U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

71–457 2011

ADDING TO UNCERTAINTY: THE IMPACT OF DOL/ 

NLRB DECISIONS AND PROPOSED RULES ON 

SMALL BUSINESS 

HEARING 

BEFORE THE

COMMITTEE ON SMALL BUSINESS 

UNITED STATES 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

HEARING HELD 

OCTOBER 5, 2011 

Small Business Committee Document Number 112–037 

Available via the GPO Website: http://www.fdsys.gov 


rfrederick on DSK6VPTVN1PROD with HEARINGE:\Seals\Congress.#13
(II) 

HOUSE COMMITTEE ON SMALL BUSINESS 

SAM GRAVES, Missouri, Chairman 

ROSCOE BARTLETT, Maryland 

STEVE CHABOT, Ohio 

STEVE KING, Iowa 

MIKE COFFMAN, Colorado 

MICK MULVANEY, South Carolina 

SCOTT TIPTON, Colorado 

JEFF LANDRY, Louisiana 

JAIME HERRERA BEUTLER, Washington 

ALLEN WEST, Florida 

RENEE ELLMERS, North Carolina 

JOE WALSH, Illinois 

LOU BARLETTA, Pennsylvania 

RICHARD HANNA, New York 

ROBERT SCHILLING, Illinois 

NYDIA VELA ́ ZQUEZ, New York, Ranking Member 

KURT SCHRADER, Oregon 

MARK CRITZ, Pennsylvania 

JASON ALTMIRE, Pennsylvania 

YVETTE CLARKE, New York 

JUDY CHU, California 

DAVID CICILLINE, Rhode Island 

CEDRIC RICHMOND, Louisiana 

JANICE HAHN, California 

GARY PETERS, Michigan 

BILL OWENS, New York 

BILL KEATING, Massachusetts 

LORI SALLEY, Staff Director 

PAUL SASS, Deputy Staff Director 

BARRY PINELES, Chief Counsel 

MICHAEL DAY, Minority Staff Director 


rfrederick on DSK6VPTVN1PROD with HEARING
(III) 

C O N T E N T S 

OPENING STATEMENTS 

Page 

Graves, Hon. Sam .................................................................................................... 1 

Vela ́zquez, Hon. Nydia M ........................................................................................ 2 

WITNESSES 

Elizabeth Milito, Senior Executive Counsel, National Federation of Independent Business Small Business Legal Center, Washington, DC ................. 4 

Mike Mittler, President, Mittler Brothers Machine and Tool, Wright City, 

MO ......................................................................................................................... 5 

Beverly McCauley, President, Hunt Country Masonry, Leesburg, VA ............... 7 

Allen William West, Jr., President, West Sheet Metal Company, Sterling, 

VA .......................................................................................................................... 10

APPENDIX 

Prepared Statements: 

Elizabeth Milito, Senior Executive Counsel, National Federation of Independent Business Small Business Legal Center, Washington, DC .......... 36 

Mike Mittler, President, Mittler Brothers Machine and Tool, Wright City, 

MO .................................................................................................................. 50 

Beverly McCauley, President, Hunt Country Masonry, Leesburg, VA ........ 55 

Allen William West, Jr., President, West Sheet Metal Company, Sterling, 

VA ................................................................................................................... 57 

Additional Materials for the Record: 

Statement of Rep. Gary C. Peters ................................................................... 61 

Statement of the United States Chamber of Commerce ............................... 63 


rfrederick on DSK6VPTVN1PROD with HEARING

rfrederick on DSK6VPTVN1PROD with HEARING
(1) 

ADDING TO UNCERTAINTY: THE IMPACT OF 

DOL/NLRB DECISIONS AND PROPOSED 

RULES ON SMALL BUSINESSES 

WEDNESDAY, OCTOBER 5, 2011 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON SMALL BUSINESS, 

Washington, DC. 

The Committee met, pursuant to call, at 1:01 p.m., in room 2360, 

Rayburn House Office Building, Hon. Sam Graves (Chairman of 

the Committee) presiding. 

Present: Representatives Graves, Chabot, Mulvaney, West, 

Barletta, Hanna, Schilling, Vela ́zquez, Clarke, Chu, Cicilline, 

Owens, Keating and Hahn. 

Chairman GRAVES. We will go ahead and call this hearing to 

order. And I want to thank all of our witnesses for appearing here 

today. Some of you have come a long ways, and we appreciate that 

very much. 

The purpose of today’s hearing is to examine the proposed rules 

and case decisions by the National Labor Relations Board and the 

Department of Labor related to employer and employee rights in 

union-organizing drives. This committee has kept a particular focus 

on Federal regulations and policies that are adding to the array of 

uncertainties confronting small businesses, particularly when those 

uncertainties add to the Nation’s stubbornly high unemployment 

rate. 

Republicans and Democrats agree on the principle that businesses need certainty if they are going to grow their businesses and 

add jobs. President Obama has widely touted an executive order directing government agencies to identify and cut the red tape that 

is out there. He has also ordered agencies to do more than the bare 

minimum required to ensure that stakeholders have an opportunity 

to communicate their views on agency regulatory actions. If this is 

the intent of the President’s executive order, it hasn’t been put into 

practice. Rather the NLRB and the Department of Labor proposed 

the imposition of new regulations despite the lack of any demonstrated need for changes to existing law and practice. 

The current NLRB board has been particularly activist in its 

agenda. It was the infamous NLRB decision to prohibit Boeing 

from opening a plant in the State of South Carolina. While this decision does not directly impact small businesses, many of those in 

the small business community are claiming such decisions are indicative of NLRB’s overall bias against employers and level of favoritism that is granted to unions. 


rfrederick on DSK6VPTVN1PROD with HEARING
2 

Today’s hearing is going to focus on four examples of this administration’s union favoritism, the NLRB’s decision and the Lamons 

Gasket Company and Specialty Hospital of Mobile; the NLRB’s proposed changes to the union election process; and the proposed rule 

from the Department of Labor regarding the advice exemption to 

the Labor Management Reporting and Disclosure Act. 

I would also be remiss if I didn’t mention the NLRB’s final rule 

requiring employers to post notices in their businesses informing 

employees of their right to unionize. I understand this has been 

particularly irksome to small businesses who object to what they 

view as an unwarranted Federal intrusion into their business, as 

well as their objection to the biassed nature of the notices themselves. 

Again, I want to thank all for being here. 

And I will turn to Ranking Member Vela ́zquez for her opening 

statement. 

Ms. VELA ́ ZQUEZ. Thank you, Mr. Chairman. For America’s small 

businesses, employees are their most important asset. 

While this has always been the case, it has never been truer 

than it is today. In a globally competitive economy, small companies often succeed and fail based on the talent of the staff who can 

help invent a new product, develop an innovative service or just 

discover a better, more efficient way of serving a client. 

For America’s entrepreneurs, their employees are central to their 

strategy and critical for a firm’s long-term growth. For these reasons, the vast majority of small businesses enjoy strong relationships with their employees. Indeed, I would submit that for 99 percent of small firms, relationships between management and employees are cordial and not adversarial, regardless of whether the 

businesses’ workers are organized or not. 

This record is particularly remarkable given just how many 

Americans work for small enterprises. Half of the U.S. private sector workforce is employed by small businesses; 44 percent of our 

country’s nonfarm payroll can be attributed to small businesses. 

Most of us get our first job at a small enterprise. 

Considering the enormous contributions small companies make 

to U.S. employment, the positive history of employee-employer relationships at small firms is especially noteworthy. 

In those instances where there are disputes, the National Labor 

Relations Board exists to help mediate. This structure provides a 

proven channel for resolving labor disagreements. The board works 

to protect the rights of both employees and employers. With so 

many Americans, entrepreneurs and employees, counting on NLRB 

to serve as a fair conduit for resolving labor problems, it is critical 

that the board operate as efficiently and as effectively as possible. 

Several recent steps outlined by the NLRB to improve its election 

process will further that goal. Allowing filings with the board to be 

submitted in electronic form is common sense. In today’s Internet 

age, it only makes sense that this option be available to those seeking redress, be they employees or employers. 

In addition, putting in place standardized timeframes for the resolution of disputes will add certainty to the process for all participants. Streamlining the appeals process will also cut down on unnecessary red tape. 


rfrederick on DSK6VPTVN1PROD with HEARING
3 

On their face, these seem like logical efforts to make the NLRB 

work better for everyone. This committee often hears about the 

need to streamline government institutions. If we were discussing 

environmental regulations, tax compliance or workplace safety 

issues, reducing paperwork and setting deadlines for agency action 

would be universally applauded as efforts to lessen the burden on 

entrepreneurs. 

However, when those steps might facilitate hardworking Americans organizing a union, there seems to be a huge cry from the 

other side of the aisle. This position strikes me as inconsistent at 

best. 

Mr. Chairman, the vast majority of small businesses in our country enjoy warm relationships with their employees. And, in fact, 

most of them will likely never need to make use of the NLRB. 

However, when problems arise, it is important that fair, workable 

processes be in place. It is my hope that the NLRB steps can improve the system for all participants, employers and employees. 

And I thank the witnesses for being here today and sharing with 

us your insight on this issue. 

Thank you. And I yield back. 

Chairman GRAVES. Thank you. 

Ms. VELA ́ ZQUEZ. Mr. Chairman, if I may. I just would like to introduce for the committee our newest member, Janice Hahn. And 

I would like to welcome her. And she represents California’s 36th 

Congressional District. While new to Congress, Ms. Hahn has a 

long history of public service, having served on the Los Angeles 

Charter Reform Commission and the Los Angeles City Council. I 

am sure her experience, working with California entrepreneurs, 

will prove useful as she serves on this committee. And I welcome 

her. 

Thank you. 

Chairman GRAVES. It is good to have you on the committee. 

Thanks for choosing us. 

STATEMENTS OF ELIZABETH MILITO, SENIOR EXECUTIVE 

COUNSEL, NATIONAL FEDERATION OF INDEPENDENT BUSINESS SMALL BUSINESS LEGAL CENTER, WASHINGTON, D.C.; 

MIKE MITTLER, PRESIDENT, MITTLER BROTHERS MACHINE 

AND TOOL, WRIGHT CITY, MO; BEVERLY MCCAULEY, PRESIDENT, HUNT COUNTRY MASONRY, LEESBURG, VA, TESTIFYING ON BEHALF OF THE MASONRY CONTRACTORS ASSOCIATION; AND ALLEN WILLIAM WEST, JR., PRESIDENT, WEST 

SHEET METAL COMPANY, STERLING, VA 

Chairman GRAVES. Our first witness is going to be Elizabeth 

Milito. She serves as the senior executive counsel for the National 

Federation of Independent Business Small Business Legal Center. 

In her capacity as senior executive counsel, Ms. Milito frequently 

counsels businesses in areas of human resource law. 

Ms. Milito, welcome. And I might explain, too, real quick before 

you get started that the lights are set up for 5 minutes of testimony. And when you get down to 1 minute left, it turns yellow, 

and then when it is over, it turns red. We are not going to break 

anybody’s arm if you go over time, but try to keep it, if you can, 

keep it within—again, thank you all for being here. 


rfrederick on DSK6VPTVN1PROD with HEARING
4 

And, Ms. Milito. 

STATEMENT OF ELIZABETH MILITO 

Ms. MILITO. Thank you, Chairman Graves, Ranking Member 

Vela ́zquez, and distinguished committee members. Thank you so 

much for inviting me to be here with you today. 

My name is Elizabeth Milito and I serve as senior executive 

counsel with the National Federation of Independent Business 

Small Business Legal Center. NFIB’s mission is to promote and 

protect the right of its members to own, operate and grow their 

businesses. And it represents 350,000 businesses nationwide. The 

typical NFIB member employs 10 people and reports gross sales of 

$500,000 a year. The NFIB membership is a reflection of American 

small business, and I am here today on their behalf to share a 

small business perspective with the committee. 

Currently small businesses in this country employ just over half 

of all private sector employees. Small businesses pay 44 percent of 

total U.S. private payroll, and small businesses generated 64 percent of net new jobs over the past 15 years. Small businesses are 

America’s largest private employer. And for that reason, we applaud the committee for holding this hearing and highlighting the 

exceptional problems that labor rules can place on small businesses. 

Suffice it to say that labor law is difficult to understand. Even 

experienced labor lawyers struggle to keep up with the ever changing legal landscape. Imagine then the challenges facing America’s 

small businesses. These are businesses that are run by men and 

women who struggle day to day simply to make ends meet. They 

typically have no administrative staff, little human resource expertise and certainly no regular access to legal counsel. 

Today’s small business owners contend with anti-discrimination 

laws, family, medical and other protective leave laws, wage-hour 

laws, privacy laws, workplace safety laws, tax laws, environmental 

laws and, of course, labor laws, too. They struggle to decipher these 

overlapping and sometimes even conflicting Federal, State and 

local laws. 

And again, the problem is compounded by the fact that small 

businesses rarely employ a dedicated HR labor professional or 

other compliance staff. Today I will discuss how DOL’s persuader 

rule and NLRB’s poster rule will impact small business. In my 

written testimony, I have explained in greater detail how these 

rules and other changes by DOL and NLRB will affect small business. 

Imagine for a moment a man named Randy. He is a plumber in 

Illinois who worked for himself for years before deciding to hire a 

few assistants to cover growing demand. Randy served as CEO, 

president, treasurer, HRVP, CFO, frontline supervisor of his company, all while working as a plumber on a daily basis. One day 

Randy gets approached by someone identifying himself as a representative from the local plumbers union. He tells Randy that 

three of Randy’s four plumbers want to be represented by a union. 

Randy doesn’t know much about unions, but he knows he doesn’t 

want a union representing the four plumbers he employs and 

works with hand in hand on a daily basis. Should he talk with the 


rfrederick on DSK6VPTVN1PROD with HEARING
5 

employees? What can he ask them? What can he tell them? What 

does Randy do? 

Well, today Randy might call NFIB, where I direct him to call 

an experienced labor attorney ASAP. The attorney then becomes a 

business partner, helping Randy’s business through the maze that 

is today’s field of labor law. It is this partnership that is at grave 

risk due to DOL’s proposed persuader rule. 

Under the new persuader rule, all actions, comments or communications that could have a direct or indirect object to persuade employees would be reportable to DOL. This includes virtually everything that a labor attorney would do for his clients, whether or not 

there is union-organizing activity going on. The net result of the 

new proposed rule will be that lawyers and law firms may no 

longer be willing to offer advice to employers about labor matters. 

We fear that this proposal will limit small employers’ access to 

counsel on most aspects of labor law, an area where legal advice 

is sorely needed. 

NLRB’s recent actions will also greatly impact small businesses. 

In August, NLRB ordered small businesses to display a poster instructing workers on how to form unions. It did so despite the fact 

that the law creating the NLRB gives it no such authority. The notice-posting rule, which will become effective on November 14th, 

imposes an unfair labor practice on any employer that fails to post 

the notice. 

On September 30th, NFIB filed a lawsuit challenging NLRB’s intrusion in the workplace. We have asked the court to overturn the 

rule and declare that NLRB lacks statutory authority to require 

such a posting by 6 million private sector employers. 

NFIB’s members are honorable and fair employers, and I do believe they have warm relationships with their employees, but they 

are troubled, confused and scared by the avalanche of labor regulations and rules coming out of DOL and NLRB. 

Why should anyone care how these government entities treat 

small businesses? This question can be answered in one word. Jobs. 

Jobs are what Americans want and need. And most jobs in America 

are created by small businesses. This tidal wave of new rules will 

do nothing but crush small businesses and further prolong America’s economic woes. Thank you very much. 

[The statement of Ms. Milito follows on page 36.] 

Chairman GRAVES. Thanks, Ms. Milito. 

Next we are going to have Mike Mittler, who is the co-owner of 

Mittler Brothers Machine and Tool located in Wright City, Missouri. The company manufactures tools commonly used in auto racing and the aviation industry. Mr. Mittler started his business 30 

years ago with his brother Paul, and it remains a family-run business. 

Mr. Mittler, thanks for being here. I appreciate you coming in. 

STATEMENT OF MIKE MITTLER 

Mr. MITTLER. Thank you, Chairman Graves and Ranking Member Vela ́zquez, members of the committee. Thank you for the opportunity to testify today. 

My name is, as you said, Mike Mittler, president and cofounder 

of Mittler Brothers Machine and Tool. We are located in Wright 


rfrederick on DSK6VPTVN1PROD with HEARING
6 

City, Missouri. My brother and I found the company in 1980 in a 

2,500 square foot wreck of a rented building with just Paul and I 

as the only employees to start with. We started with an idea and 

a commitment to hard work, and now 30 years later, we have 60 

employees and a diversified business, including a product line of 

metal fabricating tools serving the auto racing, hot rodding and 

aviation market. 

Our job shop customers are leading companies in their industry, 

including building products, energy, automotive and industrial lasers. We have a mix of both senior and junior employees, including 

my brother Paul’s daughter, our second generation working in our 

plant. Our average tenure is over 10 years, including nine employees with over 20 years of service. We have two other sets of brothers and one husband-and-wife team working for us, making us very 

much a family operation. 

There are only three very simple rules at Mittler Brothers: Safety, quality, productivity—no exceptions. We are proud to have over 

a 5-year record of no lost-time accident in our plant, which exemplifies our commitment to safety. In 30 years of business, we continue to meet and exceed Federal workplace standards. 

We do this, not because we are forced by Federal regulators, but 

because as a small business, our employees are our family, and it 

is just the right thing to do. Just like the millions of small business 

owners like us, we know that a safe and happy work environment 

leads to a productive and profitable company. 

In the past 31 years, OSHA has come into our shop twice on 

campaigns aimed at our industry. Both times, when minor infractions were found, we immediately took steps to correct those and 

work with the agency inspector to ensure full compliance. 

Historically, manufacturing businesses in our industries maintain a good working relationship with inspectors and regulators 

with OSHA, the NLRB, the EPA and others. Our trade industry 

group, such as the National Tooling and Machining Association, 

which I chaired in 2006, worked for years with various agencies to 

help set and monitor the industry safety standards. 

However, over the past few years, we have noticed a significant 

shift in the way Federal regulators approach their relationship 

with manufacturers. It feels like we have moved from an environment of cooperation to one where agencies have a gotcha attitude. 

In the past an inspector would visit your shop and work with us 

to correct any unintended violations. Today, they fine you first and 

take no questions later. 

In the past several months, the NLRB issued a string of decisions and complaints with broad implications for employer-employee relationship. For example, the decision against Boeing company, as the chairman noted, has the Federal Government targeting a private business to choose for increasing manufacturing 

employment and production at one of their facilities. How does that 

look when we are trying to strengthen manufacturing in America 

so we, small suppliers, can still have customers? 

Recently, the NLRB expanded a requirement mandating that all 

private employers must place a poster in their businesses notifying 

employees of their rights under the NLRA to join a union. It continues to astound me when the government takes the approach 


rfrederick on DSK6VPTVN1PROD with HEARING
7 

that the only way to a better, safer and happier work environment 

is to join a union. For small business, it is quite the opposite. Employees have the freedom and flexibility to be partners with the 

owners and to get the job done right and get it done fast. 

Add the poster rule to the new quick election process the NLRB 

is imposing and you begin to create a more hostile work environment, where employees and employers no longer feel they can 

openly communicate. 

In addition to the direct impact the NLRB has on my company, 

it is a greater impact to my customers. If those larger manufacturers for whom my employees make parts close their doors due to a 

hostile environment for manufacturing companies, all of the families at Mittler Brothers will suffer. 

We were hopeful that the administration was taking a new approach to regulations when the President, in January of 2011, 

issued an executive order requiring all agencies to conduct a full 

review of the impact and effectiveness of new regulations. Since 

then, the administration has withdrawn new regulations from 

OSHA requiring businesses to implement new noise-cancelling 

equipment, yet they were feasible of capable of being done regardless of their effectiveness. They put on hold new EPA regulations. 

There may yet be some signs that Washington might revert to 

a culture of cooperation with employers. 

Unfortunately, it seems the NLRB missed the President’s memo. 

I came to Washington today because I want to fight for my employees and my company. I came here today because I thought it was 

important that policymakers in Washington understand how small 

businesses work and the excellent relationship we have with our 

employees. We are local small businesses who seek local solutions 

in a community where we often have multiple generations working 

at the same manufacturing plant. 

At a time when manufacturing is leading the way for our economic recovery, we need Washington to make us more globally 

competitive, to promote a positive workplace and to strengthen 

manufacturing in America. The latest actions by the NLRB do the 

opposite and will create animosity in the workplace without helping those we seek to support, our employees. 

Thank you for the opportunity to present testimony today. I look 

forward to continuing to work with this committee as I have in the 

past on issues from supporting automotive suppliers and workforce 

training to the regulatory burden on small business. Thank you. 

[The statement of Mr. Mittler follows on page 50.] 

Chairman GRAVES. Thank you, Mr. Mittler. 

Our next witness is going to be Beverly McCauley. 

Ms. McCauley is president of Hunt Country Masonry located in 

Leesburg, Virginia. She started her business with her husband in 

2006 as a side business to support a growing family. But due to the 

economy, it has now become her full-time profession. So welcome. 

STATEMENT OF BEVERLY MCCAULEY 

Ms. MCCAULEY. Thank you all for inviting us here today. It is 

important that you hear from all sides. So, again, my name is Beverly McCauley. And I am a co-chair also of the Legislative ComVerDate Mar 15 2010 23:48 Jan 03, 2012 Jkt 071457 PO 00000 Frm 00011 Fmt 6633 Sfmt 6602 E:\HR\OC\A457.XXX A457

rfrederick on DSK6VPTVN1PROD with HEARING
8 

mittee of the Mason Contractors Association of America. I come before you with 22 years of experience in small business. 

As a small business, we already have enough uncertainty with 

taxes and laws. And the changes that are being proposed and enacted by the NLRB and the DOL, I feel compelled to share from 

a small business standpoint what caveats these cause. 

These changes are first being instituted at a point in history 

when unemployment is rampant. Case in point: In 1935, the Wagner Act was passed. And in 1937, the Supreme Court upheld the 

decision. The result, a depression within a depression. When efficiency and profitability are removed from the equation and when 

everyone is rewarded equally regardless of productivity and skill, 

then productivity and skill diminish and the result is decreased 

profitability and increased unemployment. 

This act influenced the culture into the 1950s, until the Right to 

Work prohibiting forced union membership arose. With the Right 

to Work, a not-so-surprising result: Profitability increased and so 

did jobs. For you see, when you make everyone stand on their own 

merit and make everyone responsible for their own destiny, an 

amazing thing happens; people begin to take ownership for their 

destiny. 

The hardest workers were paid based on their productivity, and 

the less productive workers earned less based on their performance. But they still had a job. So the end result, you pay less if 

someone works less, therefore reducing unemployment and increasing profitability and increasing the jobs available. 

Congress knew where this was headed and refused to pass the 

Employee Free Choice Act. Congress realized that sweeping 

changes had the potential to transform what could be a recovery 

into the next great depression and exponential unemployment. At 

this point, it is not a far stretch to picture us headed in that direction. 

The Employee Free Choice Act is being touted as the best scenario for all involved. It eliminates secret ballots. We get the same 

right when we vote for any of you located in this room, the right 

to vote in private. If we change the system to open voting with no 

secret ballots, the meek may be influenced out of fear. It seems imperative to me that we continue to have the right to vote in private. We fight for this right every day in the name of democracy, 

the right to vote in private. Yet in our own country, we are going 

to deny someone that same right? 

At the same time, the employer, prior to all of this, does not have 

the right to express the down sides or even set the record straight 

without fear of retribution. I am sorry I don’t feel like jobs should 

be sacrificed for political paybacks to ensure future political support. 

That brings me to the next point. Unions don’t let you know that 

you have the right to say no to union dues associated with a political agenda. It seems like the reason behind the Employee Free 

Choice Act is to elicit a fear of the unknown in already uncertain 

times. The NLRB would have you believe they are the big brother 

looking out for the younger sibling, when in fact it is big government attempting to collect dues to pay off and support more likeminded people to fund the agenda that employees need someone to 


rfrederick on DSK6VPTVN1PROD with HEARING
9 

take their money and redirect it in the right ways and call it union 

dues. That makes me really want to work harder, or does it make 

everyone want to work to the level of the employee that is skating 

by and earns the same amount of money? 

They want to exacerbate the problem by allowing micro unions 

and gerrymandering with the same company. So one group in the 

company can be unionized into one group, another into another 

group and so on. You could have one machinist working side by 

side each in a separate union. 

Furthermore, the NLRB and Department of Labor have a proposal that will require all employers to release to unions any and 

all contact information they have on each employee, post on sites 

detailed notices outlining how to organize, giving contacts for the 

NLRB, but no where is it posted whom to call if you are harassed, 

lied to or coerced. So we have an organization that wants the rights 

to all of our information, but you have no recourse to stop them 

from calling and no way to vote privately, essentially making it impossible to stand up for most people. 

I am not most people. My husband and I are raising five children. I am co-chair of a legislative committee. I am also president 

of a small business. I am not afraid. But what does frighten me is 

that they have the right to destroy our great Nation. This will 

cause double-digit unemployment. 

How does that all affect us? Less money for the Federal Government because no taxes are being paid, which exacerbates the deficit, which causes us to have further arguments over budget cuts, 

less taxes paid, more programs are cut, more people lose their 

homes. As you can see, we are faced with a slippery slope that only 

gets slicker the more power they elicit. 

Congress was right when they refused to pass the Employee Free 

Choice Act. However, the NLRB and DOL are essentially leaving 

Congress and the American people out of the loop and taking employees’ ability to make informed decisions out of their hands as 

well. 

Without every able-bodied American working that is able to 

work, we cannot recover from our debt. In order for everyone to 

have a job, we must have a community that believes that everyone 

should be paid based on their merit. That is why we are a free society. 

Unions had their place decades ago to make for better working 

environments for employees. Times have changed, and unyielding 

power is not the answer. So if we want to get this country rolling 

and out of our trillions and trillions of dollars of deficit, everyone 

needs to work and be paid for the work they do at the level they 

perform. 

Thank you. And I really appreciate your time to let America’s 

voices be heard for this is truly a great Nation. Let us get the ball 

rolling and get on the right track. Thank you. 

[The statement of Ms. McCauley follows on page 55.] 

Ms. VELA ́ ZQUEZ. Now it is my pleasure to introduce our next witness, Mr. Allen William West, Jr., founder, president of the West 

Sheet Metal Company located in Sterling, Virginia. 

After serving in the United States Army and learning his trade 

in a certified apprenticeship program, Mr. West went on to found 


rfrederick on DSK6VPTVN1PROD with HEARING
10 

his company in 1983. The West Metal Company installs and fabricates heating, ventilation and air conditioning units for high-profile clients, such as Lockheed Martin. 

Mr. West’s small business currently employs 46 workers. 

Welcome, sir. 

STATEMENT OF ALLEN WILLIAM WEST, JR. 

Mr. WEST. Thank you. 

Chairman Graves, Ranking Member Vela ́zquez and members of 

the committee, thank you for your invitation to appear before you 

today. My name is Allen West, but I am known as Willy to my family, friends and business associates. 

I am the owner and founder of West Sheet Metal Company located in Sterling, Virginia. My company currently employs 45 sheet 

metal workers and office staff combined, but I have employed as 

many as 70 sheet metal workers. My company installs, fabricates 

heating, ventilation and air conditioning duct systems, and we do 

work for high-profile clients, such as Lockheed Martin and Howard 

Hughes Medical Institute. 

I started the company in 1983, but I learned my trade in a certified apprentice program operated by the Sheet Metal Workers 

International Association, Local 102. It is now Local 100, which 

represents the sheet metal workers in Virginia, Maryland, and the 

District of Columbia. I started the apprentice program for the 

Sheet Metal Workers International Local Union 102 in 1968. Then 

I left to serve in the United States Army. Following my discharge 

as a Specialist Fourth class and being awarded the Army Commendation Medal, I resumed my apprentice training. After I completed my 4-year program, I became a journeyman and started 

work for Wilco Sheet Metal in Rockville, Maryland, from 1973 to 

1983. I left Wilco to start my own business in 1983. 

From the beginning, I wanted to provide good-paying jobs, solid 

jobs for sheet metal workers, and I wanted to employ well-trained 

and well-skilled sheet metal workers. So I entered into a signed 

agreement with Sheet Metal Workers International Local Union 

100, which of course was formally Local 102. I view my workers as 

an integral part of my business and an important asset in its success. I wanted to partner with them through their union, and a collective bargaining agreement helps me do that. The theme of the 

contractor and union partnership is, together we do it better. And 

I know that to be the truth. 

As a signatory to the agreement, I use the local union’s hiring 

hall. When I need workers, I call the hiring hall and describe my 

needs. They refer skilled, trained workers. I know that these workers have undergone a rigorous and thorough training program 

through the apprentice school that the local union operates. And I 

have confidence in their abilities. 

In addition to the Local Union Joint Apprentice Committee, there 

is a national organization, the International Training Institute, 

that sets all the training standards for sheet metal workers and 

also establishes curricula and programs for apprentices and journeymen to upgrade their skills. This training is free and is offered 

on evenings and Saturdays. This training program ensures that 


rfrederick on DSK6VPTVN1PROD with HEARING
11 

training is consistent all across the country so that whenever I 

have a project, I have access to skilled and trained workers. 

I also want to make sure the jobs I am creating and providing 

are good jobs that can support a family and help workers be successful. Through the union contract, my workers participate in a 

health care plan and a pension plan. And making contributions to 

these plans and by combining with other union contractors, we are 

able to achieve a high level of benefits with cost savings. 

In addition, I do not have to hire people to administer the plans, 

deal with such issues as health insurance or retirement programs. 

The International Union also sponsors the National Energy Management Institute, that sets standards for energy efficiency and air 

quality and looks at new markets and the training required for 

sheet metal workers to develop the skills needed for these new 

markets. 

For example, I know that welding has remained in demand during this time of high unemployment, and sheet metal workers are 

able to access training to be ready for these jobs. 

The Sheet Metal Workers Occupational Health Institute sets 

standards for OSHA compliance and provides worker training. This 

in turn lowers my insurance costs, and my workers learn to work 

safer and enjoy better working conditions. 

These institutes and training facilities, health and retirement 

plans are all administrated by joint committees of union and company representatives. They help both contractors and workers. All 

the funds used to provide this training and these benefits and 

other assistance come from contributions by the parties to the contract and no government money is used at all. All of these programs are the result of private agreements. 

What I have described in my testimony is all accomplished within the framework of the National Labor Relations Act. I do not 

have a lot of personal experience with the National Labor Relations 

Board, but I know that it governs the relationship between my 

workers, my company and their union and allows us to accomplish 

these important goals so that I can concentrate on my business and 

create and provide good jobs in the community. 

I have reviewed some of the recent decisions and proposed rules 

by the National Labor Relations Board and Department of Labor, 

and I do not see how they disadvantage small businesses. They do 

not affect the framework in which I operate my business and will 

not affect my business or my relationship with my workers or the 

companies I do business with. 

These seemingly minor changes certainly do not create any uncertainty for me, and they will not affect my ability to create jobs. 

In fact, if the NLRB streamlines its election process, it seems to me 

that this will reduce turmoil in the workplace and be helpful to 

businesses, especially small businesses. 

What I need for my company to survive is more work, and that 

means more consumers and more buyers. These recent changes by 

the NLRB and Department of Labor do not affect that in any detrimental way. 

In closing, I wish to emphasize that I view my workers and their 

union as a significant driver in my success as a small business 

owner. We are all working together to be successful. Thank you for 


rfrederick on DSK6VPTVN1PROD with HEARING
12 

this opportunity to talk to you about my business and my relationship with my workers and their union. 

[The statement of Mr. Allen William West follows on page 57.] 

Chairman GRAVES. Thank you, Mr. West. 

We are now turning to—I am going to open up with Congressman West from Florida. 

Mr. WEST of Florida. Thank you, Mr. Chairman and Ms. Ranking 

Member, for scouring the earth and finding another Allen West to 

be up here in Capitol Hill with me. We have to talk about whether 

or not your daddy was ever down in Georgia. 

Mr. WEST. I am a native Virginian. So we are probably—— 

Mr. WEST of Florida. Okay. We probably are. Which side did your 

father fight for? 

Thank you so much for the panel for being here. And this is very 

appropriate. Because last week when I was back in the district, I 

talked to our small business advisory committee and also the 

Broward County Small Business Advisory Council. And this thing 

about labor law was something that they brought up. And two 

points that I want to bring up. One was about project labor agreements and the effect that they are having as far as small businesses who want to come in as subcontractors and then also some 

issues about labor law with some of the rights of employees who 

have been terminated or for whatever reason quit and they are 

bringing lawsuits back against some of these businesses. 

So I think it is very important we talk about labor laws and the 

Department of Labor and their impacts on small businesses, who 

cannot afford to spend a lot of their time and resources with some 

of these frivolous lawsuits. 

But I think the real question here is not really about the benefit 

of unions. But the question really has to be about, is there an agenda out there that is being promoted that would seek to take away 

the choice and the option that an employer has as far as whether 

they want to have the unions to come in. And also I think it is 

about that influence being expanded. 

So what I always like to do is look at trends. And so my question 

to the members of the panel here is, have you seen trends here 

within the last year, 2 years, 3 to 5 years or whatever, of an NLRB 

and the Department of Labor that has become maybe less of a nonpartisan or a non-arbiter but is more so now promoting an agenda 

that you feel may be contrary to your advancement of your small 

businesses and maybe you can talk about some other relationships 

with other small business owners that you have talked to this 

about? 

Ms. MILITO. I will go first if that is okay. I mean, I would certainly say from the members I hear from, that they would agree 

that—that they would say that there has certainly been—they have 

seen a trend with the NLRB and DOL not being impartial. Certainly, the NLRB, the intent for over 50 years, it was seen as an 

impartial arbiter between employers and employees when it came 

to labor disputes. In the last few years, it certainly has not been 

that, or the cases that we have seen and the proposed rules and 

now the final rule for the posting rule, too, have, I would say, definitely been pro-union. 


rfrederick on DSK6VPTVN1PROD with HEARING
13 

And if you go to the National Labor Relations Act, I mean, the 

intent is to arbitrate disputes between employees and employers. 

Unions are not in there. It is the employers and the employees that 

we want to arbitrate the disputes between. Our members for the 

most part do see their employees as an extension of their family. 

And they want to maintain the direct and open communication 

with the employees. And they really feel that to be the best business they can, to stay competitive, it is best for them to have the 

direct and open communication with their employees without a 

third party present. Thank you. 

Mr. MITTLER. Yes. When you look at the poster as we have been 

instructed to post in about 6 weeks, it is 11 by 17 in size. And 

there is only one line on there that says—it has all the things that 

you can do for union representation and all that, and it only has 

one line that says, or you may elect to do nothing. So it seems if 

you look at that amount of square inches that we are going to post 

in our legal posting area, that we only have a very—one line that 

says— it still has not been determined then what communication 

we can post that says to our employees, hey, we want to continue 

like we have for almost 32 years; we want to continue that open 

dialogue; we want to treat you as family; we want to be able to resolve issues that have come up, whether they be pay, whether they 

be benefits, whether they be anything that comes up. So it appears 

that with the failure of the card check bill, that this was another 

way to then impose a stronger union workforce in small businesses. 

Ms. MCCAULEY. I am going to have to agree. Sorry to not break 

rank or anything like that. 

I find that when dealing with the NLRB, it seems like every aspect of it is all pro-union. They aren’t looking at the larger picture. 

It is all about their rights. They have the right to get all of your 

information on all of your employees. Your employees don’t have 

that right to opt out. 

Some people have posted and unlisted numbers for a reason. 

They are hiding from someone they don’t want to find them, exspouses, and for any other number of legitimate reasons. And if the 

NLRB has the right to each and every person’s contact and they 

want Internet contact as well as home phone numbers and home 

addresses, where is our privacy at? Why do we have to release that 

without consulting our employees first? 

And I think once that gets out and once you have all of your employees, it is free game for harassment. There is enough people 

that call my house on any given night asking for something anyway. I don’t need it to be that as well. 

In addition, I don’t think small businesses get a very good rap. 

The last company I was with, I was there for 20 years. I instituted, 

co-wrote—well, I solely wrote the apprenticeship standards and 

had laborers trained in bricklayer positions. No one required me to 

do that, but it was good business sense for the employees and good 

business sense for profitability. If I train people the way I want 

them trained, they are going to work to my standards. 

I don’t think the union does that any better than anybody else 

can. I think everybody takes an initiative for profitability. And I 

think when you take that right and that dignity out of an employVerDate Mar 15 2010 23:48 Jan 03, 2012 Jkt 071457 PO 00000 Frm 00017 Fmt 6633 Sfmt 6602 E:\HR\OC\A457.XXX A457

rfrederick on DSK6VPTVN1PROD with HEARING
14 

er’s hands, then you are drastically influencing unemployment. 

Thank you. 

Mr. WEST. First, I would like to say I think of my employees as 

a family, too, and most of them have been with me for 20-some 

years. 

I do not think that these NLRB rules are anything exceptional. 

What I have read, most of it is reinstating rules that have been in 

place previously. 

I also do not think that the issue of posting their name and address—that was always—has been a rule. You have always had to 

give out employees’ names and addresses. The only addition to that 

is the email and the phone number, if I am correct on that. And 

I will tell you, if you have a person’s name and address, you can 

get all the rest of it. So I don’t think that is a privacy issue. 

As far as the poster, posting workers’ rights, in my lunchroom 

right now, there is a big bulletin board, and on it we have OSHA 

posters, we have the posters from our insurance company for work 

safety, we have the unemployment rules and regulations. This is 

just another poster. So I don’t really see a big issue with that. I 

mean, posting what people’s legal rights are does not seem to be 

anything terrible to me. So that is my feeling on it. 

Mr. WEST of Florida. Thank you, Mr. Chairman, Ranking Member. 

I yield back. 

Chairman GRAVES. Ms. Vela ́zquez. 

Ms. VELA ́ ZQUEZ. Thank you, Mr. Chairman. 

Mr. West, are you concerned that recent NLRB decisions and the 

proposed rule will impede in any way your business activities if 

your employees opted to enter into a new collective bargaining 

agreement? 

Mr. WEST. I don’t really think so because I have been a signatory 

with the union for several years. And every 3 years to 5 years, we 

have a contract agreement, and we have to go through negotiations 

for that. And I would assume the process would be very similar. 

And I don’t see where it would be disruptive. 

Ms. VELA ́ ZQUEZ. A statement that we hear constantly in the Capitol and at Budget Committee hearings regarding the Federal Government agencies is that they need to do more with less and that 

we all have to do more with less given the budgetary constraints 

that we are facing. So the board’s new rules would allow elections 

to go forward and leave parties to mitigate afterwards. Don’t rules 

that streamline the agency’s processes and avoid duplicative litigation serve employers, employees and government interests? 

Mr. WEST. I would certainly think so. Anything we do in business, if we are implementing a move or buying new equipment, we 

try to do as fast as we can, keep things not—not disrupt our operation. So I would think that streamlining the process certainly 

would be an advantage, not a disadvantage. 

Ms. VELA ́ ZQUEZ. Thank you. 

Ms. Milito, the NLRB has recently issued decisions to have been 

unanimous, split on party lines and sometimes split not on party 

lines. Further, several recent cases have gone against union interests. For example, in Mezonos Maven Bakery, the board found that 

it lacks the authority to award backpay to undocumented immiVerDate Mar 15 2010 23:48 Jan 03, 2012 Jkt 071457 PO 00000 Frm 00018 Fmt 6633 Sfmt 6602 E:\HR\OC\A457.XXX A457

rfrederick on DSK6VPTVN1PROD with HEARING
15 

grant workers whose rights have been violated. Hasn’t the board 

issued decisions that go against both unions and against employers, and doesn’t this indicate the independence of the board? 

Ms. MILITO. There certainly have been decisions that have been 

in favor—they have found in favor of the employer. But I would 

point to three big decisions that came out in August because they 

were really monumental and just really trampled on employers’ 

rights. And I think they overshadow, truthfully, other decisions 

that have been issued by the board this year. In the course of one 

afternoon, the board restricted workers’ rights to the secret ballot 

election, they undermined the employer’s ability to maintain unity 

in the workplace, and they created new barriers for those who wish 

to challenge union representation. In essence, they were doing 

what some of the panelists talked about today; they were bringing 

in what is almost the Employee Free Choice Act by reversing board 

precedent. 

So I would say that these three decisions alone really overshadow any other decisions issued by the board this past year that 

may have been seen as pro employer. 

Ms. VELA ́ ZQUEZ. But the fact that they issued three decisions, 

based on the fact that they have taken other decisions that benefit 

workers and benefit employers, it shows that the board is going to 

make the decisions based on the facts and the rules and the regulations, based on the law. So that doesn’t mean that it is supporting 

one against the other. It is based on the facts that they have at 

hand. 

I would like to ask you. You state in your testimony that the 

NLRB Lamons Gasket decision overturning Dana Corporation took 

away your right to a secret ballot election. However, a small business will still have the right to file a decertification petition. Isn’t 

that the case? 

Ms. MILITO. That certainly is the case, Ranking Member 

Vela ́zquez. But they must wait 6 months now at a minimum. 

Ms. VELA ́ ZQUEZ. Well, you stated that it takes away your right 

to a secret ballot election, and that is misleading. It is not based 

on the fact. 

Ms. MILITO. I would say it is an unprecedented setback. 

Ms. VELA ́ ZQUEZ. Thank you, Mr. Chairman. 

Chairman GRAVES. Mr. Hanna. 

Mr. HANNA. Thank you, Mr. Chairman. 

Mr. West and the panel in general, I don’t think there is anyone 

here who is saying unions are bad. I don’t think there is anybody 

who would argue—I ran a union shop for almost 30 years. I have 

been a union member for 25. It is not about whether unions are 

good or bad or what they provide for employees or don’t. Certainly 

they played a huge role in the advancement of workers throughout 

our history. Everyone here knows that. 

You are already a union shop. I would suggest that most of the 

testimony that you gave today is relatively moot because you are 

not affected by any of the rules since you already are a union shop. 

This affects people who—and employees too who do not—who 

take fundamental exception to what the Geneva Convention guarantees prisoners of war to have, and that is a secret ballot, unless 

I am mistaken. It is about intimidation. It is about unions trying 


rfrederick on DSK6VPTVN1PROD with HEARING
16 

to do somehow through rules and regulations what they have not 

been as successful through Congress to do, and that is the Employee Free Choice Act. 

It is not a matter at all whether unions are good or bad. My personal opinion is they are both good and bad. I had wonderful, wonderful employees. My union employees were the best in the world. 

None of that is the point. The point is, does the NLRB have the 

right to set up rules and regulations which fundamentally change 

the nature and the negotiating capacity of the businesses at question? And I would suggest to you that that is what they are doing 

and that this is the—the preponderance of evidence is that this is 

an overreach on their part to try to reenforce people’s ability to be 

unionized, even if they don’t want to be. Because when someone 

can look over your shoulder and tell you or see how you vote or 

know how you vote in an open ballot, that can cause intimidation. 

And I for one think if people want to be unionized, they should absolutely be able to do that. And I wanted to ask just people in general if they feel that is a fair description, first of all. 

Secondly, in a world market where we are competing globally, 

the nature of products that we have to produce, like you do, Mr. 

Mittler, world class products, the value-added nature of those 

should allow people to maintain a higher standard of living, I 

would imagine. And more skilled employees can demand more 

money. But the world is changing, and these are difficult times. 

And I understand people’s deep desire to raise their wages and 

benefits, and I applaud them for that and would love to be a part 

of that. I just don’t see how something like card check advances 

union causes or how telling Boeing where they can locate a company when they haven’t laid anybody off in their own State, how 

that advances the country at large or promotes jobs. So I apologize 

for this diatribe. 

But, Ms. Milito, what do you think? 

Ms. MILITO. I mean, I do generally agree with you. I mean, I 

think the NLRB in particular—I mean, it has been a gross, gross 

overreach of power. And, in fact, I would argue that some of their 

actions of late are—go so far as to be unconstitutional. They are 

trampling on employers First Amendment—or free speech rights, 

rather, which I believe certainly the poster rule does. I mean, and 

even DOL’s rule that is now going to require the reporting of really 

any legal advice received related to labor relations is just going to 

curtail employers’ First Amendment rights of free speech, which 

are set forth explicitly in the National Labor Relations Act. And I 

think that is very problematic that employers’ rights under Section 

8(c) are going to be trampled on and diminished by these rules. 

And it is very problematic. 

Mr. MITTLER. I was raised in a very simple manner. And I was 

taught by my father that an honest day’s pay for an honest day’s 

work. And I clearly believe in the productivity of the employee. And 

my employees that are more productive receive more pay. And I 

think that is the way it should be. Those that can help produce 

more in our three simple rules, safety, quality, productivity, our 

most productive employees are going to receive the highest pay. So 

I agree with it. 


rfrederick on DSK6VPTVN1PROD with HEARING
17 

I am not saying that unions are bad. I am not suggesting that. 

I certainly think the right to a secret ballot is absolutely something 

that has made this country great for well over 200 years. And I 

don’t think there is any disagreement that we want to keep and 

maintain the secret ballot as was already stated. Each of you was 

elected with a secret ballot. And if any of us ever chose to run for 

elected office, we would want to be elected by a secret ballot. 

So I agree with you completely, Mr. Hanna. 

Mr. HANNA. I think, too, people should have the choice not to join 

a union. And that should be just as free and easy as those people 

who chose to join a union. 

Mr. MITTLER. That is exactly what I am suggesting in my testimony. 

Mr. HANNA. My time is up. 

Thank you, Mr. Chairman. 

Chairman GRAVES. Ms. Chu. 

Ms. CHU. Thank you, Mr. Chair. 

Mr. West, as a small business owner, you are being asked to 

comply with these posting requirements. In fact, I would like to 

focus on that aspect of these rules. The posting, of course, requires 

that these be available to be seen by all the workers. And I have 

noticed that these can be downloaded for free, and it is available 

from the National Labor Relations Board for free. How costly is 

this for your business to be able to post these kinds of signs? 

Mr. WEST. Well, I wouldn’t think you would have to post too 

many. You have a free download. Even if you didn’t have a big 

copier, you could go to Kinkos or FedEx, and they probably make 

them for about 2 bucks a piece. So I don’t think it is a monetary 

issue at all to post the poster. 

I guess you may not want to post the poster if you didn’t want 

everyone to know their rights, but I don’t think it is a monetary 

issue at all. 

Ms. CHU. How intrusive is it to your business to post it? 

Mr. WEST. I already post posters from the unemployment agency, 

for the State of Virginia, several other State acts. I post OSHA 

safety posters. I also post injury-reporting posters. So I already 

have a big bulletin board in my lunchroom, and it would just be 

adding another poster. So it wouldn’t be any impact at all. 

Ms. CHU. Ms. Milito, I see that you, of course, object to the poster 

with regard to the union-organizing rights, but you also object to 

the posters on minimum wage and the posters on OSHA. And I do 

have the poster on OSHA. And it has such information to the employees, like you have the right to notify your employer or OSHA 

about workplace hazards, or you have the right to request an 

OSHA inspection if you believe these are unsafe and unhealthful 

conditions in your workplace. Do you object to that? 

Ms. MILITO. I don’t think I said anywhere in my testimony that 

I objected to minimum wage or OSHA posters. I was talking about 

the complexity of complying with the laws. 

As far as the NLRB poster, our argument has been NFIB’s, and 

this is made in our lawsuit too, the NLRB does not have authority 

under the National Labor Relations Act to require employers to 

make such a posting. OSHA is given such authority. The Department of Labor wage and hour is given such authority. EEOC has 


rfrederick on DSK6VPTVN1PROD with HEARING
18 

statutory authority to require such poster. The NLRB has not been 

given such statutory authority. It is a violation of the Administrative Procedure Act. 

Ms. CHU. That is very interesting. In 1949, actually, the Department of Labor issued a rule requiring a notice posting of employee 

rights under the Fair Labor Standards Act and this authority in 

the rulemaking authority that the NLRB has granted allows for 

the posting of notices required under many Federal labor laws and 

have done so since 1949. So there actually is a precedent. 

Actually, I would like to keep on going because I actually read 

also in your testimony that you also target wage-hour posters. So 

we do have this on the record as well because I read your testimony very carefully. And it basically implied that it is burdensome 

and costly for workers to be informed by this poster. This is the 

minimum wage poster. And it says that the Federal minimum 

wage is $7.25 an hour and that youth 14 or 15 years old may not 

work more than 3 hours a day on a school day. Do you object to 

that? 

Ms. MILITO. Yes, I do. And I have my written testimony in front 

of me today, and I talk nothing about posters. I state today small 

business centers contend with anti-discrimination laws, family, 

medical and other protective leave laws, wage/hour laws, privacy 

laws, workplace safety laws and labor laws. I say nothing in that 

sentence about posters. I think you have mischaracterized my written testimony. And I apologize if you have it and it wasn’t clear. 

But I am not objecting to the posters from wage and hour or 

OSHA. 

Ms. CHU. In fact, I am curious how much you think it costs to 

make these posters for employers. 

Ms. MILITO. In our lawsuit, we are focusing on the Administrative Procedure Act violation and the potential First Amendment 

violation of the forced speech on behalf of employers. 

Ms. CHU. Well, I would like to make it clear that these posters 

are downloadable and that they are free from the NLRB. 

And I guess my main question is how will workers know about 

these rights if these posters aren’t available? 

Ms. MILITO. Well, our argument has been that the NLRA—the 

law needs to provide the NLRB with authority to post the posters. 

And right now the board does not have authority. It would be 

impendent on Congress to provide the board with authority to require such posters. And certainly that absent such posters, there 

is nothing that prohibits unions from informing other employees 

and talking amongst themselves about union rights and the rights 

to organize and engage in concerted activity. 

Ms. CHU. In other words, they wouldn’t know about their rights? 

Ms. MILITO. I wouldn’t say they wouldn’t know. 

Ms. CHU. Thank you. I yield back. 

Chairman GRAVES. Mr. Barletta. 

Mr. BARLETTA. Thank you, Mr. Chairman. 

Ms. McCauley, the NLRB has tried to downplay these proposed 

rule changes by saying that very few small entities would be impacted by them. Do you agree with that statement? 

Ms. MCCAULEY. No, sir, I do not. I think that each and every one 

of us—when you yield and you give way to one thing, it becomes 


rfrederick on DSK6VPTVN1PROD with HEARING
19 

a very slippery slope where everything can follow quickly thereafter. It is just a foot in the door to get the ball rolling. And then, 

after that, then you have to deal with the circumstances. 

Mr. BARLETTA. As you stated a little earlier, that the NLRB recently finalized a new rule that will require all employers covered 

by the National Labor Relations Act to post a notice in their workplace notifying their employees of their rights to unionize, does the 

board have the authority to require that these notices be posted? 

Ms. MCCAULEY. Not in my opinion do they. I think they have— 

just like Ms. Milito has said, they haven’t been given that authority 

to post those things. And you don’t have both sides adhered to at 

that point. You are giving one side full reign and the other side no 

ability whatsoever to react or have a compensation talk with your 

employees. Because the minute you send something or you say 

something, then it is always judged and then you have issues. I 

have spent many classes on how to make sure your employees are 

happy, make sure they are productive. And I think the union—you 

are always going to have people that work harder because it is 

their destiny to work harder. They were raised in a certain way 

that it is important and imperative to them to be a profitable person in the economy. And you have other people that are just going 

to get by. I have four boys. I cannot tell you the difference between 

each and every one of them, but I know which ones are my slackers 

and which ones are just going to do it right. So there is that same 

thing in the economy and in every step we take. And I think if we 

put everybody in a category that says, you do this job, you are 

going to earn this wage; you do this job, you are going to earn that 

wage, I think it takes out the incentive to be the better person, to 

really strive to be as good as you can be. 

Mr. BARLETTA. And could you explain for those that may not understand how this poster rule requirement could impact our country’s small businesses? 

Ms. MCCAULEY. From my personal standpoint, you are giving 

them all of the information that says you can unionize, here is all 

the people you can call if you are not happy, here is all the things 

you can do if you would like to be a union. But it never lets your 

employer say, hey, listen, let us step back and look at all the things 

I am doing for you, maybe I haven’t touted that I have been paying 

50 or 75 percent of your total health care bill all along, maybe I 

haven’t told you that the unions really—pensions aren’t really as 

strong as they would like you to believe. But your employer doesn’t 

get that same right. The NLRB would have you believe that they 

have a firm hold on it, they have the ability to tell you how it is 

going to be and if you have any recourse whatsoever, they are 

going to put their thumb to you. 

And the fact that we are exponentially increasing the time in 

which it goes to vote and that there is going to be no secret ballot, 

you are always going to have weak people in this economy and you 

are always going to have the stronger and the more pervasive. The 

stronger and the more pervasive are going to hold down the weak. 

And if you don’t have a private secret ballot—like when I elect any 

of my Congressmen, I don’t want someone standing over my shoulder and judging me for the choices I have made. That is my democratic right here in this Nation. 


rfrederick on DSK6VPTVN1PROD with HEARING
20 

Mr. BARLETTA. Thank you. 

Ms. Milito, as you know, the proposed rule changes coming out 

of the NLRB seem to be anti-employer. Why do you think this 

board is particularly activist? 

Ms. MILITO. If I could go back to your earlier question, too, I just 

want to add one thing to Ms. McCauley’s response, too, and point 

out too that the impact on small businesses are that they are now, 

as of November 14th, could in fact be in jeopardy of having an unfair labor practice filed against them. And I think it is very likely 

the board itself said that in its final rule, that we fully expect that 

many businesses will not be in compliance because they won’t 

know about the rule and, therefore, technically they have committed a ULP. So I just wanted to point that out. Why the board 

has taken this activist approach and really made the businesses 

out to be the bad guys, I do think somewhat—it is payback. Unions 

are declining. And right now the private sector is 7 percent or less 

than that. And it is a way I guess to try to up the roles, if you will. 

But I think it is unfortunate because it is coming at the expense 

of America’s largest employer, small businesses. 

Mr. BARLETTA. Thank you, Mr. Chairman. 

Chairman GRAVES. Ms. Hahn. Sorry about that. Again, welcome 

to the committee. 

Ms. HAHN. Thank you, Chairman Graves, Ranking Member 

Vela ́zquez. Thank you for welcoming me to this committee. I am 

actually very interested and really excited to be on the Small Business Committee because I think this is really becoming such a key 

focus for this Congress, and certainly it is a key focus for the American people. 

The statistics are out there. You all know them better than I do. 

Small businesses account for a huge part of our economy. They account for a huge part of hiring employees. We really believe—I 

know I do—that if small businesses, even the really small ones, 

would hire even one person, we know that we could really reduce 

the unemployment rate in this country. And we know that is the 

way to get our economy back up and running, is to get people back 

to work and to really support small businesses. And I hope what 

we do on this committee—and I know there has been some hard 

work already done—is really look at how we can support small 

businesses, how we can help them grow and help them hire. 

I will tell you, I feel it is a little frustrating to sit here—I feel 

like we are spending a lot of time on this poster. And I guess I 

would ask Ms. Milito, it sounds like you don’t necessarily object to 

people knowing their rights, do you? I mean, what is wrong with 

employees knowing what their rights are? 

Ms. MILITO. It is not a matter of knowing your rights. I mean, 

certainly there is a right to free speech. Unions have a right to talk 

with employees and engage—have employees engage in concerted 

activity. As I mentioned before, employers have an explicit right 

under the National Labor Relations Act to certainly express their 

opinion, too, about unions and factually how it will potentially impact their business. 

The poster—again, I cannot emphasize enough how far off the 

ranch the NLRB went with issuing this rule. It does not have statVerDate Mar 15 2010 23:48 Jan 03, 2012 Jkt 071457 PO 00000 Frm 00024 Fmt 6633 Sfmt 6602 E:\HR\OC\A457.XXX A457

rfrederick on DSK6VPTVN1PROD with HEARING
21 

utory authority to issue such a rule. And in my mind, that is not 

a small thing. 

The poster itself is, yes, I agree troublesome. Mr. Mittler quoted 

from it very nicely there. I do think it is biased and certainly onesided if you will. 

Ms. HAHN. But is it saying anything that is not an employee’s 

right? 

Ms. MILITO. No, it is not. But again, it is the way the board went 

about issuing a rule that it does not have authority to issue. 

Ms. HAHN. Is there anything in that poster that in any way is 

telling an employee something that is not their inherent right? 

Ms. MILITO. No. But the board issuing the rule does not have authority to do and certainly the punitive measures that will go into 

place for not posting the poster are dramatic and very, very problematic. You have the tall end of the statute of limitations for the 

6-month statute of limitations, which is indefinite, and you have an 

independent unfair labor practice. That is no small matter in my 

book. 

Again, these are businesses that do not have a human resource 

representative that is getting an alert from some human resource 

association out there. They are not going to know November 14th 

that they have to put this up in the break room with all the other 

posters up there, which, yes, the employees may or may not read. 

It is the fact that if they don’t have the poster up on November 

14th, they have now technically committed an unfair labor practice, 

and they weren’t even aware about this law. So where do the employers’ rights come into it? That is what is very problematic. 

Ms. HAHN. Well, you know, and I appreciate you saying that. 

And I think what we have heard today is a lot of what you believe 

is the employer’s right. And there are certainly many of us that 

also believe the employees have rights. Hopefully it will not be 

something that—once small businesses learn about the need to 

place this, hopefully there will not be objections to posting this 

poster. It seems to me a very small—as Mr. West said, you have 

a number of posters already that just allow employees to know 

what their rights are. 

And I think small businesses and the employers have plenty of 

time to talk to their employees about what their relationship is and 

what they can and cannot do for each other. 

And I will tell you, I spent last week in my district. I met with 

over 50 small businesses. And I had given them questionnaires, 

and I asked them to tell me, what regulations do you feel are burdensome? What can the Federal Government do or not do to help 

you? And what I heard was most of my small businesses never 

once mentioned any of these regulations that you are bringing up, 

never once mentioned why having to post a poster or not—you 

know what they told me? 

They told me if they could have more access to capital. That was 

their issue. And one of their issues was small business loans. And 

they felt like there was a small mountain of paperwork that had 

to be accomplished to get their loans and that sometimes the criteria for a small business loan was simpler or less restrictive than 

what the banks actually were requiring small businesses to prove 

before they could access capital. 


rfrederick on DSK6VPTVN1PROD with HEARING
22 

So I am going to work on figuring out how we can remove bureaucratic red tape to get more capital out to my small businesses 

because that is what they told me overwhelmingly was the issue 

with the Federal Government. 

I will tell you not one of them brought up what you are talking 

about to me today. So either those 50 businesses were not feeling 

that burden, or they just felt like the real priority they wanted 

Congress to work on was getting more access to capital. 

I yield my time back. 

Chairman GRAVES. Mr. Schilling. 

Mr. SCHILLING. Thank you, Chairman. 

What I would like to just—just kind of tell a story. A year ago— 

or actually it was last year, I went to a Labor Day parade. And as 

we were getting ready to march, there was a group of folks that 

were marching with the previous Congressman. They had T-shirts 

on that said, big and small, check them all. I thought, what does 

that mean? Well, I realized what it meant. And for me, as a small 

business owner—I have 15 years of union background, and currently, I am a small business owner. And previously using the secret ballot, I truly believe that the secret ballot is our birthright 

and that it should not be bypassed through card check or whatever 

ways or means that are already cited. 

And I guess I have a question for—I have a lot of friends in 

labor. I am not anti-union. I am pro-business, and I am pro-labor, 

but it has to be an even mesh to where we don’t put one side or 

the other out. And one of the things I wanted to ask Mr. West, with 

a small business like mine, for example, do you believe—because 

a few weeks after this Labor Day parade, the Congressman said to 

me that I should unionize my pizzeria in Moline, Illinois. 

Sir, do you believe that all businesses across the United States 

should be unionized or just some or—— 

Mr. WEST. I truly feel that there are some businesses out there 

that probably unionization would not benefit. But as far as the 

poster goes, I do believe that is a fairness issue. You are posting 

for the employees what their rights are. 

Me as an employer, I have 45 people. I know every one of them 

by name. I know their families. I have contact with them on a daily 

basis. So I can put forth my issues as a business owner to them 

at any time I want, or their supervisor can. 

I think this poster is just a fairness issue. We are putting up a 

poster and these employees can look and see the rights that they 

are entitled to. Whether they want to implement those or act on 

those, that is an entirely different issue. But I do think they should 

know their rights. 

But I also believe that there are certain businesses that have no 

need to be unionized or that unionization would not be helpful. 

Mr. SCHILLING. Right. And I don’t believe that anybody on the 

panel believes that employees should not know their rights. I just, 

I don’t see it. One of the things I think some of the folks here 

would be shocked, being a small business owner is that a lot of our 

small businesses have no idea that you can go online to pull this 

$85 poster up because that is when they mail out—they mail out 

and you get all these special deals in the mail. But you can blind 

out any business in your district and ask them, hey, do you know 


rfrederick on DSK6VPTVN1PROD with HEARING
23 

that you can get this poster for free, and I guarantee you half of 

them will tell you, no, I did not know that. As a matter of fact, I 

am one that just found out today, and I have been in business for 

15 years. So I think that it is about getting information out to people and doing it properly. 

One of the things I do have a question on this poster is now— 

because it is about getting information out to people. I think that 

is what we are looking at doing. It shows how to unionize. I haven’t 

seen the poster, per se. But it just shows what you need to do to 

become unionized. Is that what it basically is? Ms. Milito. 

Ms. MILITO. It provides information. I wouldn’t say it provides 

information on how to become unionized, but certainly it indicates 

that you have the right to join a union; you know, you have the 

right to strike. It goes on. I don’t have it all in front of me. But 

the litany of things you certainly can do, your rights under the National Labor Relations Act. 

And you are right, this is not about withholding information from 

employees. But it is about making sure that there is a balanced approached to labor law, which is the intent of the National Labors 

Relation Act, and ensuring that employers’ rights are preserved. 

I would go back to Ms. Hahn’s point there. She talked with 50 

small businesses. Did she provide them with a copy of this poster? 

It would be nice if she had because that is what I am doing a lot 

of now. I am getting this information out to my members. I am not 

a registered lobbyist at NFIB. Most of my job is to provide education and compliance assistance to our members. I am working 

the dickens right now to get this information out to my members 

to make sure they get this poster up. You need to get this up. You 

need to be in compliance. Yes, we have this lawsuit going on, and 

I do hope the court is going to strike down the law. But at the 

same time, I want to make sure that our employers know that this 

does need to be posted. 

Our members want to be in compliance with the law. And if that 

requires them to post this poster, so be it. But they want to be in 

compliance. They want to do what is required under the law. They 

don’t want to violate the National Labor Relations Act, the OSHA 

law, the wage and hour law, or any of the other laws. They just 

want to be told what to do. So it is trying to get the information 

out to both the employers and the employees. Thank you. 

Mr. SCHILLING. Very good. 

I just want to thank the panel for being here. 

And I yield back my time. 

Chairman GRAVES. Mr. Owens. 

Mr. OWENS. Thank you, Mr. Chairman. 

Mr. Mittler, in your testimony, you indicate that in 31 years, 

OSHA has come to your shop twice. 

Mr. MITTLER. That is correct. 

Mr. OWENS. When was the last time? 

Mr. MITTLER. It was sometime between 2004 and now. I don’t recall exactly when it was. But I know we moved into the present facility we have in 2004, and they visited that building once. 

Mr. OWENS. You also indicate in your testimony that—you say in 

the past, an inspector or auditor would visit our shop and work 

with us to correct any unintended violations. Today they fine you 


rfrederick on DSK6VPTVN1PROD with HEARING
24 

first and take no questions later. Were you fined on that second 

visit? 

Mr. MITTLER. Yes. On both visits, we were fined. Yes, we were. 

Mr. OWENS. How many years ago did the first one occur? 

Mr. MITTLER. I did not look up the history of that, previous to 

that, but it was a number of years prior. 

Mr. OWENS. So, basically, the procedure didn’t change then? 

Mr. MITTLER. The procedure has changed in recent years. 

Mr. OWENS. Well, if you got fined both times. 

Mr. MITTLER. From 2004 to now, the fines have increased dramatically and the ability—in both cases, if we agreed to correct the 

violations and we corrected them in a timely manner, which I believe was 90 days, and then we submitted proof of correction, which 

we did all of those things, then the fine would be half of what it 

was originally proposed. So we did not fight the violations. They 

were relatively minor. We corrected them. Some of them we corrected within 24 hours. Some of them we had to order some parts 

and pieces from the manufacturer of machines and get them in. 

And then we installed that, sent the documentation to the inspector. And he said, yes, you have met it, and we will reduce the fine 

in half. 

I am told now by fellow shop owners that there is no reduction 

of the fine. The fines are double what they were. So what was a 

$1,000 fine before is a $2,000 fine today. So there is where the 

change is. The changes happened in 2004 until now. 

Mr. OWENS. And that is based upon what you have been told as 

opposed to your experience? 

Mr. MITTLER. That is correct. However, I have many—as the 

chairman of MTMA, I have many friends and associates in the 

business who have related these stories to me in a factual manner. 

But—— 

Mr. OWENS. I can tell you that having represented many small 

businesses before I came to Congress, as a regular course of my 

practice, I was successful in getting reductions in fines. And I am 

having a little bit of difficulty believing that that is a consistent 

trend that exists throughout the United States. 

I am just curious also, there seems to be a general objection, if 

you will, to OSHA regulations. Is that true or not true? 

Mr. MITTLER. I think some OSHA regulations are far overreaching for us as small business because we don’t have sufficient 

staff and all that to really be able to help us interpret the law and 

know what all the laws are. I think knowledge of the law is a difficult thing. If I was not active in our trade association, I would not 

be knowledgeable that I would have to post this poster. I don’t 

know that it has been published in the paper or in any other place 

that I have to do it. So I think knowledge and some of the laws 

and rules are overbearing. 

Mr. OWENS. Now, you say some. How do you distinguish between 

the gradations? And which rules would you strike down? Which 

rules would you keep? Which do you see as reasonable? 

Mr. MITTLER. I don’t have any case in point there that I can 

speak to. I just mean in general what impacts a company the size 

of Boeing and what impacts a company of our size with 60 employees, you would certainly think would have to be different. I have 


rfrederick on DSK6VPTVN1PROD with HEARING
25 

60 employees in my facility. They have thousands of employees. So 

naturally more protection is needed there just in general. I cannot 

cite any specific case. 

Mr. OWENS. Do you think Boeing would agree with that? 

Mr. MITTLER. I think for the most part they would be concerned 

about the safety of their employees. I think they are, yes. I think 

they are very concerned about the safety of their employees. 

Mr. OWENS. No. I am not suggesting they are not concerned 

about it. I just meant that you feel that they should be more regulated than you. That is where—— 

Mr. MITTLER. They probably don’t agree. You are right. 

Mr. OWENS. They probably wouldn’t agree with that. I didn’t 

think so. 

Ms. Milito, you made a statement in the course of a response to 

Congresswoman Hahn’s question that your business, your members 

do not have HR directors, as they are too small to have that level 

of service. Is that true for every business that is a member of your 

organization? 

Ms. MILITO. Certainly not all of—no, certainly not all of our 

members. The vast majority do not have a human resources director. 

Mr. OWENS. What is the general size of the businesses that are 

in your—— 

Ms. MILITO. Ten employees or less. 

Mr. OWENS. Ten employees or less. But there are some that have 

HR directors? 

Ms. MILITO. Some of the larger ones, yes. 

Mr. OWENS. And do some of them also participate—do you know 

in groups—what I would call buying groups where they purchase 

HR services out of a buying group? 

Ms. MILITO. I don’t know the answer to that. 

Mr. OWENS. Is that a service that you offer? 

Ms. MILITO. We do not offer that service. 

Mr. OWENS. Do you provide general information to your memberships, for instance, about the issue regarding the poster? 

Ms. MILITO. Yes, we certainly do provide—we try to provide some 

educational and compliance assistance to our members on general 

employment law matters. 

Mr. OWENS. Now, would you provide them with a copy of this 

poster and the information relating to its implementation? 

Ms. MILITO. We have the information available on our Web site, 

and it most definitely includes the link to download the poster. And 

we certainly indicate on there that it is free. We have made all that 

information available to our members. 

Mr. OWENS. And do you send out a general, if you will, blast 

email with regard to this type of activity, not just related to this 

poster? 

Ms. MILITO. We do try to alert our members to new rules and 

regulations certainly. And this has been sent out in our e-newsletter to our members. 

Mr. OWENS. Thank you. 

I have no further questions, and I yield back. 

Chairman GRAVES. Mr. Mulvaney. 

Mr. MULVANEY. Thank you, Mr. Chairman. 


rfrederick on DSK6VPTVN1PROD with HEARING
26 

And for those folks who are here wondering why we are talking 

so much about the poster—I have run a couple of small businesses, 

and I can tell you that, quite legitimately, small business people 

fear these things. We do. I did, because quite simply I was always 

afraid that I didn’t have the right ones on the wall, or I didn’t have 

the one that was up to date or that I was—to this point before us— 

missing one, that somehow the government had come out and required me to put up a new poster and forgot to tell me or I didn’t 

find out, I didn’t join NFIB to find out whether or not I needed 

posters or not. I was too busy running my business to try to follow 

the regulatory actions of the Federal Government. 

And of course, if you don’t have the right ones, you are in a lot 

of trouble. You could be fined. You could be penalized. You could 

be in a lot of trouble. In several states, I think it is negligence per 

se not to have these things up on the wall. So it is a serious issue 

to small businesses. 

And for that reason, I will continue on this topic that some folks 

might find to be trivial. 

Mr. West, you mentioned before that you think employees should 

have the right—that they should have the right to know what their 

rights are, right? I think that was your testimony. 

Mr. WEST. That is correct. 

Mr. MULVANEY. You liked the poster. You had no difficulty with 

it. It is free. How did you find out it was free by the way? I always 

paid for these things. How did you find out it was free? 

Mr. WEST. It was posted through the Sheet Metal Workers International when we—in one of their little blurbs that this was a poster required, and it was a free download. 

Mr. MULVANEY. Did you pay for the other ones by the way? 

Mr. WEST. No. Yes, I did. The OSHA ones you do pay for. 

Mr. MULVANEY. And the minimum wage ones you do pay for? 

Mr. WEST. Yes, you do pay for those. 

Mr. MULVANEY. They have also got the right to quit their union. 

That is mentioned in very small print in the document. Do you 

think it would be a good idea to talk more about that on the poster? 

Mr. WEST. Well—— 

Mr. MULVANEY. It is their right, isn’t it? I mean, we go into a 

long list of how you join a union. Don’t you think there should be 

some balance there and show how you get out of your union if you 

don’t like it? 

Mr. WEST. Well, I think that is taken care of at the union level. 

They go through their procedures. So it is pretty easy to get out 

of a union. You just stop paying your dues. 

Mr. MULVANEY. Yeah. But the whole idea behind this is to let 

employees know what their rights are as employees. They have a 

right to join a union. And if you want to join a union, here it is, 

this is how you do it. So why not have the same thing on there 

about how to get out of a union? 

Mr. WEST. I would think if you were that concerned that about 

it as an employer, you would put your own piece of literature together and state your facts and put it up beside it. 

Mr. MULVANEY. What if you were concerned about it as an employee? What if you were an employee who just didn’t want to be 


rfrederick on DSK6VPTVN1PROD with HEARING
27 

in the union? Where would you go? Where else would you go to find 

out how to get out of your union? 

Mr. WEST. I would assume that once you start the negotiations, 

you vote not to join the union. 

Mr. MULVANEY. Wouldn’t this poster be a great place to put it 

there? It is there in your lunchroom with—— 

Mr. WEST. I wouldn’t have a problem with it. I didn’t design the 

poster. But I do think the employers have the upper hand as far 

as the negotiations. 

Mr. MULVANEY. These employees have got other rights, too. They 

have rights to free speech. They have rights to—Second Amendment rights. Can we put those on the poster, too? 

Mr. WEST. No, sir. 

Mr. MULVANEY. And why not? 

Mr. WEST. We should already know about those. We have a Constitution. 

Mr. MULVANEY. Exactly. So why is it that we have this document 

that shows them rights that they should probably know anyway? 

Mr. WEST. My feeling of this whole issue is it is just a poster. 

And if the idea of this is that the NLRB has been so successful and 

is so biased toward unionization and organized labor, how come for 

the last three decades, all we have done is lost membership? 

Mr. MULVANEY. Because this poster hasn’t been around for the 

last three decades. 

Mr. WEST. I don’t think the poster is going to make a whole lot 

of difference. I think we are wasting a whole lot of time on it. 

Mr. MULVANEY. Now, there are other things that are listed here. 

It says, under the NLRA, there is a long list of things that it is 

illegal for your employer to do, which I guess is fine. Don’t you 

think maybe then, in order to have some balance, we should have 

a list of things that it is illegal for the employee to do? It is illegal 

for you to do drugs. It is illegal for you to harass other people. Or 

do you think they should know that anyway? 

Mr. WEST. I have a poster similar to that. Out of the Sheet Metal 

Contractors Association—— 

Mr. MULVANEY. Is that required to be put up by the NLRB? 

Mr. WEST. It is not. 

Mr. MULVANEY. Do you get fined if you don’t put that poster up? 

Mr. WEST. No, sir, I do not. 

Mr. MULVANEY. Do you think the NLRB should be balanced between employer and employee, or do you think the NLRB exists to 

defend the rights of the employee against the employer? 

Mr. WEST. I am certainly not an expert on what the NLRB does, 

but I would assume that it is there to generate fair and equitable 

labor practices. And if they are doing that, then I am assuming 

they are doing what they were designed to do. 

Mr. MULVANEY. If you are an employee and you are dissatisfied 

with the way you have been treated, if you think your rights have 

been violated, you get free legal representation from the NLRB. Do 

you think if you are an employee—excuse me, an employer who has 

been wronged by the employee or even by the union, that you 

should get free legal representation from the NLRB? 

Mr. WEST. I don’t think you would. 


rfrederick on DSK6VPTVN1PROD with HEARING
28 

Mr. MULVANEY. You don’t under the law. I am just wondering if 

you think that you should. You are an employer. If you thought 

that your unions had wronged you, that they had struck illegally, 

do you think that the NLRB should represent you, give you free 

legal representation in that claim against your union or against 

your employees? 

Mr. WEST. I don’t think they give free legal—— 

Mr. MULVANEY. I can assure you they don’t. 

Mr. WEST. They don’t give free legal advice to the unions either. 

The unions hire their own legal attorneys. So, as a signatory, if you 

are wrong, you should hire your own attorney. Employees are a little different level I would think. Maybe an employee doesn’t have 

the financial wherewithal to hire an attorney. So I could not have 

a problem with them giving an attorney to an employee. 

Mr. MULVANEY. All right. And finally, do you think I should have 

to join—don’t get me wrong. I love the NFIB. I love small business 

associations. Do you think I should have to join the NFIB in order 

to know what my legal obligations are as an employer? 

Mr. WEST. I do not. 

Mr. MULVANEY. Are you a member of the NFIB? 

Mr. WEST. I am not. 

Mr. MULVANEY. Thank you, Mr. West. I appreciate it. 

I yield back the balance of my time. 

Chairman GRAVES. Ms. Clarke. 

Ms. CLARKE. Thank you very much, Mr. Chairman. 

I would like to thank our ranking member in absentia. 

I would like to thank our panel for their testimony today. 

And I got here at a point where there was a lot of discussion 

about this poster, and I wanted to direct my comments to Mr. 

West. There has been much talk today about the detrimental effects of unions on small businesses. I am going to assume that you 

weren’t awarded contracts with Lockheed or Howard Hughes Medical Institute while being plagued with workers content with having a job that pays a living wage and provides health care, who are 

giving you the bare minimum with regards to craftsmanship, effort 

and professional pride. However, could you tell us what would happen to your business if this were to be the case? 

Mr. WEST. Well, basically I have built my reputation here in this 

town as a contractor. We do the very difficult and the specialtytype jobs. So maybe I am a little unique. But I have some very special workers that are highly skilled, and I get called for some very 

high-profile projects. So I would be out of business if I were to lose 

that highly skilled workforce. 

Now, we do compete every day on some of the lesser-skilled jobs 

and—against contractors that are open shop, that do not provide 

health care, pension plans for their workers. So we are at a little 

disadvantage when we compete against those folks. But there have 

been several occasions where we do get hired after a project has 

been done to come in and clean it up and bring it up to standard. 

Ms. CLARKE. Very well. Thank you, Mr. West. 

My question to the rest of the witnesses is this: We have a small 

business on the panel who has survived these trying economic 

times and is still operational with high-profile clients and who successfully exists within the same small business environment that 


rfrederick on DSK6VPTVN1PROD with HEARING
29 

you all operate in who insists that these new rules will not affect 

him adversely. If it is simply a situation where you do not want 

unions in your businesses, I can at least understand that. However, 

I am going to need to have a couple more dots connected for me 

to understand how this adversely affects small business. And if 

time allows, would you just sort of give me a sense of what Mr. 

West is doing that perhaps you could not use as a part of your 

business practice? 

Mr. MITTLER. Well, I think that it would be a detriment. I would 

prefer not to have a union in my company. We haven’t had one for 

32 years, and we have, like Mr. West’s company, been very successful over the years. During the downturn, it was very difficult. It 

was very difficult. My brother and I took personal wage cuts to 

keep our highly skilled employees employed. We didn’t send them 

back. We don’t have a union hall. So we have to maintain our employees in good times and in bad. 

Yes, did we have some reduction in force? Absolutely we did. But 

we did everything we could to keep our highly skilled employees 

because we have a vested interest in them; they have a vested interest in our company. So I am not suggesting that unions are a 

bad thing. I just think for our company, it is not the preferred way 

to do business. 

And I am certainly not against my employees knowing what 

their rights are, exercising their rights in any way, shape or form. 

What I want to be able to do is keep that open communication with 

my employees. I want to be able to hire the employees that I see 

fit. I want to be able to man the jobs in my plant as I see fit with 

the employees that I need in the different skill levels. 

The other thing that is important for our company, since we do 

a lot of different types of work—we have precision machinists, 

welders, electricians, general assembly people. During those tough 

times, we moved people, we cross trained our people, and we moved 

them into different jobs as the ebb and flow of the work changed. 

And so typically we see in union shops, you are classified as a machinist; therefore, their attitude is, I won’t do other type of work, 

I won’t do assembly, I won’t do machine maintenance, I am classified as a machinist. So we need that flexibility in our business to 

be able to keep our people employed—— 

Ms. CLARKE. And that is your particular business model, Mr. 

Mittler? 

Mr. MITTLER. Yes, it is. 

Ms. CLARKE. You, of course, compensate your workforce accordingly? 

Mr. MITTLER. Absolutely. My highest skilled people have the 

highest compensation. Absolutely they do. 

Ms. CLARKE. Fabulous. I am going to wrap up. 

Ms. McCauley, did you want to add anything? 

Ms. MCCAULEY. The only thing that I would add is that I find 

it is imperative, just like Mr. Mittler said, that you have employees 

that you can cross train. That is where we make profitability in a 

small business. I might have an employee that can lay brick, but 

I also might—that same employee might be able to pour some concrete. He might be able to throw rebar in the wall. He might also 

be able to strike that wall, too. If I were a union shop, my brick 


rfrederick on DSK6VPTVN1PROD with HEARING
30 

layer wouldn’t be able to strike the wall. He would be able to lay 

it in place. He couldn’t lay the block. He couldn’t pour the concrete. 

And he couldn’t pour the rebar. So I would have to have five different employees to do that same function of the one employee. It 

is imperative that we have the ability to cross train our employees. 

When you have a limited staff, 4 to 10 employees—and a lot of us— 

just like Ms. Milito said, a lot of her clients are 10 or less. A lot 

of mine are the same. But I have cross trained enough of my employees that one guy can do the same job as five union workers. 

And I wouldn’t have that same ability in a small business. 

Ms. CLARKE. I am sure that helps with our unemployment. 

Mr. West, don’t you have a similar—— 

Mr. WEST. Well, I just think that is a little misconception there 

about how they departmentalize union work. I run a production 

shop. We do field installation. We do welding. We do testing and 

balancing. Every aspect of my job, the same person can do that. 

They are trained in the aspects of the trade and the industry, not 

one specific job. 

So I don’t think that—I think that is a misconception, that if you 

have a union brick layer—if you are going to run a small shop, he 

is not going to lay block, he is not going to mix the mortar, he is 

not going to put the rebar in. That will not happen in a small shop. 

They are partnered with the business. It is in their interest to keep 

their job, just like it is in an open shop. 

Ms. CLARKE. Thank you. 

And I appreciate all of your responses. I am over time. 

Thank you, Mr. Chairman. 

Chairman GRAVES. Mr. Chabot. 

Mr. CHABOT. Thank you, Mr. Chairman. 

Ms. McCauley, you were talking before about the various kinds 

of employees there are. You mentioned that there are some slackers; there are some nonslackers. You mentioned you have four 

boys, and some are slackers, and some aren’t. I am just wondering, 

which of your boys are slackers? 

Ms. MCCAULEY. The 3-year-old. He can’t pull his own weight yet. 

We will get there. 

Mr. CHABOT. Sounds good. Now my serious question. 

It seems what you are talking about here is kind of a basic fairness. They are requiring certain things to be done for which there 

could be significant penalties, if you don’t put the proper poster up 

in the right place, the right size at the right time, et cetera. And 

it seems like most of the burdens tend to be on the employer. I 

would ask any of the panel members if you could maybe go into 

that in a little more detail about what kind of burdens are there 

on the one side but not on the other side. Where is it unfair? We 

can start with you. But anybody who wants to take it on is fine. 

Ms. MCCAULEY. The last company I worked for, I worked there 

20 years. We had 300 employees. I was an HR director for that 

company. There is not a site you can go to that gives you all of the 

government postings. There is not a site that says, okay, if you are 

a small business, you need to post this, this, this and this. There 

are no blast emails, for a better word, that go out and say, hey, I 

realize you are a small business, I realize you are registered in 

your district or you have your Class A license or whatever, you 


rfrederick on DSK6VPTVN1PROD with HEARING
31 

need to be aware of the sweeping changes that are right before you. 

There is nothing like that that goes out. Even as an HR director, 

even though I have my license and all that, there is nothing that 

goes out to let you know. 

If there was a Web site that everyone was aware of that listed 

new postings that you needed to have up, hey, this one expired, we 

have got a new minimum wage, we have got some new OSHA law, 

we have got—I think a lot of people would be very happy to post 

those because they would be aware of those. I think the biggest 

fear of small businesses is unaccounted for expenses, unaccounted 

for expenses that don’t lead to any profitable measure that are just 

fines and penalties. I think it would be very helpful and it would 

lead to more cohesiveness if everyone had the ability to look to the 

same place, to know what the laws and regulations were. 

Mr. CHABOT. Thank you. 

Anybody else have any comment? 

Mr. WEST. Yes, sir. I would just like to say I agree that there 

should be a Web site where all that information is made available. 

But I am also a little confused here as, who enforces this poster 

law? Who comes to your business to find out whether you put the 

poster up or not? I am a little confused on that. 

Mr. CHABOT. Mr. Mittler. 

Mr. MITTLER. I certainly don’t know the legal answer to that, 

and we discussed that today, where is the hammer for any of us. 

And I think where it would come from would be a disgruntled employee or employees that would say, hey, that union poster isn’t up 

there, and then they would possibly go to the NLRB or something 

like that. Ms. Milito, obviously, is better prepared. 

Ms. MILITO. Yeah, that is exactly how—you have got it right, exactly. Yeah, it would be an employee, probably a disgruntled employee who would learn about the poster and then file an unfair 

labor practice charge with the NLRB. That is how it would start. 

Mr. CHABOT. That is what I wanted to follow up with at this 

point because I have only got a little over a minute of time left. 

If you don’t post the signs—and I know you had mentioned that 

many, many small businesses obviously don’t have an HR department. They are just too small, and some do, but lots of small businesses don’t. So for somebody like that who didn’t even know about 

this and didn’t have it posted and an employee or somebody comes 

up and files an unfair practice against them or whatever they do, 

what are the potential penalties for that? And what are the potential ramifications to that business if they do have to deal with one 

of these matters? 

Ms. MILITO. Well, certainly as an initial matter, the board would 

demand that the employer post the poster, too, but it would also 

open the employer up to additional scrutiny, too, and the potential 

for other unfair labor practice charges, if there were other things 

going on in the business that would—the employee could argue 

were infringing on their right to concerted activity. The employee 

could then file other complaints, too. So it could open up a whole 

can of worms. And I think upon receipt of a ULP, it is very likely 

the small business owner would quickly call an attorney. So you 

are looking at potential legal expenses, too, in defending the claim. 

Mr. CHABOT. Thank you. 


rfrederick on DSK6VPTVN1PROD with HEARING
32 

And in the last 10 seconds I have got on me, I just commend the 

chair on holding this hearing because these tough economic times, 

when 70 percent of the jobs created are created by small businesses, we need to find ways to relieve some of these burdensome 

regulations and requirements. 

My compliments to Mr. Chairman. 

Chairman GRAVES. Mr. Keating. 

Mr. KEATING. Thank you, Mr. Chairman. 

I would like to thank all of the witnesses for being here today. 

As we sit here and we are attacking the National Labor Relations Board rules, we are missing one more time that we can really 

deal with some of the critical opportunities that are actually creating jobs, that can create jobs and create small business opportunities. 

Just last week, the House passed H.R. 2587, which inevitably 

will result in making it more difficult for workers to have a means 

to protect themselves from illegal—illegal—practices in the workplace. 

Now, as someone that considers themselves a strong outspoken 

proponent of small businesses, it is worth I think remembering 

that unions weren’t formed to be obstructionist, and the facts I 

think prove that any fear along these lines is unfounded. 

According to the Bureau of Labor Statistics, only 7.2 percent of 

private sector employees identified themselves as members of a 

union in 2009. That compares with 9 percent in 2000 and really 

healthy digits, double digits back 40 or 50 years ago, so as we sit 

here today and we are talking about things that as a committee 

will create new jobs, I think we should keep in mind that most 

small business owners in the United States today won’t even have 

to interact with a union. 

But while I am on the subject, I just want to state, too, that the 

NLRB rules are commonsense proposals, and they are designed to 

ensure fair process for the workers by cleaning up and modernizing 

a system paralyzed by delays, bureaucracy, wasteful litigation. And 

the proposed changes aim to provide greater stability, greater certainty, and a leveller playing field. 

I think we have seen countless examples where high cost litigation and intimidation have been used to stop workers from effectively organizing, but I think we can all agree that our country was 

built on democratic principles. And so what is against democratic 

processes being used to utilize, resolving issues in the workplace? 

Now, I spent last week, a great period of the week, talking to 

owners of more than one dozen small businesses about a myriad 

of issues, and not once in the course of those discussions did this 

issue come up. Maybe it is just—maybe it is my district. Maybe it 

is the people, but not once did this come up. A lot of other issues 

came up, issues that they said were the important issues that they 

faced, issues like loan guarantees, tax credits, grants. SBIR funding, for instance, came up. Now, how would you rate these? 

And I think it is really a question of perspective, and I think that 

is what I am trying to gain by this, by my question. With all the 

things you have as issues, does this rate? I don’t understand how 

it rates so high to draw this kind of attention. Aren’t there other 

important issues, and if you want to take the opportunity, can you 


rfrederick on DSK6VPTVN1PROD with HEARING
33 

tell me what those other important issues that we can be doing in 

Congress to help might be? I will throw it open to anyone. 

Ms. MCCAULEY. I will start. Like I said before, I do believe it is 

a slippery slope. I think, like I said before, not very many of the 

small businesses that I spoke with had any clue that there had 

been a change. I know a whole bunch of people, landscapers, all 

kinds of different people in my area, and I asked the question, do 

you know this is going on? Do you know you need to post that? I 

have never even heard of it. Why haven’t you heard about it? It is 

the first time I have heard about it. 

So I think it is hard for people to have an issue with it if they 

don’t know it exists, and I think—I agree that funding is very important. I don’t discredit that it is very important to be able to find 

loans and help to garner the ability to just increase the workforce 

we have and grant more people jobs. I think until we can get the 

ball rolling and get more people employed, we are just really just 

scrambling. That is what it is going to take to get us out of our 

deficit, just like anything else. The more people that work, the 

more taxes are paid, the better we all are. 

So if it is small businesses that are really garnering the most 

new jobs, then I think we really need to take out a lot of the bureaucracy, and I think a lot of it stems from unfair fines and penalties for things you don’t even know about. I realize, I am not 

dumb, that ignorance of the law is not a defense, but it also 

shouldn’t be the reason things get through. It also shouldn’t be the 

substance behind how we raise capital. 

Mr. KEATING. Anyone else want to jump in? 

Ranking what is really important right now to get new jobs and 

to help our economy go forward, do you really think this ranks 

right up there? Not one person—if those people were—and I went 

through a lot of people in a lot of sectors, not just last week but 

the weeks before. I make a point every time we have a week off 

to go visit business, and I have been across the board, manufacturers, large business, medium business, a lot of small businesses; not 

once did this come up. I am just curious. 

Mr. MITTLER. Pardon me. I am certainly not suggesting that it 

is the top issue in small business today. It is an issue, and I think, 

as Ms. McCauley said earlier, the slippery slope is what we are 

concerned about. What we give away today, what is taken away by 

rule that, as Ms. Milito said, in her opinion, it is not even legal for 

them to impose this on us, what is taken away today, then what 

will be taken away tomorrow, next week, next year, and so on and 

so forth. Certainly the unknowns of the future is a big concern. 

I am fortunate that our business is growing. We have hired people this year. And certainly what the tax rate will be and the impact of the deficit is a huge issue and burden for us, and certainly 

given the opportunity to come back and speak to this committee or 

any other committee on that, I think you would hear a lot of other 

testimony. 

Mr. KEATING. Well, thank you, Mr. Chairman. 

My time is up, and I do thank Ms. McCauley, because you hit 

it right on the head, though: The best way to deal with the deficit 

is to get some more jobs going. Thank you. 


rfrederick on DSK6VPTVN1PROD with HEARING
34 

Ms. MCCAULEY. Absolutely true, but I thank you for taking the 

time to go to your district and really listen to your constituents because unless that happens, we go nowhere. 

Chairman GRAVES. I want to thank all of our witnesses for being 

here, and I personally think I want to, I definitely want to agree 

with Mr. Mulvaney. I think this is heavily weighted toward demonstrating the rights to be able to unionize, but it doesn’t do a very 

good job of putting the rights out there for the employees, the other 

rights that are available to them when it comes to being able to 

get out of the union. 

I also want to agree with Mr. Keating, too. I think being able to 

solve some of our relations between employers and employees 

should be a democratic process, and one of the very basic principles 

of a democratic process is secret ballot. And being able to determine whether or not you want to unionize or not unionize by secret 

ballot is a very important basic principle to that. 

So, with that, I would ask unanimous consent that all members 

have 5 legislative days to submit statements. 

Seeing no objections, so ordered. 

With that, this hearing is adjourned, and I thank you all for 

being here. 

[Whereupon, at 2:46 p.m., the committee was adjourned.] 


rfrederick on DSK6VPTVN1PROD with HEARING
35 


rfrederick on DSK6VPTVN1PROD with HEARINGInsert offset folio 81 here 71457A.001
36 


rfrederick on DSK6VPTVN1PROD with HEARINGInsert offset folio 82 here 71457A.002
37 


rfrederick on DSK6VPTVN1PROD with HEARINGInsert offset folio 83 here 71457A.003
38 


rfrederick on DSK6VPTVN1PROD with HEARINGInsert offset folio 84 here 71457A.004
39 


rfrederick on DSK6VPTVN1PROD with HEARINGInsert offset folio 85 here 71457A.005
40 


rfrederick on DSK6VPTVN1PROD with HEARINGInsert offset folio 86 here 71457A.006
41 


rfrederick on DSK6VPTVN1PROD with HEARINGInsert offset folio 87 here 71457A.007
42 


rfrederick on DSK6VPTVN1PROD with HEARINGInsert offset folio 88 here 71457A.008
43 


rfrederick on DSK6VPTVN1PROD with HEARINGInsert offset folio 89 here 71457A.009
44 


rfrederick on DSK6VPTVN1PROD with HEARINGInsert offset folio 90 here 71457A.010
45 


rfrederick on DSK6VPTVN1PROD with HEARINGInsert offset folio 91 here 71457A.011
46 


rfrederick on DSK6VPTVN1PROD with HEARINGInsert offset folio 92 here 71457A.012
47 


rfrederick on DSK6VPTVN1PROD with HEARINGInsert offset folio 93 here 71457A.013
48 


rfrederick on DSK6VPTVN1PROD with HEARINGInsert offset folio 94 here 71457A.014
49 


rfrederick on DSK6VPTVN1PROD with HEARINGInsert offset folio 95 here 71457A.015
50 


rfrederick on DSK6VPTVN1PROD with HEARINGInsert offset folio 96 here 71457A.016
51 


rfrederick on DSK6VPTVN1PROD with HEARINGInsert offset folio 97 here 71457A.017
52 


rfrederick on DSK6VPTVN1PROD with HEARINGInsert offset folio 98 here 71457A.018
53 


rfrederick on DSK6VPTVN1PROD with HEARINGInsert offset folio 99 here 71457A.019
54 


rfrederick on DSK6VPTVN1PROD with HEARINGInsert offset folio 100 here 71457A.020
55 


rfrederick on DSK6VPTVN1PROD with HEARINGInsert offset folio 101 here 71457A.021
56 


rfrederick on DSK6VPTVN1PROD with HEARINGInsert offset folio 102 here 71457A.022
57 


rfrederick on DSK6VPTVN1PROD with HEARINGInsert offset folio 103 here 71457A.023
58 


rfrederick on DSK6VPTVN1PROD with HEARINGInsert offset folio 104 here 71457A.024
59 


rfrederick on DSK6VPTVN1PROD with HEARINGInsert offset folio 105 here 71457A.025
60 


rfrederick on DSK6VPTVN1PROD with HEARINGInsert offset folio 106 here 71457A.026
61 


rfrederick on DSK6VPTVN1PROD with HEARINGInsert offset folio 107 here 71457A.027
62 


rfrederick on DSK6VPTVN1PROD with HEARINGInsert offset folio 108 here 71457A.028
63 


rfrederick on DSK6VPTVN1PROD with HEARINGInsert offset folio 109 here 71457A.029
64 


rfrederick on DSK6VPTVN1PROD with HEARINGInsert offset folio 110 here 71457A.030
65 


rfrederick on DSK6VPTVN1PROD with HEARINGInsert offset folio 111 here 71457A.031
66 


rfrederick on DSK6VPTVN1PROD with HEARINGInsert offset folio 112 here 71457A.032
67 


rfrederick on DSK6VPTVN1PROD with HEARINGInsert offset folio 113 here 71457A.033
68 


rfrederick on DSK6VPTVN1PROD with HEARINGInsert offset folio 114 here 71457A.034
69 


rfrederick on DSK6VPTVN1PROD with HEARINGInsert offset folio 115 here 71457A.035
70 


rfrederick on DSK6VPTVN1PROD with HEARINGInsert offset folio 116 here 71457A.036
71 


rfrederick on DSK6VPTVN1PROD with HEARINGInsert offset folio 117 here 71457A.037
72 


rfrederick on DSK6VPTVN1PROD with HEARINGInsert offset folio 118 here 71457A.038
73 


rfrederick on DSK6VPTVN1PROD with HEARINGInsert offset folio 119 here 71457A.039
74 


rfrederick on DSK6VPTVN1PROD with HEARINGInsert offset folio 120 here 71457A.040
75 


rfrederick on DSK6VPTVN1PROD with HEARINGInsert offset folio 121 here 71457A.041