    [House Hearing, 117 Congress]
    [From the U.S. Government Publishing Office]

                         REVIVING COMPETITION, PART 4:
                     21ST CENTURY ANTITRUST REFORMS AND THE
                                  AMERICAN WORKER

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

                                    HEARING

                                   BEFORE THE

                  SUBCOMMITTEE ON ANTITRUST, COMMERCIAL, AND
                                ADMINISTRATIVE LAW

                                     OF THE

                           COMMITTEE ON THE JUDICIARY

                            HOUSE OF REPRESENTATIVES

                        ONE HUNDRED SEVENTEENTH CONGRESS

                                 FIRST SESSION

                                   __________

                          TUESDAY, SEPTEMBER 28, 2021

                                   __________

                               Serial No. 117-40

                                   __________

             Printed for the use of the Committee on the Judiciary

    [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

                   Available via: http://judiciary.house.gov

                                   __________

                        U.S. GOVERNMENT PUBLISHING OFFICE
    48-614                     WASHINGTON : 2022

    -----------------------------------------------------------------------------------

                           COMMITTEE ON THE JUDICIARY

                        JERROLD NADLER, New York, Chair
                    MADELEINE DEAN, Pennsylvania, Vice-Chair

    ZOE LOFGREN, California              JIM JORDAN, Ohio, Ranking Member
    SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
    STEVE COHEN, Tennessee               LOUIE GOHMERT, Texas
    HENRY C. ``HANK'' JOHNSON, Jr.,      DARREL ISSA, California
        Georgia                          KEN BUCK, Colorado
    THEODORE E. DEUTCH, Florida          MATT GAETZ, Florida
    KAREN BASS, California               MIKE JOHNSON, Louisiana
    HAKEEM S. JEFFRIES, New York         ANDY BIGGS, Arizona
    DAVID N. CICILLINE, Rhode Island     TOM McCLINTOCK, California
    ERIC SWALWELL, California            W. GREGORY STEUBE, Florida
    TED LIEU, California                 TOM TIFFANY, Wisconsin
    JAMIE RASKIN, Maryland               THOMAS MASSIE, Kentucky
    PRAMILA JAYAPAL, Washington          CHIP ROY, Texas
    VAL BUTLER DEMINGS, Florida          DAN BISHOP, North Carolina
    J. LUIS CORREA, California           MICHELLE FISCHBACH, Minnesota
    MARY GAY SCANLON, Pennsylvania,      VICTORIA SPARTZ, Indiana
    SYLVIA R. GARCIA, Texas              SCOTT FITZGERALD, Wisconsin
    JOE NEGUSE, Colorado                 CLIFF BENTZ, Oregon
    LUCY McBATH, Georgia                 BURGESS OWENS, Utah
    GREG STANTON, Arizona
    VERONICA ESCOBAR, Texas
    MONDAIRE JONES, New York
    DEBORAH ROSS, North Carolina
    CORI BUSH, Missouri

            PERRY APELBAUM, Majority Staff Director & Chief Counsel
                   CHRISTOPHER HIXON, Minority Staff Director
                                     ------

                     SUBCOMMITTEE ON ANTITRUST, COMMERCIAL,
                             AND ADMINISTRATIVE LAW

                    DAVID N. CICILLINE, Rhode Island, Chair
                    PRAMILIA JAYAPAL, Washington, Vice-Chair

    JOE NEGUSE, Colorado                 KEN BUCK, Colorado, Ranking Member
    ERIC SWALWELL, California            DARREL ISSA, California
    MONDAIRE JONES, New York             MATT GAETZ, Florida
    THEODORE E. DEUTCH, Florida          MIKE JOHNSON, Louisiana
    HAKEEM S. JEFFRIES, New York         W. GREGORY STEUBE, Florida
    JAMIE RASKIN, Maryland               MICHELLE FISCHBACH, Minnesota
    VAL BUTLER DEMINGS, Florida          VICTORIA SPARTZ, Indiana
    MARY GAY SCANLON, Pennsylvania       SCOTT FITZGERALD, Wisconsin
    LUCY McBATH, Georgia                 CLIFF BENTZ, Oregon
    MADELINE DEAN, Pennsylvania          BURGESS OWENS, Utah
    HENRY C. ``HANK'' JOHNSON, Jr.,
        Georgia

                           SLADE BOND, Chief Counsel
                          DOUG GEHO, Minority Counsel

                               C O N T E N T S

                                  ----------

                          Tuesday, September 28, 2021

                                                                       Page

                               OPENING STATEMENTS

    The Honorable David Cicilline, Chair of the Subcommittee on
      Antitrust, Commercial and Administrative Law from the State of
      Rhode Island...................................................     2
    The Honorable Ken Buck, Ranking Member of the Subcommittee on
      Antitrust, Commercial and Administrative Law from the State of
      Colorado.......................................................     4
    The Honorable Jerrold Nadler, Chair of the Committee on the
      Judiciary from the State of New York...........................     5
    The Honorable Jim Jordan, Ranking Member of the Committee on the
      Judiciary from the State of Ohio...............................     7

                                   WITNESSES

    Eric A. Posner, Kirkland and Ellis Distinguished Service
      Professor of Law, Arthur and Esther Kane Research Chair,
      University of Chicago Law School
      Oral Testimony.................................................    10
      Prepared Testimony.............................................    12
    Brian Callaci, Chief Economist, Open Markets Institute
      Oral Testimony.................................................    23
      Prepared Testimony.............................................    25
    Dan Gross, Feeder Driver, United Parcel Service; Member,
      Teamsters Local 177
      Oral Testimony.................................................    33
      Prepared Testimony.............................................    35
    Nila Payton, Medical Administrative Assistant, University of
      Pittsburgh Medical Center
      Oral Testimony.................................................    38
      Prepared Testimony.............................................    40
    The Honorable Christine S. Wilson, Commissioner, Federal Trade
      Commission
      Oral Testimony.................................................    43
      Prepared Testimony.............................................    45
    Bruce H. Kobayashi, Paige V. and Henry N. Butler Chair in Law and
      Economics, Antonin Scalia Law School, George Mason University
      Oral Testimony.................................................    63
      Prepared Testimony.............................................    65

              LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

    An article entitled, ``Trump to leave office with the worst jobs
      record since Herbert Hoover,'' Fortune, submitted by the
      Honorable David N. Cicilline, Chair of the Subcommittee on
      Antitrust, Commercial and Administrative Law from the State of
      Rhode Island, for the record...................................    20
    Materials submitted by the Honorable Matt Gaetz, a Member of the
      Subcommittee on Antitrust, Commercial and Administrative Law
      from the State of Florida, for the record
      An article entitled, ``Tech Giants, Fearful of Proposals to
        Curb Them, Blitz Washington With Lobbying,'' The New York
        Times........................................................    76
      An article entitled, ``Tim Cook called Nancy Pelosi to warn her
        against disrupting the iPhone with impending antitrust
        bills,'' The Verge...........................................    81
      An article entitled, ``House Speaker Nancy Pelosi's husband
        cashed in on Big Tech just as Congress was set to pounce,''
        Fortune......................................................    83
    Materials submitted by the Honorable Darrell Issa, a Member of
      the Subcommittee on Antitrust, Commercial and Administrative
      Law from the State of California, for the record
      An article entitled, ``California's Occupational Licensing Laws
        Shouldn't Kick People When They're Down,'' The Federalist
        Society......................................................    94
      An article entitled, ``California Occupational Licensing:
        Barriers to Opportunity in the Golden State,'' The Mercatus
        Center.......................................................    98
    Materials submitted by the Honorable David N. Cicilline, Chair of
      the Subcommittee on Antitrust, Commercial and Administrative
      Law from the State of Rhode Island, for the record
      An article entitled, ``Report Update | Eyes Everywhere:
        Amazon's Worker Surveillance Continued,'' Open Markets
        Institute....................................................   122
      Statement from Lina Khan, Chair, Federal Trade Commission......   141
      A letter from Greg Nowak, Director and Secretary-Treasurer,
        Brewery and Soft Drink Workers Conference addressed to Amy
        Greenberg, Director, Regulations and Rulings Division,
        Alcohol and Tobacco Tax and Trade Bureau.....................   151
      Statement from the International Brotherhood of Teamsters,
        Service Employees International Union, and the Strategic
        Organizing Center............................................   152
      Statement from Richard T. Cassidy, Chair, ULC Drafting
        Committee for Uniform Restricting Employment Agreement Act,
        and Stewart J. Schwab, Reporter, ULC Drafting Committee......   161

                                    APPENDIX

    Statement from Kyle Bragg, President, Service Employees
      International Local 32BJ, submitted by the Honorable David N.
      Cicilline, Chair of the Subcommittee on Antitrust, Commercial
      and Administrative Law from the State of Rhode Island, for the
      record.........................................................   170
    Materials submitted by the Honorable Matt Gaetz, a Member of the
      Subcommittee on Antitrust, Commercial and Administrative Law
      from the State of Florida, for the record
      An article entitled, ``Nancy Pelosi's husband up $700K on
        CrowdStrike stock purchase,'' FOX Business...................   173
      An article entitled, ``6 Stocks Nancy Pelosi's Husband Is
        Buying,'' 24/7 Wall St.......................................   176

                         REVIVING COMPETITION, PART 4:
             21ST CENTURY ANTITRUST REFORMS AND THE AMERICAN WORKER

                                  ----------

                          Tuesday, September 28, 2021

                            House of Representatives

                   Subcommittee on Antitrust, Commercial, and

                               Administrative Law

                           Committee on the Judiciary

                                 Washington, DC

        The Subcommittee met, pursuant to call, at 10:04 a.m., in
    Room 2141, Rayburn House Office Building, Hon. David Cicilline
    [Chair of the Subcommittee] presiding.
        Present: Representatives Cicilline, Nadler, Jones, Raskin,
    Demings, McBath, Dean, Johnson of Georgia, Jordan, Buck, Issa,
    Gaetz, Johnson of Louisiana, Bishop, Fischbach, Spartz,
    Fitzgerald, Bentz and Owens.
        Staff Present: David Greengrass, Senior Counsel; Moh
    Sharma, Director of Member Services and Outreach and Policy
    Advisor; Cierra Fontenot, Chief Clerk; John Williams,
    Parliamentarian and Senior Counsel; Gabriel Barnett, Staff
    Assistant; Joseph Van Wye, Professional Staff Member and
    Legislative Aide; Slade Bond, Chief Counsel; Phillip
    Berenbroick, Counsel; Ella Yates, Minority Member Services
    Director; Douglas Geho, Minority Chief Counsel for
    Administrative Law; Elliott Walden, Minority Counsel; and Kiley
    Bidelman, Minority Clerk.
        Mr. Cicilline. This Subcommittee will come to order.
        Without objection, the Chair is authorized to declare
    recesses of the Committee at any time.
        Good morning, and welcome to today's hearing, the fourth in
    the Subcommittee's series focused on the development of
    legislative proposals to strengthen and modernize the antitrust
    laws. This hearing is an opportunity to examine competition in
    labor markets, as well as ways to promote the economic
    opportunity of hardworking Americans through robust enforcement
    of our antitrust laws.
        Before we begin, I would like to remind Members that we
    have established an email address and distribution list
    dedicated to circulating exhibit, motions, or other written
    materials that Members might want to offer as part of our
    hearing today. If you would like to submit materials, please
    send them to the email address that has been previously
    distributed to your offices, and we will circulate the
    materials to Members and staff as quickly as we can.
        I now recognize myself for an opening statement.
        Across the political spectrum, Americans know that the
    economy is not working for them. They feel it in every
    paycheck, every surprise medical bill, and every credit card
    payment. Nobel Laureate George Stigler described this as, and I
    quote, ``a widespread sense of powerlessness, both in our
    economic and political life. We seem no longer to control our
    own destinies.'' That is because wage consolidation in recent
    decades has led to the rise in market power among employers,
    decimating jobs and wages, and weakening the economy against
    the American worker, independent businesses, and entrepreneurs.
    In the midst of this trend, corporations are earning monopoly
    profits that are not being reinvested in higher wages or our
    economy, threatening the financial security of working people.
        As Professor Ioana Marinescu testified last Congress, the
    economic concentration of labor laws across the country has
    given employers market power over their workers. Employers with
    market power, also called monopsonies, have the incentive and
    ability to pay lower wages than they would in the competitive
    market. It is nearly impossible to overstate how harmful this
    is to the American worker.
        In the absence of competition, employers have virtually no
    incentive to pay fair wages to retain workers or track new
    talent. Workers are trapped in low-paying jobs. Many workers
    aren't able to escape low-paying jobs or find new jobs after
    being laid off simply because there are fewer alternatives than
    would exist in the competitive marketplace.
        As Professor Eric Posner will testify today, because
    employers push down wages by hiring fewer workers, fewer people
    end up working. That means there is less output which also
    results in higher prices for consumers.
        While the effects of economic concentration have been
    devastating for nearly all workers, it most severely harms
    workers in vulnerable groups, such as women and people of
    color, who have less bargaining power against wage
    discrimination and other forms of workplace inequality. This
    economic catastrophe has been compounded by the ubiquitous
    presence of noncompete and no-poach agreements in employment
    contracts.
        As Professor Evan Starr testified last congress, these
    restraints have become, and I quote, ``so pervasive that even
    volunteers in nonprofit organizations in states that do not
    even enforce them are asked to sign away their post-employment
    freedom.''
        Unfortunately, these trends have only worsened in the wake
    of the pandemic. Last year, despite record levels of
    unemployment, employers continued to go to court to enforce
    noncompete clauses that prevented workers they had laid off
    from taking new positions. For example, as Bloomberg Law
    reported, in Pennsylvania, a sports retailer laid off a
    salesman who had worked there for 31 years and then tried to
    keep him and other sales staff from taking new positions. A
    medical provider sued to keep a Houston doctor from opening new
    offices.
        This, of course, is bad for business. From engineers to
    healthcare workers, the presence of noncompete clauses in
    employment contracts has undoubtedly contributed to labor
    shortages that have weakened America's economic recovery from
    the pandemic. There's also no shortage of examples of collusion
    among employers to fix wages or agree not to hire workers in
    competing firms. Even though these restraints are criminally
    illegal, noncompete clauses appear in everyday employment
    contracts including nearly 60 percent of agreements among major
    franchises in the United States, driving down wages and
    preventing workers from moving to better job opportunities.
        Finally, nearly a third of jobs require licensure,
    including many jobs that have little impact on public health or
    consumer safety. Although there are many benefits associated
    with establishing credentials for professions, particularly
    those with important public health and safety considerations,
    excessive licensing can create barriers to entry in the
    workplace, impose additional costs on workers, and result in
    job losses. Moreover, because these standards differ by State,
    licensing barriers can disproportionately harm military
    families which are ten times more likely to relocate across
    State lines than other working families.
        As the late economist, Alan Krueger, has explained, and I
    quote, ``the most common jobs for military spouses are nurses
    and teachers who often have to get licensed in the new State
    when they move, pay a licensing fee, and by the time they're
    committed to working in those states, they often move again.''
        Although some States have eased the burdens of interstate
    compacts on healthcare workers, this continues to be a problem
    today. In recent years antitrust enforcers under both
    Republican and Democratic leadership have begun paying more
    attention to the effects of economic concentration on labor and
    producers.
        Under the Obama Administration, the antitrust agencies
    issued joint guidelines, clarifying that no-poach agreements
    and wage fixing could be criminally prosecuted. This important
    work continued under the prior Administration and continues to
    be a priority of the Biden Administration.
        In July, President Biden issued Executive Order 14036 which
    outlines a pro-worker, anti-monopoly agenda for the 21st
    century. As the order states, excessive market concentration
    threatens the economic welfare of workers, a while competitive
    marketplace creates more high-quality jobs and the economic
    freedom to switch jobs or negotiate a higher wage.
        Earlier this month, Vanita Gupta, the Associate Attorney
    General of the Justice Department, said that the Antitrust
    Division will make ending collusion among employers a top
    priority. As she said, and I quote, ``American workers who are
    struggling to make ends meet may not always be able to stand up
    to their employer, but the department can and will.''
        Congress also has an important role to play. Although more
    vigorous enforcement in competition rulemaking can address some
    of these concerns, the antitrust agencies cannot change the law
    on their own. Moreover, in recent years courts have shown
    hostility to bold enforcement activity in this area in the
    absence of legislative guidance. As Professor Posner will
    testify today, legislation that more clearly lays out the
    elements of labor's antitrust claims would help push the courts
    in a positive direction.
        As I've said before, I firmly believe that we must explore
    every path to create economic opportunity for all working
    Americans as we Build Back Better. This must be a national
    priority. With that in mind, today's hearing is an opportunity
    to examine these concerns and explore potential legislative
    solutions.
        I look forward to hearing testimony from our esteemed panel
    of witnesses on these matters, as well as potential paths
    forward for fixes these problems.
        I now recognize the distinguished gentleman from Colorado,
    the Ranking Member of the Antitrust Subcommittee, Mr. Buck, for
    his opening statement.
        Mr. Buck. I thank the Chair.
        I have to admit to the Chair that I'm a little baffled by
    this hearing. I'm not sure what specific legislation we're
    going to take up today or in the future based on the opening
    statements and the nature of this hearing. Certainly, those of
    us on this side of the aisle have done our best to work with
    the Chair and others on this Committee when it comes to big
    tech and when it comes to reforms in the pharmaceutical
    industry. This, frankly, is baffling to me.
        We do know that the Biden Administration has taken a number
    of steps that have hurt workers in the economy. For example,
    we've learned through the Obama Administration and the really
    measly economic growth that occurred during the Obama
    Administration is that you offer individuals unemployment
    benefits, and they can stay home and make a living off of
    unemployment benefits and other benefits, they won't go into
    the workplace. We've seen that. We saw also that when we have
    millions upon millions of illegal immigrants in this country
    and they are driving down wages for all American workers, it is
    significant.
        When we look at what's happening on the border with the
    Biden Administration, we see an open border. We see a really a
    sad situation, a humanitarian situation where we are inviting
    people into this country by sending all the wrong signals. We
    have as a result this crisis. We have a Border Patrol that's
    overwhelmed. We have a country that is now accepting tens of
    thousands, if not hundreds of thousands, of people into our
    country on top of the millions who are already here illegally.
    We don't deal with an immigration issue. We don't deal with the
    unemployment benefits and their effect on our economy.
        We also saw from the Trump Administration that if we really
    want to raise workers' wages and we want to help our economy,
    we lower taxes. This week we may very well be taking a step
    towards raising corporate taxes, raising other taxes. When we
    lowered taxes, what we saw was a significant investment from
    overseas coming into this country. Even companies and
    individuals in this country that had their money on the
    sidelines were willing to invest that money because there was a
    climate and an optimism about our economy that doesn't exist
    anymore.
        We also saw the Trump Administration reduce regulations
    significantly. We saw at one point in time there were 27
    regulations repealed for every one new regulation that was
    enacted. The Biden Administration's going the exact opposite
    direction. We're seeing the effects of that on our economy.
        We also know that it's important to have strong trade
    agreements, and those trade agreements lift American workers'
    wages and create a robust economy. The disastrous surrender,
    not withdrawal but surrender, from Afghanistan has put the U.S.
    in a situation where we are weak or we are perceived as being
    weak by our allies and, frankly, adversaries also. So, the idea
    that we will strengthen workers' positions with noncompete
    agreements or changing the nature of noncompete agreements or
    tinkering around the edges of antitrust is laughable when you
    look at how far this Administration has gone in the wrong
    direction.
        Last but certainly not least, by spending the trillions of
    dollars, $6 trillion on COVID alone, what we see is inflation.
    If there's one thing that eats away at workers' ability to
    improve their life, it's inflation. We see inflation. It's
    going to be with us, and it's going to be part of the new
    reality of this Biden economy. I think it's terribly sad.
        I have faith that the Chair is holding this hearing in good
    faith and wants to accomplish some worthy goals. I really think
    that our time would be much better spent battling against the
    $1.2 trillion infrastructure bill, the $3.5 trillion
    reconciliation bill, dealing with the immigration crisis at our
    border, talking about how we need to get people back to work
    and stop giving them unemployment benefits. I think we have to
    make sure that we lower taxes, not raise taxes, that we reduce
    regulations, and that we do everything we can to improve our
    trade agreements.
        With that, Mr. Chair, I yield back.
        Mr. Cicilline. I thank the gentleman for yielding back.
        Before I recognize our next Witness, I should have done
    this at the beginning. I would remind everyone on the current
    guidance of the Office of the Attending Physician it is this
    Committee's policy that Members and staff in the room wear face
    coverings at all times, except when they've been recognized to
    speak.
        I now recognize the Chair of the Full Committee, the
    gentleman from New York, Mr. Nadler, for his opening statement.
        Chair Nadler. Thank you, Mr. Chair.
        Mr. Chair, as we all well know, America's economy has
    become highly concentrated in recent decades. A small number of
    firms dominate a variety of markets that Americans rely on
    including pharmaceuticals, airlines, broadband, online
    platforms, and meatpacking. Just as consolidation in other
    markets tend to result in higher prices and lower quality in
    the goods we buy, consolidation has led to high levels of
    concentration in labor markets.
        As in any other market, when a lack of competition gives
    employers excessive power over workers, employers have the
    incentives and the ability to abuse that power. In many
    industries, these dynamics have led to depressed wages and
    opportunity, limited worker mobility, misclassification of
    workers, and discrimination against the most vulnerable.
        Employers of market power can abuse their power over
    workers in several ways. Some have imposed anticompetitive
    terms in employment contracts such as noncompete agreements
    that ban workers from finding a better job or starting a
    competing firm. Others collude with rivals to fix wages to
    prevent workers from changes jobs. With the rise of the gig
    economy, we see a rising number of employers misclassifying
    employees as independent contractors. These practices harm
    workers. They exacerbate wealth inequality. They frustrate the
    ability of workers to earn a living wage and to support their
    families. These practices have no place in a free and fair
    economy.
        For decades, the antitrust agencies have been too weak or
    too timid to vigorously enforce the antitrust laws to stop and
    deter abuses across the economy. As Professor Eric Posner will
    testify today, these trends have been worse in labor markets
    where enforcement has been virtually nonexistent until very
    recently. These failures have undermined opportunity in the
    financial security of American families and small businesses.
    In the wake of the pandemic, the impacts of these developments
    have hit our frontline workers the hardest. Healthcare workers,
    delivery drivers, grocery workers, meatpackers, and other
    frontline workers have been heroes, keeping us safe and keeping
    our economy going under the most challenging of circumstances.
        Unfortunately, where these workers have saved us during the
    pandemic, all too often our society has failed them. Many of
    these workers, where many industries are overwhelmingly made up
    of women or people of color, often work for wages that are too
    low and in conditions that are unsafe. In many cases, they are
    stuck working for corporations that have cornered the market,
    undermining their ability to find better jobs or higher wages
    in their field because they simply do not exist.
        For example, as Ms. Payton will testify today,
    consolidation in the hospital and physician market in western
    Pennsylvania has led to lower wages and fewer choices for
    employment. As she notes, there is almost nowhere else to work
    if you're a healthcare worker. Moreover, as other Witnesses
    will testify today, many of these workers are subject to
    anticompetitive restrictions on their mobility, such as
    noncompete and no-poach agreements. These abusive contracting
    practices have become ubiquitous in the workforce, further
    entrenching the power of employers over workers, and preventing
    the unemployed from getting a new job.
        This must change, and I am encouraged by recent steps by
    the Biden to address this problem meaningfully through all
    available tools. In July, President Biden issued Executive
    Order 14036, a sweeping and historic approach to building an
    economy that works for everyone through the benefits of
    competition. As this order States, quote, ``consolidation has
    increased the power of corporate employers, making it harder
    for workers to bargain for higher wages and better working
    conditions.''
        In response to this concern, the President's order
    encourages the antitrust agencies to undertake a series of
    actions that will protect workers and promote competition in
    labor markets. These include adopting rules to curtail the use
    of noncompete and other agreements that unfairly limit worker
    mobility, as well as policing collusive behavior among
    employers such as wage fixing. This is a critical effort, and I
    look forward to updates from the Federal Trade Commission and
    the Antitrust Division at the Department of Justice on their
    work to combat market concentration and abuses to market power
    that harm workers.
        Congressional action is also necessary. There is a pressing
    need to update the antitrust laws to ensure the antitrust
    agencies have the necessary tools to stop and deter
    anticompetitive conduct and mergers that harm workers.
        As I have said before, it will also take a comprehensive
    set of reforms to recover economic opportunity and dignity for
    working people. These problems must be addressed with lasting
    solutions like guaranteeing equal pay for equal work,
    prohibiting forced arbitration agreements in employment
    contracts, establishing a living wage, stopping worker
    misclassification, and strengthening unions. The legislation
    that will revive competition in labor markets competition is a
    critical part of this agenda.
        I want to thank all our Witnesses for testifying this
    morning, and I especially want to thank Ms. Payton and Mr.
    Gross for appearing today and for sharing their testimony. We
    appreciate that working, in the healthcare and logistics and
    delivery industries, you have been on the front lines during
    the COVID-19 pandemic. Without you and workers in other
    frontline professions, our economy and our society cannot
    function. So, I thank you.
        I also thank the Chair for holding today's hearing on this
    very important topic.
        With that, I yield back the balance of my time.
        Mr. Cicilline. I thank the gentleman.
        I now recognize the Ranking Member of the Full Committee,
    the gentleman from Ohio, Mr. Jordan, for his opening statement.
        Mr. Jordan. Thank you, Mr. Chair.
        Before President Biden, before Democrats controlled all of
    government, there was never a better time for American workers.
    Manufacturing was on the rise. According to one estimate,
    President Trump's first 30 months, manufacturing jobs were up
    314,000 over where they were under President Obama. We had low
    employment, In fact, the lowest in 50 years. Wages were booming
    across the board, and we saw massive job growth across all
    sectors of our economy. Anyone paying attention knows that,
    even with the virus, our job market is resilient.
        Drive through any town in America, anywhere. You will see
    dozens of hiring signs, with many offering high starting wages
    and signing bonuses. Talk to any employer right now, and their
    biggest problem is actually getting people to come to work.
        So, the biggest threat to the American worker is not any of
    the things you brought up in your opening statement. Frankly,
    the biggest threat to the American workers are far left
    Democrat policies.
        Democrats are using the pandemic to have a government
    takeover of our economy. They want to make permanent the
    extraordinary welfare programs enacted in the last 18 months.
    On top of that, they want to ram through trillions of dollars
    more of spending. We have seen an eviction moratorium, vaccine
    mandates, paying people not to work, not to mention higher
    taxes, rampant inflation, and undoing much of the Trump
    Administration's regulatory reform.
        I mean, the Democrats' economic plan seems to be lock down
    the economy, spend like crazy, pay people not to work, tell
    them they can't be evicted. Then for everyone who is working
    and is paying their rent, oh, they're going to raise your
    taxes. Such a deal. Maybe the dumbest economic plan I've ever
    heard of, but that's their plan. Make no mistake, the Biden
    economy is not helping American workers unless these workers
    are Federal bureaucrats in Washington.
        The radical Democrat policies are leading to higher prices
    for American consumers in the short run, and in the long run
    they will only increase the already crushing debt burden we're
    placing on our children and grandchildren. That's not even to
    mention what Democrats on this Committee have imposed doing,
    including empowering the Biden Administration's radical Federal
    Trade Commission to attack our freedom-in-price system by
    overhauling antitrust laws and upsetting precedent that applies
    to the economy as a whole.
        You thought corporate America was in bad shape now. Just
    wait until Lina Khan and other Biden bureaucrats get more
    power. The chair of the FTC is already abusing the power she
    does have and is ruling the FTC in an authoritarian compassion
    in a total departure from the way the commission has worked for
    the last half century. In fact, I look forward to hearing from
    Commissar Wilson on some of these concerns.
        This Committee ought to be conducting far more oversight of
    the FTC and how it has moved away from its original mission.
    The best thing we can do for the American worker is getting
    were wash off their back. I look forward to today's discussion,
    and I want to thank all our Witnesses for being here today.
        Mr. Chair, I yield back.
        Mr. Cicilline. The gentleman yields back.
        It's now my pleasure to introduce today's Witnesses.
        Our first Witness is Eric Posner, the Kirkland and Ellis
    Distinguished Service Professor of Law and the Arthur and
    Esther King Research Chair at the University of Chicago Law
    School. He's been a member of the faculty at the University of
    Chicago since 1988.
        Before teaching in Chicago, Professor Posner spent five
    years as a Professor of Law at the University of Pennsylvania
    and one year as an Attorney Advisor at the Office of Justice's
    Office of Legal Counsel. He's written a number of highly-
    regarded books including ``Law and Social Norms'' and ``How
    Antitrust Failed Workers.'' Professor Posner is a fellow at the
    American Academy of Arts and Sciences and a member of the
    American Law Institute. Mr. Posner received his bachelor's and
    master's degree from Yale University and his J.D. from Harvard
    Law School.
        Today's second Witness is Brian Callaci, the Chief
    Economist at Open Markets Institute. He's a leading expert in
    worker's rights issues and has served as senior research
    analyst for both the Service Employees International Union and
    the Change to Win Strategic Organizing Center, as well as a
    consultant for the Communications Workers of America.
        Additionally, Dr. Callaci has extensive experience as a
    union leader, having held multiple leadership posts with the
    Graduate Employee Organization and the Washington-Baltimore
    Newspaper Guild. His work has been featured in journals
    including the Journal of Law & Political Economy and the Labor
    Studies Journal.
        Dr. Callaci received his bachelor's degree from Franklin &
    Marshall College and both his master's and Ph.D. from the
    University of Massachusetts Amherst.
        Our third Witness, Dan Gross, is a feeder driver at the
    United Parcel Service and a member of Teamsters Local 177 in
    New Jersey. Mr. Gross has been an active union member since he
    began his employment at UPS 22 years ago. Mr. Gross knows
    firsthand how important collective bargaining, direct action,
    and organization are to the American worker.
        Because of his Membership in the teamsters, Mr. Gross has
    been able to build a career with an upward trajectory at UPS
    and to earn a stable living. Mr. Gross is a prominent leader in
    his union community, serving as shop steward for Local 177.
        Our fourth Witness is Nila Payton, a medical administrative
    assistant at the University of Pittsburgh Medical Center. She's
    worked at UPMC for almost 16 years and is the primary
    breadwinner for her family.
        Since 2015, Ms. Payton has been a vocal advocate for
    improved pay and benefits, expanding workers' rights and
    unionization at UPMC. She helped to organize Hospital Workers
    Rising, an organization of hospital workers in western
    Pennsylvania dedicated to improving their working conditions.
        Ms. Payton has spoken at multiple rallies and panels,
    submitted testimony to her wage review board, and organized her
    colleagues to build support for forming a union at the medical
    center. In 2017, she was included on The Incline's ``Who's
    Next'' list of community leaders and activists working to build
    a better Pittsburgh.
        Our fifth Witness, the Honorable Christine Wilson, is a
    Commissioner at the Federal Trade Commission. She was sworn in
    by former President Donald Trump in 2018. Before her nomination
    to the FTC, Commissioner Wilson served as the Senior Vice
    President of Legal, Regulatory, and International at Delta
    Airlines. She also practiced antitrust law at Kirkland Ellis,
    LLP, and O'Melveny & Myers, LLP.
        During the Bush Administration, Commissioner Wilson served
    at the FTC as Chair Tim Muris' Chief of Staff. Commissioner
    Wilson received her bachelor's degree from the University of
    Florida and her JD from the Georgetown University Law Center.
        Today's last Witness, Bruce Kobayashi, is the Paige V. and
    Henry N. Butler Chair in Law and Economics at George Mason
    University's Antonin Scalia Law School. Most recently Professor
    Kobayashi served as the director of the Federal Trade
    Commission's Bureau of Economics. Additionally, he's worked as
    an economist with the FTC, a senior research associate with the
    United States Sentencing Commission, and an economist at the
    Department of Justice.
        He's widely published, with works appearing in highly
    regarded publications including Competition Policy
    International and the Journal of Competition Law & Economics.
    Professor Kobayashi received his bachelor's and master's
    degrees, as well as his Ph.D., at the University of
    California--Los Angeles.
        We welcome all our distinguished Witnesses, and we thank
    them for their participation.
        I will begin by swearing in our Witnesses. I would ask our
    Witnessing testifying in person to rise and ask our Witnesses
    testifying remotely to turn on their audio and make sure I can
    see your face and you raise your right hand while I administer
    the oath.
        Do you swear or affirm, under penalty of perjury, that the
    testimony you're about to give is true and accurate to the best
    of your knowledge, information, and belief, so help you God?
        Let the record show the Witnesses answered in the
    affirmative.
        Thank you and you may be seated.
        Please note that your written statements will be entered
    into the record in their entirety. Accordingly, I ask that you
    summarize your testimony in five minutes. To help you stay
    within that timeframe, there's a timing light in WebEx. When
    the light switches from green to yellow, you have one minute to
    conclude your testimony. When the light turns red, it signals
    that your five minutes have expired.
        I now recognize Professor Posner for five minutes.

                      TESTIMONY OF ERIC A. POSNER

        Mr. Posner. Thank you, Mr. Chair. It is truly an honor to
    be invited to speak to you. I am sorry not to be there in
    person. Unfortunately, for pandemic-related reasons I was asked
    to stay here, although I'm perfectly fine.
        As you mentioned, I recently published a book called ``How
    Antitrust Failed Workers.'' The book is the result of several
    years of research into this topic, and I'll spend a couple of
    minutes telling you what I found.
        Let's start with the simple example which I'm sure other
    people will talk about as well. Imagine that we have in a small
    town, two hospitals. The hospitals would like to merge. Now,
    traditionally, if the hospitals want to merge in America, they
    may need to obtain the consent of the government, the FTC, or
    the DOJ.
        The FTC and DOJ will look at whether the merger will have
    negative effects on what's called the product market, that is,
    the price and quantity of medical services to the surrounding
    population. If the two hospitals are very large, the government
    may well try to block the merger. The merger would be illegal
    because it would predictably raise prices and reduce medical
    services.
        What the government agencies have virtually never done, I
    guess literally never done, is look and see whether the merger
    might have negative effects on labor markets. If two hospitals
    merge, they employ, most of them, nurses and doctors, medical
    technicians, and other specialists in the area.
        According to economic theory, if the hospitals are very
    large, one would expect the merger to result in lower wages,
    less employment of the professionals, less output, and so
    ultimately higher prices.
        Labor market-oriented anticompetitive behavior is just as
    bad as product market-oriented anticompetitive behavior. It's
    also a violation of the antitrust laws. I'm not just talking
    about mergers. I'm talking about conventional forms of
    collusion. There's price-fixing on the product market side,
    wage fixing on the labor market side. There are market
    divisions on the product market side.
        There are no-poaching agreements on the labor market side.
    These are all equally harmful types of conduct, harmful for
    workers, and harmful for consumers. Of course, workers and
    consumers are the same people.
        Now, antitrust law, just as it is on the books and as it
    has been recognized by the courts, applies in the same way to
    labor markets as it does to product markets. Yet--and this is
    what my book is about--there have been virtually no labor
    market cases.
        There have been a handful in this country. Yet, there have
    been no merger reviews that resulted in a merger being blocked
    because of the labor market effects. In fact, there's been
    virtually no consideration at all the labor market effects of
    mergers.
        Similarly, there's been very, very little antitrust
    litigation that deals with no-poaching agreements, wage-fixing
    agreements, covenants not to compete, and other forms of
    anticompetitive behavior by employers.
        There literally are zero cases involving true monopsonies
    where you have a very large employer who uses its monopsony
    power, its market power over the labor market to suppress
    wages, to prevent competition.
        This is a puzzle, given that the law applies equally. The
    puzzle is not easily answered. This probably is the result of
    certain historical traditions including the primary
    responsibility of unions to protect workers.
        Of course, union density has declined significantly over
    the last 50 years. So, they're no longer able to do that to the
    same extent as they did in the past.
        The explanation for this difference, what I call litigation
    gap, between antitrust litigation focused on product markets
    and antitrust litigation focused on labor markets does not have
    anything to do with market structure. This is the conclusion of
    research by Ioana Marinescu and her colleagues and, by now,
    dozens and dozens of labor economists who have found with
    complete consistency that many labor markets in this country
    are extremely highly concentrated.
        Other economists have found that anticompetitive
    arrangements like noncompetes and no-poaching agreements are
    extremely common. So, there does seem to be a problem with
    labor markets that antitrust law should be used to address, and
    yet until very recently this has not been done.
        The FTC to its credit, by the way, during the Trump
    Administration issued a public comment on a merger in Abilene,
    Texas, where they did point out that, as a result of the
    merger, the merged entity, the hospital, would control 94
    percent of the labor market for nurses. So, there has been some
    movement recently.
        I see that I'm out of time, but I'd be happy to answer
    questions and provide my ideas about what Congress can do about
    this.
        [The statement of Mr. Posner follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Mr. Cicilline. Thank you, Professor Posner. Although you're
    not in the room, I want you to know you're here in spirit
    because I have your book.
        I do want to, before I introduce our next Witness, I do
    want to ask unanimous consent to place into the record a
    Fortune Magazine article to respond to Mr. Jordan's
    representations that is entitled, ``Trump to Leave Office With
    the Worst Job Record Since Herbert Hoover.''
        Without objection.
        [The information follows:]

                          MR. CICILLINE FOR THE RECORD

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

    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Mr. Cicilline. I now recognize Dr. Callaci for five
    minutes.

                     TESTIMONY OF DR. BRIAN CALLACI

        Mr. Callaci. Thank you.
        My name is Brian Callaci. I'm Chief Economist at the Open
    Markets Institute. I want to thank Chair Cicilline, Ranking
    Member Buck, and the other Members of the Subcommittee for the
    opportunity to participate in this hearing. I will just say at
    the beginning I feel a little bit at home here.
        I grew up in Cranston, Rhode Island just outside of Chair
    Cicilline's district. Just yesterday, I was in Crowley,
    Colorado, visiting my in-laws in Ranking Member Buck's
    district, these problems are happening all across the country.
        So many of the issues we're discussing today have been
    around really as long as there have been markets for labor, as
    long as there have been labor markets. Back in 1776, Adam Smith
    argued that there was a baseline power imbalance between
    employers and workers.
        Furthermore, Smith was outraged that parliament, the
    British parliament, put its thumb on the scales in favor of the
    employer, for example, by authorizing employers to get together
    and lower wages, while prohibiting workers from getting
    together, what we now call unionizing, to attempt to raise
    wages.
        Now, since that time, our laws have evolved quite a bit to
    address some of the issues that troubled Smith we left the
    United Kingdom and Great Britain, for example. Congress passed
    antitrust laws specifically to prevent and restrain
    combinations of capital. Then it passed laws allowing, and even
    encouraging, workers to legally combine into unions. Congress
    also legislated specific labor protections to regulate wages
    and working conditions.
        However, over the past few decades, antitrust has
    unfortunately taken a step backwards toward the conditions that
    so outraged Adam Smith. In particular, antitrust has largely
    missed the boat as large corporations have consolidated buyer
    power over both local labor markets and entire supply chains,
    suppressing wages and worsening working conditions throughout
    the supply chain.
        Recent research shows that local labor market concentration
    is high, has been increasing over time, and is especially
    damaging to works lacking a union's protection. Meanwhile,
    recent research has also found that buyer power in supply
    chains accounts for about 10 percent of wage stagnation since
    the 1970s. Even with these facts, no merger has ever been
    blocked for its effects on labor markets.
        Second, antitrust has also been relatively absent as
    employers have supercharged their baseline monopsony power over
    employees through restrictive contracts like noncompete
    clauses, mandatory arbitration, and no-poaching agreements that
    artificially suppress wages. The effects from this course of
    contracts, as the Chair pointed out, have been doubly large for
    women and nonwhite workers.
        Finally, in a series of court decisions since the late
    1970s, antitrust courts have facilitated large corporations'
    use of restrictive contracts to dominate and control
    nonemployee independent contractors and small business.
        For example, Amazon outsources local deliveries to so-
    called independent delivery service partners. Amazon sets the
    rates that these independent businesses can charge, the routes
    they have to drive, even their labor practices. This kind of
    domination and control hurts workers, too.
        Small businesses with no control over their own prices,
    costs, and profits have little room to improve the wages of
    working conditions they offer workers, while employees of these
    firms lack legal rights against the corporation that actually
    controls their working conditions.
        Even worse is the so-called gig economy where similar
    restrictive contracts are used to misclassify workers as
    independent businesses, stripping workers of all employment
    rights. These workers risk treble damage and trust prosecutions
    and lawsuits if they try to unionize.
        So, to return balance to the economy, action is urgently
    needed to disburse concentrated power and prevent the abuse of
    workers. In recent months Congress and the Executive Branch
    have taken important steps in this direction. The July
    Executive Order on promoting competition in the American
    economy contains a number of positive components by including a
    directive to the USDA to consider issuing new rules under the
    Packers and Stockyards Act to combat buyer power in food supply
    chains, and the directive to the FTC to consider issuing rules
    banning noncompete clauses.
        The FTC should further consider, however, using its section
    5 rulemaking powers to restrict the use of exclusionary
    contracts and other vertical restraints and restrictive
    contracts by dominant firms to control nonemployee independent
    contractors.
        The package of bills that the House Judiciary Committee
    passed out of Committee in June, addressed to competition
    issues posed by dominant tech platforms, are a vitally
    important step in the right direction to restraining corporate
    power.
        However, since problems of economic concentration and
    coercive contracts extend well beyond tech platforms, general
    antitrust legislation is needed as well. Such legislation
    should explicitly protect workers and suppliers from monopsony
    power, prevent judges from allowing wage suppression in the
    name of consumer welfare, expand labor exemptions from
    antitrust prosecution to independent contractors, and finally
    close those loopholes allowing corporations to enjoy a control
    over their business empires but without employment
    responsibilities through the use of these restrictive
    contracts.
        I see that I'm about out of time. So, thank you. I look
    forward to answering any questions.
        [The statement of Mr. Callaci follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Mr. Cicilline. Thank you, Dr. Callaci.
        No surprise that you're bragging about your Rhode Island
    roots. So, thank you for being here today.
        I now recognize Mr. Gross for five minutes.

                       TESTIMONY OF DANIEL GROSS

        Mr. Gross. Thank you, Chair Cicilline, Vice Chair Jayapal,
    and Ranking Member Buck. My name is Dan Gross, Madison, New
    Jersey. I'm 49 years old, husband and father of four. I drive a
    tractor-trailer in the feeder network for United Parcel
    Service. I'm also a proud union member and been active in
    Teamsters Local Union 177 since I started with UPS 22 years
    ago. I'm honored to speak with you today about why reforming
    our antitrust laws is important to me and my fellow American
    workers.
        My career at UPS started in June of 1999. Like most of us
    at UPS, I started as a part-timer. I transferred into a full-
    time combination job in 2000. These combo jobs were the direct
    result of our national negotiations and the three-week strike
    with UPS in 1997, which created tens of thousands of full-time
    jobs by combining multiple part-time jobs.
        After two years in the combination job, my seniority
    enabled me to transfer to a package car driver position where I
    delivered packages to businesses and homes in one of those
    familiar brown trucks.
        In October of 2005, again using my seniority, I was able to
    transfer to my current job as a feeder driver. As a feeder
    driver, I drive tractor-trailers, transporting trailers full of
    packages between UPS delivery hubs to and from other large UPS
    customers.
        I've seen firsthand what large corporations try to get away
    with due to corporate greed when workers don't have a
    collective voice to demand decent pay and working conditions.
    My union has provided that collective voice at UPS for nearly
    100 years.
        Unfortunately, our standards and those of hundreds of
    thousands of United States postal workers are also under attack
    by a new type of company, a company that uses its dominant
    presence in e-commerce to exert power over its contractors and
    workers. The threat to the industry I work for is Amazon.
        I know that this Committee has passed bills that are trying
    to take on the special threats of Amazon and other tech
    companies. I'm not here to speak to those businesses. I want to
    use Amazon as one example of why you should pass antitrust laws
    to address how the largest, most powerful companies have too
    much power over their workers and how those effects and directs
    employees and all the other workers in the industry.
        As a feeder driver, it's common practice for us to be
    offered access to the customers' facilities while we're waiting
    for our loads. Amazon stopped this practice to limit our
    interaction with direct Amazon drivers and drivers working for
    Amazon subcontractors or independent contractors. It seems
    clear to us feed drivers that Amazon did this to exert control
    over the information the employers and contractors can share
    with each other about route deliveries, but also paying working
    conditions.
        In addition, Amazon uses drivers that are paid varying
    rates that are below industry standards, possibly by as much as
    half, even before benefits are factored in. I have even been
    told that sometimes Amazon restricts the ability of so-called
    independent contractors to carry backhaul loads, forcing them
    into nonpaying empty loads on their return trip. Amazon's
    dominant position as an e-retailer enables Amazon to exert its
    power in business relationships in ways that encroach upon the
    teamster's collective bargaining agreement with UPS and
    directly impact my working conditions.
        The constant threat of losing or diminishing delivery
    volume has forced UPS to comply with Amazon's demand to utilize
    subcontractors and independent operators who are now subject to
    the collectively bargained rules that are designed to keep
    drivers in the public safe.
        Collective bargaining is the antidote to corporate
    dominance. My Local Teamsters 177 has won grievance settlements
    to address the above subcontracting, and similar contract
    violations against UPS currently has multiple pending
    grievances.
        However, we have limited ability to impact Amazon's
    continuing demands that UPS modify its procedure to retain the
    Amazon business.
        Similarly, also based on my experience as a package car
    driver and shops throughout UPS, I notice the growth of
    Amazon's last-mile delivery network. While the drivers are in
    Amazon-branded vehicles and now wear Amazon colors, they are
    not Amazon employees but employees of more than nearly 1,000
    deliver service partner contractors.
        These DSPs work solely for Amazon. Amazon set this system
    up to exert total control, while shifting all their risk and
    responsibility onto smaller businesses and, of course, workers.
        A direct impact of Amazon's demands can be seen in the
    creation of classifications of workers to sacrifice Amazon's
    insistence that its contractors provide service on the
    weekends.
        In 2012, the contract that the USPS negotiated with Postal
    Service unions created a noncareer letter carrier position to
    do Amazon package delivery on the weekends. In our UPS national
    agreement in 2018, a new delivery job classification was also
    created to accommodate the demands of Amazon for weekend
    delivery.
        If Amazon has the ability to dictate terms to entities like
    the United States Postal Service and UPS, imagine the control
    it has over small businesses like DSPs.
        I feel fortunate to be working in a field where workers
    have fought for and won industry-leading pay and benefits
    standards through collective bargaining. I encourage you to
    consider antitrust policy reforms that help to rebalance the
    power that corporations like Amazon have over labor markets.
        If we don't do something now, workers will be forced into
    dead-end, unsafe, and high-turnover jobs instead of enriching
    careers that allow our families to thrive.
        Thank you, and I look forward to your questions.
        [The statement of Mr. Gross follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Mr. Cicilline. Thank you very much, Mr. Gross, for being
    here and for your testimony.
        I now recognize Ms. Payton for five minutes.

                        TESTIMONY OF NILA PAYTON

        Ms. Payton. Good morning. My name is Nila Payton. I'm an
    administrative assistant in the pathology department at UPMC
    Presbyterian hospital. I want to start by thanking the
    Committee for inviting me to testify today.
        I live in Pittsburgh with my two children. My older son,
    Ty-Jahn, goes to a Pittsburgh public school. My youngest,
    Roman, goes to a Pittsburgh public preschool. I do my best to
    keep up with school announcements and participate in school
    board meetings because I want them to have a great, quality
    education.
        I have worked at my job for almost 16 years. I trained for
    it at the Bidwell Training Center where a lot of administrative
    assistants and UPMC workers can get their training. The
    pathology department is important to everything we do at UPMC.
    I make sure test requests and results get to the right place.
        So, I have to understand medical terminology. I also make
    sure that our department remains HIPAA compliant. I'm really
    good at my job, I have good relationships with everyone, and I
    bring a positive attitude to work. I like knowing that my work
    helps sick people.
        My job does not pay as it should, and I'm not treated with
    the dignity and respect I deserve. After 15 years on the job
    and several promotions, I make $19 an hour. That might sound
    like a lot, but a living wage for my family type in Pittsburgh
    is $28 as hour. People just starting in my position or in a
    service position make $15.
        Every service worker I know struggles to make ends meet.
    Our medical insurance is very high, and we have to use UPMC
    facilities. I have medical debt to my employer, and so do many
    of my coworkers. That mean we skip or postpone treatment
    because co-pays and bills are just too high.
        Management knows we are struggling. They sometimes send us
    tips for stretching our budget. One time they told us to save
    on transportation costs by riding our bikes to work, something
    I don't plan to do in the snow, especially with a small child.
    They direct us to apply for government assistance, which some
    of us workers make just too much to qualify for. We also have
    an internal UPMC food bank. Where is the dignity in that?
        As for respect, here's an example. In the last big wave of
    the pandemic, I told my manager that workers wanted better PPE
    and information so we could stay safe in the hospital. When I
    expressed that I thought we should get hazard pay, my employer
    told me that because we work in healthcare that we signed up
    for this and I should stop complaining. I'm sorry. Nowhere in
    my orientation did it mention putting my life on the line.
        I understand that we have to make a hospital run in a
    pandemic, but ``you signed up for this'' is not the right
    answer. The right answer is your life is valuable. Let's do
    everything in our power to make sure you are informed and safe.
    UPMC did not even apply for the hazard pay that the State was
    offering.
        Sometimes people ask, ``Why don't you just get another job
    if you don't like the one you have?'' I love what I do, and
    this is where you need to understand just how big UPMC is. Two
    decades ago, there was no UPMC. Pittsburgh had many independent
    hospitals. Over the past 20 years UPMC has grown from one
    hospital, Western Psych, to become a $23 billion company. It
    now owns Mercy, Presbyterian, Montefiore, Shadyside,
    Children's, Magee, McKeesport, East, and St. Margaret's. That's
    just in the Pittsburgh area.
        We all have the same corporate policies. So, what's the
    point of going from Presby to Magee? There's almost nowhere
    else to work if you're a healthcare worker. UPMC is so big that
    they actually affect the whole labor market, even outside of
    healthcare.
        Last week I looked at administrative assistant jobs not at
    UPMC. There were 800 of them in our region. I eliminated the
    part-time jobs. I eliminated the part-time jobs, then all the
    jobs that paid the same or less than mine. There were 40 left.
    Then I eliminated the nightshift jobs, because I have children,
    and the jobs so far where you need to have a car. There were
    just two jobs left.
        UPMC employs 92,000 workers. Nobody else has enough jobs to
    force them to compete for our time and our skills. Instead UPMC
    sets the ceiling for everybody. That's why leaving UPMC is not
    a better--not a realistic path to a better life. Leaving just
    means that we have to start all over again.
        I do not want to waste time, looking for something that
    does not exist. I want to work to improve the job that I have.
    I want to improve all the jobs that thousands of my UPMC
    coworkers have.
        Two generations ago, Pittsburgh has an employer as big and
    impactful as UPMC. It was called U.S. Steel. Workers at U.S.
    Steel had their union. So, instead of a worker starting at $15,
    a worker started their first day at over $21 an hour in today's
    money and went up from there. A steelworker with my years of
    service would be vested in a pension and making $33 an hour.
        Steel jobs lifted up every other job around because, if
    employers wanted workers, they had to compete with U.S. Steel.
    If we create good jobs for workers at UPMC, we can do the same
    thing and create good jobs for everyone. That's what I want to
    do.
        Thank you for listening and have a great day.
        [The statement of Ms. Payton follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Mr. Cicilline. Thank you, Ms. Payton.
        I now recognize Commissioner Wilson for five minutes.

             TESTIMONY OF THE HONORABLE CHRISTINE S. WILSON

        Ms. Wilson. Chair Nadler, Ranking Member Jordan, Chair
    Cicilline, Ranking Member Buck, and Members of the Committee,
    thank you for the opportunity to testify.
        I will first provide context for the labor issues we're
    discussing today. Then I will address antitrust issues
    pertaining to labor markets. Finally, I'll touch on procedural
    irregularities at the FTC that regrettably have precluded a
    robust dialogue on these and other policy issues.
        Our antitrust laws are more than 100 years old.
    Periodically we ask: Are they capable of addressing new
    industries and dynamic markets? Previous periods of reflection
    have led us to answer yes. Many ask the same question now, but
    the current version of the question is notably different.
        First, concerns about the dynamic tech industry are not
    limited to antitrust. Some focus on the collection and use of
    consumer data. Federal privacy legislation, I believe, is the
    solution. Others are concerned about content curation and
    censorship. Reforms to section 230 may be appropriate.
        These concerns merit discussion, but just because we hold
    the hammer of antitrust law in our hands does not mean we
    should treat every concern as a nail, or we risk bludgeoning
    our entire economy. Each concern deserves the appropriate tool.
    For antitrust law, the many enforcement actions and
    investigations against big tech confirm that process has begun.
    We should let those cases play out before overhauling our
    antitrust laws.
        The second difference is that current concerns about
    antitrust extend beyond the dynamic tech industry. Today's
    hearing on labor in monopsony highlights one of those broader
    goals. The antitrust laws as they exist today embody concepts
    like monopsony and prohibit no-poach agreements and
    unreasonable noncompetes. Antitrust enforcement as it exists
    today reaches anticompetitive conduct that harms labor and
    middlemen, not just the end customer.
        Today's antitrust reformers propose changes that would
    transform not just our antitrust laws but our economy.
    Substituting our sound economic-based approach from one that
    picks winners and losers will incentivize rent-seeking and
    regulatory gamesmanship instead of competition and innovation.
    Everyone including American labor will suffer.
        Turning to monopsony and labor issues, let's start with
    occupational licensing. Licensing regimes may advance
    legitimate health and safety goals, but frequently those who
    are already licensed use those regimes to insulate themselves
    from competition. The FTC has sued when incumbents suppressed
    competition through State boards. The FTC has also submitted
    hundreds of comments and amicus briefs, urging policymakers to
    consider the impact of licensing restrictions on competition,
    especially in the healthcare sector.
        Federal and State restrictions were relaxed during the
    pandemic to boost the availability of scarce healthcare
    personnel. I hope policymakers assess the impact of those
    changes and permanently eliminate unnecessary restrictions, and
    I thank America's health-care workers like Ms. Payton for their
    service to us during the pandemic.
        Regarding monopsony, the FTC and DOJ have prevailed in
    monopsony cases and so have private litigants. Both mergers and
    business practices may create unlawful monopsony power, even
    when ultimate downstream markets are not impacted. I would
    welcome the opportunity to discuss the FTC's scrutiny of
    mergers from monopsony issues in recent years including a
    challenge to a merger involving the sale of blood plasma by
    donors.
        With respect to noncompete provisions, State jurisprudence
    and common law provide rich guidance on noncompetes. Some
    States have laws explicitly prohibiting employee noncompetes,
    and other States like Pennsylvania are considering laws on this
    topic. States AGs have had notable successes in this area. For
    now, given that economic evidence is mixed regarding the impact
    of noncompetes on employees and the ancillary impact of
    noncompetes like investments in employee training in R&D are
    relevant as well, I believe we should listen to Justice
    Brandeis and let the states continue acting as laboratories of
    democracy.
        The final labor issues pertain to no-poach agreement. FTC-
    DOJ guidance warrants that wage fixing and no-poach agreements
    may be prosecuted criminally. Both Federal and State
    enforcements have been active in this area, and the FTC brought
    a case involving home health staff in 2018.
        Turning to my third topic, the issues we'll discuss today
    and other potential antitrust reforms merit thoughtful
    discussion. Traditionally, the FTC has played a leading role in
    the antitrust policy debate largely because of its strong
    bipartisan dialogue which has benefited from the vibrant input
    from stakeholders. Regrettably new FTC leadership has made
    meaningful dialogue among commissioners and between the
    commission and its stakeholders difficult.
        In closing, I thank the Committee for this opportunity to
    testify. I look forward to answering your questions.
        [The statement of Ms. Wilson follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Mr. Cicilline. Thank you, Commissioner.
        I now recognize Professor Kobayashi for five minutes.

                    TESTIMONY OF BRUCE H. KOBAYASHI

        Mr. Kobayashi. Thanks. I thank the Committee for inviting
    me to testify today.
        I want to say at the outset that ensuring that the
    antitrust laws protect both workers and consumers from the
    effect of monopsony should be an important goal of antitrust.
    The effects of classical monopsony results in harm to both
    workers, consumers by simultaneously reducing output,
    decreasing workers' wages, and increasing prices to consumers.
        My testimony today will focus on proposals to use the
    Federal antitrust laws to control the use of noncompete
    agreements, irrespective of the context in which they are used.
    Any suggestions should be based on robust and systematic
    evidence of the negative effect and ubiquitous effect of NCAs
    on both workers and consumers.
        While there certainly is some evidence that the application
    of noncompete agreements in some settings harm workers--and
    Evan Starr has done great work in this area--there is also
    evidence that noncompete agreements, especially when
    accompanied by notice and consideration, result in benefits
    that both workers and firms achieve. In addition, noncompete
    agreements can simultaneously increase worker mobility and
    wages but also harm consumers.
        There's a recent article by Gurun, Stoffman, and Yonker
    published this year in the Journal of Financial Economics which
    studies Membership in the Broker Protocol. Protocol member
    firms agree not to enforce post-employment restrictions by
    promising not to sue departing brokers for taking their client
    information with them to other member firms. One effect was
    that the brokers were happy.
        They had increased mobility, and they achieved higher
    wages. Consumers were harmed. The authors present evidence that
    consumers paid higher prices to protocol firms and suffered
    higher levels of broker misconduct.
        Second, to the extent that problematic uses of noncompete
    agreements and other restrictive employment agreements have
    been identified, the preferred solution would be to address
    these identified problems specifically, rather that enact a
    widespread ban through the use of the Federal antitrust laws.
        Legislative solutions to specific issues should be
    identified by robust and credible research based on the well-
    developed body of State law, as Commissioner Wilson just said,
    actually follows an approach that recognizes the mixed and
    potentially beneficial use of NCAs.
        I think that the Committee should pause and make sure that
    it is not going to interfere with the robust and widespread
    approach of the States where the vast majority of States allow
    the reasonable use of NCAs but ban the unreasonable use. The
    Uniform Law Commission just passed at the end of July a uniform
    law which would take many of the protections in the majority of
    States and apply them in a uniform law, if enacted.
        Just as it would be wrong for antitrust policies solely to
    focus on output markets and monopoly and ignore the effect of
    monopsony, it is also wrong to base antitrust policy only on
    the effect on workers without considering the downstream
    effects.
        I think that what--one example that Eric mentioned was
    hospital mergers. There's actually a great article by Prager
    and Schmitt that I think was just published in the American
    Economic Review that shows that hospital mergers that occurred
    from 2000-2010 caused wage stagnation for skilled hospital
    workers.
        You have to sort of understand the context of the data they
    have. The period right before their dataset, the 1990s, was a
    period in which the Federal agencies challenged but lost seven
    straight hospital mergers. In response to that, then Chair
    Yaris in 2002 convened a task force.
        The task force looked at the causes of these losses
    including problems with market definition and got the Bureau of
    Economics to produce retrospective studies to show that these
    mergers caused double-digit price increases. As a result of
    this, things were turned around. It's not surprising that these
    mergers which were allowed to harm consumers also harmed
    workers.
        I look for to your questions.
        [The statement of Mr. Kobayashi follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Mr. Cicilline. Thank you, Professor.
        We'll now proceed under the five-minute rule with
    questions. I'll begin by recognizing the Chair of the Full
    Committee, Mr. Nadler, for five minutes.
        Chair Nadler. Thank you, Mr. Chair.
        Ms. Payton, I was particularly struck by your testimony.
    You told your manager that workers in your hospital needed more
    information and better personal protective equipment to stay
    safe during the pandemic. Your manager said that you signed up
    for this because you work in healthcare, and you should stop
    complaining.
        Do you think your employer could be so dismissive about
    providing PPE if there was more competition for healthcare
    employees in Pittsburgh, and did you and your colleagues sign
    up for an unsafe work environment?
        Ms. Payton. No, we did not sign up for an unsafe work
    environment. We signed up to provide quality patient care. If
    we had a union at UPMC, we would be able to voice our opinion
    about getting better PPE and we would have that option.
        Chair Nadler. Thank you.
        Mr. Gross, in your testimony, you mentioned that changes in
    the logistics and delivery industry are putting pressure on
    employers to reduce pay and benefits and make other changes
    that reduce standards that make these jobs safe. What are the
    changes in your industry that are having a negative effect on
    wages, benefits, and working conditions, and are these changes
    endangering workers' safety? Are they endangering the public?
        Mr. Gross. Thank you, Congressman Nadler. I think the
    biggest change right now in our industry is large corporations
    like Amazon being allowed to use third-party workers and
    subcontractors instead of actually utilizing their own
    employees. So, it's putting downward pressure on wages,
    industry standards, and benefits.
        Chair Nadler. Are these changes endangering workers' safety
    and endangering the public?
        Mr. Gross. I believe that it does endanger workers' safety
    because they hold them to such high levels of productivity that
    it forces the workers to rush and cut corners, and they don't
    follow the same safety and training that we receive at UPS or
    at other unionized corporations.
        I'm also aware of some of the dangers to the public would
    be the DSP third-party providers that they utilize. Amazon
    leans on them, pushes them, and wants them to perform. They cut
    corners as far as like vehicle safety maintenance, things of
    that nature, because it's under constant pressure to get out
    there on the road and deliver, deliver, deliver. They're scared
    of losing their business. I do believe that, in that effect, it
    does cause a safety hazard to the
    public.
        Chair Nadler. Thank you.
        Mr. Posner, you wrote an op-ed last week in the New York
    Times in which you explained that monopolists use their market
    power in labor markets they hire fewer workers, leading to
    unemployment and lower economic growth. Because there are fewer
    workers, these firms supply fewer goods resulting in higher
    prices for consumers.
        Other than higher prices, are there nonprice effects that
    harm consumers, and how are the antitrust enforcers responding
    to evidence of the highly concentrated labor markets harming
    workers and consumers?
        Mr. Posner. Yes. Well, one will expect that if its
    employers want to save labor costs, they can do so by
    reducing--sorry, if they want to save money in the product
    market, they can do so by producing lower quality goods as well
    as more expensive goods. There is economic evidence of that,
    but I wouldn't be able to cite off the top of my head
        Now, in antitrust law, there tends to be a rule that you
    only look at the market directly affected by the defendant's
    behavior. So, if workers bring an antitrust case, you look at
    the impact of workers; if consumers bring an antitrust case,
    you look at the impact on consumers.
        So, normally, if workers brought an antitrust case, you
    would not look at the impact to consumers. In a way it doesn't
    matter, because, generally speaking, if monopolists reduce
    employment, as they appear to do, then you would expect lower
    output and higher prices and, as you say, lower-quality goods.
        Chair Nadler. Thank you.
        Mr. Callaci, mergers that enhance market power can have
    non-price effects on worker safety. For example, Ms. Payton and
    Mr. Gross testified about worker and workplace safety issues.
    Do antitrust enforcers typically consider non-price effects in
    labor markets as part of an agency's merge review, and if not,
    why not?
        Mr. Kobayashi. When I was bureau director, we did have a
    focus on--
        Mr. Cicilline. Excuse me, sir, I believe this question was
    for Mr. Callaci.
        Mr. Kobayashi. Oh, Callaci, sorry.
        Mr. Cicilline. Yes. My fault, but also the time of the
    gentleman has expired, but I'll give the Chair just a--the
    Witness a few seconds to answer the question.
        Mr. Callaci. Yes. Just very briefly, there is a new paper
    relatively new from Aaron Sojourner, Ioana Marinescu, and I
    forget their coauthors, showing that monopsony has effects on
    non-wage aspects of work, including violations of safety laws.
        There was also a report in the Washington Post that the
    Amazon subcontracted delivery service partners have higher
    injury rates than even Amazon itself, so that would seem to
    back up what Mr. Gross was saying.
        As my knowledge, effects on worker health and safety of
    mergers have not been considered. I'd have to do a deeper
    check, but I don't think that's been considered but it should
    be.
        Mr. Cicilline. Thank you.
        Chair Nadler. Thank you. I yield back.
        Mr. Cicilline. Thank you. The Chair yields back.
        I now recognize the gentleman from Colorado, Mr. Buck.
        Mr. Buck. With Chair's permission, I defer to Mr. Gaetz
    from Florida.
        Mr. Cicilline. Mr. Gaetz is recognized.
        Mr. Gaetz. Thank you, Mr. Chair.
        This is my favorite Subcommittee in my half decade in
    Congress and in no small part because of the way you've lead
    it. I am incredibly proud of the work we've done to address
    some of these anticompetitive practices of these monopolistic
    entities.
        I was primarily persuaded by the testimony of Mr. Gross
    regarding how that market power of big businesses like Amazon
    can limit the ability of workers to have any type of meaningful
    negotiation.
        Congresswoman Jayapal led legislation that the Chair of the
    Committee, the Chair of the Subcommittee, Mr. Buck and me
    supported that would force the breakup of companies like Amazon
    into smaller entities. I wanted Mr. Gross' perspective on that.
    Do you believe, as a negotiator, that would improve the
    position of workers to break up companies like Amazon and other
    big tech companies into smaller entities?
        Mr. Gross. Well, I'm not an expert on this field.
    Obviously, I'm just a driver at UPS and a shop steward for my
    union. What I would say though is that it might not necessarily
    be necessary to break up the size of the company but just to
    allow or force the company or encourage the company to employee
    the workers that it's utilizing.
        So, instead of using third-party individuals and leaning on
    them and chewing them up and spitting them out, have real
    employees give them real wages, allow them to have a collective
    bargaining unit agreement, and I think that way you would get
    more productivity out of them in the long run and still be able
    to run a successful business.
        Mr. Gaetz. I appreciate that perspective. My concern is
    that if they're able to stay so big, even if we used the
    awesome powers of the Federal government to force these
    relationships out of independent contractor relationships into
    employment relationships, they're still so big that they could
    reduce the contributions of those employees with the strength
    that they have.
        It is one of the reasons why we had bipartisan support on
    this Committee for those bills. Mr. Chair, I'm deeply
    disappointed that those bills haven't been called up for a
    vote. It seems a bit odd to be here talking about positive
    impacts of legislation the Subcommittee has passed when the
    Full House has had the opportunity in prior weeks to take up
    these bills and they haven't, and I have to wonder why that has
    happened.
        So, Mr. Chair, I seek unanimous consent to enter into the
    record a piece from the New York Times entitled, ``Tech Giants,
    Fearful of Proposals to Curb Them, Blitz Washington With
    Lobbying.''
        So, that could be a reason, the power of lobbyists in this
    town to make things tougher for workers. I guess there could be
    other reasons too.
        Mr. Chair, I would seek to enter into the record a piece
    from Yahoo News entitled, ``Tim Cook Reportedly Called Pelosi
    to `Deliver a Warning' About Congress' Antitrust Bills.''
        So, maybe it's the lobbyists, maybe it's the power of these
    very powerful CEOs making personal calls, but it could even be
    something more sinister.
        Mr. Chair, I seek unanimous consent to enter into the
    record a Fortune.com piece entitled, ``Speaker Nancy Pelosi's
    Husband Cashed in on Big Tech Just As Congress Was Set to
    Pounce.''
        Mr. Cicilline. Without objection.
        [The information follows:]

                            MR. GAETZ FOR THE RECORD

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

    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Mr. Gaetz. In that article, there is discussion of the
    spouse of the Speaker of the House making a $6 million call on
    stocks that netted $5.3 million while we're not moving these
    bills. So, I thought that was a little odd. I thought that was
    weird. We move bipartisan legislation out of this Subcommittee,
    and just as we're considering it and it might be bad for big
    tech, the Speaker's spouse goes and buys all this big tech
    stock.
        Then lo and behold, here we are with the bills not called
    up. It just makes you wonder, did somebody know something? Is
    somebody acting on information? It could have been the power of
    the lobbyists and all the money that they donate to Members of
    Congress on both sides. It could've been people like Tim Cook
    calling.
        Here's what we know, these bills aren't coming to the
    floor. If they were coming to the floor, they would have been
    on the floor in prior weeks. So, now we sit here with this
    great work likely extinguished in its tracks for one of these
    unfortunate reasons.
        Mr. Chair, I know we have got Chair Nadler's MORE Act
    coming up soon. One thing we learned in the marijuana movement
    is sometimes you've got to lose votes on the floor. Sometimes
    you've got put up the votes, you've got to lose, and then year
    after year you make a little progress, you get further down the
    road.
        Even if these tech bills can't pass, I would encourage you
    to talk to the Speaker and put them up for a vote. I know she
    said she won't put up votes that don't pass, but if it could at
    least give us a measuring tool to be able to come back and work
    to persuade our other Members.
        I thank the Chair for his indulgence for going over time
    and I yield back.
        Mr. Cicilline. Yeah. I want to reassure the gentleman that
    I am working very closely with the Ranking Member of the
    Subcommittee to be sure that our colleagues who have not had
    the benefit of the 16-month study that we conducted where we
    learned a lot about this marketplace, understood what these
    complicated bills do.
        We want to be sure that our colleagues are fully briefed
    up, and we are committed to making certain these bills come to
    the floor, not just for a vote but for a vote that prevails
    because of the hard work that's been done. We are grateful for
    your ongoing and strong support.
        This is an important priority for me, I know for all the
    Democrats in our caucus, and certainly for the Chair of the
    Full Judiciary Committee and working very closely with Mr. Buck
    to be sure we get to that point. Thank you again for your
    support of our investigation and the legislation.
        With that, I now go to the gentleman from New York, Mr.
    Jones, for five minutes.
        Mr. Jones. Thank you, Mr. Chair, and to the Chair of the
    Full Committee, Nadler, for holding this important hearing.
        Thanks as well to our Witnesses and especially to Ms.
    Payton and Mr. Gross for your courageous testimony.
        It's about time that we confronted the power the biggest
    corporations wield over workers, monopsony power. Just as
    monopoly power enables corporations to dictate the prices and
    quality of the things that we buy and the services that we rely
    on, so monopsony power enables corporations to set our wages
    and our working conditions dominating the job market.
        Today's testimony makes one thing clear, that restoring
    competition in the labor market is essential to restoring
    economic and democratic power to the American people, to making
    sure that everyone gets their fair share of pay and say.
        As to Commissioner Wilson's concerns about the FTC's
    process, let me just say this, the Subcommittee only received
    the commissioner's testimony around 8:00 p.m. last night even
    though this hearing was postponed by a week. So, it's somewhat
    surprising to hear complaints about the process at the FTC at a
    hearing on protecting the economic liberty of American workers.
    We have frontline workers who have taken time off to testify
    about their experiences today, and that is what we should be
    focusing on in this hearing.
        Professor Posner, as you have testified, mergers are a
    central cause of corporations' tremendous power over workers.
    Ms. Payton has experienced that firsthand. Yet, the DOJ and the
    FTC have never challenged a merger to protect workers, not even
    once. How should we strengthen merger review to empower workers
    and prevent corporate power from consolidating even further?
        Mr. Posner. The example of UPMC, which Ms. Payton provided,
    is truly an amazing story. As she mentioned, the current
    hospital is the result of dozens and dozens of mergers. The
    single company controls 40 hospitals, more than 40 hospitals in
    the Pittsburgh area and thousands of clinics. It's a true
    monopolist and a monopsonist. How all those mergers could've
    gone through when we nominally have a merger review process is
    a mystery to me.
        So, to answer your question, I think the answer is actually
    straightforward. The Justice Department and the FTC currently
    have what are called merger guidelines where they provide
    certain rules or guidelines that regulate when mergers are
    permitted and when they're forbidden. The guidelines are
    probably too weak at the moment even with respect to product
    markets, but they say nothing about labor markets.
        So, if Congress were to direct the FTC and the DOJ to add a
    section on labor market or Congress could just legislate this
    directly, and what it could do is it could provide certain
    thresholds when certain mergers occur that have major labor
    market effects and this connection be quantified to be very
    precise.
        A merger will be presumptively blocked and would be only
    permitted if the merging companies can prove to the
    satisfaction of a court that as a result of the merger
    efficiencies would be produced that would result in higher
    wages and better working conditions than if the merger did not
    take place.
        There is a lot of experience on the product market side
    with this type of analysis. I think it would be fairly simple
    for regulators to use this type of analysis for the labor
    market effects of mergers.
        Mr. Jones. Thank you so much.
        Dr. Callaci, in your written testimony you said that we
    should set out clear, bright line rules that make it easier to
    block harmful mergers. Would you please elaborate?
        Mr. Callaci. Sure. So, actually this is a great follow-up
    to Dr. Posner's point. A lot of those sort of fact-intensive
    demonstrations of efficiency allow both parties to hire
    economic consultants, to hire law firms. Judges are not
    specialists in economics, so those sorts of processes allow the
    consultants can muddy the waters, make it very difficult for
    judges to reach a clear decision.
        So, I would say it would be better to have very clear rules
    and clear guidelines that apply to these situations rather than
    relying on--allowing defendants to make the case for the
    deficiencies that tend not to really arise. So, the product
    market, to me, actually shows how the labor market should not
    follow the product market case.
        Mr. Jones. Thank you, Doctor.
        Mr. Chair, I yield back.
        Mr. Cicilline. The gentleman yields back.
        I now recognize the gentleman from California, Mr. Issa,
    for five minutes.
        Mr. Issa. Thank you, Mr. Chair. I'd now ask unanimous
    consent that two articles be placed in the record, one that's
    entitled, ``California's Occupational Licensing Laws Shouldn't
    Kick People When They're Down''; the second one is from the
    Mercatus Institute, and it says, ``California Occupational
    Licensing: Barriers to Opportunity in the Golden State.''
        Mr. Cicilline. Without objection..
        [The information follows:]

                            MR. ISSA FOR THE RECORD

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

    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Mr. Issa. Thank you, Mr. Chair. Mr. Chair, I want to thank
    you for your opening remarks that also touched on the need to
    reign in the inevitable growth by government of regulating and
    wanting a license for everything.
        My home State has managed to reduce the number of
    entrepreneurs, reduce the number of people who get to work for
    themselves, and increase the number of people waiting to work
    for anybody based on licensing.
        At a time of COVID they managed to have a situation in
    which you could go to school, you could get the education, but
    you couldn't get your license because people who were being
    paid full pay by the State were not granting testing for more
    than a year. This does create an opportunity for a bipartisan
    effort to define when and how particularly private entities can
    require licensing. I look forward to working with you on that.
        I'd like to now shift to Commissioner Wilson. Commissioner,
    you, in your opening remarks, did talk about, and in your
    written statement, about the North Carolina State Board Dental
    Examiners where dentists conspired to exclude--or to include
    teeth whitening under their purview to the detriment of people
    being able to do something that you and I could go to the
    drugstore and buy the same materials but would not be able to
    have it done for us. Could you expand on that case and why it
    begs for the kind of reform that I think we're talking about
    here today?
        Ms. Wilson. Thank you for the question. So, that case is
    one notable case in which incumbents, the dentists on the
    dental board--I believe six of the eight people on the dental
    board were dentists--erected barriers to entry to keep
    competitors out of the market.
        We also at the Federal Trade Commission brought a similar
    case against South Carolina dentists who actually interfered
    with the delivery of preventative dental services to
    economically disadvantaged children in public schools.
        The hygienists had been going to public schools and
    providing teeth cleaning for economically disadvantaged
    children, and the dentists decided that they were going to
    enter a regulation that said that hygienists could not practice
    without having basically a dentist looking over their shoulder,
    and the Federal Trade Commission challenged that as well.
        So, you are absolutely right to focus on these issues.
    Absolutely, States have an interest in protecting the health
    and safety of their constituents, but sometimes incumbents
    actually use those regimes to insulate themselves from
    competition as opposed to protecting consumers, and that's
    where the FTC gets involved.
        Mr. Issa. Well, I appreciate that. Commissioner Wilson, you
    may not be prepared to opine on this, but in California where
    AB5 became law it dramatically reduced competition because it
    eliminated the ability for massive classes of individuals to
    form their own sole proprietorships or small companies. Isn't
    that another example, at least in principle, where competition
    is reduced anytime government limits the ability of people to
    essentially start companies?
        Ms. Wilson. So, you are right, sir, that I am not familiar
    with that legislation. Traditionally the Federal Trade
    Commission has been very interested in economic liberty type
    issues ensuring that people, who are interested in practicing a
    trade or moving across State lines or practicing to the full
    extent of services for which they're licensed, have the
    opportunity to do that so that they can have the dignity of
    earning a living wage. Anything that inhibits that, unless it
    is directly tied to protecting health and safety, would be and
    should be suspect.
        Mr. Issa. Well, and finally, many of the comments made here
    today are about moving--that the Federal Trade Commission and
    other Federal organizations move the bias from the government
    proving that competition is somehow hurt to the individual
    company proving that it is enhanced, whether in labor or in
    other competition. Do you think that is a dangerous trend or
    direction?
        Ms. Wilson. I do. That does not comport with our innocent-
    until-proven-guilty approach to law in this country.
        Mr. Issa. Thank you. I yield back.
        Mr. Cicilline. I thank the gentleman. I look forward to
    working with you on the licensure issue also hope that the
    example of California that bans noncompetes in its entirety
    might also inform our work together.
        Now, I'll yield to the gentleman from Maryland, who has
    been a leader on the impact of excessive licensure on American
    workers, Mr. Raskin, for five minutes.
        Mr. Raskin. Mr. Chair, thank you so much. Thanks for
    calling this important hearing.
        I'm concerned about the rampant misclassification of
    employed workers as independent contractors to evade and
    undermine worker protections, especially in the so-called gig
    economy. Even though section 6 of the Clayton Act shields the,
    quote,

            labor of a human being from general antitrust scrutiny,
            courts have narrowly construed the exemption so that it doesn't
            include independent workers, ranging from independent doctors
            and lawyers to for-hire drivers.

        Mr. Callaci, can you explain how the rampant
    misclassification of employees as independent contractors
    exposes working people to attack under the antitrust laws?
        Mr. Callaci. Sure. So, basically, yes, section 6 of the
    Clayton Act and the Norris-La Guardia Act and the National
    Labor Relations Act all attempted to exempt workers from
    antitrust prosecutions for coming together to collectively
    bargain.
        So, of course, there is an incentive for companies to
    misclassify their employees as independent contractors, so
    those workers don't have access to those rights, and they can,
    in fact, be prosecuted for collusion.
        So, if we were able to get the labor law side get those
    workers classified properly as the employees that they are and
    on the antitrust side stop going after these small players,
    church organists, independent contractors, that would remove
    the incentive to misclassify.
        Mr. Raskin. Over the last few years, antitrust enforcers
    over both Democratic and Republican leadership have committed
    to policing anticompetitive conduct in labor markets. How can
    the antitrust agencies bolster enforcement in labor markets
    under current law?
        Mr. Callaci. So, we can revise the merger guidelines to
    more explicitly take into account effects on workers.
        Mr. Raskin. Earlier this year, Judge Diane Woods testified
    that Congress intended the antitrust laws to apply to the
    harmful effects of concentrated economic power and not just
    short-term reductions in consumer welfare or economic output.
    How has the shift in recent decades away from this legislative
    purpose of the antitrust laws towards the goal of just narrowly
    promoting consumer welfare harmed workers and small businesses
    in the political economy generally?
        Mr. Callaci. Yeah, so it makes it more difficult to get at
    anticompetitive conduct, unfair methods of competition, unfair
    conduct that harms workers. So, you can get at harms to workers
    indirectly if the monopsony power results in a decline in
    output, but that is not always the case, right.
        There are times when--particularly there's an excellent
    recent paper by Hemphill and Rose showing that there are cases
    where monopsony power may not result in a decrease in output
    but rather a redistribution from employers to employees.
        So, we need to be able to take those into account, and the
    current application of the antitrust laws does not allow us to
    do that because we're so wedded to this idea of either--we call
    it either consumer welfare or output maximization. It does not
    allow us to address these harms to workers.
        Mr. Raskin. Well, then how are you recommending that
    Congress amend the antitrust laws to reassert the primacy of
    protecting against abuses of concentrated economic power
    including in the labor markets themselves?
        Mr. Callaci. Gotcha. Sorry for not getting so directly to
    your point the first time. So, one way to do that is to not
    allow offsets, right. So, if workers' wages decline, if their
    injury rates decline or--as a likely result of a merger or
    because of employer collusion, that could be the--I lost my
    train of thought. Hold on. Yeah, so not allowing that to be
    offset against gains to consumers or to another party, counter
    party in the market.
        Mr. Raskin. You've noted that the narrow lens for antitrust
    policy over the last few decades has loosened restraints on
    franchising to the detriment of workers. How could changes to
    the antitrust laws address the harmful consequences of this
    franchising model on small businesses and on employees?
        Mr. Callaci. Sure. So, that gets to Representative Issa's
    point about entrepreneurship. So, what antitrust has allowed
    since basically the 1970s is allowed large corporations to
    control and really dominate nonemployee independent contractors
    and small businesses through contract.
        So, rather than having a chain of McDonald's, each
    restaurant is owned by a so-called independent contractor who
    has no control over their business practices. That means that
    they can't raise the prices. That means they can't control--
    choose their own suppliers. So, they have no room to raise
    wages.
        In fact, the McDonald's franchisee told, I think it was,
    the Washington Post that McDonald's told her to just pay your
    workers less when she complained about these kinds of vertical
    restraints.
        Mr. Raskin. Gotcha. Thank you very much for your testimony.
        I yield back to you, Mr. Chair.
        Mr. Cicilline. The gentleman yields back.
        I now recognize the gentleman from Louisiana, Mr. Johnson,
    for five minutes.
        Mr. Johnson of Louisiana. Thank you, Mr. Chair. Appreciate
    that. Grateful to the Witnesses for sharing their insights
    today.
        My colleagues on the left often talk about how
    consolidation and corporate concentration are bad for American
    workers, but they sometimes seem to miss the point that
    increasing regulations on businesses actually leads to
    consolidation of industry power in these big mega companies.
        Professor Kobayashi, what do you think of the proposition
    that unnecessary regulatory hurdles create barriers to entry
    and reduces competition?
        Mr. Kobayashi. Thank you for the question, Congressman.
    Certainly it is a reality that often large firms are better
    able to deal with onerous regulations or regulations that are
    just costly. A good example is Catherine Tucker's work on
    privacy regulation. Who best is able to deal with that type of
    cost and complexity? It's Google, and it makes Google stronger,
    and it also makes it harder for small firms to compete.
        That's not saying that Google has done anything wrong,
    but--I use it all the time because I think it's the best search
    engine. It does, in many cases, cause asymmetric abilities to
    deal with cost and promotes larger firms over smaller ones.
        Mr. Johnson of Louisiana. Often government has good
    intentions, but when you have to actually apply it in
    practicality it is counterproductive.
        Instead of focusing our discussion today on implementing
    more regulations, shouldn't we be focusing on real reforms, and
    if so, what would be the primary focus? I mean, where should we
    put our attention first?
        Mr. Kobayashi. Well, one thing that is important in my
    years being the bureau director at the FTC the problems--we
    would get problems. We would see research. We would get
    questions from Congress. The Chair would ask us to deal with
    these issues. Even before I got to the FTC. Joe Simons, who was
    the Chair when I was there, we had many conversations in the
    period before we both got to the FTC about labor monopsony. He
    very concerned about it.
        One of the things we did to address labor monopsony in
    mergers was we put specs in the Hart-Scott-Rodino questions to
    sort of deal with labor monopsony issues, not just looking at
    product markets but actually making the firms give us data
    about commuting zones and labor wages and the like.
        We also continued to do retrospectives. When I was there,
    there's a State--a bunch of States have these certificate of
    public advantage programs which we want to block mergers, but
    they say that, no, we're going to allow the merger that you
    think is anticompetitive under our COPA laws.
        What we do is we study them. What one of my economists at
    the time actually then went to CMS and asked for data on labor
    wages just so we can actually have some idea of what the
    effects were in having an evidence-based basis for antitrust
    policy changes that we're going to make.
        Mr. Johnson of Louisiana. Those are good ideas. I've got
    just a little over a minute left. Let me just ask you quickly,
    how will a top-down arbitrary regulation, such as President
    Biden's vaccine mandate on businesses with a 100 or more
    employees, affect the marketplace?
        Mr. Kobayashi. Well, a bit out of my expertise, but my
    guess is that the use of top-down mandates are often well
    intentioned, but you'd want to know what the unintended
    consequences might be. There are some people who would not want
    to take those into account, and there are some who will have a
    hard time dealing with it. I think the marketplace is--my
    university has vaccine mandates, and we have to wear masks,
    so--
        Mr. Johnson of Louisiana. Well, what we're seeing in
    practice across the country is large-scale resignations and we
    have any number of industries that are really struggling right
    now at the worst possible time the mandate hits, and so it's a
    real problem. I'm out of time. I'll yield back.
        Mr. Cicilline. The gentleman yields back.
        I now recognize the gentlelady from Florida, Ms. Demings,
    for five minutes.
        Ms. Demings. Well, thank you so much, Mr. Chair. Thank you
    to all our Witnesses for joining us today for this very, very
    important hearing.
        Dr. Posner, you said that there is no consideration at all
    of merger's effect on labor. Let me just say, that's a powerful
    statement that--that's a powerful realization and one that I
    certainly believe is sad but true.
        Do you believe that non-compete agreements are freely
    entered into by workers, and do many workers have the
    bargaining power to negotiate these agreements?
        Mr. Posner. Thank you for the question. Research suggests
    that certainly for lower-income, less-educated workers who are
    required by their employers to enter noncompetes, those workers
    do not understand what the noncompetes mean. Often, they don't
    even learn about the noncompetes until they show up at work.
    They're not in a realistic position to say, okay, but you have
    to pay me more. I mean, that's just not how the world works,
    and that's been confirmed by academic research.
        For quite sophisticated people, like executives who can
    hire lawyers to advise them, they appear to be informed about
    these noncompetes and may very well be compensated for the
    restrictions that they impose on them.
        I do want to add that even when people voluntarily consent
    to noncompetes and receive wage premium as a result, that can
    have serious anticompetitive effects, and I'll give a quick
    example. Imagine a hospital in a small town, it ties up all the
    physicians and nurses with noncompetes and compensates them.
    Now, a new hospital or clinic wants to enter the town and needs
    workers. Well, it can't compete for those workers because
    they're tied up for a year or two, and they would have to quit
    and not work in their profession for a couple of years before
    they could work for the new employer. So, these noncompetes,
    even when voluntarily consented to, can have serious, negative
    effects on competition.
        Ms. Demings. Thank you so much, Professor.
        Mr. Gross, you said something at the beginning of your
    testimony too, and it was maybe viewed as small, but I thought
    it was also powerful. As you talked about the workers, you said
    fellow American workers. It was just something that was good to
    hear in this political climate where we tend to like to pick
    and choose winners and losers. I think our responsibility on
    this Committee is to leave no American worker behind, and so I
    just thank you for being here and testifying today.
        You mentioned the stark difference in prevailing wages
    between unionized UPS drivers and Amazon drivers. Why do you
    think there is such a big difference in the wages? I know you
    talked a little bit about that, but if you could just drive
    that home, that point home for us, please.
        Mr. Gross. Thank you, Congresswoman. I think one of the
    biggest differences is that unionized workers, we are employees
    of the corporation, and where Amazon is using these DSP
    delivery drivers, they're not actually Amazon's employees. So,
    in that essence, it allows Amazon to save money and not share
    in its profits with the people that are actually making the
    money for Amazon. So, that's definitely one of the ways.
        Ms. Demings. How would you respond to people who would say
    that consumers really like Amazon and they want two-day
    delivery, and that Amazon's practices are reducing prices for
    consumers, and workers who dislike it should just find a
    different line of work? How would you respond to that?
        Mr. Gross. Well, I don't think there's anything wrong with
    consumers liking Amazon and liking two-day service. We provide
    second-day air at UPS. We were the ones that were providing the
    service behind the scenes for Amazon for a long time. What was
    the question again?
        Ms. Demings. What would you say to people who seem to want
    to ignore, you know, the differences in wages, working
    conditions, and all those things because they like the service
    that Amazon gives?
        Mr. Gross. Oh, yeah, right. Yeah.
        Ms. Demings. I think it goes back to the way you do
    business matters too.
        Mr. Gross. Yes, the way you do business matters. I would
    say, there's nothing wrong with liking Amazon, but you would
    like them a lot more if they had employees that were unionized
    and that were able to provide excellent service that unionized
    workers are able to provide.
        Ms. Demings. Thank you so much, Mr. Gross.
        Mr. Gross. You're welcome.
        Ms. Demings. Thank you to all our Witnesses. Mr. Chair, I
    yield back.
        Mr. Cicilline. The gentlelady yields back.
        I now recognize the gentlelady from Minnesota, Ms.
    Fischbach, for five minutes.
        Ms. Fischbach. Thank you, Mr. Chair.
        I've got just a couple of questions for Commissioner
    Wilson. Commissioner Wilson, in this Subcommittee there's been
    quite a bit of talk about the proper focus for and the limits
    of antitrust law. One premise of this hearing seems to be that
    antitrust is responsible for and can solve many of the issues
    that American workers are facing. I just wonder if you could
    take just a couple of minutes to talk a little bit about what
    antitrust focus has been in the past and what it is today.
        Ms. Wilson. Thank you for the question. So, I would start
    by saying that the analytical framework that we use is called
    the consumer welfare standard. So, in our analysis, at the
    forefront of our mind certainly is how consumers will be
    impacted by conduct or by mergers that is not limited to an
    analysis of short-term price effects. In fact, we also think
    about innovation. We think about quality. We think about
    choice. We think about whether barriers to entry will be
    erected that will inhibit new entrants from coming in and
    further lowering prices.
        So, even though it's called the consumer welfare standard,
    it is--and is characterized as being focused on short-term
    price effects, that is actually incorrect.
        First, as I've described, we do think about innovation and
    quality and choice.
        Second, in the Weyerhaeuser case, I think it's a great
    example of how we actually do look at impacts of monopsony
    power even if there is no impact on output. So, I just wanted
    to respond to Dr. Callaci's statement that, in fact, he said we
    can only challenge monopsony power under existing antitrust
    laws if there is a decline in output, but, in fact, in the
    Weyerhaeuser case that was not true.
        Also, in the Horizontal Merger Guidelines, section 12
    explicitly says that we can look at monopsony power even if
    there is no impact on output or an effect downstream. So, to
    package all this together, I would say that we look at the
    impact on consumers, but we also need to remember, of course,
    that consumers are employees and consumers are sometimes
    shareholders. I think it is perhaps an arbitrary and artificial
    approach to impose these silos.
        That said, as Dr. Kobayashi mentioned, during the Trump
    Administration, for three years we looked long and hard for
    labor monopsony issues particularly in hospital mergers and the
    impact on nurses. So, within the existing analytical framework,
    without setting up special separates goals for antitrust, we
    actually do consider all these issues.
        What we find, in fact, is that typically when you address
    the underlying anticompetitive issues of a merger you resolve
    both potential harms to consumers and potential harms to labor.
    In certain circumstances where that's not the case, the Federal
    Trade Commission has actually gone directly after harms--
    monopsony harms, including in our Griffold case that was
    brought just recently where there was a merger of human-source
    plasma companies.
        The Federal Trade Commission challenged the merger in part
    because it was going to create monopsony power for blood plasma
    donors in various cities. In other words, donors of blood were
    going to get lower fees because of monopsony power until the
    Federal Trade Commission challenged that.
        Also, in the healthcare field, the Federal Trade Commission
    in a conduct case challenged an agreement between therapists
    staffing service providers for home health agencies where they
    agreed to set prices for therapists, in other words suppressing
    wages.
        So, while I think it is important for us to focus on the
    economically based consumer welfare standard that we have, it
    is actually a rich and robust analysis that allows us to look
    at a variety of different factors including labor.
        Ms. Fischbach. Thank you very much, Commissioner. I
    appreciate your input.
        Given that I've only got a few seconds left, I will yield
    back, Mr. Chair. Thank you.
        Mr. Cicilline. The gentlelady yields back. Thank you.
        I now recognize the gentlewoman from Georgia, Ms. McBath,
    for five minutes.
        Ms. McBath. Thank you so much, Mr. Chair.
        Ms. Payton, I just want to thank you so much for your work
    as part of our healthcare system. As a cancer survivor, and I'm
    a two-time cancer survivor, I know well that behind the many
    doctors and nurses there are also dozens of technicians and
    clerks and administrative assistants and sanitation staff that
    are making sure that everything always runs smoothly, and
    patients get the care that they need.
        You are all frontline workers, so I want to thank you,
    first and foremost, for your really hard work. I find your
    experience really, really troubling. So, how do the wages and
    working conditions that you've experienced affect morale among
    you and all of your coworkers?
        Ms. Payton. Working for UPMC, it's one of those with two-
    edged swords. It's good because I actually have a job to go to,
    but it's bad because it's like my coworkers and I, we can't
    afford to feed our families when we need to, pay all our bills
    when we're scared of the medical debt.
        UPMC controls the labor market in Pittsburgh, and we need a
    union that gives some of that power back to the workers. They
    have too much power in fact, and we need the union to balance
    that power. That way we'll be able to afford to live
    comfortably and sustain our families.
        Ms. McBath. Thank you for that.
        Mr. Gross, thank you also for being here. Your employer,
    UPS, is headquartered in my district, which is Georgia's 6th
    Congressional District, so I'm so pleased to hear of your
    positive experiences as a UPS employee and also member of your
    union.
        Like hospital staff Ms. Payton, you work in an industry
    where accidents can cause real harm. You mentioned that your
    union worked to secure rules that were beneficial to drivers
    and also promote public safety. Can you expand on that, please?
        Mr. Gross. Thank you, Congresswoman. I mean, UPS puts us
    through an extensive training program as far as driving and our
    workers inside the hub. So, I think that's one of the ways that
    UPS helps keep its workers safe, unionized workers safe. I
    don't think that workers that are at Amazon or other part-time
    non-employees, subcontractors, they don't get the opportunity
    to have that same training and safety.
        Ms. McBath. So, do you think you would have been able to
    get these rules that keep you and the public safer if you were
    bargaining with your employer or by yourself?
        Mr. Gross. I think that the collective bargaining agreement
    is what levels the playing field with companies, and I think
    that would definitely allow workers to have an opportunity to
    have a voice and a say and to be safer on the job.
        Ms. McBath. Thank you.
        Ms. Payton--I'm running out of time--you testified that you
    asked your employer to provide you with more PPE and that they
    told you that this is what you signed up for. Did you feel like
    you had any recourse whatsoever, any other actions that you
    could have taken at that point?
        Ms. Payton. Being that we're not a union at UPMC, it was
    kind of difficult to even go further in that. We do deserve
    better PPE and more information because we are putting our
    lives on the line. We're putting our family's lives on the
    line. If we had a union, it would just make our lives
    essentially better. Like instead of feeling expendable we
    should feel essential, like the essential workers that we are.
        Ms. McBath. Ms. Payton, you testified--excuse me, Mr.
    Gross, your testimony mentioned that Amazon no longer lets
    drivers like you come into the facility, and that you and your
    fellow drivers think this is about controlling the information
    that Amazon employees and contractors get. Can you tell us more
    about what led you to that conclusion, and what would you tell
    an Amazon driver based on these experiences that you have had?
        Mr. Gross. I would just say that Amazon doesn't want us
    talking to those employees because they don't want them to
    understand the power of our collective bargaining agreement.
    They don't want them to understand the rights and the wages and
    the standards that we enjoy in the industry. I don't think they
    want them to know their worth in the industry. So, I would tell
    them that--be open minded and learn and strive to have a
    collective bargaining agreement.
        Ms. McBath. I think I'm just about out of time but thank
    you so much to each of you for being here today, and thank you
    so much for being so candid and honest with us. I yield back
    the balance of my time.
        Mr. Cicilline. The gentlelady yields back.
        I now recognize the gentleman from Ohio, Mr. Jordan, for
    five minutes.
        Mr. Jordan. Thank you, Mr. Chair.
        Mr. Gross, do higher prices hurt workers? I notice in your
    testimony you said you are married, four children. When The
    price of eggs, bread, milk, gas, when that goes up, does that
    hurt workers?
        Mr. Gross. Thank you, Congressman. I'm not an economist,
    but I know the higher prices hurt everyone--
        Mr. Jordan. Yeah.
        Mr. Gross. --everyone from workers--
        Mr. Jordan. Union workers? Non-union workers?
        Mr. Gross. Workers, consumers, and everyone.
        Mr. Jordan. You've got less purchasing power, so even if
    your wages go up but you've got--in real terms you've got less
    purchasing power, that's going to hurt. I mean, my dad was a
    union worker. He worked--I appreciate what you do. My dad
    worked 30 years for General Motors International Union of
    Electrical Workers. My mom cleaned houses. When the price of
    goods and services goes up, it's tough on families. Isn't that
    true?
        Mr. Gross. I believe that it's tough on everyone, yes.
        Mr. Jordan. How about higher taxes? Democrats are getting
    ready to--they're going to try to pass a huge spending bill,
    $3.5 trillion. They're going to have a bunch of tax increases
    in there. When your taxes go up, not to mention we've got
    inflation at a 40-year high, so the price of everything you
    purchase as a family has gone up, now they are going to raise
    your taxes. Is that going to hurt families? Is that going to
    hurt workers?
        Mr. Gross. Well, to that I would like to defer to one of
    the economists.
        Mr. Jordan. No, I'm just asking in simple terms. If you
    have to give more of your hard-earned money to the government
    in the form of taxes, is that going to be tough on families
    especially when you couple with it the fact that we're now at a
    40-year high inflation rate?
        Mr. Gross. I understand what you are saying, Congressman,
    but I don't feel comfortable with that because I'm not an
    expert.
        Mr. Jordan. How about COVID lockdowns? Did that hurt
    workers when the economy was locked down, typically done by
    Democrat governors, Democrat mayors? Does that hurt families?
        Mr. Gross. Well, again, Congressman, I appreciate your
    question, but I'm not qualified to answer that.
        Mr. Jordan. I think you are very qualified as someone who
    had your union and working hard for your family. How about
    mandates? We have got the State of New York, the Chair's home
    State, the governor announced last night that they're going to
    fire healthcare workers because they won't comply with the
    mandate. The same healthcare workers, by the way, who a year
    ago were heroes for all the hard work they've done over the
    last year. Do these kind of mandates, do you think those harm
    workers, Mr. Gross?
        Mr. Gross. I appreciate your confidence in me, Congressman,
    but I would have to get back to you with a response on that.
        Mr. Jordan. I appreciate your answers, Mr. Gross.
        Ms. Wilson, let me switch subjects--excuse me, I'm sorry,
    Commissioner Wilson. In your written testimony, Commissioner,
    near the end, I don't think you said this in your oral
    testimony, but in your written testimony you said new agency
    leadership--I'm reading from I think one of the last
    paragraphs. Then you give a bunch of examples--new agency
    leadership unfortunately has made meaningful dialogue among
    commissioners and between the Commission and its stakeholders
    difficult by--and then you list a bunch of things--muzzling
    staff internally and externally, stifling the flow of agency
    records and information from staff to commission, and there's
    lack of transparency, giving minimal notice to commissioners
    and the public of sweeping policy change--you go on giving no
    written explanation of sweeping policy changes--until those
    changes are actually implemented by the Trade Commission,
    evading meaningful dialogue at the Commission level, voting
    against notice and comment of all other policy, and on and on
    it goes. Tell me about this, if you would, Commissioner. What's
    going on at the FTC?
        Ms. Wilson. Thank you, Congressman. I appreciate the
    opportunity to address this issue. I have served at the Federal
    Trade Commission on three different occasions. This is my third
    stint at the FTC, and what has always made the Federal Trade
    Commission special and powerful is its long bipartisan
    tradition of collegiality, observing norms and traditions,
    carrying on a rich dialogue at the Commission but also with
    stakeholders.
        As I enumerated in my written submissions with extensive
    footnotes to other statements that I've made, this observance
    of norms and traditions that facilitates bipartisanship and a
    robust and rich dialogue, not just within the Commission, but
    also with all our stakeholders--my cat is coming into the
    picture--has taken a huge hit under new leadership.
        I'd like to note the distinction here. When Acting Chair
    Slaughter was serving as the chair of the FTC, she continued to
    absorb the norms and traditions that allowed for a bipartisan
    discussion. It is only with the arrival of Chair Khan that
    decades of tradition have been thrown out the window to the
    detriment of our and consumers.
        Mr. Jordan. So, this is new. We all know we function in a
    body where process matters. Process impacts policy. If you
    don't have the right process in place, sometimes you can lead
    to serious mistakes and serious, serious problems. Should we
    give the Commission more power?
        Ms. Wilson. I am very concerned about giving the Agency
    more power under current leadership. A system can only
    withstand the force that it is designed to channel, and right
    now we are seeing the limits of the force that we can
    withstand.
        Mr. Jordan. Thank you, Mr. Chair.
        Mr. Cicilline. The time of the gentleman is expired.
        Mr. Gross, just so you are not left with a misimpression,
    the proposal that's before the Congress will actually cut your
    taxes because you have four children, provide lower costs of
    healthcare, prescription drugs, paid family leave, and a number
    of other--childcare, et cetera. So long as you don't make more
    than $400,000, you are getting a big, gigantic tax cut. So, I
    didn't want you to leave this hearing worried about a tax
    increase based on Mr. Jordan's question.
        Mr. Johnson of Louisiana. Mr. Chair? That's fake news. No,
    I'm just--
        Mr. Cicilline. The Chair now recognizes the gentlelady from
    Pennsylvania, Ms. Dean, for five minutes.
        Ms. Dean. I thank Chair Cicilline and Chair Nadler for
    bringing forth this hearing that centers on complex nuance
    antitrust law, but it centers on the impact--I'm over here,
    sorry--on everyday Americans.
        Mr. Gross, I'm from neighboring Pennsylvania. My nephew,
    one of my nephews was a proud Teamster for more than a decade
    with Pepsi. Pennsylvania, like New Jersey, has been a leading
    voice in organized labor dating back to the 18th century.
        I appreciate your focus, and I won't hit you again on this
    because you've spoken so well about it, but we often focus on
    the financial benefits of collective bargaining, higher wages,
    health insurance, pension contributions, and the like, and we
    don't talk enough about safety and the hazard implications to
    workers and to the rest of us on the roads or whatever it
    happens to be. So, thank you for your eloquent testimony on
    that.
        So, if I could, I'd like to move to Dr. Callaci. You also
    talked about workplace safety and workplace conditions. Can you
    explain, from your work, how the lack of collective bargaining
    impacts safety in the day-to-day of the average American worker
    in other industries?
        Mr. Callaci. Sure. So, I would imagine, I don't know, I
    haven't seen the contract, but that Mr. Gross has a health and
    safety Committee at his workplace with joint representation
    from labor and management to talk over these issues and come to
    solutions.
        So, when workers don't have a lot of options for
    alternative employers because of concentration and when they're
    otherwise restrained and employers are restrained from
    competing for their jobs by these kinds of contracts we've been
    talking about, that really limits their bargaining power to be
    able to gain wages. Even an individual worker, of course, can't
    get those safety committees without a union. That is a really
    key element that collective bargaining brings to the table.
        Ms. Dean. How does that trickle down to the safety for you
    and for me?
        Mr. Callaci. Well, I mean, who is more affected? Who is
    going to notice a safety hazard first, especially in the
    healthcare sector where we have these externalities, as
    economists call them, of how pathogens move around from the
    workplace to the patients to throughout the community.
        So, yeah, absolutely, workers are the first to notice when
    there's a safety problem. They're the first harmed. So, they
    really need to be empowered, and collective bargaining is the
    best institution we have to empower workers to bring those
    concerns to the floor and not be afraid to speak up.
        Ms. Dean. Thank you, and I wanted to ask you another
    question in a different area. Are women and people of color
    more likely to face negative effects of labor monopsony and
    why?
        Mr. Callaci. Yeah. So, we do see--I'm trying to remember if
    I can--because I want to make sure I'm sticking to the
    empirical evidence. In terms of certainly noncompetes, we have
    very good evidence through a couple of papers now that non-
    White and women workers are more harmfully affected by these
    agreements, because basically it's workers that are more
    vulnerable with lower bargaining power to begin with are more
    harmed by these kinds of restraints.
        We saw, also, the Krueger and Ashenfelter study on no
    poaching agreements in franchising which show that those
    agreements were more common with low-wage, high-turnover
    workforces where the employer was--I've been talking about sort
    of this notion of baseline monopsony where basically almost
    every employer has some level of control and power over their
    workers, but this stuff gets supercharged by these agreements
    by things like noncompeting agreements.
        So, it would stand to reason that if workers are more
    negatively affected by--if the evidence shows that for non-
    compete agreements, that monopsony would also have a more
    harmful effect.
        Ms. Dean. Thank you.
        Ms. Payton, I was struck by your testimony, I think, as
    everyone here was. What shines through is your pride in your
    work, your pride in earning, working hard for an organization,
    doing worthwhile work, and, of course, the pride in raising a
    family. You are hampered in that, 15 years and not making even
    north of $20 an hour.
        I wondered, is there anything else you wanted to add to
    your story that has not come out, and also, are you able to
    talk to us about how your aspirations for organizing are coming
    along?
        Ms. Payton. I just want to add that we have been talking to
    elected officials about this for a long time, and we are
    hopeful that there will be action. Having a union is definitely
    the way to go because UPMC has too much power, and we
    definitely need the union to give some of that worker--the
    power back to us workers.
        Ms. Dean. That's terrific. With that, Mr. Chair, I thank
    you and I yield back.
        Mr. Cicilline. The gentlelady yields back.
        I now recognize the distinguished gentleman from North
    Carolina, Mr. Bishop.
        Mr. Bishop. Thank you, Mr. Chair.
        Mr. Gross, I was listening to your description about the
    Amazon workers. You said that they--I wrote it down--lower
    wages. They have to do weekend work. Then you say they cut
    corners on safety. You said that there's a lot of pressure. Why
    do folks choose, drivers choose to go to work there instead of,
    say, UPS?
        Mr. Gross. Well, I mean, drivers have an opportunity to go
    straight into driving with Amazon. So, with UPS, it's a good
    place to work. It's a solid place to work. You can raise a
    family there. You can pay your bills. You can be a homeowner,
    follow the American dream, you know.
        That's what everybody wants. There's a process that you
    have to follow. You can't just jump right up into the driver's
    seat. So, a lot of people don't want to take the time to follow
    the process to get to where they want to go. I think that's
    really one of the main reasons.
        Mr. Bishop. Okay. So, do you think they ought to be able to
    make a choice like that, or should that choice just not really
    be available?
        Mr. Gross. I don't really think they're aware of the choice
    they're making when they originally become an employee for the
    DSP. I don't think they really understand.
        You see Amazon as this big corporation with these boxes
    with smiley faces and everyone's happy and everyone enjoys
    getting stuff online and shopping. That's euphoric, but I don't
    really think they understand what they're getting into.
        There are certain things about our industry. It's a tough
    job. It's a worthwhile job, and it's a tough job.
        Mr. Bishop. No doubt about it.
        Mr. Gross. One of my coworkers once coined the phrase we're
    industrial athletes. So, I think it's--you need to be
    compensated as such.
        Mr. Bishop. Yeah. Okay, sir. Thank you.
        Ms. Payton, I was struck by something that you said and
    it's interesting. The place I come from, Charlotte, North
    Carolina, and also is a case there that the healthcare system
    is the largest employer. I think you said that about UPMC,
    University of Pittsburgh Medical Center, that you work for. In
    your testimony you made the point that--and, unfortunately, we
    got your--all these--the testimony got passed out, I think, to
    everybody late last night or at least to me. So, I didn't get
    to read it all in full.
        Ms. Payton, I was struck. You said that--how did you put
    it--I can't remember exactly. You were talking about U.S. Steel
    and that there--it's no longer as big and impactful an employer
    as UPMC that you work for and that it was unionized and it
    promised and paid a lot of benefits that people liked and gave
    a good standard of living.
        Why do you think that is that U.S. Steel's no longer around
    but now the hospital system is the biggest employer rather than
    a company that's making stuff?
        Ms. Payton. U.S. Steel was big and impactful, but slowly
    the eds and med started taking over the city of Pittsburgh. The
    U.S. Steel tower now has UPMC at the top of that tower which
    goes to show that UPMC is one of the biggest factors in this
    city.
        Mr. Bishop. Ms. Payton, I was just curious. Given a lot of
    the discussion lately, Has UPMC ordered employees to take
    vaccines against COVID?
        Ms. Payton. No, they have not.
        Mr. Bishop. Do you think the employer should have the power
    to impose that decision on you and your fellow employees?
        Ms. Payton. I think a worker should have a choice, but I
    also do believe that everyone getting the vaccine will help
    people stay safe.
        Mr. Bishop. Thank you, ma'am. That's very sensible to me.
        It's interesting and more broadly and to some of the
    academics that are in the hearing. Seems to me that the
    majority fails--the Democratic majority fails to reconcile or
    even to apparently to recognize inconsistency in their own
    policies.
        Back in 2009, I guess it was, the Congress adopted the
    Affordable Care Act, also known as Obamacare. As experts widely
    recognize, it promoted consolidation among insurance companies.
    It's no surprise really that then led to consolidation among
    hospital systems, and that led to consolidation in the
    ownership of physician practices. Now, we're talking about--but
    then hospital consolidation became an enforcement priority for
    FTC.
        Isn't much of this--and I think maybe I'll direct this to
    Professor Posner. Isn't much of this the result of inconsistent
    policymaking by the Congress that would tend to promote
    consolidation, at the same time punish other entities for
    consolidating?
        Mr. Posner. Well, I think one would have to look at it case
    by case. Broadly speaking, I don't agree. Congress has a lot of
    legitimate different policy goals, and in some cases certain
    policies will benefit larger companies. You also need a very
    strong antitrust law at the same time to prevent excessive
    consolidation from occurring and from the large companies
    abusing their monopoly power.
        Mr. Bishop. Thank you, sir.
        My time has expired, Mr. Chair.
        Mr. Cicilline. The time of the gentleman has expired.
        I now recognize myself for five minutes.
        Before going to my questioning, I ask unanimous consent to
    include in the record an article from Open Markets Institute
    entitled, ``Eyes Everywhere: Amazon Worker Surveillance
    Continued,'' without objection, and also a letter from the
    chair of the Federal Trade Commission, Lina Khan, dated
    September 28th, 2021, without objection.
        [The information follows:]

                          MR. CICILLINE FOR THE RECORD

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

    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Mr. Cicilline. Mr. Callaci, in a letter to the
    Subcommittee, which I just introduced for today's hearing, FTC
    Chair Lina Khan explains that in recent decades the agency has
    largely neglected monopsony concerns and harm to workers. She
    underscores that this will change and that under her leadership
    the agency will scrutinize mergers that lessen competition in
    labor markets and restraints in worker pay and mobility may
    violate the law.
        How do you respond to that? Are there additional steps our
    antitrust enforcement should take?
        Mr. Callaci. So, yeah, I fully applaud that effort to take
    a closer look at competition and to look at course of contract.
    Yeah, I think in terms of--I have this in my testimony.
        A couple of other additional steps we need to look at are
    the effective buyer power not just directly on employees, but
    actually sort of the case that Mr. Gross referenced where you
    have buyer power in a supply chain, whether that's Amazon
    putting the squeeze on the parcel delivery companies or those
    kinds of things. We do have evidence that also affects wages,
    so taking into account those down or upstream effects.
        Then, dealing with these coercive contracts that try to
    control and dominate nonemployee independent contractors. We
    have employment law, labor employment law, because we know that
    workers are at a disadvantage in the bargaining with employers.
    We have tons of labor laws, labor regulations, because we
    recognize that. Companies being able to get that same control,
    that same just have an employment relationship with an Uber
    driver or with a delivery service partner without incurring
    those duties and responsibilities an employer is meant to
    burden, is that another area, getting at those course of
    contracts that are sort of substitutes for employment.
        Mr. Cicilline. Thank you.
        Mr. Posner, in your testimony you explained you are not
    optimistic that courts would be receptive to antitrust
    enforcement to address labor market harms. Why are courts
    skeptical of labor-sought antitrust claims, and how do you
    propose we update the antitrust laws to address harms to labor
    competition including nonpricing effects?
        Mr. Posner. To emphasize, I think they're skeptical under
    current law. I'm not arguing that courts don't like workers or
    anything like that. If law were updated, I think that it would
    be more receptive to claims by workers against employers.
        So, what can be done? I think, for starters, updating the
    laws that regulate mergers, because there's merger litigation
    in, ways that make clear that rules restricting mergers apply
    to mergers that affect labor markets.
        I also think that some of the technical detail, which I
    discussed in various places, but the courts have been
    unreceptive to some of the no-poaching cases against franchises
    because of these kinds of silly doctrines that have developed
    in antitrust law about the difference between vertical and
    horizontal relationships. There can certainly be technical
    legislation that would correct that error.
        Then, lastly, I would suggest that section 2, the provision
    of antitrust law that applies to monopolies, I think that could
    be improved so that certain types of antilabor practices would
    be explicitly identified as anticompetitive practices including
    the use of noncompetes, misclassification, perhaps unfair labor
    practices.
        I'm not saying that employers would never have defenses. If
    courts saw this kind of codification of these ideas, they would
    be much more receptive to this type of important litigation.
        Mr. Cicilline. Thank you.
        Mr. Posner, Commissioner Wilson and Dr. Kobayashi argue
    that there's not enough evidence on the effect of noncompete
    agreements on wages and workers, worker mobility to support
    restrictions on these types of post-employment restrictions. It
    seems clear to me that noncompete agreements hurt workers,
    especially low-income workers. What is the effect of these
    agreements on workers and on consumers?
        Mr. Posner. Well, as I think Professor Kobayashi
    acknowledged, there's been substantial evidence now that
    noncompetes harm lower-income workers. The evidence is a little
    more ambiguous for higher-income workers. There's a study that
    looks at workers in Hawaii who are low-paid, and they were
    harmed as a result of noncompetes.
        I tend to agree with critics that we probably don't have
    enough evidence yet to completely abolish noncompetes under all
    circumstances. My more limited claim is that they should
    certainly be the subject of antitrust litigation. There are,
    after all, called covenants not to compete. Right? They're
    areas of trade, and yet there have been a total of zero cases
    in the history of this country where people tied up by
    noncompetes have successfully challenged them on antitrust
    grounds.
        So, whatever the proper role is, we need to move rapidly in
    a more restrictive direction.
        Mr. Cicilline. Thank you.
        Finally, Ms. Payton and Mr. Gross, I know you both took the
    day off to be with us. Thank you very much for being here. We
    often talk about these issues in the abstract. Your testimony
    helps us recognize what the impact is of an absence of
    competition in labor markets and how it affects actual people
    and their lives. So, thank you for that.
        If there's anything that hasn't been said that you'd like
    to say in response, I'd like to give you both an opportunity to
    do that. I know we're going over a little, but my Republican
    friend will indulge me. I'll give him a little additional time,
    too.
        Mr. Gross. Thank you, Chair Cicilline. I would just like to
    thank you for having us and giving us the opportunity to tell
    our story. So, thank you.
        Ms. Payton. Yes. I'd also like to thank you for having me.
    It has been an honor to be able to share my story.
        Mr. Cicilline. It's an honor to hear both of you, of
    course.
        I now recognize the gentleman from Wisconsin for five
    minutes and 30 seconds.
        Mr. Fitzgerald. Thank you, Mr. Chair.
        I just wanted to revisit--I know some of this might be a
    little redundant, but I just wanted to revisit labor and labor
    markets related to the merger stuff.
        So, Ms. Wilson, you can comment.
        Mr. Kobayashi, again, feel free to chime in.
        There have been reports regarding FTC sending companies
    questions that are kind of far outside what you would expect
    traditional inquires to be about as a result of the merger
    investigations.
        An example is--and I know this could be kind of dismissed
    as, boy, I've never heard about that before. So, I'm trying to
    raise the profile of it. The FTC staff has inquired about how
    mergers would affect unionization, as well as some
    environmental and social issues. This is--it's my understanding
    this is a departure from typically what you may see as what we
    would consider traditional questions. Some of the other
    Witnesses on the panel have discussed the need to change
    antitrust laws so that the effects on labor markets are
    considered. It seems to make sense to me.
        You both served at the FTC and understand the relationship
    between the mergers and demand in the labor markets. Can either
    of you discuss how current antitrust laws and enforcement
    considerations already account for this issue?
        Ms. Wilson, would you like to?
        Ms. Wilson. Sure. So, so thank you and I'm sure that Dr.
    Kobayashi will also have interesting comments here. So, to be
    clear, the horizontal merger guidelines actually do say right
    now that monopsony power should be investigated within the
    course of merger analysis. So, as Bruce outlined, for at least
    three years under Chair Simons, we did look for labor monopsony
    issues in mergers. So, we included specs, specifications in the
    so-called second request for information of merging parties,
    that sought to analyze the impact of mergers on hiring.
        What is happening now, I believe, is going further afield
    and looking not at what happens for competition for labor but
    for other social values. I disagree with expanding the scope of
    antitrust beyond competition which is a load that it is
    designed to carry. We are not equipped to evaluate the other
    factors that are now being shoehorned into antitrust analysis.
        Mr. Fitzgerald. Thank you.
        Professor.
        Mr. Kobayashi. Yeah, I want to comment maybe on some of the
    comments saying that we ought to do something to maybe make
    thresholds for labor market.
        If you go back to the Prager and Schmitt article, which is
    a very good article, I want to make two points. One, if you
    look at what mergers--and they base their concentration numbers
    on commuting zones. So, it's not a product market. It's a
    commuting zone. You have to go into sort of the extreme
    quartile. That's Herfin-
    dahl's of about 6,000s with changes to about 2,000s of the
    mergers that sort of generate the wage stagnation.
        The other thing that you have to look at is that there are
    no--they test for output effects and the effects of classical
    monopsony. They don't find anything. It might be that there are
    bargaining effects. It's not sort of classical monopsony where
    you have independent decreases in employment, and then it's
    limited to skilled workers.
        If you were based it on the evidence, you would basically
    put those thresholds at 6,000s which are basically a three-to-
    two merger. Those mergers probably will get blocked on product
    market grounds or on the standard tools that we have.
        As I said and as Commissioner Wilson just reiterated that
    we have adjusted our enforcement procedures including the HSR
    specs where we get information to actually look at product
    market and labor market issues. I don't know what else you do
    if you want an evidence-based enforcement of the antitrust
    laws. We try to get the evidence.
        Mr. Fitzgerald. Very good.
        Thank you. I would yield back.
        Mr. Cicilline. The gentleman yields back.
        I would like to now ask unanimous consent to introduce into
    the record a letter from Greg Nowak, director of the Brewery
    and Soft Drink Workers, to Amy Greenberg, Director of
    Regulations and Rulings Division, Tobacco Tax Trade Bureau
    without objection; a statement, for the record, from the
    International Brotherhood of Teamsters, the Service Employees
    International Union, and the Strategic Organizing Center,
    without objection; and a statement for the record from the
    Uniform Law Commission, without objection.
        [The information follows:]

                          MR. CICILLINE FOR THE RECORD

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

    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Mr. Cicilline. I now recognize the gentleman from Oregon,
    Mr. Bentz, for five minutes.
        Mr. Bentz. Thank you, Mr. Chair.
        Commissioner Wilson--and thanks to all the Witnesses.
    Incredibly interesting conversation.
        Commissioner Wilson, the standard--I would like to go back
    to your comments about going beyond competition and trying to
    apply other standards. This sounds like a kind of a step
    backwards in what your FTC had been doing in the fifties and
    sixties. I just was looking at an article that was commenting
    on the policies in those years, and someone called it an
    incoherent mess.
        I think maybe that's what you were getting at when you were
    talking about trying to shoehorn some of these new standards
    concerning labor into whatever the standard--well, the consumer
    standards.
        So, could you comment on that just a little more? Because
    what I'm interested in knowing is if you're asked as the FTC to
    bring labor standards into this, what are you going to use as
    the proper measure of success?
        Ms. Wilson. You raise a fantastic question.
        If we introduce additional goals into antitrust
    enforcement, we are going to have a situation in which the
    current system, which is predictable, administrable,
    incredible, is undermined. So, if we are pursuing one goal
    which is the preservation of competition, whether it be for the
    sale of services or for the purchase of services including
    labor, that is an assessment that can be done rigorously with
    evidence, with the assistance of people like Professor
    Kobayashi who can crunch the numbers and look at the data.
        If we introduce additional goals, we are then in a
    situation where we have to decide which goals to prioritize. In
    different circumstances we may be pushed to prioritize
    different goals. Antitrust loses its predictability, its
    credibility, and its administrability. It becomes very subject
    to politicization and to rent seeking, and I submit to you that
    is not a good way to run the government.
        Mr. Bentz. Just a bit of a follow-up. I was trying to--you
    guys go into this in great detail and incredible complexity.
    So, forgive the shallowness of this question. It seems to me
    that the price concept that you would--that you do apply now,
    consumer benefit standards, would be in conflict with trying to
    drive up the prices by helping those who are working for these
    companies get greater job benefits.
        So, how would you the balance those two competing goals if,
    indeed, you were charged with this challenge of bringing labor
    into the conversation?
        Ms. Wilson. So, you're absolutely right. That is the
    problem with multiple and potentially competing goals. If the
    goal of antitrust is to prevent any job loss through merger,
    then we are going to have difficulty assessing that impact and
    at the same time balancing the impact on consumers. So, it is
    better to focus antitrust on a single goal competition which
    also includes the wages that labor is being paid.
        So, if there is monopsony power, if a merger is going to
    involve, say, the only two hospitals in a city that will
    suppress wages, then we step in. We prevent that merger which
    benefits both consumers and the nurses and others who work at a
    hospital.
        Let me just add to what Professor Kobayashi said about
    hospital mergers. He indicated that there was significant focus
    on figuring out why the FTC and DOJ were losing so many
    hospital mergers, and I had the privilege of serving as Chief
    of Staff to Tim Muris when he launched the hospital merger
    retrospective to figure out why.
        The economists and the lawyers at the Federal Trade
    Commission study the issue, figured out how to try cases in a
    way that launched us on many, many wins. Over the last 17 years
    we have had only one loss when we challenge a hospital merger.
        The problem with hospital mergers is so many are below the
    age threshold. So, we are very interested in identifying
    hospital mergers that do not need to be notified to Federal
    Trade Commission and assessing whether those are causing
    anticompetitive effects including suppressing wages for nurses
    and physicians and others who work for those hospitals.
        Mr. Bentz. Thank you, Commissioner.
        Mr. Chair, I yield back.
        Mr. Cicilline. The gentleman yields back.
        I now recognize the gentleman from Utah, Mr. Owens, for
    five minutes.
        Mr. Owens. Thank you, Mr. Chair. I thank you. I thank all
    the Witnesses for joining us today.
        I, like so many of my colleagues here, deeply concerned
    about the Biden Administration's general approach to
    regulations and economic policies and particularly the impact
    that those policies are having on businesses and workers back
    in my home district. I also share concerns expressed today on
    both sides of the aisle regarding monopoly on organizations
    like Amazon.
        Mr. Gross and I have different backgrounds--his with the
    union, mine as a small business owner. We probably would
    respectfully disagree, agree to disagree on some of the
    solutions how to get there. We both emphatically have the same
    end game, that is, the protection of the small business, the
    small middle class--I mean, sorry--protection of the middle
    class.
        Only through the free-market competition can that happen.
    As we see the big tech and other monopolies across many
    industries, there's absolutely no tolerance for small business
    innovation, service, and the drive to reach the middle class.
        I'm thankful for the leadership of the Ranking Member, Mr.
    Buck, and for taking on the big tech monopolies and others that
    we are addressing as we come to become aware of in 2020.
        Commissioner Wilson, on page 5 of your written testimony
    you mention how the American economy is struggling to recover
    from the COVID-19 pandemic. You also suggested adopting a
    highly interventionist competition policy at this time will
    harm everyone including American workers.
        What about the Biden Administration's general approach to
    regulations and economic policies and particularly the impact
    on those, again, workers and businesses from my own district?
    Today in this hearing we're not simply talking about proposals
    that would impact a particular sector or industry. We're
    talking about broad policy changes that would even override
    some State law.
        Do you have any reaction to these concerns, especially as
    they relate to labor markets?
        Ms. Wilson. I completely agree with your concerns about
    regulation and the cost that those impose and the chilling
    effect that they have on innovation. I would note, with respect
    to emerging from the economic devastation of COVID, one step
    that the Federal Trade Commission has taken is throwing out the
    vertical merger guidelines with essentially no notice, no
    opportunity for input. It's expressed intent to take a much
    stronger enforcement approach for vertical mergers.
        Here's the problem. Supply chain vulnerabilities were
    exposed during COVID. To shore up the supply chain, many
    companies are seeking to bring the vulnerable aspects of the
    supply chain in-house so that they have control. Now, we have a
    situation in which there's an express intent to enforce
    vertical merger law much more aggressively, and at the same
    time there's no guidance.
        People don't understand what the new policy is with respect
    to vertical mergers, and we have been told by the majority of
    the commission that there will be onerous penalties for
    bringing what they perceive as any competitive deals to our
    doorstep.
        So, we have removed guidance from the business community
    which is seeking to emerge from the COVID economic devastation
    but we're going to double the penalties if they cross the line,
    but they don't know where the line is. So, it's problematic.
        Mr. Owens. Can you describe the role of State attorney
    generals in challenging unlawful no-approach agreements and
    whether they have been successful in that role?
        Ms. Wilson. I think the State AGs have been very
    successful. The Washington State AG has, I believe, brought
    cases that have affected close to 200,000 locations across the
    country, not just in Washington. This goes back to the point I
    made in my written testimony, in particular, that there is a
    very rich, robust set of State law and common law that governs
    noncompetes and no-approach agreements. The State AGs are
    active.
        My understanding is that in the same State, Pennsylvania is
    looking to pass a law on noncompetes. These State legislatures
    are very responsive to the needs of their constituents and the
    facts on the ground. They are very active.
        Mr. Owens. Thank you. Thank you so much.
        I yield back.
        Mr. Cicilline. The Chair yields back.
        This concludes our hearing. I think we've covered everyone.
        Just as a reminder that Members will have five legislative
    days to submit additional materials for the record.
        I want to again thank our Witnesses for their really
    helpful testimony that I think will allow this Committee to
    move forward in a very productive way to make certain we can
    really promote competition in labor markets that will benefit
    American workers. Thank you again to everyone for their
    testimony.
        With this, the hearing is now concluded.
        [Whereupon, at 12:29 p.m., the Subcommittee was adjourned.]

                                    APPENDIX

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

    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

                                     [all]