    [House Hearing, 116 Congress]
    [From the U.S. Government Publishing Office]

                     PROTECTING THE RIGHT TO ORGANIZE ACT:
                        MODERNIZING AMERICA'S LABOR LAWS

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

                                    HEARING

                                   before the

            SUBCOMMITTEE ON HEALTH, EMPLOYMENT, LABOR, AND PENSIONS

                             COMMITTEE ON EDUCATION
                                   AND LABOR
                         U.S. HOUSE OF REPRESENTATIVES

                         ONE HUNDRED SIXTEENTH CONGRESS

                                 FIRST SESSION

                                   __________

                 HEARING HELD IN WASHINGTON, DC, JULY 25, 2019

                                   __________

                               Serial No. 116-37

                                   __________

          Printed for the use of the Committee on Education and Labor

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

               Available via the World Wide Web: www.govinfo.gov
                                       or
                  Committee address: https://edlabor.house.gov

                                 ______

                 U.S. GOVERNMENT PUBLISHING OFFICE
    37-329              WASHINGTON : 2020

                        COMMITTEE ON EDUCATION AND LABOR

                 ROBERT C. ``BOBBY'' SCOTT, Virginia, Chairman

    Susan A. Davis, California           Virginia Foxx, North Carolina,
    Raul M. Grijalva, Arizona            Ranking Member
    Joe Courtney, Connecticut            David P. Roe, Tennessee
    Marcia L. Fudge, Ohio                Glenn Thompson, Pennsylvania
    Gregorio Kilili Camacho Sablan,      Tim Walberg, Michigan
      Northern Mariana Islands           Brett Guthrie, Kentucky
    Frederica S. Wilson, Florida         Bradley Byrne, Alabama
    Suzanne Bonamici, Oregon             Glenn Grothman, Wisconsin
    Mark Takano, California              Elise M. Stefanik, New York
    Alma S. Adams, North Carolina        Rick W. Allen, Georgia
    Mark DeSaulnier, California          Lloyd Smucker, Pennsylvania
    Donald Norcross, New Jersey          Jim Banks, Indiana
    Pramila Jayapal, Washington          Mark Walker, North Carolina
    Joseph D. Morelle, New York          James Comer, Kentucky
    Susan Wild, Pennsylvania             Ben Cline, Virginia
    Josh Harder, California              Russ Fulcher, Idaho
    Lucy McBath, Georgia                 Van Taylor, Texas
    Kim Schrier, Washington              Steve Watkins, Kansas
    Lauren Underwood, Illinois           Ron Wright, Texas
    Jahana Hayes, Connecticut            Daniel Meuser, Pennsylvania
    Donna E. Shalala, Florida            William R. Timmons, IV, South
    Andy Levin, Michigan*                    Carolina
    Ilhan Omar, Minnesota                Dusty Johnson, South Dakota
    David J. Trone, Maryland             Fred Keller, Pennsylvania
    Haley M. Stevens, Michigan
    Susie Lee, Nevada
    Lori Trahan, Massachusetts
    Joaquin Castro, Texas
    * Vice-Chair

                       Veronique Pluviose, Staff Director
                     Brandon Renz, Minority Staff Director
                                     ------

            SUBCOMMITTEE ON HEALTH, EMPLOYMENT, LABOR, AND PENSIONS

                    FREDERICA S. WILSON, Florida, Chairwoman

    Donald Norcross, New Jersey          Tim Walberg, Michigan
    Joseph D. Morelle, New York            Ranking Member
    Susan Wild, Pennsylvania             David P. Roe, Tennessee
    Lucy McBath, Georgia                 Rick W. Allen, Georgia
    Lauren Underwood, Illinois           Jim Banks, Indiana
    Haley M. Stevens, Michigan           Russ Fulcher, Idaho
    Joe Courtney, Connecticut            Van Taylor, Texas
    Marcia L. Fudge, Ohio                Steve C. Watkins, Jr., Kansas
    Josh Harder, California              Ron Wright, Texas
    Donna E. Shalala, Florida            Dan Meuser, Pennsylvania
    Andy Levin, Michigan                 Dusty Johnson, South Dakota
    Lori Trahan, Massachusetts
    (VACANT)

                                C O N T E N T S

                                  ----------
                                                                       Page

    Hearing held on July 25, 2019....................................     1

    Statement of Members:
        Walberg, Hon. Tim, Ranking Member, Subcommittee on Health,
          Employment, Labor, and Pensions............................     5
            Prepared statement of....................................     6
        Wilson, Hon. Frederica S., Chairwoman, Subcommittee on
          Health, Employment, Labor, and Pensions....................     1
            Prepared statement of....................................     4

    Statement of Witnesses:
        Alvarez, Mr. Josue I., Misclassified Truck Driver for XPO
          Logistics..................................................    27
            Prepared statement of....................................    29
        Garden, Ms. Charlotte, J.D. LL.M, Co-Associate Dean for
          Research and Faculty Development and Associate Professor,
          Seattle University School of Law...........................     8
            Prepared statement of....................................    11
        Griffin, Mr. Richard F. Jr., J.D. Counsel, Bredhoff and
          Kaiser, P.L.L.C............................................    49
            Prepared statement of....................................    51
        King, Mr. G. Roger, Senior Labor and Employment Counsel, HR
          Policy Association.........................................    32
            Prepared statement of....................................    34

    Additional Submissions:
        Foxx, Hon. Virginia, a Representative in Congress from the
          State of North Carolina:
            Article: Big Labor's Big Shrink..........................    73
        Mr. King:
            Citation: 105 Cong. Rec. 5361 (1959).....................    95
            Prepared statement.......................................   150
        Norcross, Hon. Donald, a Representative in Congress from the
          State of New Jersey:
            Chart: Productivity Growth and Hourly Compensation
              Growth, 1948-2015......................................    78
        Mr. Walberg:
            Letter dated April 12, 2019 from Congress of the United
              States.................................................   165
            Letter dated May 16, 2019 from the Chamber of Commerce of
              the United States of America...........................   146
            Letter dated June 10, 2019 from Coalition for a
              Democratic Workplace...................................   134
            Letter dated July 24, 2019 from the International
              Franchise Association (IFA)............................   139
            Letter dated July 24, 2019 from the National Association
              of Home Builders (NAHB)................................   141
            Letter dated July 24, 2019 from the Internet Association.   174
            Letter dated July 24, 2019 from TECHNET..................   176
            Letter dated July 24, 2019 from the Coalition for
              Workforce Innovation (CWI).............................   182
            Article: A Record Expansion's Surprise Winners: The Low-
              Skilled................................................   184
            Letter dated July 25, 2019 from the American Hotel and
              Lodging Association (AHLA).............................   143
            Letter dated July 25, 2019 from the Associated Builders
              and Contractors (ABC)..................................   144
            Article: Faster Growth Is Paying Off for Low-Skilled
              Workers................................................   188
            Chart: Right To Work States Benefit From Faster Growth,
              Higher Real Purchasing Power - Winter 2019 Update......   191
            Report: Did right-to-work laws impact inequality?........   193
            Article: The 99% Get a Bigger Raise......................   229
            Article: The Link Between Wages and Productivity Is
              Strong.................................................   231
        Chairwoman Wilson:
            Letter dated July 15, 2019 from Amalgamated Transit Union   106
            Letter dated July 22, 2019 from LiUNA....................   243
            Letter dated August 7, 2019 from International
              Brotherhood of Teamsters...............................   107
            Prepared statement from United Steelworkers (USW)........   129
            Questions submitted for the record

        Responses to questions submitted for the record by:
            Ms. Garden...............................................   248
            Mr. Griffin..............................................   252

                     PROTECTING THE RIGHT TO ORGANIZE ACT:

                        MODERNIZING AMERICA'S LABOR LAWS

                                  ----------

                            Thursday, July 25, 2019

                           House of Representatives,

                            Subcommittee on Health,

                        Employment, Labor, and Pensions,

                       Committee on Education and Labor,

                                Washington, D.C.

        The subcommittee met, pursuant to call, at 10:15 a.m., in
    Room 2175, Rayburn House Office Building, Hon. Frederica Wilson
    [chairwoman of the subcommittee] presiding.
        Present: Representatives Wilson, Norcross, Morelle, Wild,
    McBath, Underwood, Stevens, Courtney, Harder, Shalala, Levin,
    Trahan, Scott Walberg, Roe, Allen, Fulcher, Taylor, Wright,
    Meuser, Johnson, and Keller..
        Also Present: Representatives Foxx and Kennedy
        Staff Present: Tylease Alli, Chief Clerk; Jordan Barab,
    Senior Labor Policy Advisor; Ilana Brunner, General Counsel;
    Kyle deCant, Labor Policy Counsel; Emma Eatman, Press
    Assistant; Mishawn Freeman, Staff Assistant; Eli Hovland, Staff
    Assistant; Eunice Ikene, Labor Policy Advisor; Stephanie Lalle,
    Deputy Communications Director; Andre Lindsay, Staff Assistant;
    Jaria Martin, Clerk/Assistant to the Staff Director; Kevin
    McDermott, Senior Labor Policy Advisor; Richard Miller,
    Director of Labor Policy; Max Moore, Office Aide; Veronique
    Pluviose, Staff Director; Banyon Vassar, Deputy Director of
    Information Technology; Katelyn Walker, Counsel; Courtney
    Butcher, Minority Director of Coalitions and Members Services;
    Akash Chougule, Minority Professional Staff Member; Cate
    Dillon, Minority Staff Assistant; Rob Green Minority Director
    of Workforce Policy; Bridget Handy, Minority Communications
    Assistant; John Martin, Minority Workforce Policy Counsel;
    Hannah Matesic, Minority Director of Operations; Audra
    McGeorge, Minority Communications Director; Carlton Norwood,
    Minority Press Secretary; Brandon Renz, Minority Staff
    Director; and Ben Ridder, Minority Professional Staff Member.
        Also Present: Representatives Kennedy and Keller.
        Chairwoman Wilson. Good morning.
        The Subcommittee on Health, Employment, Labor, and Pensions
    will now come to order. Welcome, everyone. I note that a quorum
    is present. I note for the subcommittee that Representative
    Fred Keller of Pennsylvania be permitted to participate in
    today's hearing. I also note for the subcommittee that
    Representative Joseph Kennedy of Massachusetts will be
    participating in today's hearing with the understanding that
    his questions will come only after all members of the HELP
    Subcommittee, and any members of the full committee on both
    sides of the aisle who are present have had an opportunity to
    question the witnesses.
        Thank you for joining us.
        The subcommittee is meeting today in a legislative hearing
    to receive testimony on Protecting the Right to Organize Act:
    Modernizing America's Labor Laws. We call it the PRO Act.
        Pursuant to Committee Rule 7(c), opening statements are
    limited to the Chair and the Ranking Member. This allows us to
    hear from our witnesses sooner, and provides all members with
    adequate time to ask questions. I recognize myself now for the
    purpose of making an opening statement.
        Today, we are gathered for a legislative hearing on how the
    Protecting the Right to Organize Act, or PRO Act, would protect
    workers' rights to organize unions in the modern economy.
        We had a hearing on the PRO Act just a few months ago. It
    is rare to have a second hearing so soon. But here we are
    today, making this issue, that is so important. This is a fight
    that we must engage in together on behalf of our hard-working
    Americans. They are our constituents, and they are counting on
    us to fight for them so that they can, in turn, fight for
    themselves and their families; fight to earn decent wages and
    benefits that enable them to care for their families, extended
    families, and for themselves.
        And I want to implore all of my colleagues on the committee
    to become co-sponsors of this legislation, and then encourage
    all of the members of their respective delegations to sign on
    so that we can get this bill to the floor.
        Talk about this legislation during the August recess. I
    recently made a presentation before the Teamsters so we can get
    the word out to workers that we are on their side. This is a
    fight that we must fight in a consistent manner; and if we have
    to hold a third hearing on why the PRO Act is so urgently
    needed, we will do that.
        So, let's do everything we can to keep the public, our
    congressional colleagues, the National Labor Relations Board,
    and others, informed until everyone understands just how
    important this legislation is.
        Unions are essential for there to be dignity in and on the
    job. Protecting the right to organize is critical for reversing
    decades of wage stagnation and income inequality. Yet, the
    rapidly changing relationship between employers and employees
    is undermining workers' ability to negotiate for better wages,
    benefits, and working conditions. Today's workers are
    increasingly hired not as full-time employees with middle-class
    jobs, but as independent contractors and permatemps.
        As our witnesses will testify today, employers exploit
    ambiguities and loopholes in the NLRA to prevent their
    employees from organizing unions, even though those employers
    control the terms and conditions of employment for their
    subcontracted employers. Rather than working to strengthen the
    right to organize in this changing economy, corporate interests
    and their allies in the Trump administration are exploiting
    weaknesses in this outdated law to aid their assault on
    workers' rights.
        For example, under the Trump administration, the National
    Labor Relations Board has further enabled employers to
    misclassify their employees. Earlier this year, the NLRB denied
    SuperShuttle drivers employee status because of their alleged
    entrepreneurial opportunity, even though SuperShuttle
    prohibited workers from using their vehicles to work for any
    competitor.
        And what if a worker has multiple employers? As our
    witnesses will testify, for many workers, the name on the door
    of the building where they work is not the name of the company
    that signs their paycheck. Thanks to the 2015 NLRB decision,
    known as Browning-Ferris, both the user of permatemps and the
    supplier of permatemps can have a responsibility to
    collectively bargain with employees, since they jointly control
    directly and through contractual provisions. These terms and
    conditions of employment for permatemps, that joint control,
    makes them joint employers.
        However, despite an appeals court ruling that affirming
    this decision on the definition of a joint employer, the Trump
    administration is continuing its efforts to obliterate the
    court's direction through rulemaking.
        As the workplace becomes increasingly splintered, we must
    protect employees' First Amendment rights to free speech and
    protests, in addition to preventing employers from invading
    their legal obligations. The NLRA currently impairs workers'
    First Amendment rights by barring them from protesting for
    their right to unionize, and from standing in solidarity with
    workers from other employers, which would be otherwise
    constitutionally protected. These laws prevent workers from
    peacefully protesting companies that do business with
    unscrupulous employers.
        As work relationships become more complicated, the First
    Amendment becomes even more essential for those workers to
    advocate for better pay and better conditions. But the Trump
    administration is seizing upon current law to further undermine
    workers' rights. The Republican General Counsel of the NLRB
    recently argued that workers break the law when they use
    balloon animals while peacefully protesting. This makes a
    mockery of our First Amendment.
        The organization of the workplace becomes even more
    splintered, and employers are able to exploit these
    arrangements to eviscerate workers' rights. The Federal
    government has a responsibility to ensure that labor law
    continues to protect workers. The PRO Act would help achieve
    this goal by modernizing labor law to meet the challenges
    facing today's workers.
        The PRO Act would prevent the misclassification of
    employees by codifying a clear standard for when a worker is an
    employee or an independent contractor. The PRO Act also
    clarifies the standard for determining joint employment so that
    employers cannot evade their obligations under labor law. By
    codifying the NLRB's current standard, workers can hold each of
    their employees accountable under the law, and the PRO Act
    protects workers' First Amendment rights by repealing
    prohibitions on peaceful union picketing to guarantee
    organizing workers the same freedom of speech to which all
    Americans have a right.
        By passing the PRO Act, Congress and this committee would
    modernize our Nation's foundational labor law to ensure that
    all workers can join together and bargain with employers for
    better pay and working conditions. I look forward to hearing
    from our witnesses and the discussion that will ensue.
        I now recognize the Ranking Member, Mr. Walberg, for an
    opening statement, the esteemed Mr. Walberg.
        [The statement of Ms. Wilson follows:]

          Prepared Statement of Hon. Frederica S. Wilson, Chairwoman,
            Subcommittee on Health, Employment, Labor, and Pensions

        Today, we are gathered for a legislative hearing on how the
    Protecting the Right to Organize Act, or PRO Act, would protect
    workers' rights to organize unions in the modern economy.
        Unions are essential for there to be dignity in the on the job.
    Protecting the right to organize is critical for reversing decades of
    wage stagnation and income inequality.
        Yet, the rapidly changing relationship between employers and
    employees is undermining workers' ability to negotiate for better
    wages, benefits, and working conditions. Today's workers are
    increasingly hired--not as full-time employees with middle class jobs--
    but as independent contractors and permatemps.
        As our witnesses will testify, employers exploit ambiguities and
    loopholes in the N-L-R-A to prevent their employees from organizing
    unions--even though those employers control the terms and conditions of
    employment for their subcontracted employees.
        Rather than working to strengthen the right to organize in this
    changing economy, corporate interests and their allies in the Trump
    administration are exploiting weaknesses in this outdated law to aid
    their assault on workers' rights.
        For example, under the Trump Administration, the National Labor
    Relations Board, or N-L-R-B, has further enabled employers to
    misclassify their employees. Earlier this year, the N-L-R-B denied
    SuperShuttle drivers employee status because of their alleged
    ``entrepreneurial opportunity,'' even though SuperShuttle prohibited
    workers from using their vehicles to work for any competitor.
        And what if a worker has multiple employers? As our witnesses will
    testify, for many workers, the name on the door of the building where
    they work is not the name of the company that signs their paycheck.
        Thanks to a 2015 N-L-R-B decision, known as Browning-Ferris, both
    the user of permatemps and the supplier of permatemps would have a
    responsibility to collectively bargain with employees, since they
    jointly control-- directly and through contractual provisions--the
    terms and conditions of employment for permatemps. That joint control
    makes them ``joint employers.''
        However, despite an Appeals Court ruling that affirming this
    decision on the definition of a joint employer, the Trump
    administration is continuing its efforts to obliterate the court's
    direction through a rulemaking.
        As the workplace becomes increasingly fissured, we must protect
    employees' First Amendment rights to free speech and protest, in
    addition to preventing employers from evading their legal obligations.
        The N-L-R-A currently impairs workers' First Amendment rights by
    barring them from protesting for their right to unionize and from
    standing in solidarity with workers from other employers, which would
    be otherwise constitutionally protected.
        These laws prevent workers from peacefully protesting companies
    that do business with unscrupulous employers. As work relationships
    become more complicated, the First Amendment becomes even more
    essential for those workers to advocate for better pay and conditions.
        But the Trump administration is seizing upon current law to further
    undermine workers' rights. The Republican General Counsel of the N-L-R-
    B recently argued that workers break the law when they use balloon
    animals while peacefully protesting. This makes a mockery of our First
    Amendment.
        The organization of the workplace becomes even more fissured and
    employers are able to exploit these arrangements to eviscerate workers'
    rights. The federal government has a responsibility to ensure that
    labor law continues to protect workers.
        The PRO Act would help achieve this goal by modernizing labor law
    to meet the challenges facing today's workers.
        The PRO Act would prevent the misclassification of employees by
    codifying a clear standard for when a worker is an employer or an
    independent contractor.
        The PRO Act also clarifies the standard for determining joint
    employment so that employers cannot evade their obligations under labor
    law. By codifying the N-L-R-B's current standard, workers can hold each
    of their employers accountable under the law.
        And, the PRO Act protects workers' First Amendment rights by
    repealing prohibitions on peaceful union picketing, to guarantee
    organizing workers the same freedom of speech to which all Americans
    have a right.
        By passing the PRO Act, Congress and this Committee would modernize
    our nation's foundational labor law to ensure that all workers can join
    together and bargain with employers for better pay and working
    conditions.
        I look forward to hearing from out witnesses today and the
    discussion that will ensue. I now recognize the Ranking Member, Mr.
    Walberg, for an opening statement.
                                     ______

        Mr. Walberg. I thank the gentlelady.
        And I thank you for this hearing. I think this is going to
    be a good hearing, and I appreciate the opportunity for the
    give and take that will go on.
        Thanks to a skyrocketing economy -- and I think that is
    evident all across the board -- propelled by recent tax cuts,
    innovation, regulatory reform, and American enterprise with
    great workers throughout the country doing the jobs that only
    they can do, workers throughout this country are experiencing
    record-breaking success and opportunity.
        While workers' lives are improving, union membership rates
    have steadily plummeted, suggesting what Democrats refused to
    acknowledge, that strong workers, strong union workers, as
    well, and not strong union bosses lead to economic prosperity.
    Workers' disenchantment with union representation has created a
    real crisis for union leaders who, instead of increasing
    transparency and accountability to serve their members better,
    continued to exert their political influence by demanding
    radical national labor laws.
        Union bosses and the Democrats who have their support want
    to use the power of government to further consolidate control,
    coerce workers, and bolster their personal agendas; and as
    evidenced by steadily declining union membership rates, that
    doesn't sit well with American workers.
        The bill we are here to discuss today, H.R. 2474, the
    Protecting the Right to Organize Act, or the PRO Act, is a
    sweeping labor union boss wish list designed to appeal to
    liberal Democrat primary voters, rather than American workers
    in a modern workplace. This legislation is based not on the
    innovative 21st century economy we are fortunate enough to
    enjoy today, but on the economic and workplace realities of the
    1930s when my father was helping to organize labor at steel
    mills in Chicago. It increases the coercive power of big labor
    at the expense of workers and business owners.
        Among the list of dangerous one-sided provisions, the bill
    contains a card check scheme, the same undemocratic concept
    that was rejected by Congress the last time Democrats were in
    power. If a union loses an election, the legislation requires
    employers to prove they did not interfere in the election's
    results, a nearly-impossible standard to demonstrate, which
    defies our nation's long-held principle that you are innocent
    until proven guilty.
        If an employer is unable to prove that it didn't interfere,
    a union is automatically ushered into the workplace without
    ever winning a secret ballot election. Americans select their
    representation in Congress by secret ballot, and congressional
    Democrats select their own leadership by secret ballot. But
    today, they seek to deny the same right to Americans in the
    workplace. Where is the logic in that?
        Remarkably, the bill also requires employers to turn over
    workers' personal information. I wouldn't want that. The
    workers I know don't want that. They don't want me to know
    their personal information, or call their personal phone cells.
    This information includes their home addresses, cell phone and
    land line numbers, personal email addresses, and more without
    workers ever having a say in the matter. It also bans state
    right-to-work laws, enacted by state legislators and/or
    citizens to allow workers to decide for themselves whether to
    join and pay a union, laws that have resulted in more jobs and
    higher incomes for workers since being enacted in 27 states,
    including my home state of Michigan.
        The radical and coercive policies in this legislation are
    blatantly anti-worker and blatantly pro-union boss. Democrats
    are claiming that this bill will modernize labor law. In
    reality, H.R. 2474 amounts to little more than forcing more
    workers into one-size-fits-all union contracts, and returning
    to a stale and old-fashioned 1930s-era view of the American
    economy and workforce.
        Unlike this antiquated, anti-growth special interest
    viewpoint, Republicans believe that true modernization means
    expanding entrepreneurial opportunity and embracing flexible
    work arrangements and ensuring that union bosses are truly
    accountable to the workers they claim to represent.
        There is nothing progressive or modern about what Democrats
    are proposing in this bill. History has shown us that
    individual opportunity, innovation, and economic growth are
    what lead to real progress and prosperity for American workers.
    Americans are benefiting from the strong economy ushered in by
    Republican-led tax and regulatory reform. Wages are rising,
    unemployment is at near-record lows, and millions of jobs have
    been created since President Trump took office.
        But the anti-worker freedom bill being discussed today
    would threaten this progress. Instead of more freedom and
    opportunity, it promises more coercion and red tape.
    Republicans on this committee will continue to stand with
    workers and promote individual freedom and pro-growth economic
    policies as the best path forward for workers, the best workers
    in the world, and job seekers for increased jobs throughout
    this country.
        As I said, Madam Chairwoman, I appreciate this hearing. It
    will be good discussion, even with disagreement; but we have to
    recognize the reality of what we are doing.
        And I yield back.
        [The statement of Mr. Walberg follows:]

    Prepared Statement of Hon. Tim Walberg, Ranking Member, Subcommittee on
                    Health, Employment, Labor, and Pensions

        Thanks to a skyrocketing economy propelled by recent tax cuts,
    innovation, and American enterprise, great workers throughout the
    country are experiencing record-breaking success. While workers' lives
    are improving, union membership rates have steadily plummeted,
    suggesting what Democrats refuse to acknowledge: that strong workers-
    strong union workers as well- and not strong union bosses, lead to
    economic prosperity. Workers' disenchantment with union representation
    has created a real crisis for union leaders, who instead of increasing
    transparency and accountability to serve their members better, continue
    to exert their political influence by demanding radical national labor
    laws. Union bosses--and the Democrats who have their support--want to
    use the power of government to further consolidate control, coerce
    workers, and bolster their personal agendas. And as evidenced by
    steadily declining union membership rates, that doesn't sit well with
    American workers.
        The bill we're here to discuss today, H.R. 2474, the Protecting the
    Right to Organize Act (PRO Act), is a sweeping labor union boss wish-
    list designed to appeal to liberal Democrat primary voters rather than
    American workers in a modern workplace. This legislation is based not
    on the innovative 21st century economy we are fortunate enough to enjoy
    today, but on the economic and workplace realities of the 1930's, when
    my father was helping organize labor at the steel mills in Chicago, and
    it increases the coercive power of Big Labor at the expense of workers
    and business owners.
        Among a list of dangerous one-sided provisions, the bill contains a
    ``card-check'' scheme, the same undemocratic concept that was rejected
    by Congress the last time Democrats were in power. If a union loses an
    election, the legislation requires employers to prove they did not
    interfere in the election's results--a nearly impossible standard to
    demonstrate, which defies our nation's long-held principle that you are
    innocent until proven guilty. If an employer is unable to prove that it
    didn't interfere, a union is automatically ushered into the workplace,
    without ever winning a secret ballot election. Americans select their
    representation in Congress by secret ballot, and Congressional
    Democrats select their own leadership by secret ballot, but today they
    seek to deny that same right to Americans in the workplace. Where is
    the logic in that?
        Remarkably, the bill also requires employers to turn over workers'
    personal information. I wouldn't want that. The workers I know don't
    want that. This information includes their home addresses, cellphone
    and landline numbers, personal email addresses, and more--without
    workers ever having a say in the matter. It also bans state right-to-
    work laws, enacted by state legislators and/or citizens, that allow
    workers to decide for themselves whether to join and pay a union--laws
    that have resulted in more jobs and higher incomes for workers since
    being enacted in 27 states, including my home state of Michigan.
        The radical and coercive policies in this legislation are blatantly
    anti-worker, and blatantly pro-union boss. Democrats are claiming that
    this bill will ``modernize'' labor law. In reality, H.R. 2474 amounts
    to little more than forcing more workers into one-size-fits-all union
    contracts and returning to a stale and old-fashioned 1930s-era view of
    the American economy and workforce. Unlike this antiquated, anti-
    growth, special interest viewpoint, Republicans believe that true
    modernization means expanding entrepreneurial opportunity and embracing
    flexible work arrangements and ensuring that union bosses are truly
    accountable to the workers they claim to represent.
        There is nothing ``progressive'' or ``modern'' about what the
    Democrats are proposing in this bill. History has shown us that
    individual opportunity, innovation, and economic growth are what lead
    to real progress and prosperity for American workers.
        Americans are benefiting from the strong economy ushered in by
    Republican-led tax and regulatory reform. Wages are rising,
    unemployment is at near-record lows, and millions of jobs have been
    created since President Trump took office.
        But the anti-worker bill being discussed today would threaten this
    progress. Instead of more freedom and opportunity, it promises more
    coercion and red tape. Republicans on this Committee will continue to
    stand with workers and promote individual freedom and pro-growth
    economic policies as the best path forward for workers and job-seekers
    throughout the country.
                                     ______

        Chairwoman Wilson. Thank you, Mr. Walberg.
        Without objection, all other members who wish to insert
    written statements into the record may do so by submitting them
    to the committee clerk electronically in Microsoft Word format
    by 5:00 p.m. on August 7, 2019.
        I will now introduce our witnesses. Welcome to you, and
    thank you so much for coming.
        Ms. Charlotte Garden is a Professor of Labor and
    Constitutional Law at Seattle University School of Law.
    Welcome.
        Mr. Josue Alvarez is a truck driver for XPO Logistics from
    Bell Gardens, California. Thanks for traveling so far.
        Mr. Roger King is a Senior Labor and Employment Counsel
    with the HR Policy Association. Thank you.
        Mr. Richard F. Griffin, Jr., is of counsel at the law firm
    of Bredhoff & Kaiser, PLLC. He also served as a Board Member
    and as General Counsel for the National Labor Relations Board.
    Welcome.
        We appreciate all of the witnesses for being here today,
    and we all look forward to your testimony. Let me remind the
    witnesses that we have read your written statements, and they
    will appear in full in the hearing record.
        Pursuant to committee rule 7(d) and committee practice,
    each of you is asked to limit your oral presentation to a five-
    minute summary of your written statement.
        Let me also remind the witnesses that pursuant to Title 18
    of the U.S. Code, Section 101, it is illegal to knowingly and
    willfully falsify any statement, representation, writing,
    document, or material fact presented to Congress, or otherwise
    conceal or cover up a material fact.
        Before you begin your testimony, please remember to press
    the button on the microphone in front of you so that it will
    turn on and the members can hear you. As you begin to speak,
    the light in front of you will turn green. After 4 minutes, the
    light will turn yellow, to signal that you have one minute
    remaining. When the light turns red, your five minutes have
    expired; and we ask that you please wrap it up so I will not
    have to gavel you.
        We will let the entire panel make their presentations
    before we move to member questions. When answering a question,
    please remember to, once again, turn your microphone on.
        I will first recognize Ms. Garden.

     STATEMENT OF CHARLOTTE GARDEN, J.D., LL.M, CO-ASSOCIATE DEAN
      FOR RESEARCH & FACULTY DEVELOPMENT AND ASSOCIATE PROFESSOR,
                    SEATTLE UNIVERSITY SCHOOL OF LAW

        Ms. Garden. Thank you.
        Madam Chair Wilson, Ranking Member Walberg, and members of
    the subcommittee, thank you for the opportunity to testify
    today about the need to expand the protections of labor law,
    and to ensure that workers and unions can robustly exercise
    their First Amendment rights to engage in collective action.
        My name is Charlotte Garden. I am an associate professor at
    Seattle University School of Law, where I teach labor law and
    constitutional law.
        My testimony today focuses on two reasons that the NLRA
    falls short of its promise to restore to workers equality of
    bargaining power and full freedom of association. First, the
    NLRA curtails workers' and unions' rights of free speech,
    association, and assembly, by prohibiting certain secondary
    protests. Second, it doesn't do enough to respond to workplace
    fissuring, including through subcontracting and
    misclassification.
        I want to make two points regarding the NLRA's ban on
    certain secondary activity, which generally covers strikes and
    picketing, aimed at persuading businesses or consumers not to
    do business with an employer with whom a union has a labor
    dispute.
        First, in fissured workplaces, this restriction can force
    workers to act irrationally, focusing their attention on the
    small entities that are technically their employers, rather
    than the larger entities that exercise the most effective
    control over their working conditions. Second, this restriction
    on how workers and unions can protest is in tension with modern
    First Amendment case law.
        Both points are illustrated by a recent NLRB decision in
    Preferred Building Services. In Preferred, a group of janitors
    supported by a labor union picketed and passed out literature
    detailing bad treatment they had faced at work including,
    sexual harassment by their supervisor.
        Naturally, they did this outside the place they went to
    work every day. That was an office building managed by a
    company called Harvest, but Harvest didn't employ the janitors
    directly. Instead, it contracted with Preferred Building
    Services, which, in turn, contracted with a smaller janitorial
    company called OJS. It was OJS that signed the workers'
    paychecks, and it was OJS that fired the workers shortly after
    they sought to draw attention to harassment and the other
    problems they faced at work.
        An administrative law judge found that the workers should
    get their jobs back and other relief; but the NLRB disagreed,
    concluding that the workers picketing lost NLRA protection
    because it sought to coerce Harvest or building tenants.
        To say the least, it is counterintuitive that labor law
    would not protect workers picketing at their job site to
    improve fundamental working conditions, such as the right to
    work free of sexual harassment. But in the modern economy,
    large companies often contract out parts of their operations,
    including their janitorial services, sometimes to small firms
    that work for a small number of clients or maybe just one
    client.
        In this scenario, the large companies maintain effective
    control over wages and working conditions. So, if you imagine a
    small janitorial firm that squeezed between workers demanding
    higher pay, and a main client demanding lower overhead, I know
    which side will win every time. Yet, labor law expects workers
    to keep their picketing focused on their small employer, and
    not the large company that employer contracts with.
        In short, law allows employers to strategically manage
    their operations through interconnected contractual
    relationships. It shouldn't then limit how workers respond to
    the effects of those relationships.
        Second, the NLRA's prohibition on secondary activity raises
    serious First Amendment problems. Those problems are especially
    apparent in recent cases. For example, the Board's General
    Counsel's office has recently argued that unions' use of
    inflatable rats and other animals either qualifies as picketing
    or is otherwise coercive, and that these balloons violate the
    NLRA when used for a secondary purpose.
        In one recent case, the General Counsel's office argued
    that a, quote, ``huge, menacing inflatable rat placed near a
    business entrance . . . inherently conveys a threatening and
    coercive message that will restrain a person.'' But even more
    restrained interpretations of the NLRA's secondary activity ban
    raised serious First Amendment problems that have only deepened
    in recent years. The Supreme Court has struck down limits on
    other forms of protest, including civil rights boycotts,
    picketing at funerals, and anti-abortion sidewalk counseling.
    It has increasingly found that legal restrictions on the speech
    of corporate entities are suspect. Yet, the secondary activity
    ban limits what unions can say on picket signs, ignoring the
    reality that today, union pickets rely on moral persuasion
    rather than coercion.
        The PRO Act appropriately responds to these problems by
    excising limits on secondary and recognitional protests under
    the NLRA, and it blunts some forms of workplace fissuring by
    adopting a more straightforward and predictable method of
    distinguishing employees from independent contractors and
    retaining the current definition of joint employer.
        Thank you for the opportunity to testify.
        [The statement of Ms. Garden follows:]

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        Chairwoman Wilson. Thank you, Ms. Garden.
        We will now recognize Mr. Alvarez.
        Welcome, Mr. Alvarez.

     STATEMENT OF JOSUE ISRAEL ALVAREZ, MISCLASSIFIED TRUCK DRIVER
                           FOR XPO LOGISTICS

        Mr. Alvarez. Thank you, Chairwoman Wilson and Ranking
    Member Walberg.
        My name is Josue Alvarez from Bell Gardens, California. I
    am 26 years old, and I am a misclassified truck driver at XPO
    Logistics.
        I am honored to speak with you today about the Protecting
    the Right to Organize Act. My parents came to the United States
    from El Salvador in search of a better future. Growing up, my
    father had many jobs, but struggled to make ends meet. We lived
    in a cramped one-bedroom apartment shared with other families.
    It was difficult. My dad and I worked for a $15 billion global
    corporation called XPO Logistics.
        We know that these companies have scams to hide their
    responsibilities to the workers. One scam is calling drivers
    who own or lease trucks independent contractors, but then
    controlling them just like any employee. This is known as
    misclassification. The other scam is completely avoiding any
    responsibility to a driver who works for them and drive someone
    else's trucks, usually at the nightshift. They call this driver
    a second sheet driver. Whatever they call us, at the end of the
    day, we are all experienced employees, while XPO gets away with
    wage theft and union busting.
        I didn't always want to be a truck driver. I tried to
    finish my degree in aviation administration, and have a dream
    of becoming a pilot, but those dreams are becoming more
    difficult. I became my dad's second seat driver in hope that my
    extra income would not only help my family, but also further my
    education. That has not been the case. With the income I bring
    home, I cover costs like cell phone and Internet, so my two
    younger brothers can focus on their education. I am slowly
    trying to finish my degree, but it is hard when you have to
    work 14 hours a day and at the company's mercy.
        I cannot say now just how much misclassification has badly
    impacted not just my life, but also the thousands of other
    misclassified drivers and their families. As a second seat
    driver, you are paying cash per load. You have no access to
    benefits, work nights often, and receive the worst dispatches.
    Whenever an issue arises, we bring them to XPO management. They
    turn us away and tell us that the truck owner is our boss but
    XPO controls our work. They dispatch us. They tell us when to
    go and where, and they decide how much we get paid. Controls
    all relations with customers, including the type of service
    provided, how much the customer is charged, and the
    appointments when to pick up the container.
        My truck says XPO on it. I wear an XPO vest every day. It
    is clear who the boss is here. It is XPO. If something happens
    while we are on the road, we immediately have to report it to
    dispatch and wait for instructions.
        One time I was passing through a scale for an inspection. I
    was issued a citation from DOT and given a report to return to
    dispatch. This citation falls into XPO since it is XPO's DOT
    member, but XPO has their own internal point system used to
    discipline us. For this instance, I received 55 points. Once
    you hit 75 points, you are terminated.
        Last year, I purchased my own truck. You may be wondering
    why, knowing the struggle involved. The answer is that XPO
    misled me. They told me that they were going to get a bunch of
    new accounts and work was going to pick up significantly. That
    ended up not being the case. We haven't seen these new
    accounts, and work has not picked up. Now I am stuck with this
    truck. XPO does what it can to fool workers into buying into
    this business. They try to sell you a dream. My paycheck comes
    with a statement attached, telling me how much I make per load,
    and then a list of deduction of insurance and miscellaneous
    administration fees. I have no idea what some of these
    administration costs really are, or if they are legitimate.
        And because I am misclassified, XPO is able to push
    operation costs like taxes, diesel, tags, and more onto me. My
    dad and his coworkers tried to organize back in 2015, but XPO's
    misclassification made it impossible to organize. Workers were
    met with intimidation and retaliation against and were told
    that they were independent contractors. An administrative law
    judge issued her decision, finding us to be employees in 2018,
    but XPO filed an appeal in the case and still it is still
    unresolved.
        The law needs to be changed so it will be easier to be
    recognized as an employee. My dad tried to bring me around
    organizing meetings at first. I wanted no part of it. I
    believed XPO and their antiunion messaging. I was wrong. XPO is
    wrong. I realize that things at XPO need to be changed. I don't
    have health insurance. We don't have sick days or vacation
    days. We should be able to go to a bargaining table and
    negotiate higher pay and benefits, sick days, vacation days,
    and agreement procedures. We are not asking for a lot. We are
    asking for what is just and fair.
        Being properly classified at XPO will mean that we can
    finally form our union and bargain for the employee benefits
    and protections that we have been denied. Our community, which
    has long been exploited by this industry, could finally live
    the middle-class life they came to this country for. My family
    could finally make ends meet and even thrive. I could finally
    go back to school and fulfill my dream of becoming a pilot. We
    could finally achieve the American dream.
        Thank you, and I am looking forward to your questions.
        [The statement of Mr. Alvarez follows:]

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        Chairwoman Wilson. Thank you so much, Mr. Alvarez.
        We will now recognize Mr. King.

        STATEMENT OF G. ROGER KING, SENIOR LABOR AND EMPLOYMENT
                     COUNSEL, HR POLICY ASSOCIATION

        Mr. King. Thank you, Chair Wilson, Ranking Member Walberg,
    members of the Subcommittee. Thank you for having me back.
        Mr. Roe, nice to see you again.
        Ms. Foxx, nice to see you.
        And Committee Chair Scott, nice to see you also.
        I am testifying here today on behalf of the Coalition for
    Democratic Workplace. I am the Senior Labor Employment Counsel
    for the HR Policy Association, and the association is a member
    of CDW. CDW represents literally hundreds of thousands of
    employers throughout the country, and millions of workers. The
    HR Policy Association represents a good number of the major
    companies in this country and their chief human resource
    officers.
        We are opposed to this bill. When I went through it the
    other evening, I counted at least 30-plus negative provisions
    that are biased, as mentioned by Mr. Walberg, toward not only
    employers, but also employees. Also at least four Supreme Court
    cases are overruled by this legislation. After reading the
    professor's testimony the other day, I added another one
    because, as she suggests, secondary boycotts would now be
    illegal and would be overruled by the Supreme Court decision in
    question.
        This is a disturbing act. It amends the National Labor
    Relations Act to radically change the definition of joint
    employers. This body recently took the opposite direction. It
    passed, on a bipartisan basis, a bill that went exactly the
    other way and protected small business entities, particularly
    franchisors and franchisees. I think many people in this
    country will remember that vote, and this bill clearly is
    repugnant to what this body did in that legislation.
        Second, the bill radically changes the definition of
    employee status under our Nation's labor laws, and blindly
    accepts a perhaps California approach known as the ABC test. I
    would note in passing, even California now is having trouble
    with this proposal. The General Assembly in Sacramento is not
    sure how to go. The courts are not sure how to go. They just
    accepted another remand on this case. This is a bad proposal
    that will hurt American workers.
        The bill also mandates that arbitrators decide in initial
    negotiations, if the parties can't agree, the terms of the
    agreement if, in fact, a majority of employees in the unit have
    signed cards. This is backdoor card check. This is something
    this body, as Mr. Walberg mentioned, rejected. This is very
    controversial, not a good idea, not favored by the public, not
    favored by workers. Under this provision, the workers don't
    even get a chance to vote on whether they would accept or
    reject what the arbitrators come up with. Not a good idea.
        Further, the bill without any premise or predicate
    whatsoever would permit intermittent strikes. Why that is a
    good idea, I have yet to hear anybody give me a good
    explanation. Intermittent strikes cripple companies and
    businesses. They are not good for workers.
        The bill also would overrule, as mentioned, the right-to-
    work legislation that has been enacted, Michigan, been
    mentioned by Mr. Walberg, and other states. Let me give you a
    practical consequence of that. An employee in one of those
    states that refuses because of her or his very solid thinking
    that they do not want to pay fees or dues to a union could be
    ousted from employment because in that state now, a condition
    of employment could be made to pay fees or dues.
        The premise for this bill is wrong. The nation's labor laws
    are not broken. The National Labor Relations Board is
    functioning quite well.
        If you look at the stats I have in my testimony, unions
    have failed to organize. We are at a 75-year low for petitions
    being filed in this country by unions, and the stats and the
    papers speak for themselves. What really is interesting, when
    you compare the number of potential workers in this country for
    unionization in the private sector to the number of petitions
    filed by unions in this country, it is less than one tenth of
    one percent.
        Let me emphasize it again. Unions are not devoting any
    material resources to organizing. Before they come to this body
    and ask for a lifeline, they should do their own work. They are
    simply not doing that. That is a startling statistic, and even
    labor union leaders are criticizing that fact. The AFL-CIO's
    budget is devoting less and less resources to organizing, but
    yet, they want you to bail them out. Not a good idea.
        We oppose this bill and we think it is a very bad proposal,
    not only for employers, but for employees and for our nation's
    economy, because it is going to be a formula for disruption.
        Thank you.
        [The statement of Mr. King follows:]

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        Chairwoman Wilson. Thank you, Mr. King.
        We will now recognize Mr. Griffin.

    STATEMENT OF RICHARD F. GRIFFIN, JR., J.D. OF COUNSEL, BREDHOFF
                           & KAISER, P.L.L.C.

        Mr. Griffin. Madam Chair Wilson, Ranking Member Walberg,
    and members of the committee, my name is Richard F. Griffin,
    Jr. I was the General Counsel of the National Labor Relations
    Board from November 2013 until the end of October 2017.
        I want to state at the outset the central importance of
    workers' rights to join together to form unions, and to engage
    in collective bargaining to any fair economic system. Section 7
    of the National Labor Relations Act beautifully articulates
    these rights, but the rest of the Act does not fulfill Section
    7's promise. Reform is needed. I will thus discuss here the
    standards for determining independent contractors and joint
    employers and injunctive relief.
        Only employees as statutorily defined have the right to
    engage in Section 7 activities. Thus, independent contractors
    are not protected when they form a union and seek to engage in
    collective bargaining. When I was General Counsel, the employee
    status issue and the misclassification of employees occupied a
    large amount of time and resources for the agency. The status
    determination requires the application of a complicated 10-part
    test. The Board in the D.C. Circuit disagreed over how to view
    workers' potential entrepreneurial opportunity when applying
    that test, with the Board focusing much more on whether
    entrepreneurial opportunity was actually exercised.
        Recently, the current Board in the SuperShuttle case
    determined that all 10 common-law factors have to be examined
    through the prism of potential economic opportunity. This
    decision complicates the application of a difficult test,
    expands the number of workers excluded from the Act's coverage,
    and opens up the potential for employer manipulation. Employer
    manipulation resulting in rampant misclassification of
    employees as independent contractors is a real concern.
        As an example, we had one case where an employer settled an
    unfair labor practice charge by agreeing to post a notice,
    advising its truck driver employees of their rights under the
    Act, only to turn around and advise those same truck drivers
    that the notice didn't apply to them because they were
    independent contractors.
        The PRO Act's three-part test is easy to apply and will
    make such misclassification obvious and easily addressable.
        On the joint employer question, everyone agrees that common
    law applies. The fight is over what the common law requires.
    Lost in the rhetoric is the changing nature of the workplace
    and the need to put employees' representatives at the
    bargaining table with the entities that have a right to control
    the employees' conditions of employment. In the modern
    workplace, the responsibility formerly performed by one
    employer are now done by multiple entities. This calls for a
    particularized application of all the common-law factors. The
    prior Board did this in its Browning-Ferris decision. On the
    other hand, the current Board is proposing a rule that would
    limit the factors considered to possession and actual exercise
    of substantial, direct, immediate control over the essential
    terms and conditions of employment of another employer's
    employees in a manner that is not limited and routine.
        As an example of why this is a bad test, in a supplier/
    employer, user/employer situation, where a temporary agency
    supplies permatemps to a workplace, the user's supervisors
    routinely mandate overtime for supplied employees. In
    contemporary society where people hold multiple jobs, both
    spouses are working, commuting distances are great, and child
    and elder care responsibilities paramount, there are few more
    essential determinations than whether a worker has to work
    longer hours on a particular day than she or he planned.
        In this context, the union representative seeking to
    bargain voluntary overtime provisions, set schedules, the
    equitable rotation of overtime, or advanced notice of schedule
    changes has an impossible task if she is limited to seeking
    such provisions from the supplier employer.
        In this example, effective collective bargaining requires
    the user employer to be represented at the bargaining table.
    The Board's Browning-Ferris decision requires consideration of
    routine repetitive control, along with indirect control and
    reserved control. The PRO Act wisely would codify that
    standard.
        Finally, on injunctive relief, the Act's critics frequently
    point to the inadequacy of its remedies. When combined with the
    requirement to enforce Board orders in the courts of appeals,
    final enforcement comes too late to be effective. The typical
    worker will think twice about supporting a union if the
    potential consequence is that she will be fired and have to
    wait a long time to obtain legal redress.
        Injunctive relief under sections 10(l) and 10(j) is a
    powerful way to obtain quick relief. Section 10(l) requires
    that relief be sought mandatorily, 10(j) is discretionary.
    Section 10(l) has been very successful in essentially
    eliminating the union unfair labor practices, the 8(b)s, that
    it is addressed to eliminate. Virtually the only time that
    Section 10(l) injunctions are sought these days is when general
    counsels advance novel theories infringing on union First
    Amendment rights, such as the current initiative seeking
    injunctions against union's symbolic speech using inflatable
    rats. The PRO Act incorporates mandatory language in Section
    10(j), making the Board more capable of addressing violations
    quickly and effectively.
        Thank you for this opportunity to testify, Madam Chair.
        [The statement of Mr. Griffin:]

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        Chairwoman Wilson. Thank you, Mr. Griffin.
        Under Committee Rule 8(a), we will now question witnesses
    under the 5-minute rule. I will now yield myself 5 minutes.
        Mr. Alvarez, because XPO industries misclassified you and
    other drivers as independent contractors, you are not able to
    be bargained -- you are not able to bargain for basic worker
    protections like health insurance and sick pay. So, what
    happens now when you or a fellow driver becomes sick or needs
    time off?
        Mr. Alvarez. We really have to think about it. It is just
    like anytime, just like any -- before I take vacation or a day
    off, XPO still pushes the operation, costing us, regardless we
    go to work or not.
        Chairwoman Wilson. How would organizing a union solve this
    problem for and other drivers?
        Mr. Alvarez. With the union help, we will be able to go to
    our bargaining table and bargain those benefits that we have
    been denied, for example, vacations and sick days. We should be
    able to go to vacation and not come back to a negative check
    every time.
        Chairwoman Wilson. Okay. I want to thank you for your
    courage to testify here today before this committee, and know
    that we are going to fight for you. We will fight for you and
    all Americans who want to exercise their rights to negotiate
    for better pay and working conditions, and thank you for
    standing up and coming today.
        Mr. Griffin, I want to thank you for your public service
    with the NLRB. During your time as General Counsel, you devoted
    yourself to the core purposes of the National Labor Relations
    Act, which are to protect workers' freedom of association and
    promote the practice and procedure of collective bargaining. In
    your testimony, you detailed the harm that misclassification
    has done to employees, like Mr. Alvarez.
        What are some of the ways that misclassification
    independently violates workers' rights under the labor law, and
    how would the PRO Act address this problem?
        Mr. Griffin. Well, it is fundamental under the Act. If you
    are an employee, you have rights, they are protected. If you
    are an independent contractor, you don't have rights, you are
    not protected. And so, if an employer deliberately takes
    someone who has employee status and does not allow them to
    exercise their rights by advising them that they are an
    independent contractor, that they have no rights, it is a
    fundamental violation of people's ability to engage in the
    activities protected under Section 7.
        In addition, it has a chilling effect on people's ability
    to speak to each other, to engage in the type of concerted
    activity that the Act protects, because they think they don't
    have any rights. They are misinformed, misclassified, and it is
    probably an extremely -- it is an extremely effective way to
    deny people their rights.
        And so what the PRO Act does, is it takes this 10-part test
    that is very complicated and confusing, and makes it simple and
    straightforward. And so if somebody misclassifies an employee,
    it is very obvious under that three-part test what they have
    done and so it makes it simpler to identify the
    misclassification.
        Chairwoman Wilson. Thank you.
        Your testimony -- this is for Professor Garden.
        Your testimony details how provisions of the NLRA curtails
    workers' First Amendment free speech rights.
        Do the reasons for those restrictions on workers' speech
    including the so-called secondary activity as part of the Taft-
    Hartley Act of 1947 hold up in today's workplace?
        Ms. Garden. Thank you for that question.
        I think there are two reasons that the reasons behind the
    secondary boycott provision don't hold up today: One has to do
    with law, and one has to do with the changing nature of work.
        First, in 1959 when 8(b)(4) was adopted and then when it
    was modified in 1959 -- I'm sorry -- 1947 -- when it was
    adopted and modified in 1959, perhaps Congress could have
    reasonably seen picket lines as coercive. At the time, refusing
    to cross a picket line could mean the ability to -- could mean
    losing the ability to work in a heavily unionized industry.
    That is no longer the case as a matter of law. Workers' jobs
    can't be conditioned on their willingness to walk a picket
    line. That means today's picket lines depend on moral
    persuasion, not on coercion.
        Second, work has changed. Fissuring situations like the one
    that gave rise to Preferred Building Services have become more
    common, and that means there is a greater need for employees to
    be able to picket outside of the larger entities that control
    their wages and working conditions as a practical matter.
        Chairwoman Wilson. Okay. In your opinion, should First
    Amendment rights to free speech be restricted because of who is
    making the speech?
        Ms. Garden. Absolutely not. And it is not just my opinion.
    It is the Supreme Court's opinion as well. In recent cases like
    Sorrell v. IMS Health, even like Citizens United, the Supreme
    Court has strongly criticized the idea that speech rights can
    turn on who is speaking at a given time. The Court has said
    that government has to justify speech rights that turn on who
    the speaker is, and, essentially, demands proof that the
    restriction is necessary to achieve an important government
    interest.
        Chairwoman Wilson. I thank you. I thank you so much.
        I now recognize the Ranking Member Walberg for his round of
    questions.
        Mr. Walberg. I thank you, Madam Chair.
        I believe we will recognize the Chairwoman or the Ranking
    Member.
        Chairwoman Wilson. Oh, the esteemed Dr. Foxx --
        Ms. Foxx. Thank you.
        Chairwoman Wilson. -- for her round of questioning.
        Ms. Foxx. Thank you, esteemed Chairwoman.
        I thank all of the witnesses for being here today.
        Mr. King, the bill before us today undermines the right of
    American workers to a secret ballot election to decide union
    representation. But shockingly, 77 House Democrats who have
    cosponsored H.R. 2474, including 12 on this committee, also
    signed a letter to the Trump administration, urging strong
    enforcement of a new law in Mexico that guarantees Mexican
    workers that same right to a secret ballot union representation
    election.
        Doesn't it seem remarkably inconsistent, even hypocritical,
    for Democrats to ensure the right to a secret ballot union
    representation election for Mexican workers, but undermine the
    same right for American workers; and why is the right to a
    secret ballot election so important for workers?
        Mr. King. Thank you, Dr. Foxx. It is nice to see you again.
        I have been following the United States, Mexico, Canada
    negotiations quite closely. Our members, many have operations
    in Mexico and we are quite concerned about where that is going,
    but it looks like we have progress. But your point is well
    taken. Those negotiations guarantee Mexican workers the right
    to vote on whether they want union representation; and,
    further, it even goes beyond that. The workers in Mexico under
    the negotiation status of present will also have a right to
    approved collective bargaining. Their collective bargaining
    agreement will be subject to a vote. So, those rights are even
    further being articulated and pursued than what is available to
    American workers.
        Ms. Foxx. Thank you, Mr. King.
        Mr. King, in the first hearing on H.R. 2474, a union leader
    testifying for the Democrats admitted the reasons they need to
    force workers to turn over personal information such as home
    addresses and cell phone numbers is so that unions can target
    workers, quote, ``at a grocery store,'' end quote, or, quote,
    ``any place else where you can get them,'' end quote,
    including, quote, ``at their home,'' end quote.
        Under this bill would workers have any say regarding the
    privacy of their personal information and what personal
    information is shared with the union organizers? What risks,
    disruptions, or threats could that create for workers and their
    families?
        Mr. King. Well, it certainly could subject them to
    harassment at any location, as you mentioned, whether it be the
    grocery store or at their home; and, further, there is no
    ability under this bill for a worker to opt out, to say that
    she or he does not want to share such information.
        Additionally, there is no protection whatsoever for this
    private information. We have all seen the data breaches that
    occur, particularly in government, but not just in government.
    So this is a very poor provision. I think members that support
    this bill will have a very difficult time explaining to their
    constituents why they authorized the release of personal cell
    phone numbers, personal home phone numbers, personal email
    addresses. Very bad idea.
        Ms. Foxx. I think there is also some discrepancies in what
    our colleagues are saying about the Internet and agencies that
    control the Internet in this regard.
        Mr. King, Democrats have made their intentions clear in
    H.R. 2474 regarding their goal of eliminating independent
    contractor status which has encouraged innovations like the
    sharing economy that millions of Americans embrace and use
    every day.
        How exactly would this bill impact business owners,
    workers, and consumers in the sharing economy?
        Mr. King. Well, Dr. Foxx, it would eliminate for all
    intents and purposes, decades of jurisprudence as to who is and
    who is not an independent contractor; and as a practical
    matter, pursuant to your question, it would adversely affect
    millions of workers who prefer to have a job where they work
    when they want to work, and the independence they have
    associated with that job. So, it is going to hurt that part of
    our growing economy tremendously, another very poorly thought-
    out proposal.
        Ms. Foxx. Well, our whole country, the capitalist system,
    is based on the idea that somebody can start a business and get
    it going and work with other people who are independent
    contractors. I think it underlines capitalism, frankly. It is a
    much broader issue, I believe, than what is just in this bill.
        Madam Chairwoman, I would like to submit for the record an
    article from the Wall Street Journal, April 30, 2019, called,
    Big Labor's Big Shrink.
        Thank you.
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        Chairwoman Wilson. Thank you.
        And now Mr. Norcross from New Jersey.
        Mr. Norcross. Thank you. First of all, thank you for
    holding this second hearing, because, remarkably, facts count,
    and when we look at the long history of employer/employee
    relationships in this country, we have had some valleys and
    some peaks. But the one I look at now is the gap between
    productivity of a typical worker's compensation, and that of
    their hourly compensation. So, as compensation went up pretty
    much even from the early 1960s to the mid 1970s, with
    productivity, they stayed pretty much aligned -- and I will
    enter this into the agreement -- but then a remarkable thing
    happened in the mid 1970s. Productivity continued to skyrocket,
    and hourly compensation stayed flat, to the point that they
    were even in the 1970s, there is now 130 percent gap over those
    45 years.
        Now you are asking yourself: Why? Well, what I heard is
    Americans are making it today. Absolutely right if you are that
    top 1 percent, which this is what shows, but that is what
    happened when the laws became outdated and changed for those
    who wanted to have representation. So now, today, we are left
    with a set of rules for those who want to collectively bargain
    that are chiefly stacked against them.
        You cannot argue with the gap between those who are at the
    top 1 percent and those workers. It used to be, if you played
    by the rules in America and you worked hard, you grew with your
    company and they would treat you that way. But what you see
    today is something that is nothing short of remarkable.
        Ritz, the Nabisco company in Philadelphia, closing down
    their shop, moving to Mexico. Why? We do have the greatest
    workers in the world, but apparently, we don't want to pay
    them. So, we ship them off to Mexico and say sorry to everybody
    else. This has happened time and time again.
        And then the independent worker, the entrepreneurial
    spirit, so those Uber drivers are now their own accountant and
    bookkeeper. They are their tax advisor. They are talking about
    them as they are now their retirement. They are health advisors
    to make sure they get the right insurance. They now have to be
    their legal advisor, their insurance advisor, their safety in
    OSHA; and these are the same folks that are barely making
    minimum wage.
        So, what you are seeing is the deferred responsibility,
    companies dumping it off and making them their own company. We
    know this isn't going to work. We are seeing evidence of this
    every day. It is a way of a company deferring their
    responsibility to making those employees, which, as you spoke,
    Mr. Griffin, is they have certain rights and responsibilities
    when you are an employee; but when you are a subcontractor,
    that all goes out the window. So, the company that hired them
    now defers all that.
        Tell me what person you know driving an Uber is his own
    accountant, his tax advisor, his requirement advisor, health
    advisor, legal advisor, insurance, and now safety. Tell me how
    that works? It doesn't. It is not about entrepreneur. Those who
    want to start their own companies make that determination. Uber
    drivers don't want to start their own company. They just want
    to make a fair living. I am just bringing out Uber. There are
    dozens and dozens of examples of this.
        So, Mr. Griffin, in the PRO Act, does this change what
    would be considered an independent and entrepreneurial person
    and an employee? Could you explain that?
        Mr. Griffin. Yeah, I don't think that there is any issue
    about truly independent contractors who want to start their own
    business and get customers, as far as those people being
    limited in their ability to do that.
        What this test does is it prevents the three-part test that
    is in the PRO Act. It prevents people who are actually
    employees who are not out, seeking other customers but who are
    handed a piece of paper when they come to work and ask to sign
    it, that is a paper document that the employer drafts and has a
    lot of provisions about potential entrepreneurial opportunity
    that are never actually going to come to fruition that is
    designed to misclassify those people.
        What it does is, it puts a very straightforward three-part
    test to make sure that the person is genuinely an independent
    contractor. If they are not, they are an employee.
        Mr. Norcross. Well, thank you for that answer, and to enter
    into the record the Economic Policy Institute, I ask that this
    be accepted into the record.
        Chairwoman.
        Chairwoman Wilson. Give you another minute?
        Mr. Norcross. No.
        Chairwoman Wilson. You are finished? Okay. Thank you.
        Mr. Norcross. Thank you.
        Chairwoman Wilson. Without objection.
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        Chairwoman Wilson. Mr. Walberg, questions?
        Mr. Walberg. Thank you, Madam Chairwoman.
        And thanks to the panel for being here and some of you
    coming many, many miles to be here. Thank you.
        Mr. King, over the years, Congress, I believe, has struck a
    delicate balance in federal labor law with respect to the
    interest of employers and workers during this time, even as the
    union membership rate has fallen drastically; and we will
    certainly have, for the record, numbers that will be in stark
    contrast to some of the statements made about the lack of
    growth for the average employee during this time. But union
    membership has -- the rate has fallen drastically. The economy
    has grown enormously, inproving the lives of tens of millions
    of American workers, normal, everyday, blue-collar workers in
    my district and others. But rather than modernize a 70-year old
    law, laws back as I mentioned my father used to organize a
    steel mill in the 1940s, using those laws. The Democrats'
    current labor agenda would take us back to the volatile 1930s-
    era conflicts between labor and management.
        Let me ask you this: Is H.R. 2474 consistent with the
    balance that Congress has sought with respect to labor
    management relations?
        Mr. King. Absolutely not, Mr. Walberg. It goes just in the
    opposite direction. It would prohibit an employer from hiring
    permanent replacements in a strike situation. Now, people say,
    Well, is that fair? The labor laws in this country permit the
    employer in a strike to continue its operations; not terminate
    strikers, but replace them so they can continue. Workers can
    withhold their services and strike. That is a perfect balance.
    The Supreme Court has approved that. That has been the law for
    decades. This bill wipes that out. It also, as I mentioned,
    would permit intermittent strikes. This bill is not well
    thought out, it is going to lead to instability. It is going to
    take us back, as you mentioned, decades.
        Mr. Walberg. Again, I would say, as I have tried to clearly
    state in my opening statement, we are talking about union boss
    control, not necessarily labor, employee, control of their
    lives and their opportunities. So Mr. King, the decision about
    whether to unionize is an enormously important question for
    workers and their families, a decision that they ought to have.
    But H.R. 2474 codifies the Obama administration's radical
    ambush election rule, which significantly shortens the amount
    of time -- I mean significantly -- the amount of time available
    to workers to consider the pros and cons of unionizing from an
    average of 38 days to as few as 11 days.
        We don't do that in our efforts here in Congress. We have
    had more than those days for two hearings that we are involved
    with on this particular issue even. How does the ambush
    election rule in this bill tilt the playing field in favor of
    union bosses, but against workers?
        Mr. King. Unions can take as much time as they want to take
    to organize. There is no limit. They can engage in organizing
    activities for years, and then file a petition and per these
    ambush rules, insist upon an election. But then as you
    mentioned, 12, 14 days. There is not an opportunity for an
    intelligent dialogue. I remember Senator Kennedy when we had
    this discussion quite some time ago, saying at a minimum, there
    should be 30 days before an intelligent thoughtful discussion,
    pros and cons. Workers in this country are bright, they will
    figure it out for themselves, but let us have an intelligent
    period for thoughtful discussion before we have this important
    vote.
        Mr. Walberg. Mr. King, the franchise model has created an
    accessible path to entrepreneurship for many, many Americans,
    from all walks of life, and cities, and towns across the
    country. However, H.R. 2474 codifies the Obama NLRB's joint
    employer standard, which would essentially turn independent
    franchises into middle managers. That is not what they got into
    the franchise for, they wanted their own business, and local
    small business employees, into employees of faraway
    corporations.
        What impact would this have on entrepreneurial opportunity,
    and on the employees of the enterprise? And also, what might
    union leaders and trial lawyers prefer, or why might they
    prefer the Democrats' joint employer standard?
        Mr. King. This bill will have a very negative impact on
    franchisees. Small businesses entities. There are hundreds of
    thousands of these startup and successful business entities in
    every community, subjecting them to litigation, and uncertainty
    is going to chill the opportunity for them to continue, and
    certainly chill the opportunity for growth in this area. The
    only people that benefit from this proposal in H.R. 2474, with
    respect to the independent contractor and joint employer, are
    trial lawyers and some law professors that can write articles
    about the complexities, as Mr. Griffin mentioned as law. This
    is a terrible idea, as I mentioned in my opening statement.
    This body rejected that approach and passed a bipartisan
    proposal that is much fairer and much more even handed. That is
    where we should go.
        Mr. Walberg. Thank you. I am over time. I yield back.
        Chairwoman Wilson. We will now hear from Ms. Wild of
    Pennsylvania.
        Ms. Wild. Thank you, Madam Chairwoman. Thank you to all of
    you for being here to testify on this very important subject.
    And in particular, Mr. Alvarez, I would like to thank you for
    being here today. I assume you are missing a day of pay to be
    here. Is that correct?
        Mr. Alvarez. Yes.
        Ms. Wild. You are only paid when you are working, driving,
    is that fair to say?
        Mr. Alvarez. Yes, that is correct.
        Ms. Wild. I have grave concerns about the misclassification
    of your status with XPO Logistics, which happens to have a
    significant presence in my district in Pennsylvania.
        And I also want to thank the Teamsters and the presence of
    labor here in our committee room. I am sure they would welcome
    you, Mr. Alvarez, as a member if you were able to collectively
    bargain, but you are not able to. Is that right?
        Mr. Alvarez. That is correct.
        Ms. Wild. You don't have that ability because you are
    classified as an independent contractor. And under the National
    Labor Relations Act, independent contractors have no rights to
    organize or collectively bargain. Isn't that right?
        Mr. Alvarez. Yes.
        Ms. Wild. And I don't have enough time here today to go
    through the criteria for an independent contractor, versus an
    employee, but I just want to highlight some of the things that
    you have presented in both your oral testimony and your written
    testimony, ways that you have told us that XPO dictates your
    manner of work. And let me just reinforce, XPO classifies you
    as an independent contractor, notwithstanding the fact that
    they control all the relations with the customer. Is that true?
        Mr. Alvarez. Yes, that is correct.
        Ms. WILD. They get the customer, they determine the service
    that is going to be provided, they negotiate the price, and
    they schedule the pick-up, true?
        Mr. Alvarez. Yes.
        Ms. Wild. The truck that you now own has XPO painted on it,
    true?
        Mr. Alvarez. Yes.
        Ms. Wild. And you wear a vest when you are driving that
    says XPO on it, true?
        Mr. Alvarez. I have it right on me right now.
        Ms. Wild. That is what you are wearing now?
        Mr. Alvarez. Yes.
        Ms. Wild. And it does not say Alvarez Trucking, nor could
    you wear a vest that said that. Could you?
        Mr. Alvarez. It does not say Alvarez Trucking. It says XPO
    on it.
        Ms. Wild. And if you were to call your business quote,
    unquote, ``Alvarez Trucking,'' you would not be eligible to
    drive for XPO. Is that true?
        Mr. Alvarez. That is correct.
        Ms. Wild. And if you don't get enough work from XPO, you
    can't go solicit another load from some other company. Can you?
        Mr. Alvarez. No. My contract would be terminated.
        Ms. Wild. Thank you, Mr. Alvarez.
        So let me ask all of the witnesses. Is there anybody here
    who disagrees that companies have an economic incentive to
    classify individuals as independent contractors rather than
    employees?
        Mr. King. I disagree with that.
        Ms. Wild. You disagree with that, Mr. King.
        Mr. King. Yes.
        Ms. Wild. I am not surprised that you do. And you believe
    that there is no economic incentive for an employer, or for a
    company, such as XPO, to classify their employees as
    independent contractors?
        Mr. King. We did a study of our members. Most of the
    largest businesses in this country, their number one reason for
    subcontracting, or outsourcing was efficiency, productivity,
    and quality. Only 2 percent mentioned any avoidance of the
    labor laws. This is a wrong premise.
        Ms. Wild. And those members, Mr. King, are exactly the
    entities that are classifying their employees as independent
    contractors. Correct?
        Mr. King. Those 2 percent, perhaps. And are we going to
    write legislation to penalize the rest of the country for a few
    rogue employers? I think not.
        Ms. Wild. So Mr. King, I assume that you agree with the
    recent NLRB decision in the SuperShuttle case that creates a
    situation where workers will be considered independent
    contractors if an analysis is done that says that the worker
    has an entrepreneurial opportunity?
        Mr. King. Not only do I agree, but the U.S. District Court
    for the District of Columbia agrees.
        Ms. Wild. I am just asking you if you agree?
        Mr. King. Yes, I agree.
        Ms. Wild. So you believe then that Mr. Alvarez here has an
    entrepreneurial opportunity in driving for XPO.
        Mr. King. Well, I looked at the facts of the case, and in
    all due respect to Mr. Alvarez, they are much more complicated
    than what you have been shared with this morning.
        Ms. Wild. In fact, in the SuperShuttle case, many of those
    drivers for SuperShuttle were actually subject to noncompete
    clauses that prohibited them from pursuing entrepreneurial
    opportunities at other companies, correct?
        Mr. King. There was an element of that. The noncompete
    issue is a wholly different issue. I would be happy to discuss
    that with you.
        Ms. Wild. Well, wouldn't you agree with me that an
    entrepreneur should have the opportunity to compete in any
    possible way? My colleague, Mrs. Foxx, talked about that being
    the American spirit of competition. And yet, the drivers in the
    SuperShuttle case aren't allowed to compete.
        Mr. King. They are not allowed to compete in certain areas.
    When we talk about competition, that is a wide-ranging word. So
    we need --
        Ms. Wild. Thank you. My time is up.
        Chairwoman Wilson. Go ahead.
        Now we will hear from the esteemed Dr. Roe.
        Mr. Roe. Thank you, Madam Chair. And thank all the
    panelists for being here today. And I want to say to start out,
    that this is the best economy in my lifetime. It is good to see
    Mr. Griffin and Mr. King again.
        I do want to say just a couple of things before I get
    started. I think one of the most important things in this free
    society that we live in is a secret ballot. I put a uniform on
    and left this country 46 years ago to serve in southeast Asia,
    to be sure that you had a right to vote how you wanted to. And
    I say this as a joke. I think my wife votes for me every time I
    run, but it is a secret ballot, so I don't know for sure. She
    says she does, but I am not sure that she does. So why
    shouldn't -- that is how we are elected, how the President is
    elected, how every legislature is elected, and how union
    representatives are elected. People voting for the union should
    absolutely have a right to a secret ballot, period.
        Number two, on the sharing of private personal information.
    As a physician, I tied myself in a knot with HIPPA being sure
    that I protected all of that information was very private, and
    patients could release whatever they wanted to. You should be
    able to do the same thing.
        Thirdly, on right-to-work laws, look, it is a right. I grew
    up in a union household. My dad was in the United Rubber
    Workers Union. He was a factory worker and he made shoe heels
    for BF Goodrich Company, until he lost his job to Mexico. Right
    now, fortunately those manufacturing jobs are coming back to
    the U.S. and that is a very good thing for union workers. And
    we should approve this USMCA. And I agree with my Democratic
    friends who insisted that Mexican workers can have a secret
    ballot protection. I agree with that. That was a right and
    proper thing that they did. I want to share with you just a
    very -- and by the way, there are 7.4 million unfilled jobs. I
    had a truck driver walk up to me in a Wendy's the other day in
    Dandridge, Tennessee. And he said, Listen, this is the best in
    my lifetime. I made $164,000 driving a truck last year. I have
    two trucking companies in my district, both of them are begging
    for truck drivers. And when the President said he was going to
    block the Mexican border, this trucking company went berserk,
    and not because of the lost business, they were afraid they
    would lose their drivers. They had 700-and-something drivers.
    The most valuable thing in that business was -- were their
    drivers, their personnel.
        When I served as Chairman of the Health Subcommittee in
    2015, we heard testimony about the effects of the Obama era,
    Browning-Ferris joint employer status for Mr. Ed Braddy, who
    owns a Burger King in inner city Baltimore. And all the men
    that Mr. Braddy had hired at that store had a run-in with a
    criminal justice system. All the women he hired had been on
    some form of government assistance. And he hired people to give
    them an opportunity at a better life, as he described it.
        This ambiguous standard were implemented as the PRO Act
    would do, the Burger King corporation would be liable for many
    of the hiring decisions, or maybe Mr. Braddy. Why would we
    expect any corporation to know a community better than someone
    local, like Mr. Braddy? Wouldn't a corporate entity be more at
    risk, adverse, and less likely to give people a second chance,
    Mr. King?
        Mr. King. That is part of the problem. That is a major
    problem. How can a local business owner, Dr. Roe, like you
    described, go through this complex litigation scenario that
    could put them out of business? This bill is designed, from our
    perspective, to chill the rights of employers, particularly
    small employers, small business entities faced with potential
    fines through the first time in the history of the National
    Labor Relations Act, faced with the imposition of unionization.
    This is a back-door card check bill. It will have a potential
    devastating impact upon the small employers as a practical
    matter.
        Mr. Roe. Mr. King, wouldn't codifying the ABC test and the
    Obama NLRB joint employer standard at the federal level
    essentially eliminate the entire franchise industry as we know
    it, which employs more than 7 million Americans nationwide,
    including 21,000 in Chairman Scott's district?
        Mr. King. I think the answer is yes. And the reason for
    that is look at what is happening in California, Dr. Roe. As I
    mentioned, the California legislature now is reconsidering this
    entire ABC test. The courts out there are reconsidering it.
    There is a considerable amount of tension back and forth. The
    legislative body in California has had to carve out exceptions
    already, just to have a discussion about this approach. It is a
    very poor approach and it should be rejected.
        Mr. Roe. I am going to finish, because my time is almost
    expired, has expired. And I want to thank those folks sitting
    out there that have their Teamsters shirts on. That is the
    community I grew up in. I appreciate the hard work you do. And
    as I said, every American has the right; if they want to
    organize, they should be able to do that. If they don't, they
    should also have that right.
        I yield back.
        Chairwoman Wilson. Thank you. And now the distinguished
    Chair of the Ed and Labor Committee, Mr. Scott.
        Mr. Scott. Thank you. Thank you, Madam Chair.
        Mr. King, you indicated in your testimony that there are
    several provisions that would overturn Supreme Court decisions.
    Could you list those, and state whether or not the Supreme
    Court ruling was based on statute, and statutory
    interpretation, or constitutional right?
        Mr. King. I list them, Mr. Scott, in footnote one, the Epic
    Systems case, the Hoffman Plastic case, Mackay Radio case. And
    I have added, after reading this, I mentioned Professor
    Garden's testimony, the Retail Store Employees Union local
    case, that is the secondary boycott case. All of those cases,
    from my perspective, thoughtfully reviewed the statutes in
    question and arrived at the right decision.
        Mr. Scott. So if it was based on constitutional right, you
    couldn't overturn it with a statute. If it is based on
    statutory interpretation, a new act would be okay,
    constitutionally okay?
        Mr. King. Certainly from a policy perspective, we wouldn't
    think it would be okay. But I understand your question.
        Mr. Scott. Thank you. Ms. Garden, if a person was hired by
    a temp agency and placed at a work site, could you say what the
    implications of joint employer would be and secondary boycott
    if there was a picket?
        Ms. Garden. Absolutely. The first question would be whether
    the National Labor Relations Board would agree that the work
    site was the joint employer of these employees. The Browning-
    Ferris test makes that determination more predictable by
    allowing reserved or indirect control to be part of the
    consideration.
        So, if you instead required substantial direct/actual
    control, then you could have a scenario in which the job site
    has reserved, but not yet exercised control one week. Another
    week they start to exercise control, and you would have that
    entity shifting from being not a joint employer to a joint
    employer. So the Browning-Ferris test is sort of easier to tell
    at the outset and more stable in terms of whether or not
    somebody is jointly employed.
        Mr. Scott. And if they are not a joint employer, you can't
    negotiate -- you don't have the right to negotiate with them,
    even though they effectively set the salary by virtue of the
    contract with the temp agency?
        Ms. Garden. That is exactly right. And as the Preferred
    case shows, workers who attempt to influence what the work site
    pays them and how it treats them, face the sort of very
    dangerous waters of negotiating what they can and can't say,
    how they can and can't protest under section 8(b)(4).
        Mr. Scott. And how does the secondary boycott issue apply
    to that case, to that situation?
        Ms. Garden. So in Preferred Building Services, there were
    sort of two issues that the NLRB talked about. One was whether
    the workers were in what is known as the Moore Dry Dock set of
    presumptions. Moore Dry Dock provides a carve-out for workers
    to engage in some secondary activity, including picketing at a
    job site, as long as they meet some fairly detailed
    requirements. The Board found that the workers lost the benefit
    of that presumption, in part, because they distributed
    handbills that called on building tenants to try to influence
    the condition of ``their janitors.'' That choice of pronoun,
    ``their janitors,'' seems to me to say the janitors who clean
    your office. Apparently, the Board saw it differently as
    janitors you employ.
        Whatever you think of those two possible interpretations,
    it is hard to tell in advance what a Board is going to do, and
    whether or not you are going to retain the protections of the
    National Labor Relations Act if you are fired as a result of
    your picketing.
        Mr. Scott. Mr. Griffin, one of the provisions of the bill
    allows the imposition of meaningful sanctions. Can you say why
    the sanctions in present law are not sufficient, and why
    sanctions such as backpay without reduction based on interim
    earnings are insufficient?
        Mr. Griffin. Yes. Currently, the rule of -- the general
    rule, if someone is discharged, is that the remedy is backpay,
    minus interim earnings, and reinstatement. Generally speaking,
    because of the time that it takes to go through the process and
    because of the hostility that has been generated as a result of
    the discharge, the person is likely, or will be offered to
    waive reinstatement as part of the resolution, so they won't go
    back to work, number one.
        Number two, they have an obligation to mitigate their
    damages, and because most people work for a living, work
    paycheck to paycheck, they have to do that. And that work for
    another employer is counted against the money that is owed to
    them, so that it is not a very serious deterrent to an employer
    who discharges someone unlawfully, that they have to pay that
    difference between what they make as they seek employment
    elsewhere. So making sure that people are actually paid for the
    result -- actually get paid and the employer has to pay for --
        Ms. Wilson. Mr. Griffin, your time is up.
        Mr. Griffin. Oh. My apologies.
        Chairwoman Wilson. Thank you very much.
        Mr. Taylor.
        Mr. Taylor. Thank you, Madam Chair. I appreciate this
    hearing. Thanks to the witnesses.
        Mr. King, I just wanted to follow up with Dr. Roe's
    question earlier about ABC in California. As a state legislator
    in Texas, I certainly saw, over and over again, the number of
    new businesses coming to Texas that talked about -- one of the
    reasons they are relocating is because it is a right-to-work
    state. And we have certainly been very successful in our job
    creation in Texas, as companies leave union states to come to a
    right-to-work State. I am very blessed to wake up in a city,
    Plano, Texas, it is the highest per capita income city in North
    America with over a quarter of a million people.
        So clearly, we have been successful in creating high income
    jobs in a right-to-work state. And it could be one of the
    benefits of America is we have got 50 states, we have a
    laboratory democracy, we are watching California, those are the
    ABC test. Would you mind and since H.R. 2474 has the ABC test
    word for word in it, and it has not yet been adopted as I
    understand by the state of California, could you take us
    through what that does and how it works?
        Mr. King. Certainly, I would be happy to do so. The second
    prong of the test is the one that you should focus on. It
    states that you cannot be an independent contractor if you
    provide services that are within the scope of the hiring
    company. That, by and large, makes virtually anyone that would
    perform a service for a hiring company, a user company, if you
    will, an employee, that is very controversial. The other two
    parts of the test would also have to be satisfied, but really
    the focus has been on prong two.
        Let's just think about that for a minute. A hospital, for
    example, that brings in individuals that are at a nursing
    agency, because they have a high census of patients. Those
    agency nurses under the second prong of that test would be
    employees, not independent contractors. That has never been the
    law. That makes no sense. Then this whole premise that somehow
    employers are using independent contractors to evade the law,
    per the colloquy we just had, is incorrect. It is not based on
    fact. Yes, there may be some rogue employers out there. They
    should be brought to justice if they are misclassifying
    individuals. We don't support that.
        But this economy we have, it is doing so well, it is based
    on so many different relationships every day. Even the smallest
    business brings in independent contractors to do a variety of
    things. They do so for efficiency reasons, productivity
    reasons. Yes, they do control costs. So the California
    legislature is starting to see this; we will see where that
    goes. But no matter what California does, I would submit to you
    that is not a good way to run our country. The laws in
    California are some of the absolute worst for employers. And
    many employers that I worked with over the years as a lawyer
    exit that State for that very reason.
        Mr. Taylor. Just to build on that, in my time in Collin
    County, I have seen many employers using 1099 contractors to
    take on a particular project they want to develop, particularly
    with IT space. We have a lot of IT companies there. Hey, I want
    to build a website, want to build an MIS system. It is a six-
    month project, it is a one-year project. We are bringing in
    some 1099 contractors so we can have greater control over what
    we are actually doing, rather than bringing in a consulting
    firm, that is sort of doing it off site, they can do it on site
    with 1099 contractors. That has been very successful for them.
    We have a lot of extremely well-paid people who are 1099
    contractors, who have a very good lifestyle in Collin County
    doing different MIS projects for different employers.
        And it seems like what we are saying is that this would end
    that, that at least my community, if 2474 became law, that
    ability of the employers that I have in my district, they
    wouldn't be able to do that anymore. The ability to use 1099
    contractors for specific projects, those people work as 1099
    contractors, which is what they want to do, that goes away. Is
    that what you are saying?
        Mr. King. Absolutely. Either stop it, or lead to litigation
    and regulatory interference. And that is another dead end for
    that kind of economic growth.
        Mr. Taylor. Yeah, this is unfortunate, because I think to
    have a successful economy, you need to have a sophisticated way
    to be able to organize. And clearly, we have that now. And this
    really takes away a whole series of tools that businesses are
    using, with great success, to the benefit of the businesses and
    to the employees who are working, and who I have the privilege
    to represent here in Congress.
        Mr. King. Absolutely. And many individuals prefer to be
    independent contractors, frankly.
        Mr. Taylor. Absolutely. Thank you.
        Madam Chair, I yield back.
        Chairwoman Wilson. Thank you. Mrs. McBath of Georgia.
        Mrs. McBath. Thank you, Madam Chair. And thank you for each
    and every one of you who are here giving your testimony today.
    I am committed to truly protecting the rights of workers
    throughout this country, while also being mindful of the effect
    of these laws on small businesses. I have a lot of small
    businesses within my district. I do not believe that the two
    are mutually exclusive. Workers' protections make for better,
    more productive employees, and better business. I do, however,
    have concerns with actions taken by this administration, and
    the adverse effects that they could leave on employees and
    small business owners.
        Mr. Griffin, the question of whether a worker is an
    employee has historically been kind of governed by the common
    law of agency. The Trump NLRB issued the SuperShuttle decision
    on January 25, 2019, holding that they would apply the common-
    law test -- and I am quoting -- ``through the prism of whether
    the worker has entrepreneurial opportunity.''
        Moreover, in that matter, the Board maintained the drivers
    in that case were independent contractors, even though they had
    been required to sign noncompete agreements. First, can you
    speak to an agreed-upon definition of entrepreneurial
    opportunity? How would you define it? What legal significance
    does it hold?
        Mr. Griffin. Well. If I may. The controversy over
    entrepreneurial opportunity between the former Board and the
    D.C. Circuit and the current Board's decision really turns on
    whether or not it is a speculative hypothetical opportunity
    that is never likely to come to fruition, or whether there is
    evidence that the entrepreneurial opportunity has actually been
    exercised. And so the Board, in its dispute with the D.C.
    Circuit in the FedEx cases, it did not say entrepreneurial
    opportunities shouldn't be considered. It said it should be
    real exercise, actual evidence, as opposed to hypothetical,
    speculative, paper documentation of potential opportunity,
    never to be realized. And one of reasons this is important is
    that most of these instances that result in these kind of cases
    are not instances where an independent contractor comes in and
    negotiates with the customer the terms of the provision of
    service.
        Rather, somebody shows up to do a job, they are handed a
    document that is entirely drafted by the employer, that has a
    bunch of provisions that talk about potential entrepreneurial
    opportunity so they can paper up the independent contractor
    theory, when, in fact, there is absolutely no evidence that
    opportunity is actually going to be exercised. And if the
    opportunity is going to be exercised, and has been exercised,
    and there is evidence of that, then that is a legitimate factor
    to be considered. But this kind of paper-speculative
    hypothetical business is not really worthy of consideration, in
    my opinion.
        Mrs. McBath. Let me ask you also, how can a worker exercise
    meaningful entrepreneurial opportunity while being prohibited
    from engaging in competition?
        Mr. Griffith. I think the short answer to that is they
    can't. The notion that you are an entrepreneur, but you can't
    compete, you can't go out and get other jobs, you have to work
    for this employer would seem to demonstrate, at least fairly
    strongly, that you are actually an employee of that employer,
    not an independent contractor, not an independent business
    person, not capable of going out, bidding on other jobs,
    getting other work, seeking other customers.
        Mrs. McBath. On June 28, 2019, The New York Times reported
    that within the 600-page-long disclosure document given to
    perspective Subway franchisees, that the franchisor reserves
    the right to revise its rules at any time during the term of
    franchise agreement, and that it can make changes under any
    condition and to any extent. Subway franchisees could face harm
    by the overwhelming control exercised by their franchisor.
        If the Trump NLRB succeeds in narrowing the joint employer
    standard, wouldn't that risk giving the franchisor more control
    over franchisee's employees' terms and conditions of work,
    while leaving franchisees on the hook for any violations of law
    directed by the franchisor?
        Mr. Griffin. Yes. What the franchisors in this context want
    is to have their cake and eat it too. They want to be able to
    control terms and conditions of employment, but have no
    responsibility. The franchisee is always going to be the
    employer. The question is whether if the franchisor engages in
    certain codetermination of wages in terms in terms of
    conditions of employment, whether they also will be responsible
    for bargaining and for unfair labor practices.
        So, to the extent that you narrow the joint employer
    definition you leave the small business, the franchisee,
    holding the bag entirely, and you allow the joint employer,
    franchisor, to escape liability.
        Mrs. McBath. Thank you. I yield back the reminder of my
    time.
        Chairwoman Wilson. Mr. Wright of Texas.
        Mr. Wright. Thank you. Thank all of you for being here. Mr.
    King, I represent most of Arlington, Texas. And as most people
    know, Texans love trucks and freedom, not necessarily in that
    order. And there is an abundance in Arlington because the
    largest employer is the General Motors assembly plant, employs
    over 4,000 people, good-paying union jobs. Fifteen minutes up
    the road is Dallas/Fort Worth International Airport, one of the
    largest in the country, again, with a lot of good-paying union
    jobs. So Arlington is an excellent example of a place where
    unions not only exist, but thrive in a right-to-work state.
        Now, we hear from my friends on the other side that right-
    to-work laws giving workers the freedom to decide for
    themselves whether to join and pay a union somehow undermines
    the right to organize. That would not seem to be the case in
    Texas. But does giving workers this freedom a choice in any way
    change the process, the union-organizing process?
        Mr. King. Well, I think it certainly does, Mr. Wright. What
    this bill does, as you know, is prohibit states like Texas from
    having a right-to-work law. And that, in and of itself, is a
    major problem. Further, unions can continue to organize in
    right-to-work states as you mentioned, and have done so with
    success. Again, this approach in 2474 is simply a bailout for
    organized labor in other areas.
        And let me just bear in on this right-to-work issue. If
    this bill passes in your state, an individual that right now
    has decided, for whatever reason, that she or he does not want
    to pay union dues or fees, could be subject to termination if
    the employer and the union insist that fee payment, reduced
    payment be a condition of employment. So what you will be doing
    with this legislation, if it passes, is putting people out of
    work that have strongly held convictions. And back to your
    point, shouldn't individuals have a right to choose for
    themselves?
        Mr. Wright. That, in fact, is one of reasons that Texas has
    one of the best economies in the country, and why it is one of
    the fastest growing states, why people from other states are
    moving there, companies from other states are moving there.
    That is one of the reasons. But in your experience, there is no
    evidence at all, is there, that right-to-work laws somehow
    undermine the right to organize?
        Mr. King. Not at all, Mr. Wright. In fact, you can make the
    argument just the opposite way, that when you have an
    organizing campaign, and the right-to-work option is available,
    some employees may say, Oh, I might even vote for the union
    because I won't have to pay fees or dues. It could be used
    against them for an organizing campaign, because I have seen
    it.
        So there is no correlation whatsoever. The lack of union
    density in this country, as I pointed out in my testimony, is
    right back at the union movement. They have not invested the
    resources or the time. And the facts bear that out. We are at a
    75-year low, I believe, regarding the number of petitions filed
    by unions in this country. And as the testimony points out,
    less than one-tenth of 1 percent of the eligible workers in
    this country will have petitioned for last year are organized
    labor. That is not a story that should be a predicate to
    support this legislation.
        Mr. Wright. Let me shift very quickly to franchises. You
    mentioned it in your opening statement, Mr. Griffin, just
    mentioned it a moment ago. Can you elaborate a little bit on
    the obstacles to even starting a franchise that are presented
    by this bill?
        Mr. King. Of course there is the capital, and then there is
    the support, whether it be in bookkeeping, legal structure,
    what have you. And it is interesting to hear this discussion,
    because small business owners don't want to be embroiled in
    this kind of litigation. They don't want to be brought into
    Fair Labor Standards Act or National Labor Relations Act
    litigation. They want to run their business. And the
    franchisors that I know and work with, they want no part of the
    day-to-day operation of business, the direct control. I was
    interested in Mr. Griffin's comment. He's looking for some type
    of direct control in the independent contractor area, but I
    don't think that is where he goes on joint employer. What we
    are saying on joint employer is, there ought to be direct and
    immediate involvement in the day-to-day business before anyone
    is a joint employer. So these franchisees, that are small
    business people, are trying to start a business, they need
    help, obviously, from the franchisor.
        But the reputation and integrity of the brand, training,
    and auxiliary things should be furnished. But with these kind
    of laws, you are going to chill that development and that is
    bad for our economy, bad for your community, bad for everybody
    involved in this discussion.
        Mr. Wright. I would agree. I yield back. Thank you.
        Chairwoman Wilson. Thank you, Mr. Wright.
        Mr. Levin of Michigan.
        Mr. Levin. Thank you so much, Madam Chairwoman. And thanks
    for having this very important hearing.
        I want to ask a question of Ms. Garden, but before I get
    into that, I want to say a couple of things. Mr. Alvarez, we
    will get justice for you. However long it takes, we will get
    justice for you and other workers who are denied their freedom
    of association because of these laws. I just want to tell you
    that.
        Mr. Alvarez. Thank you very much.
        Mr. Levin. And thanks for coming here.
        Mr. King, I am just making a comment, but you can turn your
    mic on if you want. I am disappointed that you would
    mischaracterize the position of someone who is no longer with
    us. Mr. Kennedy was the original sponsor of the Employee Free
    Choice Act in the Senate, as you well know. A bill that would
    do away with the situation where workers have to have an
    election against their boss just to decide to have a union at
    work. And he was a champion of workers' freedom to form unions
    without that American innovation. And so, I don't really
    appreciate his name being used to oppose that policy.
        Mr. King. Well, I --
        Mr. Levin. I am not asking you to respond.
        Mr. King. I worked with Senator Kennedy for many years on
    the Senate side.
        Mr. Levin. Sir, I am not yielding you time.
        And I want to remind my friend, Mr. Taylor from Texas, who
    spoke about high wages due to the right-to-freeload laws there.
    Texas is about in the middle, according to BLS data from 2016,
    $17.06 hourly wage for median wages. Not one of the top 10
    States in these United States is a right-to-freeload State.
    They are all States with high levels of union representation,
    and none of them have right-to-freeload laws.
        Ms. Garden, this committee has expressed a lot of interest
    in the future of work. And it is especially interesting to us
    how that relates to protecting workers' rights amid
    technological change, the rise of the gig economy, more complex
    contracting arrangements which have been used purposely by very
    smart people like Mr. King to keep workers from forming unions.
    How does protecting workers' First Amendment rights, in
    particular, help them to adapt to the changes we are going
    through in the economy, and protect their right to secure
    better working conditions?
        Ms. Garden. So as work evolves and the nature of works
    changes, we sometimes find ourselves in situations where the
    law has not yet caught up to those changes. And when that is
    true, workers are on their own. Sometimes they are best, most
    immediate recourse involves exercising their First Amendment
    rights, right: their First Amendment right to engage in
    picketing, their rights to engage in collective action in order
    to try to get better treatment from the organizations that are
    controlling their day-to-day lives and their ability to put
    food on the table.
        Mr. Levin. So let me ask you about a particular case. In
    2012, Walmart workers without a union and collective bargaining
    in 100 cities across 46 States participated in short strikes
    and peaceful protests to fight for better wages and working
    conditions. These protests did not prohibit anyone from
    entering a store, or did not interfere with the operation of
    facilities, and had really zero potential to force a union on
    reluctant employers or workers. Nonetheless, workers who
    participated were threatened with penalties under section
    8(b)(7) of the NLRA, after Walmart alleged that they were
    picketing in an effort to force Walmart to recognize the union.
        Unfortunately, modern legal doctrine prevents workers from
    peacefully picketing their employer to encourage recognition of
    their union. How has the current legal precedent interpreting
    section 8(b)(7) of the NLRA misconstrued congressional intent
    behind the Taft-Hartley amendment?
        Ms. Garden. Thanks for that question. So 8(b)(7) was aimed
    at so-called blackmail picketing, prolonged shutdowns of
    workplaces aimed at forcing an employer to accept union
    representation for employees, regardless of what those
    employees wanted. That could not be further from a situation
    like the one you described, where unions picket a store that
    continues to operate, demanding better treatment for workers.
    That a complaint in a situation like that could gain a toehold,
    shows how far the law has drifted from the blackmail picketing
    that Congress was worried about.
        Mr. Levin. Thank you so much.
        You know, Madam Chairwoman, I just want to say to my dear
    friend, the Ranking Member from our great State of Michigan, he
    spoke about the delicate balance that has been created over the
    decades. The Wagner Act was passed in 1935. There has not been
    one sentence of federal law added by this Congress since then
    that helps workers be free to form unions and bargain
    collectively. The Taft-Hartley amendments in 1947 and the
    Landrum-Griffin amendments eroded workers' power through their
    own organizations. And it is high time that this Congress free
    up workers in this country just to have a union and a better
    say at work. We will not deal with income and wealth inequality
    in this country until we do that.
        Thank you. And I yield back.
        Chairwoman Wilson. Thank you. Mr. Meuser of Pennsylvania.
        Mr. Meuser. Thank you, Madam Chairwoman. Thank you all very
    much for being here with us.
        I am a former business company president, a business owner.
    I, like many, have many, many good businesses, small businesses
    throughout my district. Many are union, some are, many are
    nonunion. I am entirely for, and my reason for being here is to
    help businesses grow, help family incomes grow, participate in
    actions to create environments for wage growth, for union and
    nonunion, low unemployment, and just a fight for people and
    represent their overall interests in our economy. But there are
    some concerning points within this bill.
        I would like to talk about privacy a little bit and the
    bill requirement for access to employee's personal data without
    consent. I don't really necessarily understand the value there.
    So Mr. King, allow me to ask you: What are the dangers, what
    are the reasons for such a provision to be in this bill?
        Mr. King. Apparently, the rationale is for access of unions
    to contact potential voters in a union election. In reality,
    there is no ability for the employee to opt out, to say that
    she or he does not want personal information to be shared.
    There is no protection whatsoever, even if that information is
    furnished to not have that information be a data breach, or
    shared with third parties. In this day and age, the union
    movement has any number of opportunities through social media
    and other ways to contact potential voters. This is a
    desperation move, it would appear, on behalf of organized
    labor. There is no rationale for it. It is a bad idea.
        Mr. Meuser. Like many here, I was at the tail end of my
    business career, served as president of a company, but I was a
    driver, I was a builder, I was a credit collector, I was in
    sales, I was in marketing, I was in, you know, operations. So
    during the course of that, you become conditioned to appreciate
    the needs of all workers, everyone. Everyone has different
    titles and different responsibilities, but you are all part of
    the same team. That is why I also question why is it when we
    had the USMCA discussion, an issue arose where in Mexico, the
    management were the ones against the secret ballot, yet here,
    the union leadership is against the secret ballot. Mr. King,
    could you offer your opinion on that?
        Mr. King. It is hard to reconcile. The USMCA negotiations
    hopefully will result in an approval by this body, but
    contained in those discussions is the right of the Mexican
    worker to vote on whether she or he wants to be represented.
    And as I mentioned earlier, in addition, whether the contract
    that is being proposed by the Mexican labor union should be
    accepted. It is really very contradictory. We have this bill
    that will cut off rights of employees to vote and forced
    unionization, but just the opposite south of the border.
        Mr. Meuser. Thank you. I am going to yield the remainder of
    my time to Mr. Walberg.
        Mr. Walberg. I thank the gentleman.
        And a lot of things I would like, Mr. King, to allow you to
    respond to, especially relative to Senator Kennedy and the
    assertions there. But let me ask you this one question: Under
    current law, union organizers can make death threats and commit
    acts of violence free of legal repercussions so long as these
    actions are taken in the pursuit of ``legitimate union
    objectives.'' Why is this the case? And would H.R. 2474 change
    the law relative to this?
        Mr. King. Unfortunately not. That type of rogue activity
    would still be permitted. And Mr. Walberg, what is interesting,
    the fines that are suggested in this suggested, not suggested,
    proposed in this legislation, up to $100,000 only apply to the
    employer. Unions are not subject to any of the fines for
    misconduct that are articulated in this legislation. That makes
    no sense whatsoever. You talk about bias, that is one of the
    prime examples of this bill. It is only directed at employers,
    but that strike misconduct still could occur.
        Mr. Walberg. Which does not encourage unionization. I think
    the beauty of the fact of the numbers going down is a fact that
    unions have done some great things, and it has gotten better.
    So thanks.
        Mr. King. Mr. Walberg, I take personal offense of what was
    just said. I worked for Senator Kennedy when I was --
        Chairwoman Wilson. The time is up, sir. You have no time.
        Mr. Walberg. I yield back.
        Chairwoman Wilson. I recognize Mr. Courtney from
    Connecticut.
        Mr. Courtney. Thank you, Madam Chairwoman. And thank you to
    all the witnesses for being here today.
        Mr. Griffin, on page 9 of your testimony, you, again, dove
    into what I think is accurately described as, there is no more
    controversial issue than the joint employer role, and the
    Browning-Ferris decision. We have had in numerous hearings over
    the years on this committee. And I would like to just spend a
    moment on that issue with you.
        So, in 2015, Browning-Ferris decision found that a company
    can be a joint employer if it has contractual control, or
    exercises indirect control over another company's terms and
    conditions at work. This decision was essential to workers who
    are increasingly hired by staffing agencies and subcontractors
    performing work for a company that often controls working
    conditions while evading liability.
        Browning-Ferris case was pending review at the D.C. Circuit
    when the Trump NLRB began its rulemaking to overturn Browning-
    Ferris. But the D.C. Circuit issued its decision last December.
    In that decision, it explicitly upheld the Browning-Ferris
    standard. And it also noted that the question is actually
    governed by common law, which is not again, confined to indicia
    of direct and immediate control as the NLRB under the Trump
    administration was seeking to do.
        And it also urged the NLRB against taking the first bite of
    an apple that is outside of its orchard. So if the current
    rulemaking is likely at odds with the D.C. Circuit, isn't the
    Board wasting time and resources that could be better used
    elsewhere?
        Mr. Griffin. I think it is. I thank you for the question.
    First of all, as you noted, the joint employer question is a
    common -- the common law standard is applied. And typically,
    and historically, the common law is something that develops in
    the process of case-by-case adjudication, and rules emerge
    based on review of multiple cases. And it is very odd to decide
    to do a rulemaking proceeding where what you are trying to
    address is a common-law standard. It is just -- it doesn't
    comport with a notion of common law number one.
        Number two, the D.C. Circuit said in its decision that the
    Board gets no deference. You know, administrative agencies
    under the Chevron doctrine got a certain amount of deference
    under certain circumstances with respect to their decision. And
    the D.C. Circuit said, Well, as to the common law, that is not
    the statute, that is the common law, you get no deference to
    that. And the D.C. Circuit interpreted the common law to
    include a number of factors that the rulemaking process so far
    discounts: indirect, reserved control, routine and regular
    exercise of authority.
        And rulemaking is prospective. The Board has a backlog of
    cases, people who are hurting, who have allegations of unfair
    labor practices against them, that are awaiting decision. The
    Board should be deciding those cases and not spending an effort
    contrary to what the D.C. Circuit said on a prospective
    exercise.
        Mr. Courtney. Thank you. I think, again, in terms of just
    judicial review, obviously, the D.C. Circuit trumps -- to use a
    bad pun -- the NLRB in terms of a settled issue.
        Again, just real quickly, the PRO Act obviously touches on
    this issue. I mean, that hopefully would bring total clarity in
    terms of just, you know, the definition of a joint employer
    rule. Is that right?
        Mr. Griffin. What the PRO Act would do, it would
    essentially codify the Browning-Ferris interpretation of the
    common law factors, yes.
        Mr. Courtney. Thank you. And again, I think, as I said, we
    wasted, or spent a lot of time on this issue. And again, if the
    common law is organically moving in a direction that the D.C.
    Circuit embraced, I think, frankly, we should join them in that
    effort as well with passage of this law.
        Again, in my remaining time, again, I just want to thank
    Mr. Alvarez for being here today and putting a human face on
    this issue. This is not sort of just a political ``who is up,
    who is down'' horse-race kind of issue, this affects real
    people in real lives. And again, thank you for being here today
    to really spotlight that.
        And with that, I yield back.
        Chairwoman Wilson. Thank you, Mr. Courtney. Mr. Allen of
    Georgia.
        Mr. Allen. Thank you, Chairwoman.
        Mr. King, would you like to finish your comments regarding
    Senator Kennedy?
        Mr. King. Thank you. Thank you for your courtesy. Senator
    John Kennedy did, in fact, support the 30-day period between
    the petition filing and the election. And we will submit that
    for the record.
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        Mr. King. The second point I wanted to make is I worked in
    the Senate with the Senate Health Committee many years ago, and
    had the pleasure of working with Senator Ted Kennedy, including
    the time he was Chair. My patronage was Senator Robert Taft,
    Senators Taft, and Javits, and Kennedy worked together. So I do
    have a strong admiration for the Kennedy family. Thank you for
    your courtesy, sir.
        Mr. Allen. Mr. King, Georgia is a right-to-work state. We
    have been named the best state to do business in the last six
    years to locate your business. Our reasons for that, obviously,
    a skilled workforce is usually number one. So workers have a
    choice in Georgia. But it was interesting, just this week, the
    presidential campaign of a leading socialist Democrat, they
    cosponsored the Senate version of H.R. 2474 was hit with an
    unfair labor practice charge for recommending a pay raise
    amidst collective bargaining negotiations. If this situation
    occurred with H.R. 2474 signed into law, and the charge was
    upheld, could Senator Sanders' presidential campaign be
    assessed a civil penalty costing tens of thousands of dollars,
    simply for trying to reward its employees with a pay raise?
        Mr. King. Certainly, Mr. Allen, that would be a distinct
    possibility. And I think this goes to show that our Nation's
    labor laws are affected, they do work, they are alive, they are
    well. And even someone at that level in our political system
    has to abide by them.
        Mr. Allen. The workplace changes, in fact, the business
    world changes because of the e-commerce, and just everything
    moves rapidly. And so does -- the workplace looks much
    different than it did years ago, and so do benefits, so on and
    so forth. Much of what the unions fought for has been codified
    into law, eliminating issues from consideration and collective
    bargaining.
        One of the things unions still pride themselves on are
    healthcare plans that they negotiate for their workers. The
    Democratic member of this committee has introduced legislation
    cosponsored by nearly 120 House Democrats to ban private health
    insurance, including union plans, and force every American on
    to a government-run healthcare. How might banning union
    healthcare plans in a government takeover affect the value of
    unions for workers?
        Mr. King. This is another very poorly thought-out idea. The
    H.R. Policy Association, where I am counsel, works closely with
    our member companies, and we have found consistently that
    employer-sponsored health plans are popular, and are very much
    desired by the employees. And I believe as someone said
    recently, if you turn anything over to the government, totally,
    you have issues and that is exactly where we would be headed.
        So I can say on behalf of the H.R. Policy Association, and
    its member companies, and their employees, we should continue
    with our highly favorable and well-received employer sponsored
    healthcare plans in this country.
        Mr. Allen. And then finally, with the remaining time, union
    allies insist that right-to-work laws, giving workers the
    freedom to decide for themselves whether to join and pay a
    union to undermine the right to organize. Has giving workers
    this freedom of choice in any way changed the union organizing
    process?
        Mr. King. I have not seen any data, Congressman, that would
    connect the two thoughts. I don't know of any data that says
    right-to-work undermines union organizing. In fact, it can be
    just the opposite as I mentioned in a colloquy with one of your
    colleagues. I think this is another fallacy that is being
    stated here to support this legislation.
        Mr. Allen. Well, we have the greatest economy in the world,
    every business I have talked to is looking for workers. I
    think, obviously, it is a great opportunity for those in the
    work. I tell young people I have never seen opportunity like
    this before in my lifetime. So we are grateful for that. And
    thank you, and I yield back.
        Chairwoman Wilson. Ms. Underwood of Illinois.
        Ms. Underwood. Thank you, Madam Chair. I am so glad that we
    are having today's hearing as part of the committee's ongoing
    work to protect the basic rights that American workers have
    fought so hard to win.
        I would like to thank Mr. Alvarez for sharing his story,
    and for so clearly describing the American Dream, and the
    challenges and opportunities that you have gone through in your
    career. And I appreciate your willingness to share it with the
    committee today. Thank you.
        I am incredibly proud to cosponsor the Protecting the Right
    to Organize Act. We know that unions provide an essential
    foundation for working families in Illinois's 14th District and
    across the country. Recent research from the University of
    Illinois, for example, highlights the link between unions and
    better wages for all workers, even those who are not union
    members.
        And so, Mr. Griffin and Ms. Garden, in addition to better
    wages, how do labor laws that empower unions that benefit
    workers including -- I am sorry. How do labor laws empower
    unions that benefit workers, including those that aren't union
    members?
        Ms. Garden. Thank you for that question. So I guess I would
    emphasize that labor laws protect workers including non-union
    workers by protecting their rights to engage in collective
    activity at work, even short of electing a union to represent
    them in bargaining. That can mean things like talking with
    their coworkers about how much they earn, which could reveal
    discrimination and pay practices that workers can then either
    take to their boss and try to remedy, or take to court, if that
    is appropriate.
        When employers are aware that employees have the right to
    talk to each other, it can also encourage them to behave
    better.
        Ms. Underwood. Thank you. And Mr. Griffin.
        Mr. Griffin. The classic example of collective action in a
    nonunion workplace is a fairly old Supreme Court decision
    called Washington Aluminum, where people were working in a very
    cold environment and they wanted heat. It was a complete
    nonunion workplace. So, they walked off the job to force their
    employer to provide heat in a frigid workplace; and they were
    discharged. And the Supreme Court, in an opinion by Justice
    Black, said they were engaging in conduct that any civilized
    country would recognize as lawful, and the Supreme Court agreed
    with the Board and ordered the reinstatement.
        So, to Professor Garden's point, even in an unorganized
    workplace, the right to engage together to address workplace
    concerns, immediate workplace concerns, is protected under the
    National Labors Relations Act, and very importantly so.
        Ms. Underwood. Thank you. Some 60 percent of Americans have
    a favorable view of unions, and some 48 percent of workers who
    are not in a union would like to belong to one. However, only 6
    percent of private sector workers belong to a union.
        Mr. Griffin, why is there such a wide gap?
        Mr. Griffin. I think there is essentially two reasons:
    Organized corporate opposition, which manifests itself in both
    legal opposition and illegal opposition: threats, firing, and
    things like that. And the law's inability to translate, to
    provide an efficient mechanism to translate people's desire to
    be represented by a union into actual union representation. So,
    I think there is really two reasons for it.
        Ms. Underwood. Strong laws that protect and empower workers
    must ensure that workers are clearly informed of their legal
    rights.
        Ms. Garden, in your testimony, you state that it is
    difficult for anyone who is not a labor lawyer to know what is
    allowed and what is not under Section 8(b)4 of the NLRA. How
    will be the PRO Act bring clarity to this area of law?
        Ms. Garden. Great. Thank you.
        So, Section 8(b)4 is worded in complex language. The NLRB's
    own website calls it mind-numbing. That level of complication
    is exacerbated by, you know, several decades now of Supreme
    Court and Board decisions putting glosses on 8(b)(4), often to
    attempt to save the statute from unconstitutionality.
        So, that means not only do you need to read and understand
    this complex language, you then need to read a whole stack of
    Board and court decisions to know what you can and cannot do.
        This isn't a problem that can be solved by tweaking
    8(b)(4), and so, the PRO Act appropriately just goes back to
    the drawing board by getting rid of it.
        Ms. Underwood. Thank you all so much to our witnesses for
    being here today, and for our friends in the audience who fight
    so hard on behalf working families every day.
        We just heard one of our colleagues from another State lift
    up that State as a great place to do business, and yet, workers
    don't have the right to organize. They don't have the right to
    come together and bargain for safe workplaces or vacation days,
    as Mr. Alvarez said; and that, to me, cannot be a great place
    to do business. We are talking about a place that limits
    women's reproductive rights. That cannot be a great place to do
    business, and so here in the House, I am so glad that we have
    an opportunity to support legislation like this.
        And with that, Madam Chairwoman, I yield back.
        Chairwoman Wilson. Mr. Keller.
        Mr. Keller. Thank you, Madam Chair.
        And I would like to thank the panel for being here today.
    Looking at H.R. 2474, the Protecting the Right to Organize Act,
    Modernizing America's Labor Laws, people do have a right to
    organize, and they also have a right not to organize if they
    wish not to.
        And that is what, Mr. King, I would like to sort of focus
    on a little bit. There has been studies that show 90 percent of
    workers are represented by a union today that have never voted
    for that union to represent them in the first place. Last
    Congress, committee Republicans held several hearings on
    legislation reforming the National Labor Relations Act and the
    Labor Management Reporting and Disclosure Act to make unions
    more transparent and accountable to their membership.
        Drawing from your background and experience, what are your
    thoughts regarding the relationship between labor union
    accountability and transparency and the steady decline of
    unionization in this country?
        Mr. King. There is a great schism. I am familiar with the
    study you mentioned. It is a Heritage Foundation study where
    90-plus percent of the workers that are represented today never
    had an opportunity to vote.
        As we have talked about here today, Mr. Keller, there is
    less and less resources apparently being devoted by labor
    organizations to organizing and member opportunity, and more
    for political activity, which leads to the worker, the union
    member, not having the attention that she or he should from
    their organization.
        I would disagree with Mr. Griffin in that the stats are
    clear that we have a low, a 75-year low, of union petitions
    being filed in this country; and as mentioned a couple of times
    already today, less than one tenth of 1 percent of the eligible
    workers in this country were sought for membership in 2018. So,
    there appears to be a great disconnect. I don't know
    necessarily why. I will leave that to the labor union leaders,
    but I think your question is spot on.
        Mr. Keller. Are there any things contained in H.R. 2474
    that would reform or make reforms that make unions more
    accountable to and transparent to their membership?
        Mr. King. I could not find any. As I mentioned previously,
    all of the legislative proposals in this bill harm employees
    and employers, including only fines on employers. It is a very
    one-sided proposal.
        Mr. Keller. You mentioned fines on employers. H.R. 2474
    undermines the original intent of the National Labor Relations
    Act by imposing severe monetary penalties, up to a $100,000 on
    employers for unfair labor practices, including on individual
    officers. Unions can also commit unfair labor practices under
    the NLRA such as earlier this year when the United Food and
    Commercial Workers Union tried to punish a worker for choosing
    to work rather than participate in a strike.
        What are some other unfair labor practices unions can
    commit?
        Mr. King. Failure to refer in a hiring hall situation and
    an individual that does not agree with the union for work;
    failing to permit a rational way for a member to resign, we
    have had numerous recent cases on that; failure of the union to
    permit our democratic process of voting; failure of the union
    to permit an individual to be a dissident and oppose the union
    and retaliation for such resistance; failure to provide duty of
    fair representation for the individual member in grievances and
    arbitrations. That is just a partial list.
        It is really remarkable to me, Mr. Keller, that this
    legislation ignores totally any type of sanction on the union.
    And, finally, per your point, not only do we have fines, this
    bill also proposes punitive damages and attorney's fees, again,
    only against employers.
        Mr. Keller. That actually answered my last question because
    my question was: Does the bill apply the same punishments to
    unions and union bosses found guilty of unfair labor practices
    as it levies on employers? And I guess the answer is -- the
    answer is no on that.
        Mr. King. And, Mr. Keller, if we are going to go down this
    path of putting civil penalties in the National Labor Relations
    Act, which I submit is not a good idea, but if we are going to
    go down that path, let's do it on an equal basis. Let's at
    least hold that rogue union responsible, just like the rogue
    employer. We do have outliers. There are certain unions and
    employers in this country that need to be held accountable, but
    this is not the solution.
        Mr. Keller. I would agree with that, and I thank you for
    that.
        I just want to make the important point that people in this
    country do have a right to assemble. They also have the right
    not to assemble and not to associate, and I think this bill
    goes a long way in taking rights away from people to freely
    assemble or not associate with certain organizations.
        I yield back my time. I thank you.
        Chairwoman Wilson. I thank you so much.
        Mr. Morelle of New York.
        Mr. Morelle. Thank you, Madam Chair, for holding this
    important hearing.
        And thank you to all the witnesses for being here to share
    your expertise.
        I grew up in a strong union home. My father was a proud
    lifetime member of the Plumbers & Pipefitters Union Local 13 in
    Rochester, New York, which instilled in me and my family a deep
    appreciation for the benefits that unions provide American
    workers across the country. However, for decades, we have seen
    the erosion of workers' rights to organize and collectively
    bargain, which is why this hearing is so important.
        So, on behalf of my constituents in the 25th Congressional
    District in New York, and the working men and women throughout
    the country, I am proud to support the committee's work to
    advance legislation that protects fundamental rights of the
    Nation's workforce.
        I have a couple of different questions. But first, if I
    could just start -- and I think perhaps, Mr. Griffin, this
    might -- you might be able to help me with this. I thought I
    heard earlier, or there seemed to be the suggestion made that
    workers who engage in violent behavior when picketing somehow
    have some protections in this bill, or could not be prosecuted.
    I don't think that is true. I know there has been bills
    introduced, designed to outlaw what I think is already illegal
    threats, robbery, physical violence.
        Is there anything that you know of that protects a worker
    from engaging in otherwise unlawful activities that relates to
    organizing?
        Mr. Griffin. No, I think -- thank you for the question.
        No. I think what was being referred to was anyone who
    engages in violent activity is prosecutable under various
    statutes, certainly prosecutable under State law; and there is
    nothing in this bill that addresses that in any way, shape, or
    form.
        I think what was being referred to was a decision in the
    Supreme Court under the Hobbs Act, the Enmons decision, which
    addresses whether, in addition to all the other ways you can be
    prosecuted, you can also be prosecuted under the Hobbs Act if
    you are a union member or agent, or for engaging in violent
    activity in the course of achieving a legitimate union
    objective, which was, in that instance, a collective bargaining
    agreement. But there is nothing in this bill that addresses
    that one way or the other.
        Mr. Morelle. Good. I just wanted to make it clear, Madam
    Chair, and to the members that -- I just wanted to clear that
    up that there is no blanket protection for people engaged in
    otherwise illegal or unlawful activities.
        I want to go back, because there are barriers that often
    restrict Americans from taking collective action for better
    wages and benefits. When the NLRA was amended in 1947, it put
    in place substantial restrictions, as I understand it, on
    workers' free speech rights; and many of these have enabled the
    National Labor Relations Board to prosecute workers in
    situations where they were peacefully seeking to improve labor
    conditions.
        And we have seen crackdowns on even the simplest form of
    collective bargaining actions organized by employees, and I
    wanted to point out one example that occurred recently in the
    case before the NLRB between the International Brotherhood of
    Workers, IBEW Local 357, I believe, and the Desert Sun
    Enterprise Limited. In the case, NLRB ruled that Local 357 made
    an unqualified threat simply because it had copied a second
    company on a letter regarding its plans to hold a picket at a
    common situs shared with the company the union had a dispute
    with. And they were deemed to be wrong, because the union did
    not provide a Moore Dry Dock assurance.
        I noticed, Professor Garden, you identified and addressed
    earlier, both in the conversation with Chairman Scott and in
    your testimony, the Moore Dry Dock assurance. But in my view,
    it violates basic freedom of speech rights, because it means a
    union's advanced notice of picketing may violate the law, even
    if the actual picketing is completely lawful.
        And I wonder -- the ruling denied, by the way, IBEW
    workers, their fundamental right to take collective action
    against an employer that paid its employees for far less than
    the area standards confirmed by the local labor commissioner's
    wage determination for electrical work.
        So, if I can ask you -- and I apologize, you are going to
    have to have a quick response. How does that Moore Dry Dock
    standard impact workers' right to take collective action? Could
    you just describe that?
        Ms. Garden. Absolutely. Well, the case you are talking
    about reveals this sort of fundamental irrationality, right?
    So, a union sends a letter to a neutral employer, says, you
    know, maybe it is just a heads-up, right, we are going to be
    picketing a struck employer at your site.
        Mr. Morelle. And that is a requirement of the law, or of
    the standard?
        Ms. Garden. Well --
        Mr. Morelle. This --
        Ms. Garden. So, the picketing would have to comply with
    these Moore Dry Dock factors in order to be entitled to this
    sort of safe harbor. The union can have every intention of
    intending to comply and -- I apologize for going a little bit
    over -- just may, nonetheless, find that it has committed an
    unfair labor practice, because it didn't know it had to say oh,
    and we are going to follow the law, right, something we don't
    usually say when we are conveying information to another
    person.
        Chairwoman Wilson. Thank you.
        Mr. Morelle. Thank you, Madam Chair.
        Chairwoman Wilson. Ms. Stevens from Michigan.
        Ms. Stevens. Thank you, Madam Chair.
        And thank you to our witnesses for the second hearing on
    the PRO Act that we are having here today. For many of us, this
    is what we came here for.
        I, coming from southeastern Michigan, a rich and profound
    history of labor traditions, the birth of our middle class, and
    the movement forward, join my colleagues in support of this
    legislation, and also, the opportunity to promote a 21st
    century labor movement that allows us to embrace the future of
    work and its changes to regional economies, like the one I
    represent.
        As the cochair of the Future of Work Task Force in the New
    Democratic Coalition, we are laser-focused on how to make sure
    the rules around labor standards and work meet the realities of
    this 21st century economy, and as work continues to evolve --
    and it is also something that I monitor closely as a member of
    the Science Committee -- and new types of worker arrangements
    emerge, we must critically examine how the test for employment
    interact with the ability for small businesses, emerging tech
    companies, and tech companies writ large, to succeed in
    innovation and employment growth as this legislation moves
    forward.
        So, Ms. Garden, I note that there is multiple exemptions
    that are being sought to this ABC language, some of which is at
    the State level. How can we ensure that employers have these
    clear and reasonable instructions to classify employees while
    also maintaining protections for workers?
        Ms. Garden. I mean, the ABC test is really very clear.
    People, it will help people to know whether they are an
    employee or whether they are an independent contractor when
    they start work. The previous test, the sort of multifactor
    test from the restatement of agency, leads to gamesmanship. It
    leads to protracted litigation as the sort of multiyear
    litigation over whether FedEx drivers were independent
    contractors are not revealed. So, the ABC test, I think, really
    sort of helps everybody plan for the future by making it clear
    who is an employee.
        Ms. Stevens. And so just to be clear, does collective
    bargaining allow employers flexibility in what they can bargain
    for at the table with their workers?
        Ms. Garden. Oh, absolutely. There is no such thing as a
    one-size-fits-all collective bargaining agreement. That is the
    nice thing about a system of private ordering like bargaining.
        Ms. Stevens. And, Mr. Griffin, your testimony discusses the
    value of protecting rights under the NLRA but what -- but those
    rights have not been obviously fully exercised under, you know,
    a number of cases and maybe for some reasons.
        If you had to prioritize, what are the top three weaknesses
    in the NLRA that would make the law more effective in
    protecting the rights of workers to organize and collectively
    bargain?
        Mr. Griffin. Well, I think many of them are addressed in
    this legislation; and the reason that they are addressed is
    because they are not just my view, but they are pretty much
    consensus view.
        The first is the coverage of how many workers are covered.
    There are a lot of different exemptions, and there is the
    independent-contractor-complicated test that doesn't allow for
    coverage of a lot of people who really are properly classified
    as employees.
        Secondly, the remedies under the Act are weak, and really
    don't penalize employers sufficiently for engaging in unlawful
    conduct.
        And, third, there is a lack of people's understanding of
    their rights. People don't know what their rights are, and this
    law joins many of the other federal labor standards law by
    adding a specific notice posting provision that requires people
    to be advised of their rights in the workplace.
        Ms. Stevens. Yeah, great. Thank you. Those are my
    questions.
        I yield back the remainder of my time.
        Chairwoman Wilson. Thank you so much.
        And now, since all of the committee members have spoken,
    let's welcome Mr. Kennedy of Massachusetts.
        Thank you.
        Mr. Kennedy. Thank you, Madam Chair. I am grateful for the
    opportunity to join you today. Thank you for holding this
    important hearing and for this critical piece of legislation.
        Over the past four decades, our economy has shifted
    dramatically. Companies and corporations have opened,
    shuttered, and opened again. Jobs have moved, jobs have
    changed, and some have vanished. But if there is a defining
    theme over the past four decades, it is the systematic assault
    on worker clout that is leading to stagnant wages, historic
    economic inequality, and all undermined by a sustained attack
    on union labor and bargaining rights.
        While CEOs, on average, make 287 times more than those they
    employ, a minimum wage worker cannot afford a two-bedroom
    apartment in any corner of our country. That is a crisis, a
    crisis that will only grow worse if this government continues
    to turn a blind eye or, even worse, continues to roll back
    protections for workers; and no one in this country will feel
    that pain more acutely than contract workers who are denied
    decent protections and benefits.
        At a moment when we are only years away from potentially
    half of American workers being classified as contract workers,
    we are on the precipice of an economic disaster. Instead of
    pointing to market forces and ceding influence to corporations,
    it is time that Congress stepped forward, protect our economy,
    protect those employees.
        So, Mr. Alvarez, to begin, do you know the personal stake
    that the XPO CEO has in your company?
        Mr. Alvarez. No, I don't.
        Mr. Kennedy. About $2 billion.
        Do you know how much he directed his company to spend in a
    stock buyback this past year?
        Mr. Alvarez. No, I don't.
        Mr. Kennedy. About $2.5 billion.
        Do you or any other additional contract workers, your
    colleagues, benefit from the -- did they benefit at all from
    that stock buyback through a bonus or a raise?
        Mr. Alvarez. No.
        Mr. Kennedy. A dime of that $2.5 billion?
        Mr. Alvarez. No.
        Mr. Kennedy. Mr. Alvarez, if I can ask, if you were to be
    classified as a full employee from XPO, which, if I understand,
    you wear XPO clothing labeled with XPO, do you not?
        Mr. Alvarez. Yes.
        Mr. Kennedy. And if you were actually classified as a full
    employee of XPO, how much more would you earn annually?
        Mr. Alvarez. That is something the coworkers will bargain
    for.
        Mr. Kennedy. And would XPO contribute to any sort of
    retirement account for you?
        Mr. Alvarez. What was the question?
        Mr. Kennedy. Would you be able to benefit from a retirement
    account if you were a full-on employee?
        Mr. Alvarez. Yes.
        Mr. Kennedy. Do you know how much they would make in that
    contribution?
        Mr. Alvarez. No, I don't. That was something we would
    bargain for.
        Mr. Kennedy. But at the moment, because, you are not
    actually a full employee, but you are a contract employee, you
    wear their apparel but do not benefit from that arrangement?
        Mr. Alvarez. Correct.
        Mr. Kennedy. So, let me start with Ms. Garden.
        Professor, I would like to talk to you about an emerging
    industry and the workforce it employs, our tech sector. Google
    employs over 200,000 workers today. More than half of those
    workers are classified as temporary workers or contractors.
    Facebook employs roughly 15,000 contract moderators globally,
    many working in poor or even dangerous conditions, doing some
    of the worst content that exists on the Internet with very
    little support, resources, or even job security.
        So, Professor, could you explain to me how the PRO Act and
    the end of employment classification could help us prepare for
    this new workforce?
        Ms. Garden. Yeah, absolutely.
        One thing that has changed as work has evolved is the sort
    of technology that companies use to control how work is done in
    ways that the company say don't require them to take
    responsibility for the welfare of those workers. So, the PRO
    Act would help to change that by adopting a clear definition of
    who is an employee that comports with most people's sort of
    understanding of what their job is and who they work for.
        Mr. Kennedy. Mr. Griffin, same question to you.
        Mr. Griffin. I would give essentially the same answer.
        I think that if Google is classifying people as
    contractors, and if those people would be employees under the -
    - likely be covered by the National Labor Relations Act, if
    they were determined to be not independent contractors under
    the ABC test, then they would be able to exercise rights that
    they are not able to exercise currently.
        Mr. Kennedy. Have you seen, in your opinion, sir, an
    erosion of workers protections, worker clout over recent
    American history?
        Mr. Griffin. Yeah, well, I think what we -- what I saw, I
    had a number of cases when I was the General Counsel that
    involved gig economy employers that had classified people as
    independent contractors, and I would note that in no instance
    did they come forward and produce a legal opinion that went
    through the 10 factors and said we considered this before we
    classified the people. They just started out on the theory that
    they wouldn't treat them as employees. They would not provide
    them benefits or the protections of the National Labor
    Relations Act; and so, yes, I have seen that in a number of gig
    economy --
        Mr. Kennedy. All this at a time when corporate profits are
    at a historic high?
        Ms. Garden. The facts are what the facts are.
        Mr. Kennedy. Thank you.
        I yield back.
        Chairwoman Wilson. I thank you.
        I remind my colleagues that pursuant to committee practice,
    materials for submission for the hearing record must be
    submitted to the committee clerk within 14 days following the
    last day of the hearing, preferably in Microsoft Word format.
    The materials submitted must address the subject matter of the
    hearing. Only a member of the committee, or an invited witness
    may submit materials for inclusion in the hearing record.
        Documents are limited to 50 pages each. Documents longer
    than 50 pages will be incorporated into the record via an
    Internet link that you must provide to the committee clerk
    within the required timeframe, but please recognize that years
    from now, that link may no longer work.
        Again, I want to thank the witnesses for their
    participation today. What we have heard is very valuable.
    Members of the committee may have some additional questions for
    you, and we ask the witnesses to please respond to those
    questions in writing. The hearing record will be held open for
    14 days in order to receive those responses.
        I remind my colleagues that, pursuant to committee
    practice, witness questions for the hearing record must be
    submitted to the majority committee staff, or committee clerk
    within 7 days. The questions submitted must address the subject
    matter of the hearing.
        Before recognizing the Ranking Member for his closing
    statement, I ask unanimous consent to enter the following
    materials into the record: letters from the Amalgamated Transit
    Union, the Labors' International Union of North America, and
    the United Steel Workers in support of the PRO Act.
        Without objection, so ordered.
        [The information follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Chairwoman Wilson. I now recognize the distinguished
    Ranking Member for his closing statement.
        Mr. Walberg.
        Mr. Walberg. I thank you, Madam Chair.
        And I would vote for any of the pronunciations of that
    word, and I would ask my staff never to put that in front of me
    either.
        I do ask unanimous consent to place in the record letters
    from the following organizations opposing H.R. 2474: The
    Coalition for a Democratic Workplace; the International
    Franchise Association; the National Association of Home
    Builders; the American Hotel and Lodging Association;
    Associated Builders and Contractors; and the U.S. Chamber of
    Commerce.
        [The information follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Walberg. Thanks to the panel for being here, and
    thanks, Madam Chair, for a good hearing. I say that because
    this hearing, I think, at least I think, made crystal clear the
    stark contrast of the competing agendas on whether union boss
    success should be priority number one or employee/employer
    success should be priority number one.
        I truly believe that employees and employers being
    successful together only extends the opportunity for success. I
    would also hasten to say, as a former steel worker at U.S.
    Steel South Works, south side of Chicago, No. 2 Electric
    Furnace, that my job there was safer, my benefits were better
    than they would have been, had not the union involved
    themselves in providing some enhancements over the years to the
    point of 1969, when I came there and worked. And there is a
    place for that; but there is a place for each employee to make
    the decisions on her best or his best self-interest, on the
    basis of value, of what they purchase or join or involve
    themselves with.
        I believe the best way to bring success to the employee is
    to also allow employers to succeed as well. Nothing that I see
    in this bill, the PRO Act, H.R. 2474, I believe, offer that
    opportunity for both sides. In fact, I think it takes us
    backwards. Choice and flexibility are key, I believe, to
    success, choice and flexibility. This bill offers no
    flexibility, except to one side. That is not flexibility. It
    takes away choice even for employees.
        In my State, where the citizens supported a right to
    choose, a right to work for employees in a longstanding union
    state of Michigan, the home of the auto industry, motor capital
    of the world, they made that choice and employees still have a
    choice whether they can join or not join a union, and they make
    those choices.
        There were statements made today with broad-sweeping brush
    strokes about the need to have this legislation because of
    income levels, income inequality, the middle income going down,
    and all of the rest. I would not hesitate to state they were
    broad-brush statements not making apples-to-apples judgments,
    but rather apples-to-oranges or banana judgments, and I am
    pleased that we will insert in the record alternative
    viewpoints with a much clearer understanding of what was there.
        But let me just state median household income, for
    instance, reached its fifth straight record high last year,
    over $61,000, median income. Those are the middle-class workers
    that I represent in my district, and I could go on and on with
    actual statistics, not taking outside outliers and pulling them
    in, and I think we need to understand that as well.
        Mr. Alvarez, thank you for coming all the way here. You are
    an individual at this point in time who is highly sought after.
    I would encourage you to come to Michigan. I know you like
    California. It is a lower-cost living state in Michigan, and
    there are 60,000 not simply in Michigan, but at this point in
    time the last number I saw was 60,000 truck seats unfilled. You
    are highly sought after. I was put into the driver's seat of an
    18-wheeler, and encouraged the double shift, double clutch a
    lot better than I actually did. They didn't hire me but they
    said they would train me and they would put me in a seat, and
    these would be in seats in either Teamster union operations or
    private contractor operations as well.
        You have choices, and you have skills. Whether you go into
    aviation or not, you have skills that are marketable now. This
    legislation I don't believe would assist in that.
        So, Madam Chair, I appreciate the chance to have this
    crystal-clear difference hearing today, but I would certainly
    hope we wouldn't go backwards, that we would not move this
    legislation that I think would ultimately hurt the
    opportunities for people to have those choices, make those
    decisions, and have the flexibility to do what America has
    always proposed.
        Thank you, and I yield back.
        Chairwoman Wilson. Thank you, Mr. Walberg.
        I now recognize myself for the purpose of making a closing
    statement.
        I thank you, again, to all of our witnesses for your
    testimonies today. Today, we heard compelling testimony on how
    the changing relationship between employers and employees is
    undermining workers' ability to exercise their collective
    bargaining rights and negotiate for better wages, benefits, and
    working conditions.
        We heard from Mr. Alvarez how hard it is for him; and we
    learned from Professor Garden as the number of subcontracted
    freelance and third-party workers increase, employers are
    incentivized to exploit loopholes in the National Labor
    Relations Act to misclassify employees, subcontract work to
    evade labor laws, and restrict workers' rights to peacefully
    protest.
        To make matters worse, the Trump administration is further
    enabling employers to exploit these weaknesses in labor law.
    From attempting to reverse the Browning-Ferris decision to
    denying SuperShuttle workers the right to organize, Republicans
    at the National Labor Relations Board continue to erode
    workers' rights to join a union, and to negotiate with their
    employers. But, more importantly, we discussed the long-overdue
    steps that Congress can take, and should take, to ensure our
    Nation's labor laws protect the right to organize.
        By passing the PRO Act, we will provide workers with the
    safeguards they need for a modern economy. This bill will
    prevent workers from being misclassified as independent
    contractors, and will prevent employers from evading their
    obligations under the law. And we will repeal the provisions
    that violate workers' First Amendment rights.
        Once again, I thank the witnesses for being here. I thank
    you, Ms. Garden, Mr. Alvarez, Mr. King, and Mr. Griffin.
        And I thank my colleagues for a constructive HELP
    subcommittee hearing.
        If there is no further business, without objection, this
    committee stands adjourned.
        [Additional submission by Mr. King follows:]

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        [Additional submissions by Mr. Walberg follow:]

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        [Additional submission by Ms. Wilson follows:]

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        [Questions submitted for the record and their responses
    follow:]

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        [Whereupon, at 12:52 p.m., the subcommittee was adjourned.]