[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
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                             ______

             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.
    [The information follows:]
    
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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:]
    
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    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:]
    
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    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.]