[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]




                     THE FUTURE OF UNION ORGANIZING

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

                                HEARING

                               before the

                        SUBCOMMITTEE ON HEALTH,
                    EMPLOYMENT, LABOR, AND PENSIONS

                         COMMITTEE ON EDUCATION
                           AND THE WORKFORCE

                     U.S. House of Representatives

                    ONE HUNDRED THIRTEENTH CONGRESS

                             FIRST SESSION

                               __________

           HEARING HELD IN WASHINGTON, DC SEPTEMBER 19, 2013

                               __________

                           Serial No. 113-33

                               __________

  Printed for the use of the Committee on Education and the Workforce


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                COMMITTEE ON EDUCATION AND THE WORKFORCE

                    JOHN KLINE, Minnesota, Chairman

Thomas E. Petri, Wisconsin           George Miller, California,
Howard P. ``Buck'' McKeon,             Senior Democratic Member
    California                       Robert E. Andrews, New Jersey
Joe Wilson, South Carolina           Robert C. ``Bobby'' Scott, 
Virginia Foxx, North Carolina            Virginia
Tom Price, Georgia                   Ruben Hinojosa, Texas
Kenny Marchant, Texas                Carolyn McCarthy, New York
Duncan Hunter, California            John F. Tierney, Massachusetts
David P. Roe, Tennessee              Rush Holt, New Jersey
Glenn Thompson, Pennsylvania         Susan A. Davis, California
Tim Walberg, Michigan                Raul M. Grijalva, Arizona
Matt Salmon, Arizona                 Timothy H. Bishop, New York
Brett Guthrie, Kentucky              David Loebsack, Iowa
Scott DesJarlais, Tennessee          Joe Courtney, Connecticut
Todd Rokita, Indiana                 Marcia L. Fudge, Ohio
Larry Bucshon, Indiana               Jared Polis, Colorado
Trey Gowdy, South Carolina           Gregorio Kilili Camacho Sablan,
Lou Barletta, Pennsylvania             Northern Mariana Islands
Martha Roby, Alabama                 John A. Yarmuth, Kentucky
Joseph J. Heck, Nevada               Frederica S. Wilson, Florida
Susan W. Brooks, Indiana             Suzanne Bonamici, Oregon
Richard Hudson, North Carolina
Luke Messer, Indiana

                    Juliane Sullivan, Staff Director
                 Jody Calemine, Minority Staff Director
                                 ------                                

        SUBCOMMITTEE ON HEALTH, EMPLOYMENT, LABOR, AND PENSIONS

                   DAVID P. ROE, Tennessee, Chairman

Joe Wilson, South Carolina           Robert E. Andrews, New Jersey,
Tom Price, Georgia                     Ranking Member
Kenny Marchant, Texas                Rush Holt, New Jersey
Matt Salmon, Arizona                 David Loebsack, Iowa
Brett Guthrie, Kentucky              Robert C. ``Bobby'' Scott, 
Scott DesJarlais, Tennessee              Virginia
Larry Bucshon, Indiana               Ruben Hinojosa, Texas
Trey Gowdy, South Carolina           John F. Tierney, Massachusetts
Lou Barletta, Pennsylvania           Raul M. Grijalva, Arizona
Martha Roby, Alabama                 Joe Courtney, Connecticut
Joseph J. Heck, Nevada               Jared Polis, Colorado
Susan W. Brooks, Indiana             John A. Yarmuth, Kentucky
Luke Messer, Indiana                 Frederica S. Wilson, Florida


                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on September 19, 2013...............................     1

Statement of Members:
    Roe, Hon. Phil, Chairman, Subcommittee on Health, Employment, 
      Labor, and Pensions........................................     1
        Prepared statement of....................................     3

Statement of Witnesses:
    Adams, Clarence, Field Technician, Cablevision...............    38
        Prepared statement of....................................    40
    Burton, David R., General Counsel, National Small Business 
      Association................................................    19
        Prepared statement of....................................    21
    Meisburg, Ron, Member Of The Firm, Proskauer.................     5
        Prepared statement of....................................     8
    Marculewicz, Stefan J., Shareholder, Littler Memdelson.......    41
        Prepared statement of....................................    43

                                Appendix

Roe, Hon. Phil, Chairman, Subcommittee on Health, Employment, 
  Labor, and Pensions:
    Letter, dated September 18, 2013 from Vice President Angelo 
      I. Amador, Esq., National Restaurant Association...........    64
    Letter, dated September 19, 2013 from Vice President Geoffrey 
      G. Burr, Associated Builders and Contractors Inc...........    65

 
                     THE FUTURE OF UNION ORGANIZING

                      Thursday, September 19, 2013

                       House of Representatives,

          Subcommittee on Health, Employment Labor & Pensions,

               Committee on Education and the Workforce,

                            Washington, D.C.

    The subcommittee met, pursuant to call, at 10:07 a.m., in 
Room 2175, Rayburn House Office Building, Hon. David P. Roe 
[chairman of the subcommittee] presiding.
    Present: Representatives Roe, Salmon, Guthrie, DesJarlais, 
Andrews, Holt, Grijalva, Courtney, and Wilson.
    Also present: Representatives Kline and Miller.
    Staff present: Katherine Bathgate, Deputy Press Secretary; 
Owen Caine, Legislative Assistant; Molly Conway, Professional 
Staff Member; Ed Gilroy, Director of Workforce Policy; Benjamin 
Hoog, Senior Legislative Assistant; Marvin Kaplan, Workforce 
Policy Counsel; Brian Newell, Deputy Communications Director; 
Krisann Pearce, General Counsel; Molly McLaughlin Salmi, Deputy 
Director of Workforce Policy; Alissa Strawcutter, Deputy Clerk; 
Loren Sweatt, Senior Policy Advisor; Aaron Albright, Minority 
Communications Director for Labor; Tylease Alli, Minority 
Clerk/Intern and Fellow Coordinator; Jody Calemine, Minority 
Staff Director; Melissa Greenberg, Minority Staff Assistant; 
Eunice Ikene, Minority Staff Assistant; Brian Levin, Minority 
Deputy Press Secretary/New Media Coordinator; Richard Miller, 
Minority Senior Labor Policy Advisor; Megan O'Reilly, Minority 
General Counsel; Michele Varnhagen, Minority Chief Policy 
Advisor/Labor Policy Director; Michael Zola, Minority Deputy 
Staff Director; and Mark Zuckerman, Minority Senior Economic 
Advisor.
    Chairman Roe. A quorum being present, the Subcommittee on 
Health, Employment, Labor and Pensions will come to order. This 
morning we will broadly examine the future of union organizing. 
It is no secret the number of workers electing to join a union 
has declined sharply in recent decades. Since 1983, the share 
of all workers belonging to a union has dropped from roughly 20 
percent to less than 12 percent.
    Today, fewer than 7 percent of private sector workers are 
union members. AFL-CIO president, Richard Trumka, recently 
warned the labor movement is in crisis. Gary Chaison, an 
industrial relations professor at Clark University, told the 
New York Times unions are thrashing around looking for answers, 
and there is a sense that this is a make or break time for 
labor. Either major changes are done, or we will be too late to 
resuscitate the labor movement. As union leaders try 
desperately to swell the ranks of dues-paying members, we have 
to ensure the tools they use abide by the law and are in the 
best interests of our workforce.
    We must also hold federal agencies accountable for the role 
they play as union looks to regain the support they once held 
among America's workers. Toward that end, this committee has 
repeatedly expressed concerns with the culture of union 
favoritism embraced by the current administration. In some 
cases, we have stated our disapproval and called for a course 
of correction. In others, we have advanced legislation that 
would strengthen the rights of workers and ensure a level 
playing field between unions and employers.
    Schemes such as ambush elections or micro unions will spark 
radical changes in the union organizing process. Under the 
process envisioned by union leaders, a worker's right make to 
informed decisions in union elections is diminished, employers' 
freedom to communicate with employees is stifled, and workers' 
privacy is jeopardized. And the solidarity in the workplace is 
broken. As a result, it will be virtually impossible for 
workers to freely vote their conscience. Aside from the help of 
friendly federal agencies, union leaders are also pursuing 
inventive strategies to organize workers.
    Recent news reports have highlighted one particular 
strategy to utilize worker centers to build employee support 
for unionization. Worker centers often engage in traditional 
union activities, such as corporate campaigns and employee 
walkouts. But because they operate under the guise of non-
profit community organizations, they can avoid a range of 
federal standards that have long governed union contact. 
Chairman Klein and I have asked the Department of Labor to 
clarify the legal obligations of worker centers.
    While the response we received to our initial inquiry was 
incomplete and disappointing, we are hopeful Secretary Perez 
will provide more substantive answers to our questions. We 
should support every effort to improve wages and working 
conditions of those struggling in today's economy, so long as 
those efforts follow the law. The question of union 
representation is a deeply personal matter for any worker. It 
is important to remember what has been, and must remain, the 
vital principle of federal labor law.
    The law is supposed to enable unions to organize every 
workplace, and the law isn't designed to help employers 
obstruct union representation. Fundamentally, the law exists to 
protect the right of workers to freely choose to join or not 
join a union. Defending this right is the responsibility of 
every elected policymaker, and this committee will continue to 
demand fair and objective policies that allow workers to make 
this important decision without a fear of coercion, 
intimidation or retribution. And we will work to ensure these 
policies are vigorously enforced.
    Before I close, I want to thank our witnesses for being 
with us. I would also like to extend a special thanks to Mr. 
Clarence Adams, a Marine veteran. Mr. Adams was the first of 
many troops deployed under Operation Iraqi Freedom. This week's 
senseless tragedy at the Navy Yard reminds us of the sacrifice 
rendered every day by the men and women in our armed forces. 
Mr. Adams, we are grateful for you service to our country, and 
for your participation in today's hearing.
    I will now recognize our senior Democratic member of the 
subcommittee, my colleague, Mr. Andrews, for his opening 
statement.
    [The statement of Chairman Roe follows:]

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

    This morning we will broadly examine the future of union 
organizing. It's no secret the number of workers electing to join a 
union has declined sharply in recent decades. Since 1983 the share of 
all workers belonging to a union has dropped from roughly 20 percent to 
less than 12 percent. Today fewer than seven percent of private-sector 
workers are union members.
    AFL-CIO President Richard Trumka recently warned the labor movement 
is in a ``crisis.'' Gary Chaison, an industrial relations professor at 
Clark University, told the New York Times, ``Unions are thrashing 
around looking for answers. There's a sense that this is make-or-break 
time for labor. Either major things are done, or it will be too late to 
resuscitate the labor movement.''
    As union leaders try desperately to swell the ranks of dues-paying 
members, we have to ensure the tools they use abide by the law and are 
in the best interests of our workforce. We also must hold federal 
agencies accountable for the role they play as unions look to regain 
the support they once held among America's workers.
    Toward that end, this committee has repeatedly expressed concerns 
with the culture of union favoritism embraced by the current 
administration. In some cases, we have stated our disapproval and 
called for a course correction. In others, we have advanced legislation 
that would strengthen the rights of workers and ensure a level playing 
field between unions and employers.
    Schemes such as ambush elections and micro-unions will spark 
radical changes in the union organizing process. Under the process 
envisioned by union leaders, workers' right to make informed decisions 
in union elections is diminished; employers' freedom to communicate 
with employees is stifled; workers' privacy is jeopardized; and 
solidarity in the workplace is broken. As a result, it will be 
virtually impossible for workers to freely vote their conscience.
    Aside from the help of friendly federal agencies, union leaders are 
also pursuing inventive strategies to organize workers. Recent news 
reports have highlighted one particular strategy to utilize worker 
centers to build employee support for unionization. Worker centers 
often engage in traditional union activities, such as corporate 
campaigns and employee walkouts. But because they operate under the 
guise of nonprofits community organizations, they can avoid a range of 
federal standards that have long governed union conduct.
    Chairman Kline and I have asked the Department of Labor to clarify 
the legal obligations of worker centers. While the response we received 
to our initial inquiry was incomplete and disappointing, we are hopeful 
Secretary Perez will provide more substantive answers to our questions. 
We should support every effort to help improve the wages and working 
conditions of those struggling in today's economy, so long as those 
efforts follow the law.
    The question of union representation is a deeply personal matter 
for any worker. It is important to remember what has been and must 
remain the vital principle of federal labor law. The law isn't supposed 
to enable unions to organize every workplace. And the law isn't 
designed to help employers obstruct union representation. Fundamentally 
the law exists to protect the right of workers to freely choose to join 
or not join a union.
    Defending this right is the responsibility of every elected 
policymaker, and this committee will continue to demand fair and 
objective policies that allow workers to make this important decision 
without fear of coercion, intimidation, and retribution, and we will 
work to ensure these policies are vigorously enforced.
    Before I close, I want to thank our witnesses for being with us. 
I'd also like to extend a special thanks to Mr. Clarence Adams. As a 
marine veteran, Mr. Adams was the first of many troops deployed under 
Operation Iraqi Freedom. This week's senseless tragedy at the Navy Yard 
reminds us of the sacrifice rendered every day by the men and women in 
our Armed Forces. Mr. Adams, we are grateful for your service to our 
country and for your participation in today's hearing.
    I will now recognize the senior Democratic member of the 
subcommittee, my colleague Mr. Andrews, for his opening remarks.
                                 ______
                                 
    Mr. Andrews. Thank you, Mr. Chairman. I would also like to 
thank the witnesses for their diligence in preparation for 
today's hearing. We are glad that you are here. And I thank 
you, Mr. Chairman, for starting this hearing off with a solemn 
reminder of those who lost their lives working for our country 
just a few blocks from here, at the Navy Yard, on Monday. We 
are deeply in their debt, and I appreciate you honoring their 
service with your remarks this morning.
    When I was home for our extended break in August and early 
September, I got the sense from listening to a lot of 
constituents that although the economy has improved certainly 
since the dark days of 5 years ago, when the economy nearly 
collapsed, that it is not good enough. It has just not gained 
the traction that we need to lift people out of the struggles 
that they feel every day. Now, one way to--one thing we should 
certainly not do is continue with the budget sequester policies 
that, unfortunately, this House is gonna vote to renew either 
tomorrow or Friday.
    I hope that we can find a way to reenergize our economy by 
reducing and eliminating the sequester. But one thing we should 
do is regenerate the middle class. Our economy works when a 
middle class worker gets her kitchen remodeled. Because the 
kitchen remodeler then is likely to go out and buy a car. And 
the car salesman earns more commissions, so he or she is more 
likely to buy a house. And the real estate agent earns a 
commission, so he or she is more likely to go out to a 
restaurant. And the owner of the restaurant is more likely to 
hire more servers and more workers and they are more likely to 
get their kitchens remodeled. And on it goes.
    So we believe that you grow the economy from the middle 
class out. There has been an unhappy story, even in this 
recovery, for the middle class. In the early days of this 
economic recovery, for every 1 dollar of growth that went to 
higher wages for America's workers $70 went to corporate 
profits in the country. So by a 70-to-1 ratio the benefits of 
growth that we have seen have gone to corporate profits and not 
to employee wages. What do you do about that?
    Well, the evidence broadly suggests that when people engage 
in collective bargaining that those results are considerably 
better. On the average, members of unions earn 27 percent more 
than those who don't belong to a union for similar work. 
Members of unions are 28 percent more likely to have health 
care benefits provided for them at work. They are 64 percent 
more likely to have a pension plan when they retire. These are 
the elements of middle class success. This is particularly 
relevant to groups in our society who have historically 
suffered under greater burdens and had more difficulty in 
achieving the American dream.
    For African-Americans, African-American workers who are in 
unions have a median wage that is 30 percent higher than those 
who are not. For Latinos in our country, Latinos who are in a 
union have a median wage 58.5 percent higher than those who are 
not. I think the Chairman exactly stated the intention of U.S. 
labor law, which is an aggressive neutrality. It is the idea 
that people should be free to make their own decisions about 
what is right for them. I certainly agree that that means that 
there shouldn't be any coercive behavior toward employers or 
toward employees who do not wish to join a union. Certainly 
that is part of the law.
    And the chairman states it well when he says, and I am 
quoting him, ``The law is not designed to enable employers to 
obstruct union representation.'' He is absolutely right. When 
Mr. Adams came home from Iraq, he went to work for an employer 
in New York City and he was part of an effort to organize his 
fellow workers under the Communication Workers of America. They 
succeeded, on January 26 of 2012, to win a representation 
election. Today, all these days later, they still do not have a 
first contract.
    So one of the issues we should be looking at, as we try to 
grow the economy, grow the middle class and permit those who 
have freely chosen to join a union and have the benefits of 
collective bargaining, is, what is happening across this 
country with those first contracts. I look forward to our 
discussion here this morning.
    I thank the Chairman and look forward to hearing from the 
witnesses.
    Chairman Roe. Thank you, Mr. Andrews.
    Pursuant to committee rule 7-C, the members will be 
permitted to submit written statements to be included in the 
permanent hearing record. And without objection, the hearing 
record will remain open for 14 days to allow such statements 
and other extraneous material referenced during the hearing to 
be submitted for the official hearing record.
    It is now my pleasure to introduce our distinguished panel 
of witnesses. Mr. Ronald Meisburg is partner of Proskauer Rose 
in Washington, D.C. Mr. Meisburg served as general counsel for 
the NLRB for the 4 years, and is a board member for 1 year. And 
I did a little research on him. He graduated from Carson-Newman 
College, very close to my home. Welcome.
    Mr. David Burton is the general counsel for the National 
Small Business Association and is testifying on their behalf. 
Mr. Clarence Adams, a field technician for Cablevision in 
Brooklyn, New York. Welcome. Mr. Stefan Marculewicz is a 
shareholder in Littler Mendelson, PC of Washington, D.C.
    And before I recognize you to provide your testimony, let 
me briefly explain our lighting system. You have 5 minutes to 
present your testimony. When you begin, the light in front of 
you will turn green. When one minute is left, the light will 
turn yellow. When your time is expired the light will turn red. 
At that point, I will ask you to wrap up your remarks as best 
as you are able. And I won't cut you off in the middle of your 
remarks, but try to finish up. After everyone has testified, 
members will each 5 minutes to ask questions.
    And right now, I would like to thank the witnesses. And if 
you would, Mr. Meisburg?

 STATEMENT OF MR. RON MEISBURG, MEMBER OF THE FIRM, PROSKAUER, 
                        WASHINGTON, D.C.

    Mr. Meisburg. Good morning, Mr. Chairman, members of the 
subcommittee. My name is Ronald Meisburg. I am a partner in the 
Proskauer Rose law firm. I am co-chair of the firm's labor-
management relations practice group. I appreciate the 
opportunity to appear before you here today.
    My testimony is solely my own. I am not here representing 
my firm, its clients or any person or organization. I have 
practiced law now for 39 years. I began my legal career in 1974 
in the office of the solicitor of labor; first, in the division 
of employee benefits, and then the division of mine safety and 
health. I moved to private practice in 1980, and for the next 
23 years I practiced principally in the area of labor 
relations, including collective bargaining, contract 
administration, grievance and arbitration proceedings and cases 
before the NLRB and in federal court.
    In 2003, I was nominated for a seat on the National Labor 
Relations Board by President George W. Bush. I served a recess 
appointment on the board for 1 year, January through December, 
2004. In January 2006 I received a recess appointment for the 
post of general counsel. I was confirmed by the Senate in 
August of 2006, and I served as general counsel until mid-2010. 
Following that, I returned to the private practice of law, 
where I am now.
    I have submitted written testimony about what I see as the 
areas of law and legal issues that will most likely be 
addressed by the board in the upcoming months, and I will touch 
only lightly on them here. In 2011, the board proposed 
regulations making substantial changes in the representation 
election process. Some of the proposed regulations that were 
promulgated were eventually set aside, and are currently 
pending on appeal in the United States Court of Appeals for the 
District of Columbia Circuit. Other parts of the proposed 
regulations have yet to be promulgated.
    I would expect the board to revisit that and to attempt to 
complete what it began in 2011. Many in the management 
community, I believe, felt that the board's previous rulemaking 
efforts were not necessary, given the overall success of the 
board's handling of representation cases. At the time the 
proposed rules were announced, the board's general counsel had 
described the board's representation case handling results as 
outstanding. If the board, in fact, goes forward with further 
rulemaking it will hopefully follow a process that involves 
stakeholders earlier--perhaps through an advanced notice of 
proposed rulemaking--and which focuses on the potential delay 
caused in outlier cases.
    We have also recently seen the board expand in areas of 
concerted protected activity, such as decisions addressing non-
employee and off-duty employee access to an employer's property 
and protection from employee social media statements. I would 
expect the board to continue to expand these areas and the 
concept of protected activity, particularly as it is adapted to 
developments in the organization of work and the revolution we 
are seeing in technology. And I would hope that the board does 
this with a sense of balance, recognizing that the NLRA is one 
of a constellation of federal, state and local workplace laws 
with which employers must comply.
    I also expect the board will continue to apply, and perhaps 
refine, its tests for the determination of bargaining units 
announced in specialty health care through both administrative 
processes at the regional office level, as well as cases coming 
before the board itself. And the board will continue to deal 
with the fallout from the recess appointment issue in many 
cases where it has been raised, both with respect to the board 
and with respect to some of the regional directors and also 
delegations of the board. And just a few weeks ago, there was a 
decision by a federal district court in Washington which held 
the general counsel's appointment in 2010, under the Federal 
Vacancies Reform Act, to have been invalid.
    So the board and its staff, unfortunately, are going to be 
distracted by a lot of these cases as they go forward. Finally, 
let me say a brief word about the career staff at the board 
with whom I had the pleasure of working on almost a daily basis 
for several years. They serve the appointees like a lawyer 
serves a client: giving advice, speaking directly, arguing 
their points. But when a decision is made, they turn to 
delivering a draft opinion or advice memorandum, or brief or 
other action as decided by the appointee. And they do this 
whether they serve a Republican appointee or a Democrat 
appointee.
    I have great respect for these career professionals and the 
staff that supports them, and I hope they can be kept free of 
the political crossfire that sometimes engulfs the NLRB. Thank 
you very much for this time, and I look forward to your 
questions.
    [The statement of Mr. Meisburg follows:]
    
    [GRAPHIC] [TIFF OMITTED] 
    
    Chairman Roe. Thank you, Mr. Meisburg.
    Mr. Burton?

  STATEMENT OF MR. DAVID R. BURTON, GENERAL COUNSEL, NATIONAL 
          SMALL BUSINESS ASSOCIATION, WASHINGTON, D.C.

    Mr. Burton. I appreciate the opportunity to be here today. 
My name is David Burton. I am general counsel for the National 
Small Business Association. NSBA was founded in 1937, and 
represents approximately 65,000 small businesses throughout the 
country. About 28 percent of our members have 20 or more 
employees. Roughly 4 percent of our members have unions. 
Roughly 8 percent of our members have dealt with unionization 
campaigns. And a very large proportion of our members are 
subject to NLRB jurisdictional standards.
    I will quickly address four issues. The DOL has proposed a 
rule that would radically narrow the advice exemption in the 
Labor-Management and Disclosure Act and jettison the 
interpretation of that exemption that has been adopted by every 
administration since the Kennedy administration. It is our 
considered view that the proposed rules be withdrawn because it 
is contrary to congressional intent for at least five reasons.
    It upends a century of settled law and creates uncertainty, 
and imposes dramatically higher costs than the DOL claimed in 
their estimate; to harm the right of employers to secure advice 
that will violate the attorney-client privilege; and it lacks 
an adequate evidentiary basis. For half a century, advisors 
that did not interact with employees generally did not have to 
file reports with DOL. In contrast, under the interpretation of 
section 203-C contained in the proposed rule, virtually any 
imaginable activity by almost any consultant or vendor that, in 
any manner, directly or indirectly relates to a labor dispute 
or attempted organization of an employer would be reportable.
    In addition, attorneys, employee benefits consultants and 
other human resources advisors would probably be reportable. 
Even extremely minor activities would have to be reported. And 
if you go back and look at the legislative history, the 1959 
conference committee report explicitly stated that Congress 
intended for the advice exception to be broad. It is, however, 
difficult to conceive of a more narrowly drafted definition of 
advice than that contained in the proposed rule.
    The proposed rule is inconsistent with basic rules of 
statutory construction. It more or less reads the 203-C 
exemption out of the law. It is impermissible to read a section 
of the statute as unnecessary or meaningless surplusage when an 
alternative construction can give meaning to the provision. 
Congress has acquiesced to the definition established by the 
Kennedy--or the interpretation that satisfied the Kennedy 
administration for over half a century. That is strong evidence 
that the Kennedy administration DOL got it right.
    The proposed rule also applies to multi-employer seminars, 
Webinars and conferences. And absent mind-reading skills, the 
sponsors of those seminars aren't going to know to what use the 
information is gonna be put. So they will end up having to 
report on every attendee of their conferences with respect to 
the fees and who attended. With respect to union elections, in 
June of 2011 the NLRB published a proposed rule, now withdrawn 
but likely to be revisited now that the NLRB has a quorum.
    The rule would revise election procedures so that in many 
cases, if not most, elections would be conducted within 10 to 
21 days rather than the 35 to 40 days typical today. The 
members of this committee know a thing or two about elections, 
and I invite each member of this committee to engage in a 
thought experiment. Imagine if your opponent was permitted to 
organize his or her campaign, raise money, hire consultants, 
recruit volunteers, communicate with voters and only then you 
were informed there was gonna be an election and it was gonna 
be in 10 days.
    Perhaps I am wrong, but I think most people would regard 
that as unfair. It is equally unfair in the case of union 
elections. Small businesses are not familiar with labor law, 
they don't have labor lawyers on staff. They need time to find 
advice and to decide how to deal with the potential 
unionization campaign. In the case of micro unions, we 
basically are extremely concerned with the line of cases 
inaugurated by specialty health care.
    The case that I think is most notable is the Bergdorf 
Goodman case, where the second and fifth floor ladies shoe 
departments were separately organized. When you get into a case 
where you can organize separate shoe departments in a store, 
you have the potential to have an incredible multiplicity of 
bargaining units, tremendous complexity and a balkanization of 
the workplace.
    And with that, I will wrap up my statement. I am glad to 
answer any questions.

    [The statement of Mr. Burton follows:]
    
    [GRAPHIC] [TIFF OMITTED] 
    
    Chairman Roe. Thank you, Mr. Burton.
    Mr. Adams?

STATEMENT OF MR. CLARENCE ADAMS, FIELD TECHNICIAN, CABLEVISION, 
                          BROOKLYN, NY

    Mr. Adams. Thank you. Thank you, Mr. Chairman, Ranking 
Member Andrews, and members of the subcommittee for giving me 
this opportunity to testify. I appreciate it greatly. Thank you 
very much.
    My name is Clarence Adams, and I have been a field 
technician for Cablevision in Brooklyn for over 14 years. I am 
also a proud veteran of the United States Marines. And 10 years 
ago, I was among the first wave of American troops who invaded 
Iraq. I was proud to serve my country and was prepared to do 
whatever was necessary to define the basic freedoms that make 
this country great.
    I want to tell you today that my coworkers and I have gone 
through a lot to try to join a union. In the fall of--I am 
sorry, in the winter of 2011 myself and a large group of 
coworkers decided to organize with the Communication Workers of 
America. Company management viciously opposed our efforts. I 
was forced to attend literally dozens of meetings where 
Cablevision management told me that CWA was corrupt. They lied 
to me about the cost of dues and the likelihood of strikes. 
They threatened that my wages and benefits would actually go 
down if we joined together in a union.
    But on January 26, 2012 an overwhelming majority of my 
coworkers in Brooklyn voted to join CWA. We were very excited. 
We thought now we would be able to sit down with Cablevision 
and negotiate a contract that reasonably addresses our 
concerns. But we were wrong. I soon learned that management had 
no intention of bargaining with us in good faith. They 
continued their campaign of pressure and intimidation. And as a 
union supporter, I felt like I was under the microscope every 
day when I went to work.
    A few months after we won our election, my Cablevision 
workers in the Bronx and I decided--my Cablevision workers in 
Bronxville decided to begin organizing as well and join CWA. In 
late April, James Dolan, the CEO of Cablevision, made it clear 
that he would stop at nothing to prevent more employees from 
joining our union. Dolan gave every single employee in the 
entire company, about $10,000, significant raises, except for 
us in Brooklyn. He improved the health plans of every single 
employee in Cablevision except for us in Brooklyn.
    He allowed techs all over his company to install Wi-Fi in 
parks, except for us in Brooklyn. The only difference between 
those of us in Brooklyn and the rest of the company was that we 
exercised our legal rights to join a union. Right before my 
coworkers in the Bronx held a vote on joining the union in late 
June, James Dolan personally visited them and stated that they 
shouldn't make the same mistake we did in Brooklyn. He told 
them that Cablevision would now abandon Brooklyn. He told them 
Brooklyn would be left behind in terms of investment in 
workforce.
    Management succeeded in frightening enough workers so that 
a majority voted against the union. Earlier this year, on 
January 30, I was among 70 Cablevision workers in Brooklyn who 
decided to take advantage of the company's open door policy, 
which encourages employees to go to management at any time to 
discuss issues of concern. I arrived, before my shift started, 
to meet with a manager, any manager, for only 5 minutes to 
express my frustration that the company was stalling during 
bargaining.
    That morning, management eventually agreed to invite 22 
techs into a conference room, and I was one of those techs. I 
was shocked to find that vice president, Mr. Rick Levesque, 
came into the room and told us we were all being permanently 
replaced. Cablevision's open door policy specifically says that 
the company does not tolerate retaliation against employees for 
having views different from their own, but on this day that 
policy wasn't worth the paper it was written on.
    Thanks to a massive pressure campaign, the company has been 
forced to hire all of us back. I am proud to say that my 21 
coworkers and I, who were fired, stayed strong through the 
entire ordeal. And when we walked back in the door, we showed 
our fellow coworkers that this is a fight that we can still 
win. But I have to say that I am very, very upset about what 
happened to us and what has happened since we voted the union 
in.
    The NLRB had filed charges against Cablevision, and we 
still await justice. Cablevision threatened my livelihood by 
illegally firing me, and they have shown utter contempt for the 
rule of the law. And so far, there have been no consequences 
for them. Cablevision has hired over 50 lawyers, literally, to 
defend their unlawful actions. It is simply obscene for them to 
spend so much on lawyers instead of sitting down to negotiate 
with their employees.
    I just want a shot at the American dream. I want job 
security. I want to know that I can't be fired without just 
cause. Ten years ago, I put my life on the line 6,000 miles 
away from home in the name of protecting the basic rights of 
American democracy. I believe I was fighting so that the rights 
of every American would be protected. I never thought that I 
would see the day that I, as an American citizen, would have my 
basic rights trampled on, and no one would do anything about 
it.
    I never thought that a big corporation could violate my 
rights, and the government would just let them get away with 
it. I am sad to say that my experience has taught me that our 
current labor laws are broken. Workers who dream of reaching 
the middle class and who hope for some job security shouldn't 
have to endure months, or even years, of fear and intimidation 
at work. I was there when my country asked me to risk 
everything in Iraq, and is it too much to ask for my government 
to protect my rights to join a union at work?
    Thank you for giving me the opportunity to share my story 
with you today. Thank you.

    [The statement of Mr. Adams follows:]

                              Testimony of

                             Clarence Adams

                       Before the Subcommittee on

                 Health, Employment, Labor and Pensions

                               Hearing on

                    "The Future of Union Organizing"

                           September 19, 2013

    Thank you Mr. Chairman, Ranking Member Andrews and members of this 
subcommittee for giving me the opportunity to testify.
    My name is Clarence Adams and I have been a field technician for 
Cablevision in Brooklyn for over 14 years. I am also a proud veteran of 
the US Marines. Ten years ago, I was among the first wave of American 
troops who invaded Iraq. I was proud to serve my country and I was 
prepared to do whatever was necessary to defend the basic freedoms that 
make this a great country.
    I want to tell you today what I and my coworkers have gone through 
just to try to join a union.
    In the fall and winter of 2011, I and a large group of my co-
workers decided to organize with the Communications Workers of America.
    Company management viciously opposed our efforts. I was forced to 
attend literally dozens of meetings where Cablevision management told 
me CWA was corrupt. They lied to me about the cost of dues and the 
likelihood of strikes. They threatened that my wages and benefits would 
actually go down if we joined together into a union. But on January 26, 
2012, an overwhelming majority of my coworkers in Brooklyn voted to 
join CWA.
    We were so excited. We thought, now we'll sit down with Cablevision 
and negotiate a contract that reasonably addresses our concerns.
    We were wrong. I soon learned that management had no intention of 
bargaining with us in good faith. They continued their campaign of 
pressure and intimidation. As a union supporter, I felt like I was 
under a microscope every day I went to work.
    A few months after we won our election, my Cablevision coworkers in 
the Bronx decided to begin organizing as well, to join us in CWA.
    In late April, James Dolan, the CEO of Cablevision, made it clear 
that he would stop at nothing to prevent more employees from joining 
our union. Dolan gave every single employee in the entire company - 
about 10,000 people - significant raises. Except for us in Brooklyn. He 
improved the health plans of every single employee in Cablevision. 
Except for us in Brooklyn. He allowed techs all over his company to 
install Wi-Fi in parks. Except for us in Brooklyn. The only difference 
between those of us in Brooklyn and the rest of the company was that we 
exercised our legal rights to join a union.
    And then, right before my coworkers in the Bronx held a vote on 
joining the union in late June, James Dolan personally visited them and 
stated that they shouldn't make the same mistake we did in Brooklyn. He 
told them that Cablevision would now ``abandon'' Brooklyn. He told them 
Brooklyn would be left behind in terms of investment and the workforce. 
Management succeeded in frightening enough workers so that a majority 
voted against the union.
    Early this year, on January 30th, I was among 70 Cablevision 
workers in Brooklyn who decided to take advantage of the company's 
``Open Door Policy'', which encourages employees to go to management at 
anytime to discuss issues of concern.
    I arrived before my shift started to meet with a manager, any 
manager, for only five minutes to express my frustration that the 
company was stalling during bargaining. That morning, management 
eventually agreed to invite 22 techs into a conference room. I was one 
of those techs.
    I was shocked when the Vice President, Mr. Rick Levesque, came into 
the room and told us we were being ``permanently replaced.''
    Cablevision's ``Open Door Policy'' specifically says that the 
company ``does not tolerate retaliation against employees for having 
views different from ours,'' but on this day, that policy wasn't worth 
the paper it was written on.
    Thanks to a massive pressure campaign, the company has been forced 
to hire all of us back. I am proud that my 21 co-workers and I who were 
fired stayed strong through this ordeal. And when we walked back in the 
door, we showed our fellow workers that this is still a fight that we 
can win.
    But I have to say I am very, very upset about what happened to us 
and what has happened since we voted in the union. The NLRB has filed 
charges against Cablevision, and we still await justice. Cablevision 
threatened my livelihood by illegally firing me, and they have shown 
utter contempt for the rule of law. And so far there have been no 
consequences for them. Cablevision has hired over 50 lawyers, 
literally, to defend their unlawful actions. It is simply obscene for 
them to spend so much on lawyers, instead of sitting down to negotiate 
with their employees.
    I just want a shot at the American Dream. I want some job security. 
I want to know that I can't be fired without just cause.
    Ten years ago, I put my life on the line 6,000 miles away from home 
in the name of protecting the basic rights of American democracy. I 
believed I was fighting so that the rights of every American would be 
protected. I never thought that I would see the day that I, as an 
American citizen, would have my basic rights trampled on and no one 
would do anything about it. I never thought that a big corporation 
could violate my rights and the government would let them get away with 
it.
    I am sad to say that my experience has taught me that our current 
labor laws are broken. Workers who dream of reaching the middle class 
and who hope for some job security shouldn't have to endure months and 
even years of fear and intimidation at work.
    I was there when my country asked me to risk everything in Iraq. Is 
it too much to ask for my government to protect my right to join a 
union at work?
    Thank you for giving me the opportunity to share my story with you 
today.
                            ______
                                 
    Chairman Roe. Thank you, Mr. Adams.
    Mr. Marculewicz?

 STATEMENT OF MR. STEFAN J. MARCULEWICZ, SHAREHOLDER, LITTLER 
                   MEMDELSON, WASHINGTON, DC

    Mr. Marculewicz. Chairman Roe, Ranking Member Andrews and 
the members of the committee, I want to thank you all for the 
opportunity to offer testimony this morning on this important 
topic. My name is Stefan Marculewicz. I am a shareholder with 
the law firm of Littler Mendelson here in Washington, D.C. I am 
speaking to you today on my own behalf and not on behalf of my 
firm or any firm client or anyone else.
    I have practiced law, or labor employment law, for nearly 
20 years. I started my career at the National Labor Relations 
Board in Forth Worth, Texas as a field attorney, and also 
worked for a time in Baltimore, Maryland at the regional office 
there, as well.
    Labor unions, as Chairman Roe indicated, the primary 
advocate for workers' rights in the United States for more than 
a century, have experienced a significant decline in 
membership. As a result, labor unions have sought new and 
innovative means to effectuate change in the workplace. One of 
the most significant examples of this effort is the development 
of organizations known as worker centers. In recent months, 
these groups have been involved in protests and other 
activities that have received substantial coverage in the 
media.
    Typically, they are non-profit organizations that receive 
funding from foundations, grants, including from government, 
membership fees and other donations. Some are funded by other 
labor organizations. These groups offer a variety of services 
to their members, including education, training, employment 
services and legal advice. Increasingly, however, worker 
centers are directly engaging employers or groups of employers 
to effectuate change in the wages, hours, and terms and 
conditions of employment of the workers they claim to 
represent.
    Indeed, when it comes to such direct engagement, these 
worker centers often act no differently than traditional labor 
unions. Yet few of these groups comply with the laws that 
regulate labor organizations. Statutes, like the National Labor 
Relations Act and the Labor, Management, Reporting and 
Disclosure Act, contain significant protections with respect to 
representational democracy, organizational democracy, access to 
basic information and promotion of the duty of fair 
representation.
    These basic rights are an important part of the process 
governing the representation of employees in the workplace by 
third-party organizations. Even though compliance with these 
laws would confer benefits upon the very workers these groups 
claim to represent, many such groups are reluctant to define 
themselves as labor organizations because the NLRA and LMRDA 
are perceived as creating an impediment to worker centers' 
activities. In addition, worker centers have not considered 
themselves to be limited by the NLRA restrictions on secondary 
picketing and protracted picketing for recognition.
    And such conduct is a common tool used by these groups to 
convey their message, although it would violate the National 
Labor Relations Act. Without coverage of the NLRA and LMRDA, 
these organizations can avoid accountability to the workers 
they claim to represent, and avoid restraints that are imposed 
on traditional labor organizations. Yet the laws that provide 
protections to workers, vis-a-vis labor organizations that 
represent them, were designed precisely to create that 
accountability.
    Moreover, these laws were also intended to protect worker 
self-choice, to ensure a balance between labor and management, 
labor and management interests, and to ensure the free flow of 
commerce. The burden of compliance with those laws is not so 
severe, when considered within the context of the benefits 
afforded to workers and the economy in general. The mission of 
many worker centers is often seen as being an important means 
of advocating on behalf of underrepresented employees who do 
not have access to, or knowledge of, the legal mechanisms to 
protect their rights.
    However, no organization, no matter how laudable its 
mission, is above reproach. And through its passage of laws 
that regulate labor organizations, Congress established 
safeguards to give workers a say in, and understanding of, the 
operations of the organizations that represent them. Compliance 
with the NLRA and LMRDA serves not only as a protection for 
workers, but perhaps as a validator of the worker centers that 
claim to represent them.
    One goal of many worker centers is to ensure that employers 
of their members comply with the basic laws that offer 
protections to workers. Ultimately, the benefits of the laws 
that govern labor organizations flow to the workers they 
represent. And as such, there is simply no viable justification 
for worker centers not to comply with them.
    Thank you for your time, and I look forward to answering 
any questions that you may have.
    [The statement of Mr. Marculewicz follows:]

                 Testimony of Stefan Marculewicz Before

               The United States House of Representatives

           Health, Employment Labor and Pensions Subcommittee

                           September 19, 2013

    Chairman Roe and Ranking Member Andrews, thank you for the 
opportunity to offer testimony to the members of this Committee. My 
name is Stefan Marculewicz and I am a Shareholder at the law firm of 
Littler Mendelson here in Washington, DC. I am speaking to you today on 
my own behalf and not on behalf of my firm or any firm client.
    Labor unions, the primary advocates for workers' rights in the 
United States for more than a century, have experienced a significant 
decline in membership. As a result, labor unions have sought new and 
innovative means to effectuate change in the workplace.
    One of the most significant examples of this effort is the 
development of organizations known as ``worker centers.'' In recent 
months, these groups have been involved in protests and other 
activities that have received substantial coverage in the media. Today 
there are hundreds of worker centers across the country. Their 
structure and composition vary. Typically, they are non-profit 
organizations that receive funding from foundations, grants-including 
from government, membership fees and other donations. Some are funded 
by other labor organizations. These groups offer a variety of services 
to their members, including education, training, employment services 
and legal advice. Increasingly, however, worker centers are directly 
engaging employers or groups of employers to effectuate change in the 
wages, hours and terms and conditions of workers they claim to 
represent. Indeed, when it comes to such direct engagement, these 
worker centers often act no differently than traditional labor 
organizations.
    Yet, few of these groups comply with the laws that regulate labor 
organizations. Statutes like the National Labor Relations Act (NLRA) 
and the Labor Management Reporting and Disclosure Act (LMRDA) contain 
significant protections with respect to representational democracy, 
organizational democracy, access to basic information and promotion of 
a duty of fair representation. These basic rights are an important part 
of the process governing the representation of employees in the 
workplace by third-party organizations.
    Even though compliance with these laws would confer benefits upon 
the very workers these groups claim to represent, many such groups are 
reluctant to define themselves as labor organizations because the NLRA 
and the LMRDA are perceived as creating an impediment to worker 
centers' activities. In addition, worker centers have not considered 
themselves to be limited by the NLRA restrictions on secondary 
picketing and protracted picketing for recognition, and such conduct is 
a common tool used by these groups to convey their message, although it 
would violate the NLRA.
    Without coverage of the NLRA and LMRDA these organizations can 
avoid accountability to the workers they claim to represent and avoid 
restraints that are imposed on traditional labor organizations. Yet, 
the laws that provide protections to workers vis a vis labor 
organizations that represent them were designed precisely to create 
that accountability. Moreover, these laws were also intended to protect 
worker self-choice, to ensure a balance between labor and management 
interests, and to ensure the free flow of commerce. The burden of 
compliance with those laws is not so severe when considered within the 
context of the benefits afforded to workers and the economy in general.
    The mission of many worker centers is often seen as being an 
important means of advocating on behalf of underrepresented employees 
who do not have access to or knowledge of the legal mechanisms to 
protect their rights. However, no organization, no matter how laudable 
its mission, is above reproach, and through its passage of the laws 
that regulate labor organizations, Congress established safeguards to 
give workers a say in and understanding of the operations of the 
organizations that represent them. Compliance with the NLRA and LMRDA 
serves not only as a protection for workers, but perhaps as a validator 
of the worker centers that claim to represent them.
    A goal of many worker centers is to ensure that employers of their 
members comply with the basic laws that offer protections to workers. 
It therefore is not unreasonable to expect worker centers to do the 
same. Ultimately, the benefits of the laws that govern labor 
organizations flow to the workers they represent, and, as such, there 
simply is no viable justification for worker centers not to comply with 
them.
    Thank you for your time, and I look forward to answering any 
questions you may have.
                                 ______
                                 
    Chairman Roe. I thank the panel. And you all may be the 
best on the lights that I have seen since I have been here. 
Everybody was under the wire, so thank you all. You all did a 
great job.
    I will now ask Mr. Salmon. Yield to him.
    Mr. Salmon. Thank you. I appreciate the opportunity to 
listen to this panel's testimony. Thank you very much.
    I have a little bit of a story, and I would like maybe some 
thoughts. Arizona had, really, only one family-owned grocery 
store left in Arizona, called Bashas'. The head of Bashas', who 
basically became the head of Bashas' after his father died, 
Eddie Basha, a very, very dear and close personal friend of 
mine. While I am a Republican, he was a prominent Democrat. In 
fact, about 15 years ago--might even be a little longer, maybe 
18 years ago--he was the Democrat nominee for governor of the 
state of Arizona.
    He didn't prevail. He ran against the incumbent. But Eddie 
has always been just a pillar in our community, always, you 
know, fighting for homeless people and against child abuse. Any 
good cause, Eddie was always there. And what is really tragic 
is that he was one of the top contributors, over the last, I 
would say, 30, 40 years to the Democrat Party and Democrat 
candidates. He was very prominent in the Democrat Party. And 
yet, time and time again the unions tried to organize at 
Bashas'.
    And the employees themselves decided they didn't want to do 
it. So the last several years, they started resorting to some 
dirty tricks. In fact, they planted some overdue formula--some 
bad formula, baby formula--on the shelves, and they did all 
kinds of real nasty public relations tricks on him. In fact, 
they were caught red-handed on the planting of the tainted 
formula, or the overdue formula. And then they filed just 
multiple frivolous claims with the NLRB.
    And they had an unlimited supply of money to file these 
lawsuits. And the upshot is that Eddie's company, Bashas', 
ended up going into bankruptcy because they had multimillion 
dollars of trying to defend against these stupid, frivolous 
lawsuits against the NLRB. And Eddie, much--sad to say, just in 
the last few months, passed away. But Arizona has sorely missed 
him.
    My question is, what can be done to address some of these 
frivolous lawsuits and this aggressive tactic of just trying to 
wear somebody down through that kind of a process, to the point 
where they just either throw up their hands and give in or file 
bankruptcy like Bashas' had to? Any thoughts on that from 
anybody in the panel?
    Mr. Meisburg. I believe one thing that would help in these 
circumstances would be if the board would permit an employer to 
call for an election. In other words, make the fact that the 
employees don't want to join the union, make it a matter of 
record in a board election. And treat a corporate campaign of 
this sort like a demand for recognition. Now, the board has, in 
the past, had cases where they could do that. It has been 
bouncing around the board for a number of years.
    I think that would let the employer say, ``Listen, I am 
willing to let my employees decide whether they want to be a 
member--a union-represented shop or not. But I want to do it 
through a secret ballot election.'' Unless the union files for 
a petition or demands recognition, right now the employer can't 
make that happen. So what I think might help in those 
situations would be if the employer could say, ``Okay, I am 
willing to put this to a vote of my employees.''
    And if there are a number of employees--the employees vote 
against it, then the union would be banned from--as they are 
trying to organize after a lost election for a year. And that 
would give, I think, some calming effect to these kinds of 
campaigns.
    Mr. Burton. I think the problem that you have identified is 
very real. Litigation costs can crush small businesses. Mr. 
Adams referred to how much money was being spent on lawyers. It 
is a problem throughout the entire legal system, not just NLRB. 
I think there is a need to streamline the procedures. Some of 
the things the NLRB has done along those lines makes sense, but 
a lot of them also do it in a way that don't really make sense.
    But in the entire legal system, we have given some thought 
to the problem. And there is probably a need, at least with 
respect to smaller litigants that don't have unlimited 
resources. Fortune 500 companies and the federal government are 
fine, but small businesses and other smaller entities are not. 
To move more towards a small claims type arrangement or a 
continental European-type arrangement where the judge is more 
of a fact-finder rather than the two litigants being able to 
throw up walls and expend the other side's money on an almost 
unlimited basis in discovery or filing various motions.
    These days, it can cost $60-to 100 grand to defend an 
utterly frivolous lawsuit. And that can be crushing to a small 
firm.
    Chairman Roe. I thank the gentleman for yielding.
    Mr. Andrews?
    Mr. Andrews. Thank you, Mr. Chairman. I thank each of the 
witnesses for their testimony. Mr. Adams, thank you for serving 
our country and for being with us this morning. And thank all 
four of you.
    It has now been, by my count, 601 days since Mr. Adams and 
his group won the organizing election he referred to. And, Mr. 
Adams, my understanding is there is still not a first contract. 
Is that right?
    Mr. Adams. Yes, that is correct.
    Mr. Andrews. Mr. Meisburg, on April 19 of 2006, in your 
role as general counsel, you wrote a memo. I want to read from 
it. You quote approvingly the federal mediation conciliation 
service, observing, ``Initial contract negotiations are often 
more difficult than established successor contract negotiations 
since they frequently follow contentious representation 
election campaigns.'' Then you go on to say, ``And when 
employees are bargaining for their first collective bargaining 
agreement, they are highly susceptible to unfair labor 
practices intended to undermine support for their bargaining 
representative.''
    ``Indeed, our records indicate that in the initial period 
after election and certification, charges alleging that 
employers that refuse to bargain are meritorious in more than a 
quarter of all newly-certified units, or 28 percent.'' That 
sounds like a sort of macro description of the case that Mr. 
Adams just talked about. What do you think we should do about 
these cases where there is a chronic failure to come to that 
first contract because of the kind of practices you discuss in 
2006? What should we do to fix that problem?
    Mr. Meisburg. Well, what we did, at the time, was we 
followed up on that first contract bargaining initiative, which 
included a more aggressive use of 10-J, which is the injunction 
provisions of the act, which then can get into a situation 
where an employer can be in contempt. So that is a pretty 
powerful weapon. We also suggested other potential remedies 
that aren't typically used in board cases: bargaining on a 
specific schedule; reports by the employer directly to our 
regional directors about the status of the bargaining; and 
payment of the costs of the bargaining by the wrongful-acting 
party of the wronged party.
    Mr. Andrews. Now, I know because of your recess status 
appointment situation, you weren't around for a whole long 
period of time to see this through. But did that tactic work?
    Mr. Meisburg. Well, that actually, I was there. I issued 
this memorandum before I was confirmed, and then I was 
confirmed.
    Mr. Andrews. These days, that would be probably pretty 
smart--confirmation.
    Mr. Meisburg. And I followed up as a confirmed GC. What got 
me interested in it was, we noticed that----
    Mr. Andrews. But did it work? Did the----t
    Mr. Meisburg. Well, I think it did. And let me tell you 
statistics. When I first became GC, 50 percent of all the 
refusal to bargain, 85 bad faith bargaining charges were filed 
in first contract situations. When I left, that number had 
dropped to 25 percent. Now, I just felt like the arrows were 
pointing in the right direction when we left. Also, I think it 
is important to note--and this was in the last speech I gave as 
general counsel--80 percent of all first-contract bargaining 
succeeds without resort to the board.
    Mr. Andrews. Yes----
    Mr. Meisburg. And that is a tribute to the----
    Mr. Andrews. It is that 20 percent I am worried about.
    Mr. Adams----
    Mr. Meisburg. I understand.
    Mr. Andrews. Mr. Adams, what I want to ask Mr. Adams a 
question. There is a proposal that has been before the Congress 
that after a certain number of days if there wasn't a first 
contract there would be mediation, where your union and the 
company would have had to go to a mediator and talk about 
things. And after a certain number of days, if that didn't work 
the first contracts could be subject to what is called 
``binding arbitration,'' where you guys would make your offer, 
the company would make its offer, and the arbitrator would 
choose the outcome that he or she thought was best.
    Would that have helped you in this situation?
    Mr. Adams. Tremendously, it would have helped a lot. In 
fact, I would already be within the first year of an actual 
contract had that been in place.
    Mr. Andrews. It is interesting that if you played for the 
Yankees, which you probably could--if you played for the 
Yankees and you had that situation, you would get that kind of 
arbitrator. Because, in other words, you would have the 
bargaining leverage to have somebody figure out what you were 
worth. So you would support a proposal in the law that would, 
after a certain period of time, provide for that binding 
arbitration.
    Mr. Adams. Absolutely, yes.
    Mr. Andrews. Thank you very much.
    Chairman Roe. I thank the gentleman for yielding.
    Mr. Guthrie?
    Mr. Guthrie. Thank you. Thanks for all the panelists for 
being here. And, Mr. Adams, I thank you for your service and 
willing to put on the uniform and serve overseas. I was 
actually in Brooklyn Monday. I went to college in metro New 
York, at West Point. And so Brooklyn has changed a lot. It is 
great, it is a wonderful place. I enjoyed being there. So it 
was wonderful to be there. It has changed a lot since the 
1980s, so it was great to be there.
    But I have a question for Mr. Burton. You mentioned in your 
testimony, and I have heard from small businesses, about the 
persuader activity. And from my own experience, I know the 
importance of being able to seek outside counsel. So I would 
like you to--give you a chance to expand on the persuader rule 
a little bit. And you mentioned specifically in testimony that 
imposing additional burdens on employers seeking advice would 
be a deterrent to seeking advice.
    And could you expand on that for just a couple of minutes. 
I have another question of another panelist, but--about the 
persuader activity and how it will discourage people from 
seeking advice.
    Mr. Burton. Okay. Well, if you end up having to buy into a 
bureaucratic morass, filing reports, and then potentially 
having to spend a great deal of money to hire people to advise 
you how to fill out the reports, then you will tend not to want 
to hire consultants. Because they don't cost just what you have 
to pay them, but----
    Mr. Guthrie. You know what the----
    Mr. Burton.--the entire compliance cost associated with it.
    Mr. Guthrie. You know what the Department of Labor is 
trying to get to in that rule, and why you think they are wrong 
in that?
    Mr. Burton. I am not entirely sure what their true 
rationale is. I think part of it is so that they can obtain 
information that they would find useful in terms of 
understanding better the employer strategy in unionization 
campaigns. And also would--this, of course, would not be 
lawful, but some might want to use it for purposes of 
intimidating people.
    Mr. Guthrie. Well, thank you for that. And I have a 
question for Mr. Marculewicz? Is that correct? Under both the 
NLRA and LMRDA, one of the primary elements in determining 
whether an entity is a labor organization is whether it exists 
for the purpose, in whole or part, of dealing with employers 
concerning terms and conditions of employment. Last month, in 
response to an oversight letter sent by this committee, the 
Department of Labor stated it concluded, in 2004 and 2008, that 
the restaurant opportunity center was not a labor organization 
primarily because it did not deal, or intend to deal, with 
employers.
    How have the courts defined ``dealing with?'' Is the 
department's conclusion consistent with your findings related 
to RLC?
    Mr. Marculewicz. Thank you. The concept of--well, first and 
foremost, the concept of worker centers has evolved 
dramatically in the last 5 years. We have seen a tremendous 
amount of activity by these groups, and they have engaged in a 
wide variety of different things. The situation that occurred 
in 2004 and 2008 with respect to those letters, the analysis 
under the Labor-Management Reporting and Disclosure Act 
provides that it has to be an organization in which employees 
participate, that it have a purpose, in whole or in part, of 
dealing with an employer over issues related to wages, hours, 
and terms and conditions of employment.
    The definition of that ``dealing with'' is pretty--the bar 
is set very, very low. And, in fact, the National Labor 
Relations Board has the same test for employer-created 
committees, and has found many of those committees to be 
violative of section 882 of the National Labor Relations Act 
when an employer creates an organization that engages in a 
dialogue and engages in, you know, so dealing with their 
workforce. And as a result of that, it is a fairly low bar.
    And, in fact, the NLRB has reached--has considered a number 
of cases where the name of the case is actually Group of 
Concerned Workers and Their Leader. Because they have grouped 
together, engaged in picketing or other activity, and the NLRB 
has looked at that and said, you know, they have a goal of 
dealing with, their purpose is dealing with, it is focused on 
the intent. And if you look at some of the activities of these 
worker centers subsequent to that, you will see that--you know, 
I think there is a wide variety of attempts to effectuate 
change in the workplace.
    Mr. Guthrie. I am about to run out of time. So also on 
that, you mentioned that because they are not limited that they 
do secondary picketing. And what is secondary picketing, and 
why does the NRLA respect secondary picketing and protracted 
picketing for recognition?
    Mr. Marculewicz. Secondary picketing is where, if you and I 
have a labor dispute and one of my major customers--you go and 
picket that major customer--that customer has nothing to do 
with our labor dispute, the NLRB prohibits that, or the 
National Labor Relations Act prohibits, that secondary--they 
are trying to protect the true neutrals; those who are not 
interested to--and it was Congress' balance of the balance of 
the interests of labor and management and the pursuit of the 
free flow of commerce.
    Mr. Guthrie. So the work centers are doing the secondary 
picketing.
    Mr. Marculewicz. In many situations. Not all, but in many 
situations, yes.
    Mr. Guthrie. I believe I am out of time.
    I yield back.
    Chairman Roe. Mr. Grijalva?
    Mr. Grijalva. Thank you, Mr. Chairman. Let me ask Mr. Adams 
a couple of questions, if I may. And as a point of reference to 
my friend and colleague from Arizona, and the comments 
regarding Bashas', the grocery chain, a very large grocery 
chain in Arizona. Mr. Basha, who passed is a good 
philanthropist, great immigrant story. And considered him a 
friend.
    But at the same time, the lawsuits that were referenced and 
some of the other issues dealt with some very specific things: 
OSHA violations worker safety. It also dealt with violations of 
overtime. It also dealt with other kinds of issues that any 
individual employee has the right to, and should, exercise that 
right. And exercising the right does not make the people doing 
that, or the organization helping with that, necessarily evil. 
And I would subject--I would ask people that there is, in any 
question of that magnitude, there is always another side.
    Let me ask Mr. Adams, in your testimony you--well, let me 
go--in your testimony, you said that the management at 
Cablevision had no intention of bargaining. Can you share some 
of the tactics they used to pressure, intimidate workers, and 
really keep from formalizing what, through election, the 
workers wanted to sit down and collectively bargain?
    Mr. Adams. Thank you. One of the things that my coworkers 
and I definitely noticed is, they were obviously objectionable 
to the whole of us unionizing in the first place. They didn't 
think it was necessary. One of the things we tried to point out 
to management is that there was a serious need for structure. A 
lot of the times there was a lot of, you know, favoritism, 
things like that, that go on. And it is unfair to a number of 
employees who are doing the right thing and, you know, 
following some of the expectations that the company has for, 
you know, the employees.
    One of the things that I have noticed--especially last 
year, the number of meetings we had, their way of trying to 
inform us what was best for us was to tell us that we didn't 
need to form a union. Are we--you know, are we sure that we 
know what we are getting into. And no matter how often we made 
them aware of the fact that we were very sure and this was what 
we wanted to do, they always seemed to come up with a new way 
of trying to derail it.
    I have to say, this is, without question, one of the 
hardest things that I have ever been through. As you know 
already, I have been fired already. Myself and 21 other 
employees were fired because we basically took advantage of an 
open door policy to speak with management on the morning of 
January 30. It would have only literally taken about 5 minutes. 
They were very dismissive. They seemed to have other things to 
do.
    And like I said, they--you know, Mr. Levesque invited us, 
the vice president of our shop invited us into the room. And he 
basically told us we were all being permanently replaced. That 
was just one of the things that took place to try to intimidate 
the workers. As soon as we were led out by police escort and we 
were removed from the building, a memo went out to the 
employees about decertification.
    A lot of the employees, already intimidated by the fact 
that a number of the stronger members were already led out the 
door, got them to feel like they didn't have a chance against 
Cablevision. And so a lot of them felt like they had to put 
their names on the paper to decertify.
    Mr. Grijalva. Open door policies that the company has. What 
else is covered other than coming in and stating your opinion 
to management? What else is covered in that policy?
    Mr. Adams. If there is any general concerns that we have, 
one of the things that is covered in there, especially when it 
comes to employee safety--you know, there are a lot of times 
that we have to do things that are otherwise unsafe. You know, 
it is not really safe for the employee to do. We are climbing 
rooftops, fire escapes, you know, we are in backyards where 
most people, you know, traditionally don't have much traffic.
    A lot of the time people do get hurt, and they end up, you 
know, being off the job for some time, sometimes over 4 or 5, 6 
months. You know, Cablevision has already, this past year, two 
employees were let go because they weren't able to recover in 
time from their injuries. A lot of the times employees feel the 
need to come in and work, you know, sometimes with injuries, 
you know, that are work-related. And they refuse to let 
management know about it because they understand that they will 
not be able to relate to what is going on with them, or at 
least do the right thing in making sure they take care of those 
employees.
    Mr. Grijalva. Thank you. And, Mr. Chairman, with regard to 
the comments on the worker centers, it should be noted that 
much of the activity and support these centers are providing is 
to immigrant workers all across this country, including the 
push for an increased minimum wage. And, in doing so, are 
providing a service, providing English lessons, providing 
social services, and providing a voice to a group of workers in 
this country that have historically been exploited.
    And I would consider that a good thing for the overall 
economy of this country and, certainly, for those immigrant 
workers' rights.
    With that, I yield back.
    Chairman Roe. I thank the gentleman for yielding.
    Mr. Miller?
    Mr. Miller. Thank you. And I want to thank Mr. Adams for 
coming and testifying today. I also want to recognize Lana 
Stuart and Tanya Cauley, who are in our audience today. I have 
had many of my constituents participate in our Wal-Mart--and my 
conversations with them in my office and on the street, a lot 
of it about just they are trying to figure out--you know, they 
know that with Wal-Mart discussion of a union is toxic.
    They are trying to figure out how to keep their job, and 
how they get some respect and how they get a decent wage and 
how they get decent conditions in working, and don't live in a 
place of intimidation. I mean, Wal-Mart has figured it out 
pretty clearly. They have the highest paid truck drivers in the 
country. Because they know if they don't the Teamsters can 
organize them. But people on the floor, they are 
interchangeable.
    Just fire them and find somebody else to do that job, as 
hard as it is and as difficult as it is. And that is, you 
know--and so if you try to figure it out yourself among your 
peers, you can get fired. If you talk to somebody from OUR[MG3] 
Wal-Mart, you can get fired. So you can be arbitrary as hell in 
that fashion. But if you then go the other route, as Mr. Adams 
went, you spend a year trying to talk to your coworkers and get 
a union and you win an election. What did you win by, Mr. 
Adams, 180 to 86?
    Mr. Adams. Yes, that is correct.
    Mr. Miller. Yes. Everybody that gets elected, close the 
deal. Except your deal never got closed.
    Mr. Adams. That is correct, yes.
    Mr. Miller. So now you have spent how long? What is it--Mr. 
Andrews says 600 days?
    Mr. Adams. Six-hundred-one.
    Mr. Miller. Six-hundred-one days trying to get the results 
of your election.
    Mr. Adams. Yes.
    Mr. Miller. And get the benefits of the bargaining. Which I 
understand started out with you are asking for parity.
    Mr. Adams. Yes.
    Mr. Miller. And I assume if you find out that this unit can 
crawl and walk and run, you might ask for something else some 
day.
    Mr. Adams. Hopefully, we will be able to get a contract.
    Mr. Miller. Yes.
    [Laughter.]
    Mr. Adams. Hopefully.
    Mr. Miller. So they don't give you the contract, and Mr. 
Andrews went through that part of it. And they gave everybody 
around you a raise, but not for the people in your unit that 
signed up for the union.
    Mr. Adams. That is correct.
    Mr. Miller. So Mr. Dolan can be as arbitrary and as 
capricious as he wants to be, as long as you don't get a 
contract.
    Mr. Adams. That is correct.
    Mr. Miller. So he can reward people, trying to send a 
signal to the 186 that joined you that they just missed out on 
this benefit of--what was it you said, $5,000 to 25,000, 
something like that. I didn't get the benefit of your previous 
testimony, but.
    Mr. Adams. Upwards of $27,000, yes, $18,000.
    Mr. Miller. So just a cash benefit.
    Mr. Adams. Yep.
    Mr. Miller. Telling people to stay away from this unit. And 
then I guess this progressive company, Cablevision, they have 
an open door policy.
    Mr. Adams. Yes. Yes, they do. They have an open door 
policy.
    Mr. Miller. Unless you are in the union, it turns out to be 
a trapdoor.
    Mr. Adams. Pretty much.
    Mr. Miller. Yes. So you must be wondering where you go to 
get justice.
    Mr. Adams. I am, actually. My and----
    Mr. Miller. Where do you go to get your union. And these 
people can drag you out for 600 days. They can fire you because 
you asked for a 5-minute meeting. Apparently, you didn't even 
ask for a meeting in front of other workers. You asked for a 
meeting with your group, with him, with Mr. Levesque is it?
    Mr. Adams. Rick Levesque, yes.
    Mr. Miller. And that meeting, that meeting got you 
permanently displaced, or immediately replaced.
    Mr. Adams. That is correct. Permanently replaced, yes.
    Mr. Miller. You need a union.
    Mr. Miller. That is what--because these people are about as 
arbitrary and capricious as an employer could be. And this is 
just, you know, a company that is a rogue with respect to its 
employees. They have decided also that you are replaceable. And 
anybody else that, apparently, speaks up, uses their policies, 
uses the law, can be punished and lose their job and lose the 
benefits of an increase in pay. And they are daring you to do 
something about it.
    Mr. Adams. That is correct.
    Mr. Miller. It is really unfortunate for you. You know, and 
I noticed several members here thank you for your service to 
the country. Don't make a damn bit of difference when you are 
in that workplace at Cablevision. Doesn't make a damn bit of 
difference. Made a big difference to us as a country and to 
your fellow servicepeople.
    Thank you very much for your testimony.
    Mr. Adams. Thank you.
    Chairman Roe. Mr. Courtney?
    Mr. Courtney. Thank you, Mr. Chairman. I actually just 
wanted to pick up where Mr. Miller left off. You testified, Mr. 
Adams, that what you have been going through is the toughest 
thing you have ever experienced?
    Mr. Adams. Yes, that is correct.
    Mr. Courtney. Okay. And you are a U.S. Marine combat 
veteran of Iraq. Is that correct?
    Mr. Adams. Yes. Support, yes.
    Mr. Courtney. Yes. And when you entered the Marines you 
entered as a volunteer. Isn't that correct?
    Mr. Adams. Yes.
    Mr. Courtney. And you took an oath. And in that oath, you 
swore to uphold the Constitution and the laws of this country, 
is that correct?
    Mr. Adams. Yes, that is correct.
    Mr. Courtney. And when we go into military service, again, 
you are not taking an oath to an individual or to the homeland 
or to the motherland. You are really taking an oath to a system 
that is about protecting people's dignity and rights as 
American citizens. Isn't that correct?
    Mr. Adams. Yes, that is correct.
    Mr. Courtney. And it--again, I just--you know, listening to 
this--your story, it just is stunning to see that, you know, 
where you were prepared to put your life on the line as a 
Marine, and to come and have the system, again, really just 
trample on your rights. Which, again, are not sort of just 
statutory rights. The rights to collectively bargain are 
recognized by the United Nations human rights charter. It was 
recognized by Pope Leo in the Vatican in the late 1880s in 
terms of--1880s, in terms of recognizing that human dignity is 
tied to the fact that people have the right to withhold their 
work as a way of bargaining for appropriate working conditions.
    And yet you are in a situation now where 600 days after 
going through the process, following the rules, obeying the 
law, that, again, you still do not have an outcome that the law 
claims to offer. Isn't that correct?
    Mr. Adams. Yes, that is correct.
    Mr. Courtney. The Marines actually have a motto. Isn't that 
correct?
    Mr. Adams. Yes, they do.
    Mr. Courtney. And what is it?
    Mr. Adams. ``Always Faithful--Semper Fi.''
    Mr. Courtney. Semper Fi. Well, there is also another Latin 
term called ubi jus ibi remedium, which says that ``without a 
remedy, there is no right.'' And, again, that is first-year law 
class, you know, taught to individuals. Marshall v. Marbury, 
that was the principle that the U.S. Supreme Court, 
establishing its authority, enunciated. And it is a very simple 
concept. Which is that, you know, you can have all the 
platitudes in the world about people's right to equality and 
votes and collective bargaining. But if you don't have a 
remedy, it really doesn't exist.
    And what your story proves is that the decline in union 
membership, which we have heard from witnesses and which we 
have heard from the chairman, is frankly because we have a 
broken system. And sadly, in this committee room, you know, we 
have seen measures brought forth trying to exploit the fact 
that the filibuster rule was used in the Senate to basically 
neuter the National Labor Relations Board and use that. Not the 
merits of cases, but use that procedure as a device to, again, 
basically strip people of their rights.
    Thank goodness, they are--you know, the majority leader 
exercised a procedural measure to make sure that we now have a 
fully-staffed National Labor Relations Board. But the fact of 
the matter is, you know, that just sort of gets us to the point 
where we can begin the process of making sure that situations 
like yours are addressed. So thank you for your amazing 
service, for you belief in our system. Not just as a soldier, 
but also a citizen and as a worker.
    And, again, we--and some of us here want to make sure that 
we create a system that really balances rights and remedies so 
that people can actually have available to them--which is, 
again, bedrock human rights principles that has been recognized 
by international organizations and, in fact, the Vatican.
    I yield back.
    Chairman Roe. I thank the gentleman for yielding.
    Ms. Wilson?
    Ms. Wilson. Thank you, Mr. Chair. Strengthening labor means 
strengthening our economy. And according to the Bureau of Labor 
Statistics, the median weekly earnings of full-time union 
workers in 2012 were $943 compared with $742 for non-union 
workers, or $10,400 per year per worker. So people who are in 
unions earn less than people who are not. By getting more 
income into the hands of hardworking people who will spend it, 
we ensure more customers for American businesses and eliminate 
much of the need for government assistance.
    This is the case now more than ever. At a time of high 
unemployment and falling living standards for workers, today a 
parent working full-time at minimum wage will simply not earn 
enough income to cover basic needs like food, clothing and 
shelter. Even working a second job and well over 40 years a 
week, it is mathematically impossible for many minimum wage 
workers to pay for child care, clothing and gas. If you doubt 
these claims, take a look at the draft budget that a major 
employer distributed to its employees.
    According to a new study from the Economic Policy 
Institute, the bottom 60 percent of workers are earning less 
than they did 13 years ago. According to a recent report by the 
Center for Economic & Policy Research, black Americans who have 
earned much higher average levels of education over recent 
decades have a lower chance of earning a living wage today than 
they had 30 years ago. And so economic growth remains slow, 
unemployment stays high, government debt continues to grow.
    My question to Mr. Adams--and I have read your story, and I 
commend you for your bravery and for standing tall for working 
men and women--and I would like for you to--I would like to 
find out your view. How does collective bargaining affect low-
and middle class Americans' purchasing power?
    Mr. Adams. Well, what it does is, it definitely helps, at 
least for the people who have already gone through the 
experience of earning low incomes, it really helps a lot when 
it comes to being able to pay rent, being able to provide, you 
know, medical, being able to just get some of the common items 
that every American deserves and as to be as comfortable as 
possible, to work hard as possible, and to earn a reasonable 
salary.
    With collective bargaining, what it does is, it just points 
out that the workers, if they have a good structure, are able 
to, you know, help the company, you know, strive where it needs 
to go. And then at the same time, without--I could--I don't--I 
hate to use the term, without ``greed'' being part of the 
equation. Where everybody is doing well, normally you would 
get, obviously, better results. Better workers, people are 
willing to go the extra mile. And with collective bargaining, 
it allows both sides to at least be able to, you know, review 
that. And like I said--and it helps families tremendously.
    Ms. Wilson. Yes. Well, you keep up the good fight. I have 
always been a strong supporter of unions. I come from the 
public school sector, where unions play a major role in making 
sure that there is equal pay for everyone working for the 
school system. So it is a bargaining procedure to make sure 
that people receive health care, the benefits that they need to 
keep people at least surviving and not falling below the 
poverty level.
    And I just can't even imagine what we would actually do in 
our school district in Miami-Dade County if we did not have the 
support of the unions making sure that people received a wage 
commensurate with what their living demanded. So thank you for 
keeping on the--stay on the path.
    Mr. Adams. Thank you.
    Chairman Roe. I thank the gentlelady for yielding.
    Dr. DesJarlais?
    Mr. DesJarlais. Thank you, Mr. Chairman. And thank you all 
for being here today. I would like to start with Mr. 
Marculewicz. If a worker center is a labor organization under 
federal law, what are the filing requirements and restrictions 
on activity?
    Mr. Marculewicz. Well, as in any labor organization they 
must file an LM-1, which is a form with the Department of Labor 
that incorporates and includes the constitution and bylaws. And 
this is designed to provide disclosure, public information to 
those who have an interest in that. Specifically those who are 
seeking to be--you know, or that group is seeking to represent 
as to how officers are elected, what the process is, and the 
like.
    There are also financial disclosures, in an LM-2--or if you 
are a smaller labor organization, an LM-4--which are forms that 
are filed with the Department of Labor that incorporate 
references and describe and disclose the information, financial 
information, for the labor organization. So workers, members 
can understand where the money is coming from and where the 
money is going.
    Mr. DesJarlais. Okay. I think you have partially answered 
this, but why are the filing requirements and restrictions so 
important?
    Mr. Marculewicz. Well, they are important because back when 
the Labor-Management Reporting and Disclosure Act was enacted 
by Congress there were really fundamental problems of 
corruption within labor unions. The McClellan hearings, which 
took place--actually were the first televised, to my 
understanding the first televised hearings in congressional 
history. And there was a fair amount of interest in the issue. 
And it exposed union corruption, exposed a wide variety of 
issues related to that.
    And the law was passed to ensure that workers who were 
members and represented by these groups had a democratic right 
of participation, a right to expression of opinion, a right to 
vote. I mean, they have to elect their leadership, in a local, 
every 3 years and in an international every 5 years. And those 
democratic principles are sort of at the foundation of 
organizational representation.
    Mr. DesJarlais. Okay, thank you. Where do worker centers 
get their funding?
    Mr. Marculewicz. Typically, worker centers--they get them, 
as I indicated in my initial remarks, they receive funding from 
a wide variety of sources. There are grants. Foundations will 
make contributions to them. There are also government grants 
that can be--that they can apply for and they can obtain. They 
also--some of them also receive direct funding from labor 
organizations. So the money comes from a variety of different 
sources.
    Now, the reality is, is that there is no disclosure related 
to where that money comes from if that worker center doesn't 
consider itself a labor organization. Now, recognize this. That 
workers--not all worker centers act like labor organizations, 
but many of them are starting to do so. And that is--once you 
become a labor organization and start engaging in dealing with 
an employer, there is a responsibility to file that and to 
disclose that information.
    Mr. DesJarlais. Okay. Does this affect their tax status?
    Mr. Marculewicz. Well, typically--there is actually a very 
good piece written by Diana Furchtgott Roth on the worker 
center tax treatment. And typically, a labor organization is a 
501(c)(5) organization, which has different type--it is a 
different type of tax treatment. But many worker centers file, 
or designate themselves, as 501(c)(3)s. And the manner in which 
you can contribute is different. There are also contribution 
limitations by employers under the Labor-Management Relations 
Act. Section 302 also limits how money can be given to these 
worker centers.
    Mr. DesJarlais. Thank you, sir.
    The next question will be for Mr. Meisburg. In fiscal year 
2011, labor unions won more than 71 percent of representation 
elections; 89 percent of those elections were held pursuant to 
agreements of the union and employer, commonly referred to as 
voluntary consent agreements. The median time to proceed to an 
election from the filing of a petition was 38 days. It appears 
the NLRB elections are timely, and unions fare pretty well. In 
rare cases, the time between a petition election can be 
significantly longer. What is the source of these elections' 
delay?
    Mr. Meisburg. Well, I haven't done a study of that 
personally. But my experience suggests that a lot of the delay 
is caused in blocking charge cases. I know I had one case where 
we--it was between the SCIU and the NUHW in California. And 
there was a petition for an election by the NUHW which was 
blocked for over a year by a charge filed by the SEIU. 
Eventually, we refused to issue a complaint. The block was 
withdrawn.
    Now, the block can be withdrawn by a regional director if 
the permission of the board at other times. But my sense is, 
and without having made a study, a thorough study of is, that 
is the source of a lot of delay in, and it skews the statistics 
higher in those cases.
    Mr. DesJarlais. Is this the exception to the rule?
    Mr. Meisburg. It is. I mean, you know----
    Chairman Roe. The gentleman is time has expired.
    Mr. DesJarlais. Oh, sorry, Mr. Chairman.
    Chairman Roe. Dr. Holt?
    Mr. Holt. I thank the chair. I would like to address Mr. 
Adams. I was pleased to meet you in Brooklyn. I am impressed by 
your service. I would think that the customers of the company 
must be very pleased to know that someone such as you, so 
thoughtful and diligent, is on the job. And as a policymaker, I 
must say I am very pleased to find someone who so articulately 
expresses the worker's point of view.
    You know, for well over half a century now labor laws in 
this country have protected workers who believe that a union, 
through collective bargaining, can improve their working 
conditions and safety and pay and benefits. And those 
protections, I think, have been well-justified because, over 
the intervening decades, unions have, and to this day continue 
to be, I think, continue to have a very beneficial effect on 
working conditions and safety and pay and benefits.
    What we see, and I have looked at this pretty closely, what 
we see there with the Cablevision instance is a textbook 
example of what has come to be known as union busting. In 
punishment, in your case firing, for those who want to 
organize; inducements to try to entice others not to organize; 
all sorts of statements, and then retractions of those 
statements, and delays right up to the deadlines. It is a 
textbook example of how you use or misuse the laws to prevent 
unionization. And even to this very day, the corporation is 
spending millions of dollars to continue to fight this. Far 
more than was at stake in the salaries and in the pay under 
dispute.
    You have spoken about, we have heard about, Cablevision 
CEO, Jim Dolan's visit to the Bronx field technicians who were 
getting ready to vote on affiliating and organizing. And he 
said they would be left behind in training and investment and 
promotion and job advancement. And that group did not vote to 
affiliate. How do you distinguish that from what happened with 
your group of field technicians? And from what you know about 
the Employee Free Choice Act, how would that have made a 
difference in the Bronx? How would it have made it a difference 
for your group?
    Mr. Adams. Well, one of the things that would have been 
extremely beneficial, at least, you know, for the technicians 
in the Bronx, when Mr. Dolan went to go visit them he did so 
simply because he realized that by underestimating the 
technicians in Brooklyn he decided to, obviously, do something 
that would otherwise, like I say, point to our being 
irresponsible, so to speak, by being a bit manipulative with 
his message. It was very difficult to get the truth out to the 
Bronx.
    Like I said, Cablevision has an unlimited amount of 
resources. Like I said before, they have over 60 lawyers 
already working on this case. They are spending countless 
amount of money just trying to stop something that--I can't 
understand why--but to stop something that we have already, 
like I said, strongly made a decision on. I just think that if, 
had we had the Free Choice Act, like I said, I would already be 
one year into our first contract. And then possibly at least 
coming together to make an even better second one.
    Because that is what I honestly thought this was all gonna 
be about. Just being able to create better structure, to 
basically let them know that obviously he proved us correct by 
paying the other workers more money to help better their 
situations. When those things are being brought up, that is 
really what we were hoping that Mr. Dolan and his management 
team would see. That obviously we were behind. So had that been 
in place, this would all be behind us and, like I said, we 
would be already one year into our first contract.
    Mr. Holt. Thank you. And Mr. Chairman, I understand 55 
percent of the workers still support the union, which is about 
equal to the original..
    [Off mike.]
    Mr. Adams. That is correct.
    Mr. Holt. [Off mike.]
    Chairman Roe. The gentleman's time has expired and I 
appreciate the gentleman yielding.
    I will now yield myself 5 minutes. And Mr. Meisburg, if you 
would like to continue your thoughts.
    Mr. Meisburg. Well, just at the end of that last question I 
had about whether it was typical for blocking charges to be 
filed, they are--it is not typical. It happens, but it is not 
the rule, I don't believe.
    Chairman Roe. Yes, I thank you.
    And now, Mr. Burton, and I agree with Dr. Holt that 
basically, as I understand, the NLRA was passed, I think, in 
1935. And then the NLRB was established to be a fair arbiter 
between the employees and employers. So that you didn't favor 
either side. It is like being in a ball game, where you go and 
you hope the refs are fair. And you want a--you just want a 
fair hearing. When some people run the string out or whatever, 
they are at the tail--most of time, as I understand these, the 
unions win most elections, 71 percent.
    The elections are--and this happens in a fairly timely 
fashion. I think within less than a month and a week, 35 days, 
I believe is the median. So it seems like that it allows both 
sides to get--a small business especially--to get the expertise 
in. I was thinking about my own business. I wouldn't have any 
idea how to go out and find a labor lawyer. I would have to go 
find somebody if I--and I couldn't do it in 10 days or 15 days. 
It is impossible.
    So both sides need to be fair. And this case that Mr. Adams 
points out probably is at the other end of the scale. So I want 
to ask a couple of questions about--for you, Mr. Burton. And 
the statistics to the size of our units, they fluctuate year-
to-year. And there is a graph over here that is up. And the 
Democrats are correct that the median size of units has 
increased from 2011 to 2012. However, the average size--there 
is a difference between median and average--has decreased from 
71 to 65 in 2012.
    And these are interesting numbers, but they really don't 
address the issue of Specialty Health Care where this is the 
fragmentation of the workforce. That is what I want to ask the 
question. And also Bergdorf Goodman you mentioned. How does 
fragmentation of the workforce affect the employers and 
employees? And number two, can you give me an example of 
workplace fragmentation by recent NLRB unit certification?
    Mr. Burton. Well, fragmentation is a problem in the sense 
that you could end up having to deal with many unions. You can 
have some aspects of your company governed by one collective 
bargaining agreement, and another. And there is a multiplicity 
of agreements, a multiplicity of unions, complexity, inability 
to move back and forth and so on down the line. The case that I 
mentioned briefly in my oral remarks is, to me, the most 
dramatic--the Bergdorf case, where you are organizing by shoe 
department, a department store.
    There is another case that, out of the Northrop Grumman 
cited in my written statement, where I believe they organized 
180 out of 2,400 technicians in the shipyard. So you end up 
having a lot of division. I think that the--and it was all 
launched by specialty health care which, of course, is a 
specific job description type unit. This is of concern to small 
employers, but not really small employers. Mid-size, 100, 200 
type employers, which is part of our membership base.
    Chairman Roe. Next question would be, in your experience, 
and anybody can answer this, when do employers become aware 
that--of a union organizing drive? And anyone can--how do you 
know when you are being organized?
    Mr. Burton. Well, that can vary dramatically. Sometimes it 
can be reported to you by employees. But obviously, sometimes 
people find out about it when the petition is filed by the 
labor union. So it just varies dramatically. The one thing I 
think that is most important to understand is, most small 
employers don't know anything about labor law until they have 
to. They know about employment law, or maybe NRLA section 7 
rights of like social media or what have you.
    But they don't know about unions or union organizing. The 
unions generally do. That is what they do for a living. Six-
hundred days is ridiculous. Ten days is also ridiculous. I 
mean, there needs to be a reasonable middle ground found. But 
there is no way on God's green earth that a typical small 
business owner is going to be able to find representation, 
understand the law, understand the implications for his 
business, explain it to his employees, and adequately present 
the facts to his employees in 10 days.
    Chairman Roe. Yes. I will now cut myself off. I would like 
to again thank the witnesses for taking time to testify before 
the committee. Y'all have been a terrific group.
    I will now recognize the ranking member for closing 
statements.
    Mr. Andrews. Well, I, too, want to thank the witnesses and 
our fellow members for their participation this morning. I 
think we heard a lot of good information. I wanted to come back 
to one thing Mr. Meisburg said which struck a chord with me. 
Which is that whatever ideological or political disputes may 
happen, it is very important that the dedicated career 
employees of the National Labor Relations Board be respected in 
the integrity of their work. And I appreciate that.
    And again, I--this is just my own observation. I am not 
putting words in anyone's mouth. But one of the things that we 
were disturbed about previously--and Mr. Miller, Mr. Cummings 
and Mr. Conyers wrote a letter on August 12 of 2011--when the 
dispute over the Boeing case was going on and the board had 
filed a complaint against Boeing, there was a subpoena served 
on the board by the--not by this committee, by the Government 
Reform Committee, that called for all communications that took 
place between the regional office and the board pertaining to 
the filing of the Boeing complaint.
    Now, obviously, that was a rather hotly-contested item. But 
one of the things we were worried about then was that the trial 
strategy, the negotiated settlement strategy, the work that the 
regional office was doing was gonna be subject to invasion in a 
public forum. And I think that was a grave concern. So I 
thought about that, Mr. Meisburg, when you made that remark. I 
know that was not your intention, but it triggered that 
response with me.
    And I take it as a worthy admonition. The NLRB is a place 
where there are fierce ideological battles. It has been this 
way for a very long time. I hoped that we could bridge some of 
them. But certainly, the work of the men and women in the 
regional offices and in the main office, the career people, 
should not be abridged in any way. And I think that was a very 
important point that you made.
    Mr. Chairman, I think this panel has served us well. I 
appreciate their time and effort. Mr. Adams, we especially 
appreciate your efforts, as well. And we thank you for your 
time.
    Chairman Roe. I thank the gentleman for yielding. And I 
thank the panel. And in closing, you know, we have, in this 
country right now, a real problem with jobs. And we have had a 
huge problem. And you have noticed that the jobs in unions have 
dropped from 20 percent of the population down to around 7 in 
the private sector. I grew up in a union household. My dad 
worked in a factory, made shoe heels. He belonged to the union 
as--after World War II until he died. And died before he was 
able to retire.
    So we have some issues. The ranking member and myself are 
gonna work on union issues with pensions. It is a huge issue. 
We plan to work diligently on that to help save those. I 
believe, quite frankly, that we will not recreate the middle 
class in America until we recreate--bring manufacturing back to 
this country. There are estimates out there, with a coherent 
energy policy in this country--if we had just exactly like 
President Kennedy did when I was a high school student, he said 
we are going to go to the moon in this decade. And we beat 
that.
    Americans are that good. We beat that deadline. We put 
somebody on the moon in less than 10 years. We can become 
energy independent in America, if we use all the resources we 
have, within 10 years. And Mr. Adams, one of the reasons that I 
have to look at energy independence, it was 40 years ago this 
year I was stationed just south of the DMZ in Korea. And I 
almost froze to death because we only got heat 3 hours a day.
    And the reason was because the Middle East embargoed our 
oil and we had to keep the oil for our Huey--fuel for our Huey 
helicopters, our Cobra gunships, our tanks and so forth. And 
you understand that very well. We were a hostage of what 
somebody else halfway around the world did. If I could be the 
President of the United States for 1 month--and I don't want to 
be, but if I were--in 1 month----
    Mr. Andrews. You are announcing your candidacy?
    Chairman Roe. No.
    [Laughter.]
    Mr. Andrews. Okay, all right.
    Chairman Roe. Trust me, I already said I don't want to be. 
But I would have a coherent energy policy so that I think--for 
middle America, where I grew up, the price of energy affects us 
more than anything. You see a gallon of gas go up a dollar. 
That affects everybody. When they have got to fill their tank 
up where we live and drive miles to their job, if they are 
making $10 or $11 or $12 an hour it may take an entire day's 
work just to get to and from work.
    And that is why we have to do that. And there are estimates 
out there, with people a lot smarter than I am, that say in the 
next 8 to 10 years we can create 2-1/2 to 5 million 
manufacturing jobs if we become energy independent. And let me 
tell you, the American worker is the best worker in the world. 
And I was in China a year--a little over a year ago. And it 
struck me when I was in Beijing, you know they have done a lot 
of building. You hear all about China.
    That country has 1.4 billion, with a ``B,'' people. The 
United States of America has 300 million people, and we produce 
more goods and services than they do. The best worker in the 
world in the American, and the most productive. We have got to 
give them the tools in which to do that. And I really think 
recreation of the middle class will solve a lot of these 
problems for us going forward. I am concerned. Right now, I 
have got to share some real frustration with me in my job right 
now.
    I spent 30 years, over 30 years practicing medicine. There 
is one hospital system in my state that because of what is 
going on in health care right now is going to have to make a 
$250 million cut. We have just lost 50 residency slots, how we 
train young doctors in the community I live in Johnson City, 
Tennessee. This is going on all over the country, the effects 
of the Affordable Care Act. We need to step back and re-look at 
that.
    It is affecting the economy. We have had a hospital close 
in southwest Virginia, very close. It will close the 1st of 
October, this year. I look forward to working with you all. I 
appreciate very much all of the input from the members. And you 
all did a great job. I appreciate you being here.
    With no further business, this hearing is adjourned.
    [Whereupon, at 11:37 a.m., the subcommittee was adjourned.]


                                APPENDIX

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               Material Submitted for the Hearing Record

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