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


 
 ADDING TO UNCERTAINTY: THE IMPACT OF DOL/NLRB DECISIONS AND PROPOSED 
                        RULES ON SMALL BUSINESS 

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

                                HEARING

                               before the

                      COMMITTEE ON SMALL BUSINESS
                             UNITED STATES
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

                              HEARING HELD
                            OCTOBER 5, 2011

                               __________


                 [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
                               
            Small Business Committee Document Number 112-037
          Available via the GPO Website: http://www.fdsys.gov


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                   HOUSE COMMITTEE ON SMALL BUSINESS

                     SAM GRAVES, Missouri, Chairman
                       ROSCOE BARTLETT, Maryland
                           STEVE CHABOT, Ohio
                            STEVE KING, Iowa
                         MIKE COFFMAN, Colorado
                     MICK MULVANEY, South Carolina
                         SCOTT TIPTON, Colorado
                         JEFF LANDRY, Louisiana
                   JAIME HERRERA BEUTLER, Washington
                          ALLEN WEST, Florida
                     RENEE ELLMERS, North Carolina
                          JOE WALSH, Illinois
                       LOU BARLETTA, Pennsylvania
                        RICHARD HANNA, New York
                       ROBERT SCHILLING, Illinois

               NYDIA VELAZQUEZ, New York, Ranking Member
                         KURT SCHRADER, Oregon
                        MARK CRITZ, Pennsylvania
                      JASON ALTMIRE, Pennsylvania
                        YVETTE CLARKE, New York
                          JUDY CHU, California
                     DAVID CICILLINE, Rhode Island
                       CEDRIC RICHMOND, Louisiana
                        JANICE HAHN, California
                         GARY PETERS, Michigan
                          BILL OWENS, New York
                      BILL KEATING, Massachusetts

                      Lori Salley, Staff Director
                    Paul Sass, Deputy Staff Director
                      Barry Pineles, Chief Counsel
                  Michael Day, Minority Staff Director






















                            C O N T E N T S

                              ----------                              

                           OPENING STATEMENTS

                                                                   Page
Graves, Hon. Sam.................................................     1
Velazquez, Hon. Nydia M..........................................     2

                               WITNESSES

Elizabeth Milito, Senior Executive Counsel, National Federation 
  of Independent Business Small Business Legal Center, 
  Washington, DC.................................................     4
Mike Mittler, President, Mittler Brothers Machine and Tool, 
  Wright City, MO................................................     5
Beverly McCauley, President, Hunt Country Masonry, Leesburg, VA..     7
Allen William West, Jr., President, West Sheet Metal Company, 
  Sterling, VA...................................................    10

                                APPENDIX

Prepared Statements:
    Elizabeth Milito, Senior Executive Counsel, National 
      Federation of Independent Business Small Business Legal 
      Center, Washington, DC.....................................    36
    Mike Mittler, President, Mittler Brothers Machine and Tool, 
      Wright City, MO............................................    50
    Beverly McCauley, President, Hunt Country Masonry, Leesburg, 
      VA.........................................................    55
    Allen William West, Jr., President, West Sheet Metal Company, 
      Sterling, VA...............................................    57
Additional Materials for the Record:
    Statement of Rep. Gary C. Peters.............................    61
    Statement of the United States Chamber of Commerce...........    63


 ADDING TO UNCERTAINTY: THE IMPACT OF DOL/NLRB DECISIONS AND PROPOSED 
                       RULES ON SMALL BUSINESSES

                              ----------                              


                       WEDNESDAY, OCTOBER 5, 2011

                          House of Representatives,
                               Committee on Small Business,
                                                    Washington, DC.
    The Committee met, pursuant to call, at 1:01 p.m., in room 
2360, Rayburn House Office Building, Hon. Sam Graves (Chairman 
of the Committee) presiding.
    Present: Representatives Graves, Chabot, Mulvaney, West, 
Barletta, Hanna, Schilling, Velazquez, Clarke, Chu, Cicilline, 
Owens, Keating and Hahn.
    Chairman Graves. We will go ahead and call this hearing to 
order. And I want to thank all of our witnesses for appearing 
here today. Some of you have come a long ways, and we 
appreciate that very much.
    The purpose of today's hearing is to examine the proposed 
rules and case decisions by the National Labor Relations Board 
and the Department of Labor related to employer and employee 
rights in union-organizing drives. This committee has kept a 
particular focus on Federal regulations and policies that are 
adding to the array of uncertainties confronting small 
businesses, particularly when those uncertainties add to the 
Nation's stubbornly high unemployment rate.
    Republicans and Democrats agree on the principle that 
businesses need certainty if they are going to grow their 
businesses and add jobs. President Obama has widely touted an 
executive order directing government agencies to identify and 
cut the red tape that is out there. He has also ordered 
agencies to do more than the bare minimum required to ensure 
that stakeholders have an opportunity to communicate their 
views on agency regulatory actions. If this is the intent of 
the President's executive order, it hasn't been put into 
practice. Rather the NLRB and the Department of Labor proposed 
the imposition of new regulations despite the lack of any 
demonstrated need for changes to existing law and practice.
    The current NLRB board has been particularly activist in 
its agenda. It was the infamous NLRB decision to prohibit 
Boeing from opening a plant in the State of South Carolina. 
While this decision does not directly impact small businesses, 
many of those in the small business community are claiming such 
decisions are indicative of NLRB's overall bias against 
employers and level of favoritism that is granted to unions.
    Today's hearing is going to focus on four examples of this 
administration's union favoritism, the NLRB's decision and the 
Lamons Gasket Company and Specialty Hospital of Mobile; the 
NLRB's proposed changes to the union election process; and the 
proposed rule from the Department of Labor regarding the advice 
exemption to the Labor Management Reporting and Disclosure Act.
    I would also be remiss if I didn't mention the NLRB's final 
rule requiring employers to post notices in their businesses 
informing employees of their right to unionize. I understand 
this has been particularly irksome to small businesses who 
object to what they view as an unwarranted Federal intrusion 
into their business, as well as their objection to the biassed 
nature of the notices themselves.
    Again, I want to thank all for being here.
    And I will turn to Ranking Member Velazquez for her opening 
statement.
    Ms. Velazquez. Thank you, Mr. Chairman. For America's small 
businesses, employees are their most important asset.
    While this has always been the case, it has never been 
truer than it is today. In a globally competitive economy, 
small companies often succeed and fail based on the talent of 
the staff who can help invent a new product, develop an 
innovative service or just discover a better, more efficient 
way of serving a client.
    For America's entrepreneurs, their employees are central to 
their strategy and critical for a firm's long-term growth. For 
these reasons, the vast majority of small businesses enjoy 
strong relationships with their employees. Indeed, I would 
submit that for 99 percent of small firms, relationships 
between management and employees are cordial and not 
adversarial, regardless of whether the businesses' workers are 
organized or not.
    This record is particularly remarkable given just how many 
Americans work for small enterprises. Half of the U.S. private 
sector workforce is employed by small businesses; 44 percent of 
our country's nonfarm payroll can be attributed to small 
businesses. Most of us get our first job at a small enterprise.
    Considering the enormous contributions small companies make 
to U.S. employment, the positive history of employee-employer 
relationships at small firms is especially noteworthy.
    In those instances where there are disputes, the National 
Labor Relations Board exists to help mediate. This structure 
provides a proven channel for resolving labor disagreements. 
The board works to protect the rights of both employees and 
employers. With so many Americans, entrepreneurs and employees, 
counting on NLRB to serve as a fair conduit for resolving labor 
problems, it is critical that the board operate as efficiently 
and as effectively as possible.
    Several recent steps outlined by the NLRB to improve its 
election process will further that goal. Allowing filings with 
the board to be submitted in electronic form is common sense. 
In today's Internet age, it only makes sense that this option 
be available to those seeking redress, be they employees or 
employers.
    In addition, putting in place standardized timeframes for 
the resolution of disputes will add certainty to the process 
for all participants. Streamlining the appeals process will 
also cut down on unnecessary red tape.
    On their face, these seem like logical efforts to make the 
NLRB work better for everyone. This committee often hears about 
the need to streamline government institutions. If we were 
discussing environmental regulations, tax compliance or 
workplace safety issues, reducing paperwork and setting 
deadlines for agency action would be universally applauded as 
efforts to lessen the burden on entrepreneurs.
    However, when those steps might facilitate hardworking 
Americans organizing a union, there seems to be a huge cry from 
the other side of the aisle. This position strikes me as 
inconsistent at best.
    Mr. Chairman, the vast majority of small businesses in our 
country enjoy warm relationships with their employees. And, in 
fact, most of them will likely never need to make use of the 
NLRB. However, when problems arise, it is important that fair, 
workable processes be in place. It is my hope that the NLRB 
steps can improve the system for all participants, employers 
and employees.
    And I thank the witnesses for being here today and sharing 
with us your insight on this issue.
    Thank you. And I yield back.
    Chairman Graves. Thank you.
    Ms. Velazquez. Mr. Chairman, if I may. I just would like to 
introduce for the committee our newest member, Janice Hahn. And 
I would like to welcome her. And she represents California's 
36th Congressional District. While new to Congress, Ms. Hahn 
has a long history of public service, having served on the Los 
Angeles Charter Reform Commission and the Los Angeles City 
Council. I am sure her experience, working with California 
entrepreneurs, will prove useful as she serves on this 
committee. And I welcome her.
    Thank you.
    Chairman Graves. It is good to have you on the committee. 
Thanks for choosing us.

   STATEMENTS OF ELIZABETH MILITO, SENIOR EXECUTIVE COUNSEL, 
  NATIONAL FEDERATION OF INDEPENDENT BUSINESS SMALL BUSINESS 
   LEGAL CENTER, WASHINGTON, D.C.; MIKE MITTLER, PRESIDENT, 
  MITTLER BROTHERS MACHINE AND TOOL, WRIGHT CITY, MO; BEVERLY 
   McCAULEY, PRESIDENT, HUNT COUNTRY MASONRY, LEESBURG, VA, 
 TESTIFYING ON BEHALF OF THE MASONRY CONTRACTORS ASSOCIATION; 
   AND ALLEN WILLIAM WEST, JR., PRESIDENT, WEST SHEET METAL 
                     COMPANY, STERLING, VA

    Chairman Graves. Our first witness is going to be Elizabeth 
Milito. She serves as the senior executive counsel for the 
National Federation of Independent Business Small Business 
Legal Center. In her capacity as senior executive counsel, Ms. 
Milito frequently counsels businesses in areas of human 
resource law.
    Ms. Milito, welcome. And I might explain, too, real quick 
before you get started that the lights are set up for 5 minutes 
of testimony. And when you get down to 1 minute left, it turns 
yellow, and then when it is over, it turns red. We are not 
going to break anybody's arm if you go over time, but try to 
keep it, if you can, keep it within--again, thank you all for 
being here.
    And, Ms. Milito.

                 STATEMENT OF ELIZABETH MILITO

    Ms. Milito. Thank you, Chairman Graves, Ranking Member 
Velazquez, and distinguished committee members. Thank you so 
much for inviting me to be here with you today.
    My name is Elizabeth Milito and I serve as senior executive 
counsel with the National Federation of Independent Business 
Small Business Legal Center. NFIB's mission is to promote and 
protect the right of its members to own, operate and grow their 
businesses. And it represents 350,000 businesses nationwide. 
The typical NFIB member employs 10 people and reports gross 
sales of $500,000 a year. The NFIB membership is a reflection 
of American small business, and I am here today on their behalf 
to share a small business perspective with the committee.
    Currently small businesses in this country employ just over 
half of all private sector employees. Small businesses pay 44 
percent of total U.S. private payroll, and small businesses 
generated 64 percent of net new jobs over the past 15 years. 
Small businesses are America's largest private employer. And 
for that reason, we applaud the committee for holding this 
hearing and highlighting the exceptional problems that labor 
rules can place on small businesses.
    Suffice it to say that labor law is difficult to 
understand. Even experienced labor lawyers struggle to keep up 
with the ever changing legal landscape. Imagine then the 
challenges facing America's small businesses. These are 
businesses that are run by men and women who struggle day to 
day simply to make ends meet. They typically have no 
administrative staff, little human resource expertise and 
certainly no regular access to legal counsel.
    Today's small business owners contend with anti-
discrimination laws, family, medical and other protective leave 
laws, wage-hour laws, privacy laws, workplace safety laws, tax 
laws, environmental laws and, of course, labor laws, too. They 
struggle to decipher these overlapping and sometimes even 
conflicting Federal, State and local laws.
    And again, the problem is compounded by the fact that small 
businesses rarely employ a dedicated HR labor professional or 
other compliance staff. Today I will discuss how DOL's 
persuader rule and NLRB's poster rule will impact small 
business. In my written testimony, I have explained in greater 
detail how these rules and other changes by DOL and NLRB will 
affect small business.
    Imagine for a moment a man named Randy. He is a plumber in 
Illinois who worked for himself for years before deciding to 
hire a few assistants to cover growing demand. Randy served as 
CEO, president, treasurer, HRVP, CFO, frontline supervisor of 
his company, all while working as a plumber on a daily basis. 
One day Randy gets approached by someone identifying himself as 
a representative from the local plumbers union. He tells Randy 
that three of Randy's four plumbers want to be represented by a 
union. Randy doesn't know much about unions, but he knows he 
doesn't want a union representing the four plumbers he employs 
and works with hand in hand on a daily basis. Should he talk 
with the employees? What can he ask them? What can he tell 
them? What does Randy do?
    Well, today Randy might call NFIB, where I direct him to 
call an experienced labor attorney ASAP. The attorney then 
becomes a business partner, helping Randy's business through 
the maze that is today's field of labor law. It is this 
partnership that is at grave risk due to DOL's proposed 
persuader rule.
    Under the new persuader rule, all actions, comments or 
communications that could have a direct or indirect object to 
persuade employees would be reportable to DOL. This includes 
virtually everything that a labor attorney would do for his 
clients, whether or not there is union-organizing activity 
going on. The net result of the new proposed rule will be that 
lawyers and law firms may no longer be willing to offer advice 
to employers about labor matters. We fear that this proposal 
will limit small employers' access to counsel on most aspects 
of labor law, an area where legal advice is sorely needed.
    NLRB's recent actions will also greatly impact small 
businesses. In August, NLRB ordered small businesses to display 
a poster instructing workers on how to form unions. It did so 
despite the fact that the law creating the NLRB gives it no 
such authority. The notice-posting rule, which will become 
effective on November 14th, imposes an unfair labor practice on 
any employer that fails to post the notice.
    On September 30th, NFIB filed a lawsuit challenging NLRB's 
intrusion in the workplace. We have asked the court to overturn 
the rule and declare that NLRB lacks statutory authority to 
require such a posting by 6 million private sector employers.
    NFIB's members are honorable and fair employers, and I do 
believe they have warm relationships with their employees, but 
they are troubled, confused and scared by the avalanche of 
labor regulations and rules coming out of DOL and NLRB.
    Why should anyone care how these government entities treat 
small businesses? This question can be answered in one word. 
Jobs. Jobs are what Americans want and need. And most jobs in 
America are created by small businesses. This tidal wave of new 
rules will do nothing but crush small businesses and further 
prolong America's economic woes. Thank you very much.
    [The statement of Ms. Milito follows on page 36.]
    Chairman Graves. Thanks, Ms. Milito.
    Next we are going to have Mike Mittler, who is the co-owner 
of Mittler Brothers Machine and Tool located in Wright City, 
Missouri. The company manufactures tools commonly used in auto 
racing and the aviation industry. Mr. Mittler started his 
business 30 years ago with his brother Paul, and it remains a 
family-run business.
    Mr. Mittler, thanks for being here. I appreciate you coming 
in.

                   STATEMENT OF MIKE MITTLER

    Mr. Mittler. Thank you, Chairman Graves and Ranking Member 
Velazquez, members of the committee. Thank you for the 
opportunity to testify today.
    My name is, as you said, Mike Mittler, president and 
cofounder of Mittler Brothers Machine and Tool. We are located 
in Wright City, Missouri. My brother and I found the company in 
1980 in a 2,500 square foot wreck of a rented building with 
just Paul and I as the only employees to start with. We started 
with an idea and a commitment to hard work, and now 30 years 
later, we have 60 employees and a diversified business, 
including a product line of metal fabricating tools serving the 
auto racing, hot rodding and aviation market.
    Our job shop customers are leading companies in their 
industry, including building products, energy, automotive and 
industrial lasers. We have a mix of both senior and junior 
employees, including my brother Paul's daughter, our second 
generation working in our plant. Our average tenure is over 10 
years, including nine employees with over 20 years of service. 
We have two other sets of brothers and one husband-and-wife 
team working for us, making us very much a family operation.
    There are only three very simple rules at Mittler Brothers: 
Safety, quality, productivity--no exceptions. We are proud to 
have over a 5-year record of no lost-time accident in our 
plant, which exemplifies our commitment to safety. In 30 years 
of business, we continue to meet and exceed Federal workplace 
standards.
    We do this, not because we are forced by Federal 
regulators, but because as a small business, our employees are 
our family, and it is just the right thing to do. Just like the 
millions of small business owners like us, we know that a safe 
and happy work environment leads to a productive and profitable 
company.
    In the past 31 years, OSHA has come into our shop twice on 
campaigns aimed at our industry. Both times, when minor 
infractions were found, we immediately took steps to correct 
those and work with the agency inspector to ensure full 
compliance.
    Historically, manufacturing businesses in our industries 
maintain a good working relationship with inspectors and 
regulators with OSHA, the NLRB, the EPA and others. Our trade 
industry group, such as the National Tooling and Machining 
Association, which I chaired in 2006, worked for years with 
various agencies to help set and monitor the industry safety 
standards.
    However, over the past few years, we have noticed a 
significant shift in the way Federal regulators approach their 
relationship with manufacturers. It feels like we have moved 
from an environment of cooperation to one where agencies have a 
gotcha attitude. In the past an inspector would visit your shop 
and work with us to correct any unintended violations. Today, 
they fine you first and take no questions later.
    In the past several months, the NLRB issued a string of 
decisions and complaints with broad implications for employer-
employee relationship. For example, the decision against Boeing 
company, as the chairman noted, has the Federal Government 
targeting a private business to choose for increasing 
manufacturing employment and production at one of their 
facilities. How does that look when we are trying to strengthen 
manufacturing in America so we, small suppliers, can still have 
customers?
    Recently, the NLRB expanded a requirement mandating that 
all private employers must place a poster in their businesses 
notifying employees of their rights under the NLRA to join a 
union. It continues to astound me when the government takes the 
approach that the only way to a better, safer and happier work 
environment is to join a union. For small business, it is quite 
the opposite. Employees have the freedom and flexibility to be 
partners with the owners and to get the job done right and get 
it done fast.
    Add the poster rule to the new quick election process the 
NLRB is imposing and you begin to create a more hostile work 
environment, where employees and employers no longer feel they 
can openly communicate.
    In addition to the direct impact the NLRB has on my 
company, it is a greater impact to my customers. If those 
larger manufacturers for whom my employees make parts close 
their doors due to a hostile environment for manufacturing 
companies, all of the families at Mittler Brothers will suffer.
    We were hopeful that the administration was taking a new 
approach to regulations when the President, in January of 2011, 
issued an executive order requiring all agencies to conduct a 
full review of the impact and effectiveness of new regulations. 
Since then, the administration has withdrawn new regulations 
from OSHA requiring businesses to implement new noise-
cancelling equipment, yet they were feasible of capable of 
being done regardless of their effectiveness. They put on hold 
new EPA regulations.
    There may yet be some signs that Washington might revert to 
a culture of cooperation with employers.
    Unfortunately, it seems the NLRB missed the President's 
memo. I came to Washington today because I want to fight for my 
employees and my company. I came here today because I thought 
it was important that policymakers in Washington understand how 
small businesses work and the excellent relationship we have 
with our employees. We are local small businesses who seek 
local solutions in a community where we often have multiple 
generations working at the same manufacturing plant.
    At a time when manufacturing is leading the way for our 
economic recovery, we need Washington to make us more globally 
competitive, to promote a positive workplace and to strengthen 
manufacturing in America. The latest actions by the NLRB do the 
opposite and will create animosity in the workplace without 
helping those we seek to support, our employees.
    Thank you for the opportunity to present testimony today. I 
look forward to continuing to work with this committee as I 
have in the past on issues from supporting automotive suppliers 
and workforce training to the regulatory burden on small 
business. Thank you.
    [The statement of Mr. Mittler follows on page 50.]
    Chairman Graves. Thank you, Mr. Mittler.
    Our next witness is going to be Beverly McCauley.
    Ms. McCauley is president of Hunt Country Masonry located 
in Leesburg, Virginia. She started her business with her 
husband in 2006 as a side business to support a growing family. 
But due to the economy, it has now become her full-time 
profession. So welcome.

                 STATEMENT OF BEVERLY McCAULEY

    Ms. McCauley. Thank you all for inviting us here today. It 
is important that you hear from all sides. So, again, my name 
is Beverly McCauley. And I am a co-chair also of the 
Legislative Committee of the Mason Contractors Association of 
America. I come before you with 22 years of experience in small 
business.
    As a small business, we already have enough uncertainty 
with taxes and laws. And the changes that are being proposed 
and enacted by the NLRB and the DOL, I feel compelled to share 
from a small business standpoint what caveats these cause.
    These changes are first being instituted at a point in 
history when unemployment is rampant. Case in point: In 1935, 
the Wagner Act was passed. And in 1937, the Supreme Court 
upheld the decision. The result, a depression within a 
depression. When efficiency and profitability are removed from 
the equation and when everyone is rewarded equally regardless 
of productivity and skill, then productivity and skill diminish 
and the result is decreased profitability and increased 
unemployment.
    This act influenced the culture into the 1950s, until the 
Right to Work prohibiting forced union membership arose. With 
the Right to Work, a not-so-surprising result: Profitability 
increased and so did jobs. For you see, when you make everyone 
stand on their own merit and make everyone responsible for 
their own destiny, an amazing thing happens; people begin to 
take ownership for their destiny.
    The hardest workers were paid based on their productivity, 
and the less productive workers earned less based on their 
performance. But they still had a job. So the end result, you 
pay less if someone works less, therefore reducing unemployment 
and increasing profitability and increasing the jobs available.
    Congress knew where this was headed and refused to pass the 
Employee Free Choice Act. Congress realized that sweeping 
changes had the potential to transform what could be a recovery 
into the next great depression and exponential unemployment. At 
this point, it is not a far stretch to picture us headed in 
that direction.
    The Employee Free Choice Act is being touted as the best 
scenario for all involved. It eliminates secret ballots. We get 
the same right when we vote for any of you located in this 
room, the right to vote in private. If we change the system to 
open voting with no secret ballots, the meek may be influenced 
out of fear. It seems imperative to me that we continue to have 
the right to vote in private. We fight for this right every day 
in the name of democracy, the right to vote in private. Yet in 
our own country, we are going to deny someone that same right?
    At the same time, the employer, prior to all of this, does 
not have the right to express the down sides or even set the 
record straight without fear of retribution. I am sorry I don't 
feel like jobs should be sacrificed for political paybacks to 
ensure future political support.
    That brings me to the next point. Unions don't let you know 
that you have the right to say no to union dues associated with 
a political agenda. It seems like the reason behind the 
Employee Free Choice Act is to elicit a fear of the unknown in 
already uncertain times. The NLRB would have you believe they 
are the big brother looking out for the younger sibling, when 
in fact it is big government attempting to collect dues to pay 
off and support more like-minded people to fund the agenda that 
employees need someone to take their money and redirect it in 
the right ways and call it union dues. That makes me really 
want to work harder, or does it make everyone want to work to 
the level of the employee that is skating by and earns the same 
amount of money?
    They want to exacerbate the problem by allowing micro 
unions and gerrymandering with the same company. So one group 
in the company can be unionized into one group, another into 
another group and so on. You could have one machinist working 
side by side each in a separate union.
    Furthermore, the NLRB and Department of Labor have a 
proposal that will require all employers to release to unions 
any and all contact information they have on each employee, 
post on sites detailed notices outlining how to organize, 
giving contacts for the NLRB, but no where is it posted whom to 
call if you are harassed, lied to or coerced. So we have an 
organization that wants the rights to all of our information, 
but you have no recourse to stop them from calling and no way 
to vote privately, essentially making it impossible to stand up 
for most people.
    I am not most people. My husband and I are raising five 
children. I am co-chair of a legislative committee. I am also 
president of a small business. I am not afraid. But what does 
frighten me is that they have the right to destroy our great 
Nation. This will cause double-digit unemployment.
    How does that all affect us? Less money for the Federal 
Government because no taxes are being paid, which exacerbates 
the deficit, which causes us to have further arguments over 
budget cuts, less taxes paid, more programs are cut, more 
people lose their homes. As you can see, we are faced with a 
slippery slope that only gets slicker the more power they 
elicit.
    Congress was right when they refused to pass the Employee 
Free Choice Act. However, the NLRB and DOL are essentially 
leaving Congress and the American people out of the loop and 
taking employees' ability to make informed decisions out of 
their hands as well.
    Without every able-bodied American working that is able to 
work, we cannot recover from our debt. In order for everyone to 
have a job, we must have a community that believes that 
everyone should be paid based on their merit. That is why we 
are a free society.
    Unions had their place decades ago to make for better 
working environments for employees. Times have changed, and 
unyielding power is not the answer. So if we want to get this 
country rolling and out of our trillions and trillions of 
dollars of deficit, everyone needs to work and be paid for the 
work they do at the level they perform.
    Thank you. And I really appreciate your time to let 
America's voices be heard for this is truly a great Nation. Let 
us get the ball rolling and get on the right track. Thank you.
    [The statement of Ms. McCauley follows on page 55.]
    Ms. Velazquez. Now it is my pleasure to introduce our next 
witness, Mr. Allen William West, Jr., founder, president of the 
West Sheet Metal Company located in Sterling, Virginia.
    After serving in the United States Army and learning his 
trade in a certified apprenticeship program, Mr. West went on 
to found his company in 1983. The West Metal Company installs 
and fabricates heating, ventilation and air conditioning units 
for high-profile clients, such as Lockheed Martin.
    Mr. West's small business currently employs 46 workers.
    Welcome, sir.

              STATEMENT OF ALLEN WILLIAM WEST, JR.

    Mr. West. Thank you.
    Chairman Graves, Ranking Member Velazquez and members of 
the committee, thank you for your invitation to appear before 
you today. My name is Allen West, but I am known as Willy to my 
family, friends and business associates.
    I am the owner and founder of West Sheet Metal Company 
located in Sterling, Virginia. My company currently employs 45 
sheet metal workers and office staff combined, but I have 
employed as many as 70 sheet metal workers. My company 
installs, fabricates heating, ventilation and air conditioning 
duct systems, and we do work for high-profile clients, such as 
Lockheed Martin and Howard Hughes Medical Institute.
    I started the company in 1983, but I learned my trade in a 
certified apprentice program operated by the Sheet Metal 
Workers International Association, Local 102. It is now Local 
100, which represents the sheet metal workers in Virginia, 
Maryland, and the District of Columbia. I started the 
apprentice program for the Sheet Metal Workers International 
Local Union 102 in 1968. Then I left to serve in the United 
States Army. Following my discharge as a Specialist Fourth 
class and being awarded the Army Commendation Medal, I resumed 
my apprentice training. After I completed my 4-year program, I 
became a journeyman and started work for Wilco Sheet Metal in 
Rockville, Maryland, from 1973 to 1983. I left Wilco to start 
my own business in 1983.
    From the beginning, I wanted to provide good-paying jobs, 
solid jobs for sheet metal workers, and I wanted to employ 
well-trained and well-skilled sheet metal workers. So I entered 
into a signed agreement with Sheet Metal Workers International 
Local Union 100, which of course was formally Local 102. I view 
my workers as an integral part of my business and an important 
asset in its success. I wanted to partner with them through 
their union, and a collective bargaining agreement helps me do 
that. The theme of the contractor and union partnership is, 
together we do it better. And I know that to be the truth.
    As a signatory to the agreement, I use the local union's 
hiring hall. When I need workers, I call the hiring hall and 
describe my needs. They refer skilled, trained workers. I know 
that these workers have undergone a rigorous and thorough 
training program through the apprentice school that the local 
union operates. And I have confidence in their abilities.
    In addition to the Local Union Joint Apprentice Committee, 
there is a national organization, the International Training 
Institute, that sets all the training standards for sheet metal 
workers and also establishes curricula and programs for 
apprentices and journeymen to upgrade their skills. This 
training is free and is offered on evenings and Saturdays. This 
training program ensures that training is consistent all across 
the country so that whenever I have a project, I have access to 
skilled and trained workers.
    I also want to make sure the jobs I am creating and 
providing are good jobs that can support a family and help 
workers be successful. Through the union contract, my workers 
participate in a health care plan and a pension plan. And 
making contributions to these plans and by combining with other 
union contractors, we are able to achieve a high level of 
benefits with cost savings.
    In addition, I do not have to hire people to administer the 
plans, deal with such issues as health insurance or retirement 
programs. The International Union also sponsors the National 
Energy Management Institute, that sets standards for energy 
efficiency and air quality and looks at new markets and the 
training required for sheet metal workers to develop the skills 
needed for these new markets.
    For example, I know that welding has remained in demand 
during this time of high unemployment, and sheet metal workers 
are able to access training to be ready for these jobs.
    The Sheet Metal Workers Occupational Health Institute sets 
standards for OSHA compliance and provides worker training. 
This in turn lowers my insurance costs, and my workers learn to 
work safer and enjoy better working conditions.
    These institutes and training facilities, health and 
retirement plans are all administrated by joint committees of 
union and company representatives. They help both contractors 
and workers. All the funds used to provide this training and 
these benefits and other assistance come from contributions by 
the parties to the contract and no government money is used at 
all. All of these programs are the result of private 
agreements.
    What I have described in my testimony is all accomplished 
within the framework of the National Labor Relations Act. I do 
not have a lot of personal experience with the National Labor 
Relations Board, but I know that it governs the relationship 
between my workers, my company and their union and allows us to 
accomplish these important goals so that I can concentrate on 
my business and create and provide good jobs in the community.
    I have reviewed some of the recent decisions and proposed 
rules by the National Labor Relations Board and Department of 
Labor, and I do not see how they disadvantage small businesses. 
They do not affect the framework in which I operate my business 
and will not affect my business or my relationship with my 
workers or the companies I do business with.
    These seemingly minor changes certainly do not create any 
uncertainty for me, and they will not affect my ability to 
create jobs. In fact, if the NLRB streamlines its election 
process, it seems to me that this will reduce turmoil in the 
workplace and be helpful to businesses, especially small 
businesses.
    What I need for my company to survive is more work, and 
that means more consumers and more buyers. These recent changes 
by the NLRB and Department of Labor do not affect that in any 
detrimental way.
    In closing, I wish to emphasize that I view my workers and 
their union as a significant driver in my success as a small 
business owner. We are all working together to be successful. 
Thank you for this opportunity to talk to you about my business 
and my relationship with my workers and their union.
    [The statement of Mr. Allen William West follows on page 
57.]
    Chairman Graves. Thank you, Mr. West.
    We are now turning to--I am going to open up with 
Congressman West from Florida.
    Mr. West of Florida. Thank you, Mr. Chairman and Ms. 
Ranking Member, for scouring the earth and finding another 
Allen West to be up here in Capitol Hill with me. We have to 
talk about whether or not your daddy was ever down in Georgia.
    Mr. West. I am a native Virginian. So we are probably----
    Mr. West of Florida. Okay. We probably are. Which side did 
your father fight for?
    Thank you so much for the panel for being here. And this is 
very appropriate. Because last week when I was back in the 
district, I talked to our small business advisory committee and 
also the Broward County Small Business Advisory Council. And 
this thing about labor law was something that they brought up. 
And two points that I want to bring up. One was about project 
labor agreements and the effect that they are having as far as 
small businesses who want to come in as subcontractors and then 
also some issues about labor law with some of the rights of 
employees who have been terminated or for whatever reason quit 
and they are bringing lawsuits back against some of these 
businesses.
    So I think it is very important we talk about labor laws 
and the Department of Labor and their impacts on small 
businesses, who cannot afford to spend a lot of their time and 
resources with some of these frivolous lawsuits.
    But I think the real question here is not really about the 
benefit of unions. But the question really has to be about, is 
there an agenda out there that is being promoted that would 
seek to take away the choice and the option that an employer 
has as far as whether they want to have the unions to come in. 
And also I think it is about that influence being expanded.
    So what I always like to do is look at trends. And so my 
question to the members of the panel here is, have you seen 
trends here within the last year, 2 years, 3 to 5 years or 
whatever, of an NLRB and the Department of Labor that has 
become maybe less of a nonpartisan or a non-arbiter but is more 
so now promoting an agenda that you feel may be contrary to 
your advancement of your small businesses and maybe you can 
talk about some other relationships with other small business 
owners that you have talked to this about?
    Ms. Milito. I will go first if that is okay. I mean, I 
would certainly say from the members I hear from, that they 
would agree that--that they would say that there has certainly 
been--they have seen a trend with the NLRB and DOL not being 
impartial. Certainly, the NLRB, the intent for over 50 years, 
it was seen as an impartial arbiter between employers and 
employees when it came to labor disputes. In the last few 
years, it certainly has not been that, or the cases that we 
have seen and the proposed rules and now the final rule for the 
posting rule, too, have, I would say, definitely been pro-
union.
    And if you go to the National Labor Relations Act, I mean, 
the intent is to arbitrate disputes between employees and 
employers. Unions are not in there. It is the employers and the 
employees that we want to arbitrate the disputes between. Our 
members for the most part do see their employees as an 
extension of their family. And they want to maintain the direct 
and open communication with the employees. And they really feel 
that to be the best business they can, to stay competitive, it 
is best for them to have the direct and open communication with 
their employees without a third party present. Thank you.
    Mr. Mittler. Yes. When you look at the poster as we have 
been instructed to post in about 6 weeks, it is 11 by 17 in 
size. And there is only one line on there that says--it has all 
the things that you can do for union representation and all 
that, and it only has one line that says, or you may elect to 
do nothing. So it seems if you look at that amount of square 
inches that we are going to post in our legal posting area, 
that we only have a very--one line that says-- it still has not 
been determined then what communication we can post that says 
to our employees, hey, we want to continue like we have for 
almost 32 years; we want to continue that open dialogue; we 
want to treat you as family; we want to be able to resolve 
issues that have come up, whether they be pay, whether they be 
benefits, whether they be anything that comes up. So it appears 
that with the failure of the card check bill, that this was 
another way to then impose a stronger union workforce in small 
businesses.
    Ms. McCauley. I am going to have to agree. Sorry to not 
break rank or anything like that.
    I find that when dealing with the NLRB, it seems like every 
aspect of it is all pro-union. They aren't looking at the 
larger picture. It is all about their rights. They have the 
right to get all of your information on all of your employees. 
Your employees don't have that right to opt out.
    Some people have posted and unlisted numbers for a reason. 
They are hiding from someone they don't want to find them, ex-
spouses, and for any other number of legitimate reasons. And if 
the NLRB has the right to each and every person's contact and 
they want Internet contact as well as home phone numbers and 
home addresses, where is our privacy at? Why do we have to 
release that without consulting our employees first?
    And I think once that gets out and once you have all of 
your employees, it is free game for harassment. There is enough 
people that call my house on any given night asking for 
something anyway. I don't need it to be that as well.
    In addition, I don't think small businesses get a very good 
rap. The last company I was with, I was there for 20 years. I 
instituted, co-wrote--well, I solely wrote the apprenticeship 
standards and had laborers trained in bricklayer positions. No 
one required me to do that, but it was good business sense for 
the employees and good business sense for profitability. If I 
train people the way I want them trained, they are going to 
work to my standards.
    I don't think the union does that any better than anybody 
else can. I think everybody takes an initiative for 
profitability. And I think when you take that right and that 
dignity out of an employer's hands, then you are drastically 
influencing unemployment. Thank you.
    Mr. West. First, I would like to say I think of my 
employees as a family, too, and most of them have been with me 
for 20-some years.
    I do not think that these NLRB rules are anything 
exceptional. What I have read, most of it is reinstating rules 
that have been in place previously.
    I also do not think that the issue of posting their name 
and address--that was always--has been a rule. You have always 
had to give out employees' names and addresses. The only 
addition to that is the email and the phone number, if I am 
correct on that. And I will tell you, if you have a person's 
name and address, you can get all the rest of it. So I don't 
think that is a privacy issue.
    As far as the poster, posting workers' rights, in my 
lunchroom right now, there is a big bulletin board, and on it 
we have OSHA posters, we have the posters from our insurance 
company for work safety, we have the unemployment rules and 
regulations. This is just another poster. So I don't really see 
a big issue with that. I mean, posting what people's legal 
rights are does not seem to be anything terrible to me. So that 
is my feeling on it.
    Mr. West of Florida. Thank you, Mr. Chairman, Ranking 
Member.
    I yield back.
    Chairman Graves. Ms. Velazquez.
    Ms. Velazquez. Thank you, Mr. Chairman.
    Mr. West, are you concerned that recent NLRB decisions and 
the proposed rule will impede in any way your business 
activities if your employees opted to enter into a new 
collective bargaining agreement?
    Mr. West. I don't really think so because I have been a 
signatory with the union for several years. And every 3 years 
to 5 years, we have a contract agreement, and we have to go 
through negotiations for that. And I would assume the process 
would be very similar. And I don't see where it would be 
disruptive.
    Ms. Velazquez. A statement that we hear constantly in the 
Capitol and at Budget Committee hearings regarding the Federal 
Government agencies is that they need to do more with less and 
that we all have to do more with less given the budgetary 
constraints that we are facing. So the board's new rules would 
allow elections to go forward and leave parties to mitigate 
afterwards. Don't rules that streamline the agency's processes 
and avoid duplicative litigation serve employers, employees and 
government interests?
    Mr. West. I would certainly think so. Anything we do in 
business, if we are implementing a move or buying new 
equipment, we try to do as fast as we can, keep things not--not 
disrupt our operation. So I would think that streamlining the 
process certainly would be an advantage, not a disadvantage.
    Ms. Velazquez. Thank you.
    Ms. Milito, the NLRB has recently issued decisions to have 
been unanimous, split on party lines and sometimes split not on 
party lines. Further, several recent cases have gone against 
union interests. For example, in Mezonos Maven Bakery, the 
board found that it lacks the authority to award backpay to 
undocumented immigrant workers whose rights have been violated. 
Hasn't the board issued decisions that go against both unions 
and against employers, and doesn't this indicate the 
independence of the board?
    Ms. Milito. There certainly have been decisions that have 
been in favor--they have found in favor of the employer. But I 
would point to three big decisions that came out in August 
because they were really monumental and just really trampled on 
employers' rights. And I think they overshadow, truthfully, 
other decisions that have been issued by the board this year. 
In the course of one afternoon, the board restricted workers' 
rights to the secret ballot election, they undermined the 
employer's ability to maintain unity in the workplace, and they 
created new barriers for those who wish to challenge union 
representation. In essence, they were doing what some of the 
panelists talked about today; they were bringing in what is 
almost the Employee Free Choice Act by reversing board 
precedent.
    So I would say that these three decisions alone really 
overshadow any other decisions issued by the board this past 
year that may have been seen as pro employer.
    Ms. Velazquez. But the fact that they issued three 
decisions, based on the fact that they have taken other 
decisions that benefit workers and benefit employers, it shows 
that the board is going to make the decisions based on the 
facts and the rules and the regulations, based on the law. So 
that doesn't mean that it is supporting one against the other. 
It is based on the facts that they have at hand.
    I would like to ask you. You state in your testimony that 
the NLRB Lamons Gasket decision overturning Dana Corporation 
took away your right to a secret ballot election. However, a 
small business will still have the right to file a 
decertification petition. Isn't that the case?
    Ms. Milito. That certainly is the case, Ranking Member 
Velazquez. But they must wait 6 months now at a minimum.
    Ms. Velazquez. Well, you stated that it takes away your 
right to a secret ballot election, and that is misleading. It 
is not based on the fact.
    Ms. Milito. I would say it is an unprecedented setback.
    Ms. Velazquez. Thank you, Mr. Chairman.
    Chairman Graves. Mr. Hanna.
    Mr. Hanna. Thank you, Mr. Chairman.
    Mr. West and the panel in general, I don't think there is 
anyone here who is saying unions are bad. I don't think there 
is anybody who would argue--I ran a union shop for almost 30 
years. I have been a union member for 25. It is not about 
whether unions are good or bad or what they provide for 
employees or don't. Certainly they played a huge role in the 
advancement of workers throughout our history. Everyone here 
knows that.
    You are already a union shop. I would suggest that most of 
the testimony that you gave today is relatively moot because 
you are not affected by any of the rules since you already are 
a union shop.
    This affects people who--and employees too who do not--who 
take fundamental exception to what the Geneva Convention 
guarantees prisoners of war to have, and that is a secret 
ballot, unless I am mistaken. It is about intimidation. It is 
about unions trying to do somehow through rules and regulations 
what they have not been as successful through Congress to do, 
and that is the Employee Free Choice Act.
    It is not a matter at all whether unions are good or bad. 
My personal opinion is they are both good and bad. I had 
wonderful, wonderful employees. My union employees were the 
best in the world. None of that is the point. The point is, 
does the NLRB have the right to set up rules and regulations 
which fundamentally change the nature and the negotiating 
capacity of the businesses at question? And I would suggest to 
you that that is what they are doing and that this is the--the 
preponderance of evidence is that this is an overreach on their 
part to try to reenforce people's ability to be unionized, even 
if they don't want to be. Because when someone can look over 
your shoulder and tell you or see how you vote or know how you 
vote in an open ballot, that can cause intimidation. And I for 
one think if people want to be unionized, they should 
absolutely be able to do that. And I wanted to ask just people 
in general if they feel that is a fair description, first of 
all.
    Secondly, in a world market where we are competing 
globally, the nature of products that we have to produce, like 
you do, Mr. Mittler, world class products, the value-added 
nature of those should allow people to maintain a higher 
standard of living, I would imagine. And more skilled employees 
can demand more money. But the world is changing, and these are 
difficult times. And I understand people's deep desire to raise 
their wages and benefits, and I applaud them for that and would 
love to be a part of that. I just don't see how something like 
card check advances union causes or how telling Boeing where 
they can locate a company when they haven't laid anybody off in 
their own State, how that advances the country at large or 
promotes jobs. So I apologize for this diatribe.
    But, Ms. Milito, what do you think?
    Ms. Milito. I mean, I do generally agree with you. I mean, 
I think the NLRB in particular--I mean, it has been a gross, 
gross overreach of power. And, in fact, I would argue that some 
of their actions of late are--go so far as to be 
unconstitutional. They are trampling on employers First 
Amendment--or free speech rights, rather, which I believe 
certainly the poster rule does. I mean, and even DOL's rule 
that is now going to require the reporting of really any legal 
advice received related to labor relations is just going to 
curtail employers' First Amendment rights of free speech, which 
are set forth explicitly in the National Labor Relations Act. 
And I think that is very problematic that employers' rights 
under Section 8(c) are going to be trampled on and diminished 
by these rules. And it is very problematic.
    Mr. Mittler. I was raised in a very simple manner. And I 
was taught by my father that an honest day's pay for an honest 
day's work. And I clearly believe in the productivity of the 
employee. And my employees that are more productive receive 
more pay. And I think that is the way it should be. Those that 
can help produce more in our three simple rules, safety, 
quality, productivity, our most productive employees are going 
to receive the highest pay. So I agree with it.
    I am not saying that unions are bad. I am not suggesting 
that. I certainly think the right to a secret ballot is 
absolutely something that has made this country great for well 
over 200 years. And I don't think there is any disagreement 
that we want to keep and maintain the secret ballot as was 
already stated. Each of you was elected with a secret ballot. 
And if any of us ever chose to run for elected office, we would 
want to be elected by a secret ballot.
    So I agree with you completely, Mr. Hanna.
    Mr. Hanna. I think, too, people should have the choice not 
to join a union. And that should be just as free and easy as 
those people who chose to join a union.
    Mr. Mittler. That is exactly what I am suggesting in my 
testimony.
    Mr. Hanna. My time is up.
    Thank you, Mr. Chairman.
    Chairman Graves. Ms. Chu.
    Ms. Chu. Thank you, Mr. Chair.
    Mr. West, as a small business owner, you are being asked to 
comply with these posting requirements. In fact, I would like 
to focus on that aspect of these rules. The posting, of course, 
requires that these be available to be seen by all the workers. 
And I have noticed that these can be downloaded for free, and 
it is available from the National Labor Relations Board for 
free. How costly is this for your business to be able to post 
these kinds of signs?
    Mr. West. Well, I wouldn't think you would have to post too 
many. You have a free download. Even if you didn't have a big 
copier, you could go to Kinkos or FedEx, and they probably make 
them for about 2 bucks a piece. So I don't think it is a 
monetary issue at all to post the poster.
    I guess you may not want to post the poster if you didn't 
want everyone to know their rights, but I don't think it is a 
monetary issue at all.
    Ms. Chu. How intrusive is it to your business to post it?
    Mr. West. I already post posters from the unemployment 
agency, for the State of Virginia, several other State acts. I 
post OSHA safety posters. I also post injury-reporting posters. 
So I already have a big bulletin board in my lunchroom, and it 
would just be adding another poster. So it wouldn't be any 
impact at all.
    Ms. Chu. Ms. Milito, I see that you, of course, object to 
the poster with regard to the union-organizing rights, but you 
also object to the posters on minimum wage and the posters on 
OSHA. And I do have the poster on OSHA. And it has such 
information to the employees, like you have the right to notify 
your employer or OSHA about workplace hazards, or you have the 
right to request an OSHA inspection if you believe these are 
unsafe and unhealthful conditions in your workplace. Do you 
object to that?
    Ms. Milito. I don't think I said anywhere in my testimony 
that I objected to minimum wage or OSHA posters. I was talking 
about the complexity of complying with the laws.
    As far as the NLRB poster, our argument has been NFIB's, 
and this is made in our lawsuit too, the NLRB does not have 
authority under the National Labor Relations Act to require 
employers to make such a posting. OSHA is given such authority. 
The Department of Labor wage and hour is given such authority. 
EEOC has statutory authority to require such poster. The NLRB 
has not been given such statutory authority. It is a violation 
of the Administrative Procedure Act.
    Ms. Chu. That is very interesting. In 1949, actually, the 
Department of Labor issued a rule requiring a notice posting of 
employee rights under the Fair Labor Standards Act and this 
authority in the rulemaking authority that the NLRB has granted 
allows for the posting of notices required under many Federal 
labor laws and have done so since 1949. So there actually is a 
precedent.
    Actually, I would like to keep on going because I actually 
read also in your testimony that you also target wage-hour 
posters. So we do have this on the record as well because I 
read your testimony very carefully. And it basically implied 
that it is burdensome and costly for workers to be informed by 
this poster. This is the minimum wage poster. And it says that 
the Federal minimum wage is $7.25 an hour and that youth 14 or 
15 years old may not work more than 3 hours a day on a school 
day. Do you object to that?
    Ms. Milito. Yes, I do. And I have my written testimony in 
front of me today, and I talk nothing about posters. I state 
today small business centers contend with anti-discrimination 
laws, family, medical and other protective leave laws, wage/
hour laws, privacy laws, workplace safety laws and labor laws. 
I say nothing in that sentence about posters. I think you have 
mischaracterized my written testimony. And I apologize if you 
have it and it wasn't clear. But I am not objecting to the 
posters from wage and hour or OSHA.
    Ms. Chu. In fact, I am curious how much you think it costs 
to make these posters for employers.
    Ms. Milito. In our lawsuit, we are focusing on the 
Administrative Procedure Act violation and the potential First 
Amendment violation of the forced speech on behalf of 
employers.
    Ms. Chu. Well, I would like to make it clear that these 
posters are downloadable and that they are free from the NLRB.
    And I guess my main question is how will workers know about 
these rights if these posters aren't available?
    Ms. Milito. Well, our argument has been that the NLRA--the 
law needs to provide the NLRB with authority to post the 
posters. And right now the board does not have authority. It 
would be impendent on Congress to provide the board with 
authority to require such posters. And certainly that absent 
such posters, there is nothing that prohibits unions from 
informing other employees and talking amongst themselves about 
union rights and the rights to organize and engage in concerted 
activity.
    Ms. Chu. In other words, they wouldn't know about their 
rights?
    Ms. Milito. I wouldn't say they wouldn't know.
    Ms. Chu. Thank you. I yield back.
    Chairman Graves. Mr. Barletta.
    Mr. Barletta. Thank you, Mr. Chairman.
    Ms. McCauley, the NLRB has tried to downplay these proposed 
rule changes by saying that very few small entities would be 
impacted by them. Do you agree with that statement?
    Ms. McCauley. No, sir, I do not. I think that each and 
every one of us--when you yield and you give way to one thing, 
it becomes a very slippery slope where everything can follow 
quickly thereafter. It is just a foot in the door to get the 
ball rolling. And then, after that, then you have to deal with 
the circumstances.
    Mr. Barletta. As you stated a little earlier, that the NLRB 
recently finalized a new rule that will require all employers 
covered by the National Labor Relations Act to post a notice in 
their workplace notifying their employees of their rights to 
unionize, does the board have the authority to require that 
these notices be posted?
    Ms. McCauley. Not in my opinion do they. I think they 
have--just like Ms. Milito has said, they haven't been given 
that authority to post those things. And you don't have both 
sides adhered to at that point. You are giving one side full 
reign and the other side no ability whatsoever to react or have 
a compensation talk with your employees. Because the minute you 
send something or you say something, then it is always judged 
and then you have issues. I have spent many classes on how to 
make sure your employees are happy, make sure they are 
productive. And I think the union--you are always going to have 
people that work harder because it is their destiny to work 
harder. They were raised in a certain way that it is important 
and imperative to them to be a profitable person in the 
economy. And you have other people that are just going to get 
by. I have four boys. I cannot tell you the difference between 
each and every one of them, but I know which ones are my 
slackers and which ones are just going to do it right. So there 
is that same thing in the economy and in every step we take. 
And I think if we put everybody in a category that says, you do 
this job, you are going to earn this wage; you do this job, you 
are going to earn that wage, I think it takes out the incentive 
to be the better person, to really strive to be as good as you 
can be.
    Mr. Barletta. And could you explain for those that may not 
understand how this poster rule requirement could impact our 
country's small businesses?
    Ms. McCauley. From my personal standpoint, you are giving 
them all of the information that says you can unionize, here is 
all the people you can call if you are not happy, here is all 
the things you can do if you would like to be a union. But it 
never lets your employer say, hey, listen, let us step back and 
look at all the things I am doing for you, maybe I haven't 
touted that I have been paying 50 or 75 percent of your total 
health care bill all along, maybe I haven't told you that the 
unions really--pensions aren't really as strong as they would 
like you to believe. But your employer doesn't get that same 
right. The NLRB would have you believe that they have a firm 
hold on it, they have the ability to tell you how it is going 
to be and if you have any recourse whatsoever, they are going 
to put their thumb to you.
    And the fact that we are exponentially increasing the time 
in which it goes to vote and that there is going to be no 
secret ballot, you are always going to have weak people in this 
economy and you are always going to have the stronger and the 
more pervasive. The stronger and the more pervasive are going 
to hold down the weak. And if you don't have a private secret 
ballot--like when I elect any of my Congressmen, I don't want 
someone standing over my shoulder and judging me for the 
choices I have made. That is my democratic right here in this 
Nation.
    Mr. Barletta. Thank you.
    Ms. Milito, as you know, the proposed rule changes coming 
out of the NLRB seem to be anti-employer. Why do you think this 
board is particularly activist?
    Ms. Milito. If I could go back to your earlier question, 
too, I just want to add one thing to Ms. McCauley's response, 
too, and point out too that the impact on small businesses are 
that they are now, as of November 14th, could in fact be in 
jeopardy of having an unfair labor practice filed against them. 
And I think it is very likely the board itself said that in its 
final rule, that we fully expect that many businesses will not 
be in compliance because they won't know about the rule and, 
therefore, technically they have committed a ULP. So I just 
wanted to point that out. Why the board has taken this activist 
approach and really made the businesses out to be the bad guys, 
I do think somewhat--it is payback. Unions are declining. And 
right now the private sector is 7 percent or less than that. 
And it is a way I guess to try to up the roles, if you will. 
But I think it is unfortunate because it is coming at the 
expense of America's largest employer, small businesses.
    Mr. Barletta. Thank you, Mr. Chairman.
    Chairman Graves. Ms. Hahn. Sorry about that. Again, welcome 
to the committee.
    Ms. Hahn. Thank you, Chairman Graves, Ranking Member 
Velazquez. Thank you for welcoming me to this committee. I am 
actually very interested and really excited to be on the Small 
Business Committee because I think this is really becoming such 
a key focus for this Congress, and certainly it is a key focus 
for the American people.
    The statistics are out there. You all know them better than 
I do. Small businesses account for a huge part of our economy. 
They account for a huge part of hiring employees. We really 
believe--I know I do--that if small businesses, even the really 
small ones, would hire even one person, we know that we could 
really reduce the unemployment rate in this country. And we 
know that is the way to get our economy back up and running, is 
to get people back to work and to really support small 
businesses. And I hope what we do on this committee--and I know 
there has been some hard work already done--is really look at 
how we can support small businesses, how we can help them grow 
and help them hire.
    I will tell you, I feel it is a little frustrating to sit 
here--I feel like we are spending a lot of time on this poster. 
And I guess I would ask Ms. Milito, it sounds like you don't 
necessarily object to people knowing their rights, do you? I 
mean, what is wrong with employees knowing what their rights 
are?
    Ms. Milito. It is not a matter of knowing your rights. I 
mean, certainly there is a right to free speech. Unions have a 
right to talk with employees and engage--have employees engage 
in concerted activity. As I mentioned before, employers have an 
explicit right under the National Labor Relations Act to 
certainly express their opinion, too, about unions and 
factually how it will potentially impact their business.
    The poster--again, I cannot emphasize enough how far off 
the ranch the NLRB went with issuing this rule. It does not 
have statutory authority to issue such a rule. And in my mind, 
that is not a small thing.
    The poster itself is, yes, I agree troublesome. Mr. Mittler 
quoted from it very nicely there. I do think it is biased and 
certainly one-sided if you will.
    Ms. Hahn. But is it saying anything that is not an 
employee's right?
    Ms. Milito. No, it is not. But again, it is the way the 
board went about issuing a rule that it does not have authority 
to issue.
    Ms. Hahn. Is there anything in that poster that in any way 
is telling an employee something that is not their inherent 
right?
    Ms. Milito. No. But the board issuing the rule does not 
have authority to do and certainly the punitive measures that 
will go into place for not posting the poster are dramatic and 
very, very problematic. You have the tall end of the statute of 
limitations for the 6-month statute of limitations, which is 
indefinite, and you have an independent unfair labor practice. 
That is no small matter in my book.
    Again, these are businesses that do not have a human 
resource representative that is getting an alert from some 
human resource association out there. They are not going to 
know November 14th that they have to put this up in the break 
room with all the other posters up there, which, yes, the 
employees may or may not read. It is the fact that if they 
don't have the poster up on November 14th, they have now 
technically committed an unfair labor practice, and they 
weren't even aware about this law. So where do the employers' 
rights come into it? That is what is very problematic.
    Ms. Hahn. Well, you know, and I appreciate you saying that. 
And I think what we have heard today is a lot of what you 
believe is the employer's right. And there are certainly many 
of us that also believe the employees have rights. Hopefully it 
will not be something that--once small businesses learn about 
the need to place this, hopefully there will not be objections 
to posting this poster. It seems to me a very small--as Mr. 
West said, you have a number of posters already that just allow 
employees to know what their rights are.
    And I think small businesses and the employers have plenty 
of time to talk to their employees about what their 
relationship is and what they can and cannot do for each other.
    And I will tell you, I spent last week in my district. I 
met with over 50 small businesses. And I had given them 
questionnaires, and I asked them to tell me, what regulations 
do you feel are burdensome? What can the Federal Government do 
or not do to help you? And what I heard was most of my small 
businesses never once mentioned any of these regulations that 
you are bringing up, never once mentioned why having to post a 
poster or not--you know what they told me?
    They told me if they could have more access to capital. 
That was their issue. And one of their issues was small 
business loans. And they felt like there was a small mountain 
of paperwork that had to be accomplished to get their loans and 
that sometimes the criteria for a small business loan was 
simpler or less restrictive than what the banks actually were 
requiring small businesses to prove before they could access 
capital.
    So I am going to work on figuring out how we can remove 
bureaucratic red tape to get more capital out to my small 
businesses because that is what they told me overwhelmingly was 
the issue with the Federal Government.
    I will tell you not one of them brought up what you are 
talking about to me today. So either those 50 businesses were 
not feeling that burden, or they just felt like the real 
priority they wanted Congress to work on was getting more 
access to capital.
    I yield my time back.
    Chairman Graves. Mr. Schilling.
    Mr. Schilling. Thank you, Chairman.
    What I would like to just--just kind of tell a story. A 
year ago--or actually it was last year, I went to a Labor Day 
parade. And as we were getting ready to march, there was a 
group of folks that were marching with the previous 
Congressman. They had T-shirts on that said, big and small, 
check them all. I thought, what does that mean? Well, I 
realized what it meant. And for me, as a small business owner--
I have 15 years of union background, and currently, I am a 
small business owner. And previously using the secret ballot, I 
truly believe that the secret ballot is our birthright and that 
it should not be bypassed through card check or whatever ways 
or means that are already cited.
    And I guess I have a question for--I have a lot of friends 
in labor. I am not anti-union. I am pro-business, and I am pro-
labor, but it has to be an even mesh to where we don't put one 
side or the other out. And one of the things I wanted to ask 
Mr. West, with a small business like mine, for example, do you 
believe--because a few weeks after this Labor Day parade, the 
Congressman said to me that I should unionize my pizzeria in 
Moline, Illinois.
    Sir, do you believe that all businesses across the United 
States should be unionized or just some or----
    Mr. West. I truly feel that there are some businesses out 
there that probably unionization would not benefit. But as far 
as the poster goes, I do believe that is a fairness issue. You 
are posting for the employees what their rights are.
    Me as an employer, I have 45 people. I know every one of 
them by name. I know their families. I have contact with them 
on a daily basis. So I can put forth my issues as a business 
owner to them at any time I want, or their supervisor can.
    I think this poster is just a fairness issue. We are 
putting up a poster and these employees can look and see the 
rights that they are entitled to. Whether they want to 
implement those or act on those, that is an entirely different 
issue. But I do think they should know their rights.
    But I also believe that there are certain businesses that 
have no need to be unionized or that unionization would not be 
helpful.
    Mr. Schilling. Right. And I don't believe that anybody on 
the panel believes that employees should not know their rights. 
I just, I don't see it. One of the things I think some of the 
folks here would be shocked, being a small business owner is 
that a lot of our small businesses have no idea that you can go 
online to pull this $85 poster up because that is when they 
mail out--they mail out and you get all these special deals in 
the mail. But you can blind out any business in your district 
and ask them, hey, do you know that you can get this poster for 
free, and I guarantee you half of them will tell you, no, I did 
not know that. As a matter of fact, I am one that just found 
out today, and I have been in business for 15 years. So I think 
that it is about getting information out to people and doing it 
properly.
    One of the things I do have a question on this poster is 
now--because it is about getting information out to people. I 
think that is what we are looking at doing. It shows how to 
unionize. I haven't seen the poster, per se. But it just shows 
what you need to do to become unionized. Is that what it 
basically is? Ms. Milito.
    Ms. Milito. It provides information. I wouldn't say it 
provides information on how to become unionized, but certainly 
it indicates that you have the right to join a union; you know, 
you have the right to strike. It goes on. I don't have it all 
in front of me. But the litany of things you certainly can do, 
your rights under the National Labor Relations Act.
    And you are right, this is not about withholding 
information from employees. But it is about making sure that 
there is a balanced approached to labor law, which is the 
intent of the National Labors Relation Act, and ensuring that 
employers' rights are preserved.
    I would go back to Ms. Hahn's point there. She talked with 
50 small businesses. Did she provide them with a copy of this 
poster? It would be nice if she had because that is what I am 
doing a lot of now. I am getting this information out to my 
members. I am not a registered lobbyist at NFIB. Most of my job 
is to provide education and compliance assistance to our 
members. I am working the dickens right now to get this 
information out to my members to make sure they get this poster 
up. You need to get this up. You need to be in compliance. Yes, 
we have this lawsuit going on, and I do hope the court is going 
to strike down the law. But at the same time, I want to make 
sure that our employers know that this does need to be posted.
    Our members want to be in compliance with the law. And if 
that requires them to post this poster, so be it. But they want 
to be in compliance. They want to do what is required under the 
law. They don't want to violate the National Labor Relations 
Act, the OSHA law, the wage and hour law, or any of the other 
laws. They just want to be told what to do. So it is trying to 
get the information out to both the employers and the 
employees. Thank you.
    Mr. Schilling. Very good.
    I just want to thank the panel for being here.
    And I yield back my time.
    Chairman Graves. Mr. Owens.
    Mr. Owens. Thank you, Mr. Chairman.
    Mr. Mittler, in your testimony, you indicate that in 31 
years, OSHA has come to your shop twice.
    Mr. Mittler. That is correct.
    Mr. Owens. When was the last time?
    Mr. Mittler. It was sometime between 2004 and now. I don't 
recall exactly when it was. But I know we moved into the 
present facility we have in 2004, and they visited that 
building once.
    Mr. Owens. You also indicate in your testimony that--you 
say in the past, an inspector or auditor would visit our shop 
and work with us to correct any unintended violations. Today 
they fine you first and take no questions later. Were you fined 
on that second visit?
    Mr. Mittler. Yes. On both visits, we were fined. Yes, we 
were.
    Mr. Owens. How many years ago did the first one occur?
    Mr. Mittler. I did not look up the history of that, 
previous to that, but it was a number of years prior.
    Mr. Owens. So, basically, the procedure didn't change then?
    Mr. Mittler. The procedure has changed in recent years.
    Mr. Owens. Well, if you got fined both times.
    Mr. Mittler. From 2004 to now, the fines have increased 
dramatically and the ability--in both cases, if we agreed to 
correct the violations and we corrected them in a timely 
manner, which I believe was 90 days, and then we submitted 
proof of correction, which we did all of those things, then the 
fine would be half of what it was originally proposed. So we 
did not fight the violations. They were relatively minor. We 
corrected them. Some of them we corrected within 24 hours. Some 
of them we had to order some parts and pieces from the 
manufacturer of machines and get them in. And then we installed 
that, sent the documentation to the inspector. And he said, 
yes, you have met it, and we will reduce the fine in half.
    I am told now by fellow shop owners that there is no 
reduction of the fine. The fines are double what they were. So 
what was a $1,000 fine before is a $2,000 fine today. So there 
is where the change is. The changes happened in 2004 until now.
    Mr. Owens. And that is based upon what you have been told 
as opposed to your experience?
    Mr. Mittler. That is correct. However, I have many--as the 
chairman of MTMA, I have many friends and associates in the 
business who have related these stories to me in a factual 
manner. But----
    Mr. Owens. I can tell you that having represented many 
small businesses before I came to Congress, as a regular course 
of my practice, I was successful in getting reductions in 
fines. And I am having a little bit of difficulty believing 
that that is a consistent trend that exists throughout the 
United States.
    I am just curious also, there seems to be a general 
objection, if you will, to OSHA regulations. Is that true or 
not true?
    Mr. Mittler. I think some OSHA regulations are far 
overreaching for us as small business because we don't have 
sufficient staff and all that to really be able to help us 
interpret the law and know what all the laws are. I think 
knowledge of the law is a difficult thing. If I was not active 
in our trade association, I would not be knowledgeable that I 
would have to post this poster. I don't know that it has been 
published in the paper or in any other place that I have to do 
it. So I think knowledge and some of the laws and rules are 
overbearing.
    Mr. Owens. Now, you say some. How do you distinguish 
between the gradations? And which rules would you strike down? 
Which rules would you keep? Which do you see as reasonable?
    Mr. Mittler. I don't have any case in point there that I 
can speak to. I just mean in general what impacts a company the 
size of Boeing and what impacts a company of our size with 60 
employees, you would certainly think would have to be 
different. I have 60 employees in my facility. They have 
thousands of employees. So naturally more protection is needed 
there just in general. I cannot cite any specific case.
    Mr. Owens. Do you think Boeing would agree with that?
    Mr. Mittler. I think for the most part they would be 
concerned about the safety of their employees. I think they 
are, yes. I think they are very concerned about the safety of 
their employees.
    Mr. Owens. No. I am not suggesting they are not concerned 
about it. I just meant that you feel that they should be more 
regulated than you. That is where----
    Mr. Mittler. They probably don't agree. You are right.
    Mr. Owens. They probably wouldn't agree with that. I didn't 
think so.
    Ms. Milito, you made a statement in the course of a 
response to Congresswoman Hahn's question that your business, 
your members do not have HR directors, as they are too small to 
have that level of service. Is that true for every business 
that is a member of your organization?
    Ms. Milito. Certainly not all of--no, certainly not all of 
our members. The vast majority do not have a human resources 
director.
    Mr. Owens. What is the general size of the businesses that 
are in your----
    Ms. Milito. Ten employees or less.
    Mr. Owens. Ten employees or less. But there are some that 
have HR directors?
    Ms. Milito. Some of the larger ones, yes.
    Mr. Owens. And do some of them also participate--do you 
know in groups--what I would call buying groups where they 
purchase HR services out of a buying group?
    Ms. Milito. I don't know the answer to that.
    Mr. Owens. Is that a service that you offer?
    Ms. Milito. We do not offer that service.
    Mr. Owens. Do you provide general information to your 
memberships, for instance, about the issue regarding the 
poster?
    Ms. Milito. Yes, we certainly do provide--we try to provide 
some educational and compliance assistance to our members on 
general employment law matters.
    Mr. Owens. Now, would you provide them with a copy of this 
poster and the information relating to its implementation?
    Ms. Milito. We have the information available on our Web 
site, and it most definitely includes the link to download the 
poster. And we certainly indicate on there that it is free. We 
have made all that information available to our members.
    Mr. Owens. And do you send out a general, if you will, 
blast email with regard to this type of activity, not just 
related to this poster?
    Ms. Milito. We do try to alert our members to new rules and 
regulations certainly. And this has been sent out in our e-
newsletter to our members.
    Mr. Owens. Thank you.
    I have no further questions, and I yield back.
    Chairman Graves. Mr. Mulvaney.
    Mr. Mulvaney. Thank you, Mr. Chairman.
    And for those folks who are here wondering why we are 
talking so much about the poster--I have run a couple of small 
businesses, and I can tell you that, quite legitimately, small 
business people fear these things. We do. I did, because quite 
simply I was always afraid that I didn't have the right ones on 
the wall, or I didn't have the one that was up to date or that 
I was--to this point before us--missing one, that somehow the 
government had come out and required me to put up a new poster 
and forgot to tell me or I didn't find out, I didn't join NFIB 
to find out whether or not I needed posters or not. I was too 
busy running my business to try to follow the regulatory 
actions of the Federal Government.
    And of course, if you don't have the right ones, you are in 
a lot of trouble. You could be fined. You could be penalized. 
You could be in a lot of trouble. In several states, I think it 
is negligence per se not to have these things up on the wall. 
So it is a serious issue to small businesses.
    And for that reason, I will continue on this topic that 
some folks might find to be trivial.
    Mr. West, you mentioned before that you think employees 
should have the right--that they should have the right to know 
what their rights are, right? I think that was your testimony.
    Mr. West. That is correct.
    Mr. Mulvaney. You liked the poster. You had no difficulty 
with it. It is free. How did you find out it was free by the 
way? I always paid for these things. How did you find out it 
was free?
    Mr. West. It was posted through the Sheet Metal Workers 
International when we--in one of their little blurbs that this 
was a poster required, and it was a free download.
    Mr. Mulvaney. Did you pay for the other ones by the way?
    Mr. West. No. Yes, I did. The OSHA ones you do pay for.
    Mr. Mulvaney. And the minimum wage ones you do pay for?
    Mr. West. Yes, you do pay for those.
    Mr. Mulvaney. They have also got the right to quit their 
union. That is mentioned in very small print in the document. 
Do you think it would be a good idea to talk more about that on 
the poster?
    Mr. West. Well----
    Mr. Mulvaney. It is their right, isn't it? I mean, we go 
into a long list of how you join a union. Don't you think there 
should be some balance there and show how you get out of your 
union if you don't like it?
    Mr. West. Well, I think that is taken care of at the union 
level. They go through their procedures. So it is pretty easy 
to get out of a union. You just stop paying your dues.
    Mr. Mulvaney. Yeah. But the whole idea behind this is to 
let employees know what their rights are as employees. They 
have a right to join a union. And if you want to join a union, 
here it is, this is how you do it. So why not have the same 
thing on there about how to get out of a union?
    Mr. West. I would think if you were that concerned that 
about it as an employer, you would put your own piece of 
literature together and state your facts and put it up beside 
it.
    Mr. Mulvaney. What if you were concerned about it as an 
employee? What if you were an employee who just didn't want to 
be in the union? Where would you go? Where else would you go to 
find out how to get out of your union?
    Mr. West. I would assume that once you start the 
negotiations, you vote not to join the union.
    Mr. Mulvaney. Wouldn't this poster be a great place to put 
it there? It is there in your lunchroom with----
    Mr. West. I wouldn't have a problem with it. I didn't 
design the poster. But I do think the employers have the upper 
hand as far as the negotiations.
    Mr. Mulvaney. These employees have got other rights, too. 
They have rights to free speech. They have rights to--Second 
Amendment rights. Can we put those on the poster, too?
    Mr. West. No, sir.
    Mr. Mulvaney. And why not?
    Mr. West. We should already know about those. We have a 
Constitution.
    Mr. Mulvaney. Exactly. So why is it that we have this 
document that shows them rights that they should probably know 
anyway?
    Mr. West. My feeling of this whole issue is it is just a 
poster. And if the idea of this is that the NLRB has been so 
successful and is so biased toward unionization and organized 
labor, how come for the last three decades, all we have done is 
lost membership?
    Mr. Mulvaney. Because this poster hasn't been around for 
the last three decades.
    Mr. West. I don't think the poster is going to make a whole 
lot of difference. I think we are wasting a whole lot of time 
on it.
    Mr. Mulvaney. Now, there are other things that are listed 
here. It says, under the NLRA, there is a long list of things 
that it is illegal for your employer to do, which I guess is 
fine. Don't you think maybe then, in order to have some 
balance, we should have a list of things that it is illegal for 
the employee to do? It is illegal for you to do drugs. It is 
illegal for you to harass other people. Or do you think they 
should know that anyway?
    Mr. West. I have a poster similar to that. Out of the Sheet 
Metal Contractors Association----
    Mr. Mulvaney. Is that required to be put up by the NLRB?
    Mr. West. It is not.
    Mr. Mulvaney. Do you get fined if you don't put that poster 
up?
    Mr. West. No, sir, I do not.
    Mr. Mulvaney. Do you think the NLRB should be balanced 
between employer and employee, or do you think the NLRB exists 
to defend the rights of the employee against the employer?
    Mr. West. I am certainly not an expert on what the NLRB 
does, but I would assume that it is there to generate fair and 
equitable labor practices. And if they are doing that, then I 
am assuming they are doing what they were designed to do.
    Mr. Mulvaney. If you are an employee and you are 
dissatisfied with the way you have been treated, if you think 
your rights have been violated, you get free legal 
representation from the NLRB. Do you think if you are an 
employee--excuse me, an employer who has been wronged by the 
employee or even by the union, that you should get free legal 
representation from the NLRB?
    Mr. West. I don't think you would.
    Mr. Mulvaney. You don't under the law. I am just wondering 
if you think that you should. You are an employer. If you 
thought that your unions had wronged you, that they had struck 
illegally, do you think that the NLRB should represent you, 
give you free legal representation in that claim against your 
union or against your employees?
    Mr. West. I don't think they give free legal----
    Mr. Mulvaney. I can assure you they don't.
    Mr. West. They don't give free legal advice to the unions 
either. The unions hire their own legal attorneys. So, as a 
signatory, if you are wrong, you should hire your own attorney. 
Employees are a little different level I would think. Maybe an 
employee doesn't have the financial wherewithal to hire an 
attorney. So I could not have a problem with them giving an 
attorney to an employee.
    Mr. Mulvaney. All right. And finally, do you think I should 
have to join--don't get me wrong. I love the NFIB. I love small 
business associations. Do you think I should have to join the 
NFIB in order to know what my legal obligations are as an 
employer?
    Mr. West. I do not.
    Mr. Mulvaney. Are you a member of the NFIB?
    Mr. West. I am not.
    Mr. Mulvaney. Thank you, Mr. West. I appreciate it.
    I yield back the balance of my time.
    Chairman Graves. Ms. Clarke.
    Ms. Clarke. Thank you very much, Mr. Chairman.
    I would like to thank our ranking member in absentia.
    I would like to thank our panel for their testimony today.
    And I got here at a point where there was a lot of 
discussion about this poster, and I wanted to direct my 
comments to Mr. West. There has been much talk today about the 
detrimental effects of unions on small businesses. I am going 
to assume that you weren't awarded contracts with Lockheed or 
Howard Hughes Medical Institute while being plagued with 
workers content with having a job that pays a living wage and 
provides health care, who are giving you the bare minimum with 
regards to craftsmanship, effort and professional pride. 
However, could you tell us what would happen to your business 
if this were to be the case?
    Mr. West. Well, basically I have built my reputation here 
in this town as a contractor. We do the very difficult and the 
specialty-type jobs. So maybe I am a little unique. But I have 
some very special workers that are highly skilled, and I get 
called for some very high-profile projects. So I would be out 
of business if I were to lose that highly skilled workforce.
    Now, we do compete every day on some of the lesser-skilled 
jobs and--against contractors that are open shop, that do not 
provide health care, pension plans for their workers. So we are 
at a little disadvantage when we compete against those folks. 
But there have been several occasions where we do get hired 
after a project has been done to come in and clean it up and 
bring it up to standard.
    Ms. Clarke. Very well. Thank you, Mr. West.
    My question to the rest of the witnesses is this: We have a 
small business on the panel who has survived these trying 
economic times and is still operational with high-profile 
clients and who successfully exists within the same small 
business environment that you all operate in who insists that 
these new rules will not affect him adversely. If it is simply 
a situation where you do not want unions in your businesses, I 
can at least understand that. However, I am going to need to 
have a couple more dots connected for me to understand how this 
adversely affects small business. And if time allows, would you 
just sort of give me a sense of what Mr. West is doing that 
perhaps you could not use as a part of your business practice?
    Mr. Mittler. Well, I think that it would be a detriment. I 
would prefer not to have a union in my company. We haven't had 
one for 32 years, and we have, like Mr. West's company, been 
very successful over the years. During the downturn, it was 
very difficult. It was very difficult. My brother and I took 
personal wage cuts to keep our highly skilled employees 
employed. We didn't send them back. We don't have a union hall. 
So we have to maintain our employees in good times and in bad.
    Yes, did we have some reduction in force? Absolutely we 
did. But we did everything we could to keep our highly skilled 
employees because we have a vested interest in them; they have 
a vested interest in our company. So I am not suggesting that 
unions are a bad thing. I just think for our company, it is not 
the preferred way to do business.
    And I am certainly not against my employees knowing what 
their rights are, exercising their rights in any way, shape or 
form. What I want to be able to do is keep that open 
communication with my employees. I want to be able to hire the 
employees that I see fit. I want to be able to man the jobs in 
my plant as I see fit with the employees that I need in the 
different skill levels.
    The other thing that is important for our company, since we 
do a lot of different types of work--we have precision 
machinists, welders, electricians, general assembly people. 
During those tough times, we moved people, we cross trained our 
people, and we moved them into different jobs as the ebb and 
flow of the work changed. And so typically we see in union 
shops, you are classified as a machinist; therefore, their 
attitude is, I won't do other type of work, I won't do 
assembly, I won't do machine maintenance, I am classified as a 
machinist. So we need that flexibility in our business to be 
able to keep our people employed----
    Ms. Clarke. And that is your particular business model, Mr. 
Mittler?
    Mr. Mittler. Yes, it is.
    Ms. Clarke. You, of course, compensate your workforce 
accordingly?
    Mr. Mittler. Absolutely. My highest skilled people have the 
highest compensation. Absolutely they do.
    Ms. Clarke. Fabulous. I am going to wrap up.
    Ms. McCauley, did you want to add anything?
    Ms. McCauley. The only thing that I would add is that I 
find it is imperative, just like Mr. Mittler said, that you 
have employees that you can cross train. That is where we make 
profitability in a small business. I might have an employee 
that can lay brick, but I also might--that same employee might 
be able to pour some concrete. He might be able to throw rebar 
in the wall. He might also be able to strike that wall, too. If 
I were a union shop, my brick layer wouldn't be able to strike 
the wall. He would be able to lay it in place. He couldn't lay 
the block. He couldn't pour the concrete. And he couldn't pour 
the rebar. So I would have to have five different employees to 
do that same function of the one employee. It is imperative 
that we have the ability to cross train our employees. When you 
have a limited staff, 4 to 10 employees--and a lot of us--just 
like Ms. Milito said, a lot of her clients are 10 or less. A 
lot of mine are the same. But I have cross trained enough of my 
employees that one guy can do the same job as five union 
workers. And I wouldn't have that same ability in a small 
business.
    Ms. Clarke. I am sure that helps with our unemployment.
    Mr. West, don't you have a similar----
    Mr. West. Well, I just think that is a little misconception 
there about how they departmentalize union work. I run a 
production shop. We do field installation. We do welding. We do 
testing and balancing. Every aspect of my job, the same person 
can do that. They are trained in the aspects of the trade and 
the industry, not one specific job.
    So I don't think that--I think that is a misconception, 
that if you have a union brick layer--if you are going to run a 
small shop, he is not going to lay block, he is not going to 
mix the mortar, he is not going to put the rebar in. That will 
not happen in a small shop. They are partnered with the 
business. It is in their interest to keep their job, just like 
it is in an open shop.
    Ms. Clarke. Thank you.
    And I appreciate all of your responses. I am over time.
    Thank you, Mr. Chairman.
    Chairman Graves. Mr. Chabot.
    Mr. Chabot. Thank you, Mr. Chairman.
    Ms. McCauley, you were talking before about the various 
kinds of employees there are. You mentioned that there are some 
slackers; there are some nonslackers. You mentioned you have 
four boys, and some are slackers, and some aren't. I am just 
wondering, which of your boys are slackers?
    Ms. McCauley. The 3-year-old. He can't pull his own weight 
yet. We will get there.
    Mr. Chabot. Sounds good. Now my serious question.
    It seems what you are talking about here is kind of a basic 
fairness. They are requiring certain things to be done for 
which there could be significant penalties, if you don't put 
the proper poster up in the right place, the right size at the 
right time, et cetera. And it seems like most of the burdens 
tend to be on the employer. I would ask any of the panel 
members if you could maybe go into that in a little more detail 
about what kind of burdens are there on the one side but not on 
the other side. Where is it unfair? We can start with you. But 
anybody who wants to take it on is fine.
    Ms. McCauley. The last company I worked for, I worked there 
20 years. We had 300 employees. I was an HR director for that 
company. There is not a site you can go to that gives you all 
of the government postings. There is not a site that says, 
okay, if you are a small business, you need to post this, this, 
this and this. There are no blast emails, for a better word, 
that go out and say, hey, I realize you are a small business, I 
realize you are registered in your district or you have your 
Class A license or whatever, you need to be aware of the 
sweeping changes that are right before you. There is nothing 
like that that goes out. Even as an HR director, even though I 
have my license and all that, there is nothing that goes out to 
let you know.
    If there was a Web site that everyone was aware of that 
listed new postings that you needed to have up, hey, this one 
expired, we have got a new minimum wage, we have got some new 
OSHA law, we have got--I think a lot of people would be very 
happy to post those because they would be aware of those. I 
think the biggest fear of small businesses is unaccounted for 
expenses, unaccounted for expenses that don't lead to any 
profitable measure that are just fines and penalties. I think 
it would be very helpful and it would lead to more cohesiveness 
if everyone had the ability to look to the same place, to know 
what the laws and regulations were.
    Mr. Chabot. Thank you.
    Anybody else have any comment?
    Mr. West. Yes, sir. I would just like to say I agree that 
there should be a Web site where all that information is made 
available.
    But I am also a little confused here as, who enforces this 
poster law? Who comes to your business to find out whether you 
put the poster up or not? I am a little confused on that.
    Mr. Chabot. Mr. Mittler.
    Mr. Mittler. I certainly don't know the legal answer to 
that, and we discussed that today, where is the hammer for any 
of us. And I think where it would come from would be a 
disgruntled employee or employees that would say, hey, that 
union poster isn't up there, and then they would possibly go to 
the NLRB or something like that. Ms. Milito, obviously, is 
better prepared.
    Ms. Milito. Yeah, that is exactly how--you have got it 
right, exactly. Yeah, it would be an employee, probably a 
disgruntled employee who would learn about the poster and then 
file an unfair labor practice charge with the NLRB. That is how 
it would start.
    Mr. Chabot. That is what I wanted to follow up with at this 
point because I have only got a little over a minute of time 
left. If you don't post the signs--and I know you had mentioned 
that many, many small businesses obviously don't have an HR 
department. They are just too small, and some do, but lots of 
small businesses don't. So for somebody like that who didn't 
even know about this and didn't have it posted and an employee 
or somebody comes up and files an unfair practice against them 
or whatever they do, what are the potential penalties for that? 
And what are the potential ramifications to that business if 
they do have to deal with one of these matters?
    Ms. Milito. Well, certainly as an initial matter, the board 
would demand that the employer post the poster, too, but it 
would also open the employer up to additional scrutiny, too, 
and the potential for other unfair labor practice charges, if 
there were other things going on in the business that would--
the employee could argue were infringing on their right to 
concerted activity. The employee could then file other 
complaints, too. So it could open up a whole can of worms. And 
I think upon receipt of a ULP, it is very likely the small 
business owner would quickly call an attorney. So you are 
looking at potential legal expenses, too, in defending the 
claim.
    Mr. Chabot. Thank you.
    And in the last 10 seconds I have got on me, I just commend 
the chair on holding this hearing because these tough economic 
times, when 70 percent of the jobs created are created by small 
businesses, we need to find ways to relieve some of these 
burdensome regulations and requirements.
    My compliments to Mr. Chairman.
    Chairman Graves. Mr. Keating.
    Mr. Keating. Thank you, Mr. Chairman.
    I would like to thank all of the witnesses for being here 
today.
    As we sit here and we are attacking the National Labor 
Relations Board rules, we are missing one more time that we can 
really deal with some of the critical opportunities that are 
actually creating jobs, that can create jobs and create small 
business opportunities.
    Just last week, the House passed H.R. 2587, which 
inevitably will result in making it more difficult for workers 
to have a means to protect themselves from illegal--illegal--
practices in the workplace.
    Now, as someone that considers themselves a strong 
outspoken proponent of small businesses, it is worth I think 
remembering that unions weren't formed to be obstructionist, 
and the facts I think prove that any fear along these lines is 
unfounded.
    According to the Bureau of Labor Statistics, only 7.2 
percent of private sector employees identified themselves as 
members of a union in 2009. That compares with 9 percent in 
2000 and really healthy digits, double digits back 40 or 50 
years ago, so as we sit here today and we are talking about 
things that as a committee will create new jobs, I think we 
should keep in mind that most small business owners in the 
United States today won't even have to interact with a union.
    But while I am on the subject, I just want to state, too, 
that the NLRB rules are commonsense proposals, and they are 
designed to ensure fair process for the workers by cleaning up 
and modernizing a system paralyzed by delays, bureaucracy, 
wasteful litigation. And the proposed changes aim to provide 
greater stability, greater certainty, and a leveller playing 
field.
    I think we have seen countless examples where high cost 
litigation and intimidation have been used to stop workers from 
effectively organizing, but I think we can all agree that our 
country was built on democratic principles. And so what is 
against democratic processes being used to utilize, resolving 
issues in the workplace?
    Now, I spent last week, a great period of the week, talking 
to owners of more than one dozen small businesses about a 
myriad of issues, and not once in the course of those 
discussions did this issue come up. Maybe it is just--maybe it 
is my district. Maybe it is the people, but not once did this 
come up. A lot of other issues came up, issues that they said 
were the important issues that they faced, issues like loan 
guarantees, tax credits, grants. SBIR funding, for instance, 
came up. Now, how would you rate these?
    And I think it is really a question of perspective, and I 
think that is what I am trying to gain by this, by my question. 
With all the things you have as issues, does this rate? I don't 
understand how it rates so high to draw this kind of attention. 
Aren't there other important issues, and if you want to take 
the opportunity, can you tell me what those other important 
issues that we can be doing in Congress to help might be? I 
will throw it open to anyone.
    Ms. McCauley. I will start. Like I said before, I do 
believe it is a slippery slope. I think, like I said before, 
not very many of the small businesses that I spoke with had any 
clue that there had been a change. I know a whole bunch of 
people, landscapers, all kinds of different people in my area, 
and I asked the question, do you know this is going on? Do you 
know you need to post that? I have never even heard of it. Why 
haven't you heard about it? It is the first time I have heard 
about it.
    So I think it is hard for people to have an issue with it 
if they don't know it exists, and I think--I agree that funding 
is very important. I don't discredit that it is very important 
to be able to find loans and help to garner the ability to just 
increase the workforce we have and grant more people jobs. I 
think until we can get the ball rolling and get more people 
employed, we are just really just scrambling. That is what it 
is going to take to get us out of our deficit, just like 
anything else. The more people that work, the more taxes are 
paid, the better we all are.
    So if it is small businesses that are really garnering the 
most new jobs, then I think we really need to take out a lot of 
the bureaucracy, and I think a lot of it stems from unfair 
fines and penalties for things you don't even know about. I 
realize, I am not dumb, that ignorance of the law is not a 
defense, but it also shouldn't be the reason things get 
through. It also shouldn't be the substance behind how we raise 
capital.
    Mr. Keating. Anyone else want to jump in?
    Ranking what is really important right now to get new jobs 
and to help our economy go forward, do you really think this 
ranks right up there? Not one person--if those people were--and 
I went through a lot of people in a lot of sectors, not just 
last week but the weeks before. I make a point every time we 
have a week off to go visit business, and I have been across 
the board, manufacturers, large business, medium business, a 
lot of small businesses; not once did this come up. I am just 
curious.
    Mr. Mittler. Pardon me. I am certainly not suggesting that 
it is the top issue in small business today. It is an issue, 
and I think, as Ms. McCauley said earlier, the slippery slope 
is what we are concerned about. What we give away today, what 
is taken away by rule that, as Ms. Milito said, in her opinion, 
it is not even legal for them to impose this on us, what is 
taken away today, then what will be taken away tomorrow, next 
week, next year, and so on and so forth. Certainly the unknowns 
of the future is a big concern.
    I am fortunate that our business is growing. We have hired 
people this year. And certainly what the tax rate will be and 
the impact of the deficit is a huge issue and burden for us, 
and certainly given the opportunity to come back and speak to 
this committee or any other committee on that, I think you 
would hear a lot of other testimony.
    Mr. Keating. Well, thank you, Mr. Chairman.
    My time is up, and I do thank Ms. McCauley, because you hit 
it right on the head, though: The best way to deal with the 
deficit is to get some more jobs going. Thank you.
    Ms. McCauley. Absolutely true, but I thank you for taking 
the time to go to your district and really listen to your 
constituents because unless that happens, we go nowhere.
    Chairman Graves. I want to thank all of our witnesses for 
being here, and I personally think I want to, I definitely want 
to agree with Mr. Mulvaney. I think this is heavily weighted 
toward demonstrating the rights to be able to unionize, but it 
doesn't do a very good job of putting the rights out there for 
the employees, the other rights that are available to them when 
it comes to being able to get out of the union.
    I also want to agree with Mr. Keating, too. I think being 
able to solve some of our relations between employers and 
employees should be a democratic process, and one of the very 
basic principles of a democratic process is secret ballot. And 
being able to determine whether or not you want to unionize or 
not unionize by secret ballot is a very important basic 
principle to that.
    So, with that, I would ask unanimous consent that all 
members have 5 legislative days to submit statements.
    Seeing no objections, so ordered.
    With that, this hearing is adjourned, and I thank you all 
for being here.
    [Whereupon, at 2:46 p.m., the committee was adjourned.]

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