other direction, that 
the less collective bargaining you have the higher unemployment 
can be. At best it is controversial, but there is certainly no 
record that would show that an assault on collective bargaining 
would grow jobs.
    The particular points being made here I think are lacking, 
that we have heard that employers who have a collective 
bargaining agreement can't give merit pay, that is just not 
true. What is true is if the collective bargaining agreement 
allows for a merit pay system you have one; if it isn't, you 
don't. And if the workers want to decertify the union they can.
    We have heard about the sanctity of the secret ballot. 
Well, the truth of the matter is that under the present law the 
employees can always choose to have a secret ballot under 
present law, should they choose to in the way of choosing 
whether they want a union or not, with one exception, which is 
if the employer unilaterally withdraws from collective 
bargaining because there has been a petition signed by a 
majority of the workers, then there is no secret ballot.
    Now, I think to Mr. Messenger's credit, he is consistent 
and he agrees that that is an inadequacy in the law. But the 
bill before the committee doesn't fix that inadequacy; it goes 
after the other ones.
    So I certainly think these are important topics that are 
offered in good faith but they are the wrong agenda for the 
country right now. I think the agenda for the country right now 
should be tax cuts for small businesses that create jobs. It 
should be the ways to get police officers, firefighters, 
teachers back to work. It should be to deal with the terrible 
drought conditions in rural America that are destroying the 
agricultural economy. That is what we should be working on.
    And I know some of those things are outside of our 
jurisdiction but they are not outside of our responsibility. 
That is what I think we should be doing here today, but I do 
very much appreciate the witnesses' participation, and you, Mr. 
Chairman.
    Chairman Roe. I thank the gentleman for yielding.
    And I also want to thank this very succinct group of 
witnesses. You got to the point quickly and made your points 
well and I appreciate that.
    I agree with my friend, Mr. Andrews, about the need in this 
country to create jobs, and I think one of the things that I go 
back to is my position as a small business person and as a 
local mayor. The way I ended up helping create jobs was--how 
the government did where I was--was created an environment 
where businesses could succeed, and that is by lowering 
regulations and making it easier to operate your business.
    And I would give you an example: In our small community of 
60,000-plus people, for the 3 years prior to coming to 
Congress, in 2005 to 2008, we issued $200 million in building 
permits in a city of 60,000 people. That is pretty good. And 
guess what I knew by doing that? By having those businesses 
grow--we are not an income tax state in Tennessee--that 
allowed, I knew down the line those property taxes were going 
to be paid and those sales taxes were going to be paid. And 
with that money I didn't have to borrow money; I could go have 
that money to pay teachers and firefighters. Not borrow money 
and hire them, but to do it in that way.
    To show you how fiscal management works, we increased our 
fund balance in our local community from 2003 to $2 million to 
$24 million without raising taxes. We cut the size of 
government.
    And guess what happened? In 2008 in little Johnson City, 
Tennessee, when everybody else was going off a fiscal cliff our 
bond rating went up, and it went up because we had money in the 
bank. So that is how you run, by limited government making 
business--a business-friendly environment and allowing that to 
happen.
    And I had to chuckle. Mr. Andrews made my palms sweaty back 
to my statistics class when he talked about the correlation 
coefficient. My heart rate went up.
    But I do believe in America they don't know what that is, 
and I think what they want is a job with a higher paycheck. I 
think in very simple terms that is what we want.
    And in 1935 a very basic flaw in workers' rights was 
recognized and a good law was passed, the NLRA. But there needs 
to be some improvement to that NLRA, I think, and I know that 
for myself this, I believe--I agree with Chairman Miller when 
he said he wanted to strengthen worker rights, and that is what 
I think we are trying to do, first by allowing a good worker to 
be--and Ms. Virk is correct, you can do that now, but there are 
also good workers--I have had them work for me, and I can tell 
you, one of the worst days of your life as a physician is when 
your nurse leaves. I mean, that is a bad day because you have 
got to hire someone else who doesn't know what they are doing. 
So you want to keep good employees and you want to allow--you 
should have the right to--if you have a sterling employee 
outside that agreement--to do that.
    Number two, I think, I am so passionate about someone's 
right to a secret ballot, and I wholeheartedly agree with Mr. 
Andrews, and I certainly would be open to having the secret 
ballot for decertification, and if we include that I would love 
to have him on the bill, since it was your suggestion, so I 
would be glad to do that.
    And lastly, I think it--and to President Porter, I think it 
is a requirement that we keep our word. And I appreciate what 
you are doing for one of the most disadvantages of--
disadvantaged populations in our country, that is our Native 
Americans. It is shameful.
    My father could not stand one of the Tennessee presidents, 
Andrew Jackson, because of his treatment of the Cherokee 
Nation. And I think what we need to have the federal government 
in your case is to--excuse my French, but to butt out and to 
allow you to carry on your own business.
    And I appreciate your all being here, and I want to close 
by what I think is an Indian, maybe a Seneca saying, and it is, 
``When you were born you cried and the world rejoiced. Live 
your life so that when you die the world cries and you 
rejoice.''
    And with that, our meeting is adjourned.
    [Additional submission of Mr. Andrews follows:]

    
    
                                ------                                

    [Additional submissions of Mr. Miller follow:]
                                             U.S. Congress,
                                      Washington, DC, May 11, 2012.
Hon. John Kline, Chairman,
Committee on Education and the Workforce, 2181 Rayburn House Office 
        Building, Washington, DC 20515.
    Dear Chairman Kline: To date, the Committee Majority has requested 
thousands of documents from the National Labor Relations Board (``the 
Board'') and held six legislative and oversight hearings related to the 
Board and the National Labor Relations Act. The Majority has also 
stated in its Budget Views and Estimates for FY 2013 that ``[t]he 
committee will remain vigilant in oversight of the NLRB * * *'' Such 
vigilance is particularly needed now as we confront the most corrosive 
scandal in the Board's history.
    As you know, the Board's Inspector General has issued three 
investigative reports so far this year that raise serious questions 
about the conduct of current and former Members of the Board.\1\ The 
most recent reports on Member Terence Flynn detail extensive disclosure 
of internal, deliberative information by Mr. Flynn to select private 
parties for their private benefit. Such behavior threatens the Board's 
integrity and strikes at the very heart of its ability to effectively 
and efficiently function as an adjudicatory and rulemaking body bound 
by principles of due process and fair play. The Inspector General has 
called these matters ``a serious threat to the Board's decisional due 
process.'' \2\ After concluding that Member Flynn released deliberative 
nonpublic information, the Inspector General in his most recent report 
states that:
---------------------------------------------------------------------------
    \1\ See, Memorandum, Report of Investigation-OIG-I-467 from Board 
Inspector General David Berry to Board Chairman Mark Pearce and Board 
Member Brian Hayes (January 23, 2012). See also, Memorandum, Report of 
Investigation-OIG-I-468 from Board Inspector General David Berry (March 
19, 2012) and Memorandum, Supplemental Report of Investigation-OIG-I-
468 from Board Inspector General David Berry to the Board (April 30, 
2012).
    \2\ Supplemental Report of Investigation-OIG-I-468 at 13.
---------------------------------------------------------------------------
    Members of administrative bodies such as the Board cannot freely 
discuss decisions and points of law and fact if they are fearful that 
the positions that they take during deliberative discussions or in 
drafts of documents are going to be made public, distributed to 
pundits, or leaked to parties.\3\
---------------------------------------------------------------------------
    \3\ Id. At 10 and 11
---------------------------------------------------------------------------
    These reports cannot be ignored by our Committee. We respectfully 
request that you convene a full Committee hearing post haste with the 
Inspector General to provide all of our members the opportunity to ask 
questions and explore in depth the findings and potential consequences 
of his investigative reports.
    A hearing with the Inspector General is only a preliminary step in 
our efforts to fully investigate these matters. We have begun the 
process of seeking the voluntary cooperation of a number of principals 
to provide the Committee with information on their involvement.
    Evidence from all three investigative reports has been shared with 
the Department of Justice. While the Department of Justice is 
responsible for investigating whether any of the subjects in the 
Inspector General's investigative reports committed crimes, we are 
responsible for directly overseeing the effective and efficient 
performance of the Board. According to the Inspector General's latest 
report, such performance is in peril. With the Board's ability to 
properly function at stake, it is incumbent upon us to fully engage as 
the oversight committee.
    Thank you for your consideration of this request.
            Sincerely,
                   George Miller, Senior Democratic Member,
                          Committee on Education and the Workforce;
                         Robert E. Andrews, Ranking Member,
            Subcommittee on Health, Employment, Labor and Pensions.
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    [Whereupon, at 11:25 a.m., the subcommittee was adjourned.]