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THE FUTURE OF UNION ORGANIZING 

HEARING 

BEFORE THE

SUBCOMMITTEE ON HEALTH, 

EMPLOYMENT, LABOR, AND PENSIONS 

COMMITTEE ON EDUCATION 

AND THE WORKFORCE 

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

HEARING HELD IN WASHINGTON, DC SEPTEMBER 19, 2013 

Serial No. 113–33 

Printed for the use of the Committee on Education and the Workforce 

( 

Available via the World Wide Web: 

www.gpo.gov/fdsys/browse/committee.action?chamber=house&committee=education 

or 

Committee address: http://edworkforce.house.gov 

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COMMITTEE ON EDUCATION AND THE WORKFORCE 

JOHN KLINE, Minnesota, Chairman 

Thomas E. Petri, Wisconsin 

Howard P. ‘‘Buck’’ McKeon, California 

Joe Wilson, South Carolina 

Virginia Foxx, North Carolina 

Tom Price, Georgia 

Kenny Marchant, Texas 

Duncan Hunter, California 

David P. Roe, Tennessee 

Glenn Thompson, Pennsylvania 

Tim Walberg, Michigan 

Matt Salmon, Arizona 

Brett Guthrie, Kentucky 

Scott DesJarlais, Tennessee 

Todd Rokita, Indiana 

Larry Bucshon, Indiana 

Trey Gowdy, South Carolina 

Lou Barletta, Pennsylvania 

Martha Roby, Alabama 

Joseph J. Heck, Nevada 

Susan W. Brooks, Indiana 

Richard Hudson, North Carolina 

Luke Messer, Indiana 

George Miller, California, 

Senior Democratic Member 

Robert E. Andrews, New Jersey 

Robert C. ‘‘Bobby’’ Scott, Virginia 

Rube ́n Hinojosa, Texas 

Carolyn McCarthy, New York 

John F. Tierney, Massachusetts 

Rush Holt, New Jersey 

Susan A. Davis, California 

Rau ́l M. Grijalva, Arizona 

Timothy H. Bishop, New York 

David Loebsack, Iowa 

Joe Courtney, Connecticut 

Marcia L. Fudge, Ohio 

Jared Polis, Colorado 

Gregorio Kilili Camacho Sablan, 

Northern Mariana Islands 

John A. Yarmuth, Kentucky 

Frederica S. Wilson, Florida 

Suzanne Bonamici, Oregon 

Juliane Sullivan, Staff Director 

Jody Calemine, Minority Staff Director 

SUBCOMMITTEE ON HEALTH, EMPLOYMENT, LABOR, AND PENSIONS 

DAVID P. ROE, Tennessee, Chairman 

Joe Wilson, South Carolina 

Tom Price, Georgia 

Kenny Marchant, Texas 

Matt Salmon, Arizona 

Brett Guthrie, Kentucky 

Scott DesJarlais, Tennessee 

Larry Bucshon, Indiana 

Trey Gowdy, South Carolina 

Lou Barletta, Pennsylvania 

Martha Roby, Alabama 

Joseph J. Heck, Nevada 

Susan W. Brooks, Indiana 

Luke Messer, Indiana 

Robert E. Andrews, New Jersey, 

Ranking Member 

Rush Holt, New Jersey 

David Loebsack, Iowa 

Robert C. ‘‘Bobby’’ Scott, Virginia 

Rube ́n Hinojosa, Texas 

John F. Tierney, Massachusetts 

Rau ́l M. Grijalva, Arizona 

Joe Courtney, Connecticut 

Jared Polis, Colorado 

John A. Yarmuth, Kentucky 

Frederica S. Wilson, Florida 

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C O N T E N T S 

Page 

Hearing held on September 19, 2013 ..................................................................... 1 

Statement of Members: 

Roe, Hon. Phil, Chairman, Subcommittee on Health, Employment, Labor, 

and Pensions ................................................................................................. 1 

Prepared statement of ............................................................................... 3 

Statement of Witnesses: 

Adams, Clarence, Field Technician, Cablevision ........................................... 38 

Prepared statement of ............................................................................... 40 

Burton, David R., General Counsel, National Small Business Association . 19 

Prepared statement of ............................................................................... 21 

Meisburg, Ron, Member Of The Firm, Proskauer ......................................... 5 

Prepared statement of ............................................................................... 8 

Marculewicz, Stefan J., Shareholder, Littler Memdelson ............................. 41 

Prepared statement of ............................................................................... 43 

APPENDIX

Roe, Hon. Phil, Chairman, Subcommittee on Health, Employment, Labor, 

and Pensions: 

Letter, dated September 18, 2013 from Vice President Angelo I. Amador, 

Esq., National Restaurant Association ....................................................... 64 

Letter, dated September 19, 2013 from Vice President Geoffrey G. Burr, 

Associated Builders and Contractors Inc. ................................................... 65 

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THE FUTURE OF UNION ORGANIZING 

Thursday, September 19, 2013 

House of Representatives, 

Subcommittee on Health, Employment Labor & Pensions, 

Committee on Education and the Workforce, 

Washington, D.C. 

The subcommittee met, pursuant to call, at 10:07 a.m., in Room 

2175, Rayburn House Office Building, Hon. David P. Roe [chairman 

of the subcommittee] presiding. 

Present: Representatives Roe, Salmon, Guthrie, DesJarlais, Andrews, Holt, Grijalva, Courtney, and Wilson. 

Also present: Representatives Kline and Miller. 

Staff present: Katherine Bathgate, Deputy Press Secretary; 

Owen Caine, Legislative Assistant; Molly Conway, Professional 

Staff Member; Ed Gilroy, Director of Workforce Policy; Benjamin 

Hoog, Senior Legislative Assistant; Marvin Kaplan, Workforce Policy Counsel; Brian Newell, Deputy Communications Director; 

Krisann Pearce, General Counsel; Molly McLaughlin Salmi, Deputy 

Director of Workforce Policy; Alissa Strawcutter, Deputy Clerk; 

Loren Sweatt, Senior Policy Advisor; Aaron Albright, Minority 

Communications Director for Labor; Tylease Alli, Minority Clerk/ 

Intern and Fellow Coordinator; Jody Calemine, Minority Staff Director; Melissa Greenberg, Minority Staff Assistant; Eunice Ikene, 

Minority Staff Assistant; Brian Levin, Minority Deputy Press Secretary/New Media Coordinator; Richard Miller, Minority Senior 

Labor Policy Advisor; Megan O’Reilly, Minority General Counsel; 

Michele Varnhagen, Minority Chief Policy Advisor/Labor Policy Director; Michael Zola, Minority Deputy Staff Director; and Mark 

Zuckerman, Minority Senior Economic Advisor. 

Chairman ROE. A quorum being present, the Subcommittee on 

Health, Employment, Labor and Pensions will come to order. This 

morning we will broadly examine the future of union organizing. It 

is no secret the number of workers electing to join a union has declined sharply in recent decades. Since 1983, the share of all workers belonging to a union has dropped from roughly 20 percent to 

less than 12 percent. 

Today, fewer than 7 percent of private sector workers are union 

members. AFL–CIO president, Richard Trumka, recently warned 

the labor movement is in crisis. Gary Chaison, an industrial relations professor at Clark University, told the New York Times 

unions are thrashing around looking for answers, and there is a 

sense that this is a make or break time for labor. Either major 

changes are done, or we will be too late to resuscitate the labor 

movement. As union leaders try desperately to swell the ranks of 

dues-paying members, we have to ensure the tools they use abide 

by the law and are in the best interests of our workforce. 

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We must also hold federal agencies accountable for the role they 

play as union looks to regain the support they once held among 

America’s workers. Toward that end, this committee has repeatedly 

expressed concerns with the culture of union favoritism embraced 

by the current administration. In some cases, we have stated our 

disapproval and called for a course of correction. In others, we have 

advanced legislation that would strengthen the rights of workers 

and ensure a level playing field between unions and employers. 

Schemes such as ambush elections or micro unions will spark 

radical changes in the union organizing process. Under the process 

envisioned by union leaders, a worker’s right make to informed decisions in union elections is diminished, employers’ freedom to communicate with employees is stifled, and workers’ privacy is jeopardized. And the solidarity in the workplace is broken. As a result, it 

will be virtually impossible for workers to freely vote their conscience. Aside from the help of friendly federal agencies, union 

leaders are also pursuing inventive strategies to organize workers. 

Recent news reports have highlighted one particular strategy to 

utilize worker centers to build employee support for unionization. 

Worker centers often engage in traditional union activities, such as 

corporate campaigns and employee walkouts. But because they operate under the guise of non-profit community organizations, they 

can avoid a range of federal standards that have long governed 

union contact. Chairman Klein and I have asked the Department 

of Labor to clarify the legal obligations of worker centers. 

While the response we received to our initial inquiry was incomplete and disappointing, we are hopeful Secretary Perez will provide more substantive answers to our questions. We should support 

every effort to improve wages and working conditions of those 

struggling in today’s economy, so long as those efforts follow the 

law. The question of union representation is a deeply personal matter for any worker. It is important to remember what has been, 

and must remain, the vital principle of federal labor law. 

The law is supposed to enable unions to organize every workplace, and the law isn’t designed to help employers obstruct union 

representation. Fundamentally, the law exists to protect the right 

of workers to freely choose to join or not join a union. Defending 

this right is the responsibility of every elected policymaker, and 

this committee will continue to demand fair and objective policies 

that allow workers to make this important decision without a fear 

of coercion, intimidation or retribution. And we will work to ensure 

these policies are vigorously enforced. 

Before I close, I want to thank our witnesses for being with us. 

I would also like to extend a special thanks to Mr. Clarence Adams, 

a Marine veteran. Mr. Adams was the first of many troops deployed under Operation Iraqi Freedom. This week’s senseless tragedy at the Navy Yard reminds us of the sacrifice rendered every 

day by the men and women in our armed forces. Mr. Adams, we 

are grateful for you service to our country, and for your participation in today’s hearing. 

I will now recognize our senior Democratic member of the subcommittee, my colleague, Mr. Andrews, for his opening statement. 

[The statement of Chairman Roe follows:] 

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Prepared Statement of Hon. Phil Roe, Chairman, Subcommittee on Health, 

Employment, Labor, and Pensions 

This morning we will broadly examine the future of union organizing. It’s no secret the number of workers electing to join a union has declined sharply in recent 

decades. Since 1983 the share of all workers belonging to a union has dropped from 

roughly 20 percent to less than 12 percent. Today fewer than seven percent of private-sector workers are union members. 

AFL–CIO President Richard Trumka recently warned the labor movement is in 

a ‘‘crisis.’’ Gary Chaison, an industrial relations professor at Clark University, told 

the New York Times, ‘‘Unions are thrashing around looking for answers. There’s a 

sense that this is make-or-break time for labor. Either major things are done, or 

it will be too late to resuscitate the labor movement.’’ 

As union leaders try desperately to swell the ranks of dues-paying members, we 

have to ensure the tools they use abide by the law and are in the best interests 

of our workforce. We also must hold federal agencies accountable for the role they 

play as unions look to regain the support they once held among America’s workers. 

Toward that end, this committee has repeatedly expressed concerns with the culture of union favoritism embraced by the current administration. In some cases, we 

have stated our disapproval and called for a course correction. In others, we have 

advanced legislation that would strengthen the rights of workers and ensure a level 

playing field between unions and employers. 

Schemes such as ambush elections and micro-unions will spark radical changes 

in the union organizing process. Under the process envisioned by union leaders, 

workers’ right to make informed decisions in union elections is diminished; employers’ freedom to communicate with employees is stifled; workers’ privacy is jeopardized; and solidarity in the workplace is broken. As a result, it will be virtually impossible for workers to freely vote their conscience. 

Aside from the help of friendly federal agencies, union leaders are also pursuing 

inventive strategies to organize workers. Recent news reports have highlighted one 

particular strategy to utilize worker centers to build employee support for unionization. Worker centers often engage in traditional union activities, such as corporate 

campaigns and employee walkouts. But because they operate under the guise of 

nonprofits community organizations, they can avoid a range of federal standards 

that have long governed union conduct. 

Chairman Kline and I have asked the Department of Labor to clarify the legal 

obligations of worker centers. While the response we received to our initial inquiry 

was incomplete and disappointing, we are hopeful Secretary Perez will provide more 

substantive answers to our questions. We should support every effort to help improve the wages and working conditions of those struggling in today’s economy, so 

long as those efforts follow the law. 

The question of union representation is a deeply personal matter for any worker. 

It is important to remember what has been and must remain the vital principle of 

federal labor law. The law isn’t supposed to enable unions to organize every workplace. And the law isn’t designed to help employers obstruct union representation. 

Fundamentally the law exists to protect the right of workers to freely choose to join 

or not join a union. 

Defending this right is the responsibility of every elected policymaker, and this 

committee will continue to demand fair and objective policies that allow workers to 

make this important decision without fear of coercion, intimidation, and retribution, 

and we will work to ensure these policies are vigorously enforced. 

Before I close, I want to thank our witnesses for being with us. I’d also like to 

extend a special thanks to Mr. Clarence Adams. As a marine veteran, Mr. Adams 

was the first of many troops deployed under Operation Iraqi Freedom. This week’s 

senseless tragedy at the Navy Yard reminds us of the sacrifice rendered every day 

by the men and women in our Armed Forces. Mr. Adams, we are grateful for your 

service to our country and for your participation in today’s hearing. 

I will now recognize the senior Democratic member of the subcommittee, my colleague Mr. Andrews, for his opening remarks. 

Mr. ANDREWS. Thank you, Mr. Chairman. I would also like to 

thank the witnesses for their diligence in preparation for today’s 

hearing. We are glad that you are here. And I thank you, Mr. 

Chairman, for starting this hearing off with a solemn reminder of 

those who lost their lives working for our country just a few blocks 

from here, at the Navy Yard, on Monday. We are deeply in their 

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debt, and I appreciate you honoring their service with your remarks this morning. 

When I was home for our extended break in August and early 

September, I got the sense from listening to a lot of constituents 

that although the economy has improved certainly since the dark 

days of 5 years ago, when the economy nearly collapsed, that it is 

not good enough. It has just not gained the traction that we need 

to lift people out of the struggles that they feel every day. Now, one 

way to—one thing we should certainly not do is continue with the 

budget sequester policies that, unfortunately, this House is gonna 

vote to renew either tomorrow or Friday. 

I hope that we can find a way to reenergize our economy by reducing and eliminating the sequester. But one thing we should do 

is regenerate the middle class. Our economy works when a middle 

class worker gets her kitchen remodeled. Because the kitchen remodeler then is likely to go out and buy a car. And the car salesman earns more commissions, so he or she is more likely to buy 

a house. And the real estate agent earns a commission, so he or 

she is more likely to go out to a restaurant. And the owner of the 

restaurant is more likely to hire more servers and more workers 

and they are more likely to get their kitchens remodeled. And on 

it goes. 

So we believe that you grow the economy from the middle class 

out. There has been an unhappy story, even in this recovery, for 

the middle class. In the early days of this economic recovery, for 

every 1 dollar of growth that went to higher wages for America’s 

workers $70 went to corporate profits in the country. So by a 70- 

to-1 ratio the benefits of growth that we have seen have gone to 

corporate profits and not to employee wages. What do you do about 

that? 

Well, the evidence broadly suggests that when people engage in 

collective bargaining that those results are considerably better. On 

the average, members of unions earn 27 percent more than those 

who don’t belong to a union for similar work. Members of unions 

are 28 percent more likely to have health care benefits provided for 

them at work. They are 64 percent more likely to have a pension 

plan when they retire. These are the elements of middle class success. This is particularly relevant to groups in our society who have 

historically suffered under greater burdens and had more difficulty 

in achieving the American dream. 

For African-Americans, African-American workers who are in 

unions have a median wage that is 30 percent higher than those 

who are not. For Latinos in our country, Latinos who are in a 

union have a median wage 58.5 percent higher than those who are 

not. I think the Chairman exactly stated the intention of U.S. labor 

law, which is an aggressive neutrality. It is the idea that people 

should be free to make their own decisions about what is right for 

them. I certainly agree that that means that there shouldn’t be any 

coercive behavior toward employers or toward employees who do 

not wish to join a union. Certainly that is part of the law. 

And the chairman states it well when he says, and I am quoting 

him, ‘‘The law is not designed to enable employers to obstruct 

union representation.’’ He is absolutely right. When Mr. Adams 

came home from Iraq, he went to work for an employer in New 

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York City and he was part of an effort to organize his fellow workers under the Communication Workers of America. They succeeded, 

on January 26 of 2012, to win a representation election. Today, all 

these days later, they still do not have a first contract. 

So one of the issues we should be looking at, as we try to grow 

the economy, grow the middle class and permit those who have 

freely chosen to join a union and have the benefits of collective bargaining, is, what is happening across this country with those first 

contracts. I look forward to our discussion here this morning. 

I thank the Chairman and look forward to hearing from the witnesses. 

Chairman ROE. Thank you, Mr. Andrews. 

Pursuant to committee rule 7–C, the members will be permitted 

to submit written statements to be included in the permanent 

hearing record. And without objection, the hearing record will remain open for 14 days to allow such statements and other extraneous material referenced during the hearing to be submitted for 

the official hearing record. 

It is now my pleasure to introduce our distinguished panel of witnesses. Mr. Ronald Meisburg is partner of Proskauer Rose in 

Washington, D.C. Mr. Meisburg served as general counsel for the 

NLRB for the 4 years, and is a board member for 1 year. And I 

did a little research on him. He graduated from Carson-Newman 

College, very close to my home. Welcome. 

Mr. David Burton is the general counsel for the National Small 

Business Association and is testifying on their behalf. Mr. Clarence 

Adams, a field technician for Cablevision in Brooklyn, New York. 

Welcome. Mr. Stefan Marculewicz is a shareholder in Littler 

Mendelson, PC of Washington, D.C. 

And before I recognize you to provide your testimony, let me 

briefly explain our lighting system. You have 5 minutes to present 

your testimony. When you begin, the light in front of you will turn 

green. When one minute is left, the light will turn yellow. When 

your time is expired the light will turn red. At that point, I will 

ask you to wrap up your remarks as best as you are able. And I 

won’t cut you off in the middle of your remarks, but try to finish 

up. After everyone has testified, members will each 5 minutes to 

ask questions. 

And right now, I would like to thank the witnesses. And if you 

would, Mr. Meisburg? 

STATEMENT OF MR. RON MEISBURG, MEMBER OF THE FIRM, 

PROSKAUER, WASHINGTON, D.C. 

Mr. MEISBURG. Good morning, Mr. Chairman, members of the 

subcommittee. My name is Ronald Meisburg. I am a partner in the 

Proskauer Rose law firm. I am co-chair of the firm’s labor-management relations practice group. I appreciate the opportunity to appear before you here today. 

My testimony is solely my own. I am not here representing my 

firm, its clients or any person or organization. I have practiced law 

now for 39 years. I began my legal career in 1974 in the office of 

the solicitor of labor; first, in the division of employee benefits, and 

then the division of mine safety and health. I moved to private 

practice in 1980, and for the next 23 years I practiced principally 

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in the area of labor relations, including collective bargaining, contract administration, grievance and arbitration proceedings and 

cases before the NLRB and in federal court. 

In 2003, I was nominated for a seat on the National Labor Relations Board by President George W. Bush. I served a recess appointment on the board for 1 year, January through December, 

2004. In January 2006 I received a recess appointment for the post 

of general counsel. I was confirmed by the Senate in August of 

2006, and I served as general counsel until mid-2010. Following 

that, I returned to the private practice of law, where I am now. 

I have submitted written testimony about what I see as the areas 

of law and legal issues that will most likely be addressed by the 

board in the upcoming months, and I will touch only lightly on 

them here. In 2011, the board proposed regulations making substantial changes in the representation election process. Some of the 

proposed regulations that were promulgated were eventually set 

aside, and are currently pending on appeal in the United States 

Court of Appeals for the District of Columbia Circuit. Other parts 

of the proposed regulations have yet to be promulgated. 

I would expect the board to revisit that and to attempt to complete what it began in 2011. Many in the management community, 

I believe, felt that the board’s previous rulemaking efforts were not 

necessary, given the overall success of the board’s handling of representation cases. At the time the proposed rules were announced, 

the board’s general counsel had described the board’s representation case handling results as outstanding. If the board, in fact, goes 

forward with further rulemaking it will hopefully follow a process 

that involves stakeholders earlier—perhaps through an advanced 

notice of proposed rulemaking—and which focuses on the potential 

delay caused in outlier cases. 

We have also recently seen the board expand in areas of concerted protected activity, such as decisions addressing non-employee and off-duty employee access to an employer’s property and 

protection from employee social media statements. I would expect 

the board to continue to expand these areas and the concept of protected activity, particularly as it is adapted to developments in the 

organization of work and the revolution we are seeing in technology. And I would hope that the board does this with a sense of 

balance, recognizing that the NLRA is one of a constellation of federal, state and local workplace laws with which employers must 

comply. 

I also expect the board will continue to apply, and perhaps refine, its tests for the determination of bargaining units announced 

in specialty health care through both administrative processes at 

the regional office level, as well as cases coming before the board 

itself. And the board will continue to deal with the fallout from the 

recess appointment issue in many cases where it has been raised, 

both with respect to the board and with respect to some of the regional directors and also delegations of the board. And just a few 

weeks ago, there was a decision by a federal district court in Washington which held the general counsel’s appointment in 2010, 

under the Federal Vacancies Reform Act, to have been invalid. 

So the board and its staff, unfortunately, are going to be distracted by a lot of these cases as they go forward. Finally, let me 

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say a brief word about the career staff at the board with whom I 

had the pleasure of working on almost a daily basis for several 

years. They serve the appointees like a lawyer serves a client: giving advice, speaking directly, arguing their points. But when a decision is made, they turn to delivering a draft opinion or advice 

memorandum, or brief or other action as decided by the appointee. 

And they do this whether they serve a Republican appointee or a 

Democrat appointee. 

I have great respect for these career professionals and the staff 

that supports them, and I hope they can be kept free of the political crossfire that sometimes engulfs the NLRB. Thank you very 

much for this time, and I look forward to your questions. 

[The statement of Mr. Meisburg follows:] 

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Chairman ROE. Thank you, Mr. Meisburg. 

Mr. Burton? 

STATEMENT OF MR. DAVID R. BURTON, GENERAL COUNSEL, 

NATIONAL SMALL BUSINESS ASSOCIATION, WASHINGTON, D.C. 

Mr. BURTON. I appreciate the opportunity to be here today. My 

name is David Burton. I am general counsel for the National Small 

Business Association. NSBA was founded in 1937, and represents 

approximately 65,000 small businesses throughout the country. 

About 28 percent of our members have 20 or more employees. 

Roughly 4 percent of our members have unions. Roughly 8 percent 

of our members have dealt with unionization campaigns. And a 

very large proportion of our members are subject to NLRB jurisdictional standards. 

I will quickly address four issues. The DOL has proposed a rule 

that would radically narrow the advice exemption in the LaborManagement and Disclosure Act and jettison the interpretation of 

that exemption that has been adopted by every administration 

since the Kennedy administration. It is our considered view that 

the proposed rules be withdrawn because it is contrary to congressional intent for at least five reasons. 

It upends a century of settled law and creates uncertainty, and 

imposes dramatically higher costs than the DOL claimed in their 

estimate; to harm the right of employers to secure advice that will 

violate the attorney-client privilege; and it lacks an adequate evidentiary basis. For half a century, advisors that did not interact 

with employees generally did not have to file reports with DOL. In 

contrast, under the interpretation of section 203–C contained in the 

proposed rule, virtually any imaginable activity by almost any consultant or vendor that, in any manner, directly or indirectly relates 

to a labor dispute or attempted organization of an employer would 

be reportable. 

In addition, attorneys, employee benefits consultants and other 

human resources advisors would probably be reportable. Even extremely minor activities would have to be reported. And if you go 

back and look at the legislative history, the 1959 conference committee report explicitly stated that Congress intended for the advice exception to be broad. It is, however, difficult to conceive of a 

more narrowly drafted definition of advice than that contained in 

the proposed rule. 

The proposed rule is inconsistent with basic rules of statutory 

construction. It more or less reads the 203–C exemption out of the 

law. It is impermissible to read a section of the statute as unnecessary or meaningless surplusage when an alternative construction 

can give meaning to the provision. Congress has acquiesced to the 

definition established by the Kennedy—or the interpretation that 

satisfied the Kennedy administration for over half a century. That 

is strong evidence that the Kennedy administration DOL got it 

right. 

The proposed rule also applies to multi-employer seminars, 

Webinars and conferences. And absent mind-reading skills, the 

sponsors of those seminars aren’t going to know to what use the 

information is gonna be put. So they will end up having to report 

on every attendee of their conferences with respect to the fees and 

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20 

who attended. With respect to union elections, in June of 2011 the 

NLRB published a proposed rule, now withdrawn but likely to be 

revisited now that the NLRB has a quorum. 

The rule would revise election procedures so that in many cases, 

if not most, elections would be conducted within 10 to 21 days rather than the 35 to 40 days typical today. The members of this committee know a thing or two about elections, and I invite each member of this committee to engage in a thought experiment. Imagine 

if your opponent was permitted to organize his or her campaign, 

raise money, hire consultants, recruit volunteers, communicate 

with voters and only then you were informed there was gonna be 

an election and it was gonna be in 10 days. 

Perhaps I am wrong, but I think most people would regard that 

as unfair. It is equally unfair in the case of union elections. Small 

businesses are not familiar with labor law, they don’t have labor 

lawyers on staff. They need time to find advice and to decide how 

to deal with the potential unionization campaign. In the case of 

micro unions, we basically are extremely concerned with the line 

of cases inaugurated by specialty health care. 

The case that I think is most notable is the Bergdorf Goodman 

case, where the second and fifth floor ladies shoe departments were 

separately organized. When you get into a case where you can organize separate shoe departments in a store, you have the potential 

to have an incredible multiplicity of bargaining units, tremendous 

complexity and a balkanization of the workplace. 

And with that, I will wrap up my statement. I am glad to answer 

any questions. 

[The statement of Mr. Burton follows:] 

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Chairman ROE. Thank you, Mr. Burton. 

Mr. Adams? 

STATEMENT OF MR. CLARENCE ADAMS, FIELD TECHNICIAN, 

CABLEVISION, BROOKLYN, NY 

Mr. ADAMS. Thank you. Thank you, Mr. Chairman, Ranking 

Member Andrews, and members of the subcommittee for giving me 

this opportunity to testify. I appreciate it greatly. Thank you very 

much. 

My name is Clarence Adams, and I have been a field technician 

for Cablevision in Brooklyn for over 14 years. I am also a proud 

veteran of the United States Marines. And 10 years ago, I was 

among the first wave of American troops who invaded Iraq. I was 

proud to serve my country and was prepared to do whatever was 

necessary to define the basic freedoms that make this country 

great. 

I want to tell you today that my coworkers and I have gone 

through a lot to try to join a union. In the fall of—I am sorry, in 

the winter of 2011 myself and a large group of coworkers decided 

to organize with the Communication Workers of America. Company 

management viciously opposed our efforts. I was forced to attend 

literally dozens of meetings where Cablevision management told 

me that CWA was corrupt. They lied to me about the cost of dues 

and the likelihood of strikes. They threatened that my wages and 

benefits would actually go down if we joined together in a union. 

But on January 26, 2012 an overwhelming majority of my coworkers in Brooklyn voted to join CWA. We were very excited. We 

thought now we would be able to sit down with Cablevision and negotiate a contract that reasonably addresses our concerns. But we 

were wrong. I soon learned that management had no intention of 

bargaining with us in good faith. They continued their campaign of 

pressure and intimidation. And as a union supporter, I felt like I 

was under the microscope every day when I went to work. 

A few months after we won our election, my Cablevision workers 

in the Bronx and I decided—my Cablevision workers in Bronxville 

decided to begin organizing as well and join CWA. In late April, 

James Dolan, the CEO of Cablevision, made it clear that he would 

stop at nothing to prevent more employees from joining our union. 

Dolan gave every single employee in the entire company, about 

$10,000, significant raises, except for us in Brooklyn. He improved 

the health plans of every single employee in Cablevision except for 

us in Brooklyn. 

He allowed techs all over his company to install Wi-Fi in parks, 

except for us in Brooklyn. The only difference between those of us 

in Brooklyn and the rest of the company was that we exercised our 

legal rights to join a union. Right before my coworkers in the Bronx 

held a vote on joining the union in late June, James Dolan personally visited them and stated that they shouldn’t make the same 

mistake we did in Brooklyn. He told them that Cablevision would 

now abandon Brooklyn. He told them Brooklyn would be left behind in terms of investment in workforce. 

Management succeeded in frightening enough workers so that a 

majority voted against the union. Earlier this year, on January 30, 

I was among 70 Cablevision workers in Brooklyn who decided to 

CEWDOCROOM with DISTILLER

39 

take advantage of the company’s open door policy, which encourages employees to go to management at any time to discuss issues 

of concern. I arrived, before my shift started, to meet with a manager, any manager, for only 5 minutes to express my frustration 

that the company was stalling during bargaining. 

That morning, management eventually agreed to invite 22 techs 

into a conference room, and I was one of those techs. I was shocked 

to find that vice president, Mr. Rick Levesque, came into the room 

and told us we were all being permanently replaced. Cablevision’s 

open door policy specifically says that the company does not tolerate retaliation against employees for having views different from 

their own, but on this day that policy wasn’t worth the paper it 

was written on. 

Thanks to a massive pressure campaign, the company has been 

forced to hire all of us back. I am proud to say that my 21 coworkers and I, who were fired, stayed strong through the entire ordeal. 

And when we walked back in the door, we showed our fellow coworkers that this is a fight that we can still win. But I have to say 

that I am very, very upset about what happened to us and what 

has happened since we voted the union in. 

The NLRB had filed charges against Cablevision, and we still 

await justice. Cablevision threatened my livelihood by illegally firing me, and they have shown utter contempt for the rule of the 

law. And so far, there have been no consequences for them. Cablevision has hired over 50 lawyers, literally, to defend their unlawful 

actions. It is simply obscene for them to spend so much on lawyers 

instead of sitting down to negotiate with their employees. 

I just want a shot at the American dream. I want job security. 

I want to know that I can’t be fired without just cause. Ten years 

ago, I put my life on the line 6,000 miles away from home in the 

name of protecting the basic rights of American democracy. I believe I was fighting so that the rights of every American would be 

protected. I never thought that I would see the day that I, as an 

American citizen, would have my basic rights trampled on, and no 

one would do anything about it. 

I never thought that a big corporation could violate my rights, 

and the government would just let them get away with it. I am sad 

to say that my experience has taught me that our current labor 

laws are broken. Workers who dream of reaching the middle class 

and who hope for some job security shouldn’t have to endure 

months, or even years, of fear and intimidation at work. I was 

there when my country asked me to risk everything in Iraq, and 

is it too much to ask for my government to protect my rights to join 

a union at work? 

Thank you for giving me the opportunity to share my story with 

you today. Thank you. 

[The statement of Mr. Adams follows:] 

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40 

Testimony of 

Clarence Adams 

Before the Subcommittee on 

Health, Employment, Labor and Pensions 

Hearing on 

′′The Future of Union Organizing′′ 

September 19, 2013 

Thank you Mr. Chairman, Ranking Member Andrews and members of this subcommittee for giving me the opportunity to testify. 

My name is Clarence Adams and I have been a field technician for Cablevision 

in Brooklyn for over 14 years. I am also a proud veteran of the US Marines. Ten 

years ago, I was among the first wave of American troops who invaded Iraq. I was 

proud to serve my country and I was prepared to do whatever was necessary to defend the basic freedoms that make this a great country. 

I want to tell you today what I and my coworkers have gone through just to try 

to join a union. 

In the fall and winter of 2011, I and a large group of my co-workers decided to 

organize with the Communications Workers of America. 

Company management viciously opposed our efforts. I was forced to attend literally dozens of meetings where Cablevision management told me CWA was corrupt. They lied to me about the cost of dues and the likelihood of strikes. They 

threatened that my wages and benefits would actually go down if we joined together 

into a union. But on January 26, 2012, an overwhelming majority of my coworkers 

in Brooklyn voted to join CWA. 

We were so excited. We thought, now we’ll sit down with Cablevision and negotiate a contract that reasonably addresses our concerns. 

We were wrong. I soon learned that management had no intention of bargaining 

with us in good faith. They continued their campaign of pressure and intimidation. 

As a union supporter, I felt like I was under a microscope every day I went to work. 

A few months after we won our election, my Cablevision coworkers in the Bronx 

decided to begin organizing as well, to join us in CWA. 

In late April, James Dolan, the CEO of Cablevision, made it clear that he would 

stop at nothing to prevent more employees from joining our union. Dolan gave every 

single employee in the entire company - about 10,000 people - significant raises. Except for us in Brooklyn. He improved the health plans of every single employee in 

Cablevision. Except for us in Brooklyn. He allowed techs all over his company to 

install Wi-Fi in parks. Except for us in Brooklyn. The only difference between those 

of us in Brooklyn and the rest of the company was that we exercised our legal rights 

to join a union. 

And then, right before my coworkers in the Bronx held a vote on joining the union 

in late June, James Dolan personally visited them and stated that they shouldn’t 

make the same mistake we did in Brooklyn. He told them that Cablevision would 

now ‘‘abandon’’ Brooklyn. He told them Brooklyn would be left behind in terms of 

investment and the workforce. Management succeeded in frightening enough workers so that a majority voted against the union. 

Early this year, on January 30th, I was among 70 Cablevision workers in Brooklyn who decided to take advantage of the company’s ‘‘Open Door Policy’’, which encourages employees to go to management at anytime to discuss issues of concern. 

I arrived before my shift started to meet with a manager, any manager, for only 

five minutes to express my frustration that the company was stalling during bargaining. That morning, management eventually agreed to invite 22 techs into a conference room. I was one of those techs. 

I was shocked when the Vice President, Mr. Rick Levesque, came into the room 

and told us we were being ‘‘permanently replaced.’’ 

Cablevision’s ‘‘Open Door Policy’’ specifically says that the company ‘‘does not tolerate retaliation against employees for having views different from ours,’’ but on 

this day, that policy wasn’t worth the paper it was written on. 

Thanks to a massive pressure campaign, the company has been forced to hire all 

of us back. I am proud that my 21 co-workers and I who were fired stayed strong 

through this ordeal. And when we walked back in the door, we showed our fellow 

workers that this is still a fight that we can win. 

CEWDOCROOM with DISTILLER

41 

But I have to say I am very, very upset about what happened to us and what 

has happened since we voted in the union. The NLRB has filed charges against Cablevision, and we still await justice. Cablevision threatened my livelihood by illegally firing me, and they have shown utter contempt for the rule of law. And so far 

there have been no consequences for them. Cablevision has hired over 50 lawyers, 

literally, to defend their unlawful actions. It is simply obscene for them to spend 

so much on lawyers, instead of sitting down to negotiate with their employees. 

I just want a shot at the American Dream. I want some job security. I want to 

know that I can’t be fired without just cause. 

Ten years ago, I put my life on the line 6,000 miles away from home in the name 

of protecting the basic rights of American democracy. I believed I was fighting so 

that the rights of every American would be protected. I never thought that I would 

see the day that I, as an American citizen, would have my basic rights trampled 

on and no one would do anything about it. I never thought that a big corporation 

could violate my rights and the government would let them get away with it. 

I am sad to say that my experience has taught me that our current labor laws 

are broken. Workers who dream of reaching the middle class and who hope for some 

job security shouldn’t have to endure months and even years of fear and intimidation at work. 

I was there when my country asked me to risk everything in Iraq. Is it too much 

to ask for my government to protect my right to join a union at work? 

Thank you for giving me the opportunity to share my story with you today. 

Chairman ROE. Thank you, Mr. Adams. 

Mr. Marculewicz? 

STATEMENT OF MR. STEFAN J. MARCULEWICZ, 

SHAREHOLDER, LITTLER MEMDELSON, WASHINGTON, DC 

Mr. MARCULEWICZ. Chairman Roe, Ranking Member Andrews 

and the members of the committee, I want to thank you all for the 

opportunity to offer testimony this morning on this important topic. 

My name is Stefan Marculewicz. I am a shareholder with the law 

firm of Littler Mendelson here in Washington, D.C. I am speaking 

to you today on my own behalf and not on behalf of my firm or any 

firm client or anyone else. 

I have practiced law, or labor employment law, for nearly 20 

years. I started my career at the National Labor Relations Board 

in Forth Worth, Texas as a field attorney, and also worked for a 

time in Baltimore, Maryland at the regional office there, as well. 

Labor unions, as Chairman Roe indicated, the primary advocate 

for workers’ rights in the United States for more than a century, 

have experienced a significant decline in membership. As a result, 

labor unions have sought new and innovative means to effectuate 

change in the workplace. One of the most significant examples of 

this effort is the development of organizations known as worker 

centers. In recent months, these groups have been involved in protests and other activities that have received substantial coverage in 

the media. 

Typically, they are non-profit organizations that receive funding 

from foundations, grants, including from government, membership 

fees and other donations. Some are funded by other labor organizations. These groups offer a variety of services to their members, including education, training, employment services and legal advice. 

Increasingly, however, worker centers are directly engaging employers or groups of employers to effectuate change in the wages, 

hours, and terms and conditions of employment of the workers they 

claim to represent. 

CEWDOCROOM with DISTILLER

42 

Indeed, when it comes to such direct engagement, these worker 

centers often act no differently than traditional labor unions. Yet 

few of these groups comply with the laws that regulate labor organizations. Statutes, like the National Labor Relations Act and the 

Labor, Management, Reporting and Disclosure Act, contain significant protections with respect to representational democracy, organizational democracy, access to basic information and promotion of 

the duty of fair representation. 

These basic rights are an important part of the process governing 

the representation of employees in the workplace by third-party organizations. Even though compliance with these laws would confer 

benefits upon the very workers these groups claim to represent, 

many such groups are reluctant to define themselves as labor organizations because the NLRA and LMRDA are perceived as creating 

an impediment to worker centers’ activities. In addition, worker 

centers have not considered themselves to be limited by the NLRA 

restrictions on secondary picketing and protracted picketing for recognition. 

And such conduct is a common tool used by these groups to convey their message, although it would violate the National Labor 

Relations Act. Without coverage of the NLRA and LMRDA, these 

organizations can avoid accountability to the workers they claim to 

represent, and avoid restraints that are imposed on traditional 

labor organizations. Yet the laws that provide protections to workers, vis-a-vis labor organizations that represent them, were designed precisely to create that accountability. 

Moreover, these laws were also intended to protect worker selfchoice, to ensure a balance between labor and management, labor 

and management interests, and to ensure the free flow of commerce. The burden of compliance with those laws is not so severe, 

when considered within the context of the benefits afforded to 

workers and the economy in general. The mission of many worker 

centers is often seen as being an important means of advocating on 

behalf of underrepresented employees who do not have access to, 

or knowledge of, the legal mechanisms to protect their rights. 

However, no organization, no matter how laudable its mission, is 

above reproach. And through its passage of laws that regulate 

labor organizations, Congress established safeguards to give workers a say in, and understanding of, the operations of the organizations that represent them. Compliance with the NLRA and LMRDA 

serves not only as a protection for workers, but perhaps as a 

validator of the worker centers that claim to represent them. 

One goal of many worker centers is to ensure that employers of 

their members comply with the basic laws that offer protections to 

workers. Ultimately, the benefits of the laws that govern labor organizations flow to the workers they represent. And as such, there 

is simply no viable justification for worker centers not to comply 

with them. 

Thank you for your time, and I look forward to answering any 

questions that you may have. 

[The statement of Mr. Marculewicz follows:] 

CEWDOCROOM with DISTILLER

43 

Testimony of Stefan Marculewicz Before 

The United States House of Representatives 

Health, Employment Labor and Pensions Subcommittee 

September 19, 2013 

Chairman Roe and Ranking Member Andrews, thank you for the opportunity to 

offer testimony to the members of this Committee. My name is Stefan Marculewicz 

and I am a Shareholder at the law firm of Littler Mendelson here in Washington, 

DC. I am speaking to you today on my own behalf and not on behalf of my firm 

or any firm client. 

Labor unions, the primary advocates for workers’ rights in the United States for 

more than a century, have experienced a significant decline in membership. As a 

result, labor unions have sought new and innovative means to effectuate change in 

the workplace. 

One of the most significant examples of this effort is the development of organizations known as ‘‘worker centers.’’ In recent months, these groups have been involved 

in protests and other activities that have received substantial coverage in the media. 

Today there are hundreds of worker centers across the country. Their structure and 

composition vary. Typically, they are non-profit organizations that receive funding 

from foundations, grants-including from government, membership fees and other donations. Some are funded by other labor organizations. These groups offer a variety 

of services to their members, including education, training, employment services and 

legal advice. Increasingly, however, worker centers are directly engaging employers 

or groups of employers to effectuate change in the wages, hours and terms and conditions of workers they claim to represent. Indeed, when it comes to such direct engagement, these worker centers often act no differently than traditional labor organizations. 

Yet, few of these groups comply with the laws that regulate labor organizations. 

Statutes like the National Labor Relations Act (NLRA) and the Labor Management 

Reporting and Disclosure Act (LMRDA) contain significant protections with respect 

to representational democracy, organizational democracy, access to basic information and promotion of a duty of fair representation. These basic rights are an important part of the process governing the representation of employees in the workplace 

by third-party organizations. 

Even though compliance with these laws would confer benefits upon the very 

workers these groups claim to represent, many such groups are reluctant to define 

themselves as labor organizations because the NLRA and the LMRDA are perceived 

as creating an impediment to worker centers’ activities. In addition, worker centers 

have not considered themselves to be limited by the NLRA restrictions on secondary 

picketing and protracted picketing for recognition, and such conduct is a common 

tool used by these groups to convey their message, although it would violate the 

NLRA. 

Without coverage of the NLRA and LMRDA these organizations can avoid accountability to the workers they claim to represent and avoid restraints that are imposed on traditional labor organizations. Yet, the laws that provide protections to 

workers vis a vis labor organizations that represent them were designed precisely 

to create that accountability. Moreover, these laws were also intended to protect 

worker self-choice, to ensure a balance between labor and management interests, 

and to ensure the free flow of commerce. The burden of compliance with those laws 

is not so severe when considered within the context of the benefits afforded to workers and the economy in general. 

The mission of many worker centers is often seen as being an important means 

of advocating on behalf of underrepresented employees who do not have access to 

or knowledge of the legal mechanisms to protect their rights. However, no organization, no matter how laudable its mission, is above reproach, and through its passage 

of the laws that regulate labor organizations, Congress established safeguards to 

give workers a say in and understanding of the operations of the organizations that 

represent them. Compliance with the NLRA and LMRDA serves not only as a protection for workers, but perhaps as a validator of the worker centers that claim to 

represent them. 

A goal of many worker centers is to ensure that employers of their members comply with the basic laws that offer protections to workers. It therefore is not unreasonable to expect worker centers to do the same. Ultimately, the benefits of the laws 

that govern labor organizations flow to the workers they represent, and, as such, 

there simply is no viable justification for worker centers not to comply with them. 

CEWDOCROOM with DISTILLER

44 

Thank you for your time, and I look forward to answering any questions you may 

have. 

Chairman ROE. I thank the panel. And you all may be the best 

on the lights that I have seen since I have been here. Everybody 

was under the wire, so thank you all. You all did a great job. 

I will now ask Mr. Salmon. Yield to him. 

Mr. SALMON. Thank you. I appreciate the opportunity to listen 

to this panel’s testimony. Thank you very much. 

I have a little bit of a story, and I would like maybe some 

thoughts. Arizona had, really, only one family-owned grocery store 

left in Arizona, called Bashas’. The head of Bashas’, who basically 

became the head of Bashas’ after his father died, Eddie Basha, a 

very, very dear and close personal friend of mine. While I am a Republican, he was a prominent Democrat. In fact, about 15 years 

ago—might even be a little longer, maybe 18 years ago—he was the 

Democrat nominee for governor of the state of Arizona. 

He didn’t prevail. He ran against the incumbent. But Eddie has 

always been just a pillar in our community, always, you know, 

fighting for homeless people and against child abuse. Any good 

cause, Eddie was always there. And what is really tragic is that he 

was one of the top contributors, over the last, I would say, 30, 40 

years to the Democrat Party and Democrat candidates. He was 

very prominent in the Democrat Party. And yet, time and time 

again the unions tried to organize at Bashas’. 

And the employees themselves decided they didn’t want to do it. 

So the last several years, they started resorting to some dirty 

tricks. In fact, they planted some overdue formula—some bad formula, baby formula—on the shelves, and they did all kinds of real 

nasty public relations tricks on him. In fact, they were caught redhanded on the planting of the tainted formula, or the overdue formula. And then they filed just multiple frivolous claims with the 

NLRB. 

And they had an unlimited supply of money to file these lawsuits. And the upshot is that Eddie’s company, Bashas’, ended up 

going into bankruptcy because they had multimillion dollars of trying to defend against these stupid, frivolous lawsuits against the 

NLRB. And Eddie, much—sad to say, just in the last few months, 

passed away. But Arizona has sorely missed him. 

My question is, what can be done to address some of these frivolous lawsuits and this aggressive tactic of just trying to wear somebody down through that kind of a process, to the point where they 

just either throw up their hands and give in or file bankruptcy like 

Bashas’ had to? Any thoughts on that from anybody in the panel? 

Mr. MEISBURG. I believe one thing that would help in these circumstances would be if the board would permit an employer to call 

for an election. In other words, make the fact that the employees 

don’t want to join the union, make it a matter of record in a board 

election. And treat a corporate campaign of this sort like a demand 

for recognition. Now, the board has, in the past, had cases where 

they could do that. It has been bouncing around the board for a 

number of years. 

I think that would let the employer say, ‘‘Listen, I am willing to 

let my employees decide whether they want to be a member—a 

CEWDOCROOM with DISTILLER

45 

union-represented shop or not. But I want to do it through a secret 

ballot election.’’ Unless the union files for a petition or demands 

recognition, right now the employer can’t make that happen. So 

what I think might help in those situations would be if the employer could say, ‘‘Okay, I am willing to put this to a vote of my 

employees.’’ 

And if there are a number of employees—the employees vote 

against it, then the union would be banned from—as they are trying to organize after a lost election for a year. And that would give, 

I think, some calming effect to these kinds of campaigns. 

Mr. BURTON. I think the problem that you have identified is very 

real. Litigation costs can crush small businesses. Mr. Adams referred to how much money was being spent on lawyers. It is a 

problem throughout the entire legal system, not just NLRB. I think 

there is a need to streamline the procedures. Some of the things 

the NLRB has done along those lines makes sense, but a lot of 

them also do it in a way that don’t really make sense. 

But in the entire legal system, we have given some thought to 

the problem. And there is probably a need, at least with respect to 

smaller litigants that don’t have unlimited resources. Fortune 500 

companies and the federal government are fine, but small businesses and other smaller entities are not. To move more towards 

a small claims type arrangement or a continental European-type 

arrangement where the judge is more of a fact-finder rather than 

the two litigants being able to throw up walls and expend the other 

side’s money on an almost unlimited basis in discovery or filing 

various motions. 

These days, it can cost $60-to 100 grand to defend an utterly frivolous lawsuit. And that can be crushing to a small firm. 

Chairman ROE. I thank the gentleman for yielding. 

Mr. Andrews? 

Mr. ANDREWS. Thank you, Mr. Chairman. I thank each of the 

witnesses for their testimony. Mr. Adams, thank you for serving 

our country and for being with us this morning. And thank all four 

of you. 

It has now been, by my count, 601 days since Mr. Adams and his 

group won the organizing election he referred to. And, Mr. Adams, 

my understanding is there is still not a first contract. Is that right? 

Mr. ADAMS. Yes, that is correct. 

Mr. ANDREWS. Mr. Meisburg, on April 19 of 2006, in your role 

as general counsel, you wrote a memo. I want to read from it. You 

quote approvingly the federal mediation conciliation service, observing, ‘‘Initial contract negotiations are often more difficult than 

established successor contract negotiations since they frequently 

follow contentious representation election campaigns.’’ Then you go 

on to say, ‘‘And when employees are bargaining for their first collective bargaining agreement, they are highly susceptible to unfair 

labor practices intended to undermine support for their bargaining 

representative.’’ 

‘‘Indeed, our records indicate that in the initial period after election and certification, charges alleging that employers that refuse 

to bargain are meritorious in more than a quarter of all newly-certified units, or 28 percent.’’ That sounds like a sort of macro description of the case that Mr. Adams just talked about. What do 

CEWDOCROOM with DISTILLER

46 

you think we should do about these cases where there is a chronic 

failure to come to that first contract because of the kind of practices you discuss in 2006? What should we do to fix that problem? 

Mr. MEISBURG. Well, what we did, at the time, was we followed 

up on that first contract bargaining initiative, which included a 

more aggressive use of 10–J, which is the injunction provisions of 

the act, which then can get into a situation where an employer can 

be in contempt. So that is a pretty powerful weapon. We also suggested other potential remedies that aren’t typically used in board 

cases: bargaining on a specific schedule; reports by the employer directly to our regional directors about the status of the bargaining; 

and payment of the costs of the bargaining by the wrongful-acting 

party of the wronged party. 

Mr. ANDREWS. Now, I know because of your recess status appointment situation, you weren’t around for a whole long period of 

time to see this through. But did that tactic work? 

Mr. MEISBURG. Well, that actually, I was there. I issued this 

memorandum before I was confirmed, and then I was confirmed. 

Mr. ANDREWS. These days, that would be probably pretty 

smart—confirmation. 

Mr. MEISBURG. And I followed up as a confirmed GC. What got 

me interested in it was, we noticed that—— 

Mr. ANDREWS. But did it work? Did the——

Mr. MEISBURG. Well, I think it did. And let me tell you statistics. 

When I first became GC, 50 percent of all the refusal to bargain, 

85 bad faith bargaining charges were filed in first contract situations. When I left, that number had dropped to 25 percent. Now, 

I just felt like the arrows were pointing in the right direction when 

we left. Also, I think it is important to note—and this was in the 

last speech I gave as general counsel—80 percent of all first-contract bargaining succeeds without resort to the board. 

Mr. ANDREWS. Yes—— 

Mr. MEISBURG. And that is a tribute to the—— 

Mr. ANDREWS. It is that 20 percent I am worried about. 

Mr. Adams—— 

Mr. MEISBURG. I understand. 

Mr. ANDREWS. Mr. Adams, what I want to ask Mr. Adams a 

question. There is a proposal that has been before the Congress 

that after a certain number of days if there wasn’t a first contract 

there would be mediation, where your union and the company 

would have had to go to a mediator and talk about things. And 

after a certain number of days, if that didn’t work the first contracts could be subject to what is called ‘‘binding arbitration,’’ 

where you guys would make your offer, the company would make 

its offer, and the arbitrator would choose the outcome that he or 

she thought was best. 

Would that have helped you in this situation? 

Mr. ADAMS. Tremendously, it would have helped a lot. In fact, I 

would already be within the first year of an actual contract had 

that been in place. 

Mr. ANDREWS. It is interesting that if you played for the Yankees, which you probably could—if you played for the Yankees and 

you had that situation, you would get that kind of arbitrator. Because, in other words, you would have the bargaining leverage to 

CEWDOCROOM with DISTILLER

47 

have somebody figure out what you were worth. So you would support a proposal in the law that would, after a certain period of 

time, provide for that binding arbitration. 

Mr. ADAMS. Absolutely, yes. 

Mr. ANDREWS. Thank you very much. 

Chairman ROE. I thank the gentleman for yielding. 

Mr. Guthrie? 

Mr. GUTHRIE. Thank you. Thanks for all the panelists for being 

here. And, Mr. Adams, I thank you for your service and willing to 

put on the uniform and serve overseas. I was actually in Brooklyn 

Monday. I went to college in metro New York, at West Point. And 

so Brooklyn has changed a lot. It is great, it is a wonderful place. 

I enjoyed being there. So it was wonderful to be there. It has 

changed a lot since the 1980s, so it was great to be there. 

But I have a question for Mr. Burton. You mentioned in your testimony, and I have heard from small businesses, about the persuader activity. And from my own experience, I know the importance of being able to seek outside counsel. So I would like you to— 

give you a chance to expand on the persuader rule a little bit. And 

you mentioned specifically in testimony that imposing additional 

burdens on employers seeking advice would be a deterrent to seeking advice. 

And could you expand on that for just a couple of minutes. I have 

another question of another panelist, but—about the persuader activity and how it will discourage people from seeking advice. 

Mr. BURTON. Okay. Well, if you end up having to buy into a bureaucratic morass, filing reports, and then potentially having to 

spend a great deal of money to hire people to advise you how to 

fill out the reports, then you will tend not to want to hire consultants. Because they don’t cost just what you have to pay them, 

but—— 

Mr. GUTHRIE. You know what the—— 

Mr. BURTON.—the entire compliance cost associated with it. 

Mr. GUTHRIE. You know what the Department of Labor is trying 

to get to in that rule, and why you think they are wrong in that? 

Mr. BURTON. I am not entirely sure what their true rationale is. 

I think part of it is so that they can obtain information that they 

would find useful in terms of understanding better the employer 

strategy in unionization campaigns. And also would—this, of 

course, would not be lawful, but some might want to use it for purposes of intimidating people. 

Mr. GUTHRIE. Well, thank you for that. And I have a question 

for Mr. Marculewicz? Is that correct? Under both the NLRA and 

LMRDA, one of the primary elements in determining whether an 

entity is a labor organization is whether it exists for the purpose, 

in whole or part, of dealing with employers concerning terms and 

conditions of employment. Last month, in response to an oversight 

letter sent by this committee, the Department of Labor stated it 

concluded, in 2004 and 2008, that the restaurant opportunity center was not a labor organization primarily because it did not deal, 

or intend to deal, with employers. 

How have the courts defined ‘‘dealing with?’’ Is the department’s 

conclusion consistent with your findings related to RLC? 

CEWDOCROOM with DISTILLER

48 

Mr. MARCULEWICZ. Thank you. The concept of—well, first and 

foremost, the concept of worker centers has evolved dramatically in 

the last 5 years. We have seen a tremendous amount of activity by 

these groups, and they have engaged in a wide variety of different 

things. The situation that occurred in 2004 and 2008 with respect 

to those letters, the analysis under the Labor-Management Reporting and Disclosure Act provides that it has to be an organization 

in which employees participate, that it have a purpose, in whole or 

in part, of dealing with an employer over issues related to wages, 

hours, and terms and conditions of employment. 

The definition of that ‘‘dealing with’’ is pretty—the bar is set 

very, very low. And, in fact, the National Labor Relations Board 

has the same test for employer-created committees, and has found 

many of those committees to be violative of section 882 of the National Labor Relations Act when an employer creates an organization that engages in a dialogue and engages in, you know, so dealing with their workforce. And as a result of that, it is a fairly low 

bar. 

And, in fact, the NLRB has reached—has considered a number 

of cases where the name of the case is actually Group of Concerned 

Workers and Their Leader. Because they have grouped together, 

engaged in picketing or other activity, and the NLRB has looked 

at that and said, you know, they have a goal of dealing with, their 

purpose is dealing with, it is focused on the intent. And if you look 

at some of the activities of these worker centers subsequent to that, 

you will see that—you know, I think there is a wide variety of attempts to effectuate change in the workplace. 

Mr. GUTHRIE. I am about to run out of time. So also on that, you 

mentioned that because they are not limited that they do secondary 

picketing. And what is secondary picketing, and why does the 

NRLA respect secondary picketing and protracted picketing for recognition? 

Mr. MARCULEWICZ. Secondary picketing is where, if you and I 

have a labor dispute and one of my major customers—you go and 

picket that major customer—that customer has nothing to do with 

our labor dispute, the NLRB prohibits that, or the National Labor 

Relations Act prohibits, that secondary—they are trying to protect 

the true neutrals; those who are not interested to—and it was Congress’ balance of the balance of the interests of labor and management and the pursuit of the free flow of commerce. 

Mr. GUTHRIE. So the work centers are doing the secondary picketing. 

Mr. MARCULEWICZ. In many situations. Not all, but in many situations, yes. 

Mr. GUTHRIE. I believe I am out of time. 

I yield back. 

Chairman ROE. Mr. Grijalva? 

Mr. GRIJALVA. Thank you, Mr. Chairman. Let me ask Mr. Adams 

a couple of questions, if I may. And as a point of reference to my 

friend and colleague from Arizona, and the comments regarding 

Bashas’, the grocery chain, a very large grocery chain in Arizona. 

Mr. Basha, who passed is a good philanthropist, great immigrant 

story. And considered him a friend. 

CEWDOCROOM with DISTILLER

49 

But at the same time, the lawsuits that were referenced and 

some of the other issues dealt with some very specific things: 

OSHA violations worker safety. It also dealt with violations of overtime. It also dealt with other kinds of issues that any individual 

employee has the right to, and should, exercise that right. And exercising the right does not make the people doing that, or the organization helping with that, necessarily evil. And I would subject— 

I would ask people that there is, in any question of that magnitude, 

there is always another side. 

Let me ask Mr. Adams, in your testimony you—well, let me go— 

in your testimony, you said that the management at Cablevision 

had no intention of bargaining. Can you share some of the tactics 

they used to pressure, intimidate workers, and really keep from 

formalizing what, through election, the workers wanted to sit down 

and collectively bargain? 

Mr. ADAMS. Thank you. One of the things that my coworkers and 

I definitely noticed is, they were obviously objectionable to the 

whole of us unionizing in the first place. They didn’t think it was 

necessary. One of the things we tried to point out to management 

is that there was a serious need for structure. A lot of the times 

there was a lot of, you know, favoritism, things like that, that go 

on. And it is unfair to a number of employees who are doing the 

right thing and, you know, following some of the expectations that 

the company has for, you know, the employees. 

One of the things that I have noticed—especially last year, the 

number of meetings we had, their way of trying to inform us what 

was best for us was to tell us that we didn’t need to form a union. 

Are we—you know, are we sure that we know what we are getting 

into. And no matter how often we made them aware of the fact that 

we were very sure and this was what we wanted to do, they always 

seemed to come up with a new way of trying to derail it. 

I have to say, this is, without question, one of the hardest things 

that I have ever been through. As you know already, I have been 

fired already. Myself and 21 other employees were fired because we 

basically took advantage of an open door policy to speak with management on the morning of January 30. It would have only literally 

taken about 5 minutes. They were very dismissive. They seemed to 

have other things to do. 

And like I said, they—you know, Mr. Levesque invited us, the 

vice president of our shop invited us into the room. And he basically told us we were all being permanently replaced. That was just 

one of the things that took place to try to intimidate the workers. 

As soon as we were led out by police escort and we were removed 

from the building, a memo went out to the employees about decertification. 

A lot of the employees, already intimidated by the fact that a 

number of the stronger members were already led out the door, got 

them to feel like they didn’t have a chance against Cablevision. 

And so a lot of them felt like they had to put their names on the 

paper to decertify. 

Mr. GRIJALVA. Open door policies that the company has. What 

else is covered other than coming in and stating your opinion to 

management? What else is covered in that policy? 

CEWDOCROOM with DISTILLER

50 

Mr. ADAMS. If there is any general concerns that we have, one 

of the things that is covered in there, especially when it comes to 

employee safety—you know, there are a lot of times that we have 

to do things that are otherwise unsafe. You know, it is not really 

safe for the employee to do. We are climbing rooftops, fire escapes, 

you know, we are in backyards where most people, you know, traditionally don’t have much traffic. 

A lot of the time people do get hurt, and they end up, you know, 

being off the job for some time, sometimes over 4 or 5, 6 months. 

You know, Cablevision has already, this past year, two employees 

were let go because they weren’t able to recover in time from their 

injuries. A lot of the times employees feel the need to come in and 

work, you know, sometimes with injuries, you know, that are workrelated. And they refuse to let management know about it because 

they understand that they will not be able to relate to what is 

going on with them, or at least do the right thing in making sure 

they take care of those employees. 

Mr. GRIJALVA. Thank you. And, Mr. Chairman, with regard to 

the comments on the worker centers, it should be noted that much 

of the activity and support these centers are providing is to immigrant workers all across this country, including the push for an increased minimum wage. And, in doing so, are providing a service, 

providing English lessons, providing social services, and providing 

a voice to a group of workers in this country that have historically 

been exploited. 

And I would consider that a good thing for the overall economy 

of this country and, certainly, for those immigrant workers’ rights. 

With that, I yield back. 

Chairman ROE. I thank the gentleman for yielding. 

Mr. Miller? 

Mr. MILLER. Thank you. And I want to thank Mr. Adams for 

coming and testifying today. I also want to recognize Lana Stuart 

and Tanya Cauley, who are in our audience today. I have had 

many of my constituents participate in our Wal-Mart—and my conversations with them in my office and on the street, a lot of it 

about just they are trying to figure out—you know, they know that 

with Wal-Mart discussion of a union is toxic. 

They are trying to figure out how to keep their job, and how they 

get some respect and how they get a decent wage and how they get 

decent conditions in working, and don’t live in a place of intimidation. I mean, Wal-Mart has figured it out pretty clearly. They have 

the highest paid truck drivers in the country. Because they know 

if they don’t the Teamsters can organize them. But people on the 

floor, they are interchangeable. 

Just fire them and find somebody else to do that job, as hard as 

it is and as difficult as it is. And that is, you know—and so if you 

try to figure it out yourself among your peers, you can get fired. 

If you talk to somebody from OUR[MG3] Wal-Mart, you can get 

fired. So you can be arbitrary as hell in that fashion. But if you 

then go the other route, as Mr. Adams went, you spend a year trying to talk to your coworkers and get a union and you win an election. What did you win by, Mr. Adams, 180 to 86? 

Mr. ADAMS. Yes, that is correct. 

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Mr. MILLER. Yes. Everybody that gets elected, close the deal. Except your deal never got closed. 

Mr. ADAMS. That is correct, yes. 

Mr. MILLER. So now you have spent how long? What is it—Mr. 

Andrews says 600 days? 

Mr. ADAMS. Six-hundred-one. 

Mr. MILLER. Six-hundred-one days trying to get the results of 

your election. 

Mr. ADAMS. Yes. 

Mr. MILLER. And get the benefits of the bargaining. Which I understand started out with you are asking for parity. 

Mr. ADAMS. Yes. 

Mr. MILLER. And I assume if you find out that this unit can 

crawl and walk and run, you might ask for something else some 

day. 

Mr. ADAMS. Hopefully, we will be able to get a contract. 

Mr. MILLER. Yes. 

[Laughter.] 

Mr. ADAMS. Hopefully. 

Mr. MILLER. So they don’t give you the contract, and Mr. Andrews went through that part of it. And they gave everybody 

around you a raise, but not for the people in your unit that signed 

up for the union. 

Mr. ADAMS. That is correct. 

Mr. MILLER. So Mr. Dolan can be as arbitrary and as capricious 

as he wants to be, as long as you don’t get a contract. 

Mr. ADAMS. That is correct. 

Mr. MILLER. So he can reward people, trying to send a signal to 

the 186 that joined you that they just missed out on this benefit 

of—what was it you said, $5,000 to 25,000, something like that. I 

didn’t get the benefit of your previous testimony, but. 

Mr. ADAMS. Upwards of $27,000, yes, $18,000. 

Mr. MILLER. So just a cash benefit. 

Mr. ADAMS. Yep. 

Mr. MILLER. Telling people to stay away from this unit. And then 

I guess this progressive company, Cablevision, they have an open 

door policy. 

Mr. ADAMS. Yes. Yes, they do. They have an open door policy. 

Mr. MILLER. Unless you are in the union, it turns out to be a 

trapdoor. 

Mr. ADAMS. Pretty much. 

Mr. MILLER. Yes. So you must be wondering where you go to get 

justice. 

Mr. ADAMS. I am, actually. My and—— 

Mr. MILLER. Where do you go to get your union. And these people can drag you out for 600 days. They can fire you because you 

asked for a 5-minute meeting. Apparently, you didn’t even ask for 

a meeting in front of other workers. You asked for a meeting with 

your group, with him, with Mr. Levesque is it? 

Mr. ADAMS. Rick Levesque, yes. 

Mr. MILLER. And that meeting, that meeting got you permanently displaced, or immediately replaced. 

Mr. ADAMS. That is correct. Permanently replaced, yes. 

Mr. MILLER. You need a union. 

CEWDOCROOM with DISTILLER

52 

Mr. MILLER. That is what—because these people are about as arbitrary and capricious as an employer could be. And this is just, 

you know, a company that is a rogue with respect to its employees. 

They have decided also that you are replaceable. And anybody else 

that, apparently, speaks up, uses their policies, uses the law, can 

be punished and lose their job and lose the benefits of an increase 

in pay. And they are daring you to do something about it. 

Mr. ADAMS. That is correct. 

Mr. MILLER. It is really unfortunate for you. You know, and I noticed several members here thank you for your service to the country. Don’t make a damn bit of difference when you are in that 

workplace at Cablevision. Doesn’t make a damn bit of difference. 

Made a big difference to us as a country and to your fellow 

servicepeople. 

Thank you very much for your testimony. 

Mr. ADAMS. Thank you. 

Chairman ROE. Mr. Courtney? 

Mr. COURTNEY. Thank you, Mr. Chairman. I actually just wanted 

to pick up where Mr. Miller left off. You testified, Mr. Adams, that 

what you have been going through is the toughest thing you have 

ever experienced? 

Mr. ADAMS. Yes, that is correct. 

Mr. COURTNEY. Okay. And you are a U.S. Marine combat veteran 

of Iraq. Is that correct? 

Mr. ADAMS. Yes. Support, yes. 

Mr. COURTNEY. Yes. And when you entered the Marines you entered as a volunteer. Isn’t that correct? 

Mr. ADAMS. Yes. 

Mr. COURTNEY. And you took an oath. And in that oath, you 

swore to uphold the Constitution and the laws of this country, is 

that correct? 

Mr. ADAMS. Yes, that is correct. 

Mr. COURTNEY. And when we go into military service, again, you 

are not taking an oath to an individual or to the homeland or to 

the motherland. You are really taking an oath to a system that is 

about protecting people’s dignity and rights as American citizens. 

Isn’t that correct? 

Mr. ADAMS. Yes, that is correct. 

Mr. COURTNEY. And it—again, I just—you know, listening to 

this—your story, it just is stunning to see that, you know, where 

you were prepared to put your life on the line as a Marine, and to 

come and have the system, again, really just trample on your 

rights. Which, again, are not sort of just statutory rights. The 

rights to collectively bargain are recognized by the United Nations 

human rights charter. It was recognized by Pope Leo in the Vatican in the late 1880s in terms of—1880s, in terms of recognizing 

that human dignity is tied to the fact that people have the right 

to withhold their work as a way of bargaining for appropriate 

working conditions. 

And yet you are in a situation now where 600 days after going 

through the process, following the rules, obeying the law, that, 

again, you still do not have an outcome that the law claims to offer. 

Isn’t that correct? 

Mr. ADAMS. Yes, that is correct. 

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53 

Mr. COURTNEY. The Marines actually have a motto. Isn’t that 

correct? 

Mr. ADAMS. Yes, they do. 

Mr. COURTNEY. And what is it? 

Mr. ADAMS. ‘‘Always Faithful—Semper Fi.’’ 

Mr. COURTNEY. Semper Fi. Well, there is also another Latin term 

called ubi jus ibi remedium, which says that ‘‘without a remedy, 

there is no right.’’ And, again, that is first-year law class, you 

know, taught to individuals. Marshall v. Marbury, that was the 

principle that the U.S. Supreme Court, establishing its authority, 

enunciated. And it is a very simple concept. Which is that, you 

know, you can have all the platitudes in the world about people’s 

right to equality and votes and collective bargaining. But if you 

don’t have a remedy, it really doesn’t exist. 

And what your story proves is that the decline in union membership, which we have heard from witnesses and which we have 

heard from the chairman, is frankly because we have a broken system. And sadly, in this committee room, you know, we have seen 

measures brought forth trying to exploit the fact that the filibuster 

rule was used in the Senate to basically neuter the National Labor 

Relations Board and use that. Not the merits of cases, but use that 

procedure as a device to, again, basically strip people of their 

rights. 

Thank goodness, they are—you know, the majority leader exercised a procedural measure to make sure that we now have a fullystaffed National Labor Relations Board. But the fact of the matter 

is, you know, that just sort of gets us to the point where we can 

begin the process of making sure that situations like yours are addressed. So thank you for your amazing service, for you belief in 

our system. Not just as a soldier, but also a citizen and as a worker. 

And, again, we—and some of us here want to make sure that we 

create a system that really balances rights and remedies so that 

people can actually have available to them—which is, again, bedrock human rights principles that has been recognized by international organizations and, in fact, the Vatican. 

I yield back. 

Chairman ROE. I thank the gentleman for yielding. 

Ms. Wilson? 

Ms. WILSON. Thank you, Mr. Chair. Strengthening labor means 

strengthening our economy. And according to the Bureau of Labor 

Statistics, the median weekly earnings of full-time union workers 

in 2012 were $943 compared with $742 for non-union workers, or 

$10,400 per year per worker. So people who are in unions earn less 

than people who are not. By getting more income into the hands 

of hardworking people who will spend it, we ensure more customers for American businesses and eliminate much of the need for 

government assistance. 

This is the case now more than ever. At a time of high unemployment and falling living standards for workers, today a parent working full-time at minimum wage will simply not earn enough income 

to cover basic needs like food, clothing and shelter. Even working 

a second job and well over 40 years a week, it is mathematically 

impossible for many minimum wage workers to pay for child care, 

CEWDOCROOM with DISTILLER

54 

clothing and gas. If you doubt these claims, take a look at the draft 

budget that a major employer distributed to its employees. 

According to a new study from the Economic Policy Institute, the 

bottom 60 percent of workers are earning less than they did 13 

years ago. According to a recent report by the Center for Economic 

& Policy Research, black Americans who have earned much higher 

average levels of education over recent decades have a lower 

chance of earning a living wage today than they had 30 years ago. 

And so economic growth remains slow, unemployment stays high, 

government debt continues to grow. 

My question to Mr. Adams—and I have read your story, and I 

commend you for your bravery and for standing tall for working 

men and women—and I would like for you to—I would like to find 

out your view. How does collective bargaining affect low-and middle 

class Americans’ purchasing power? 

Mr. ADAMS. Well, what it does is, it definitely helps, at least for 

the people who have already gone through the experience of earning low incomes, it really helps a lot when it comes to being able 

to pay rent, being able to provide, you know, medical, being able 

to just get some of the common items that every American deserves 

and as to be as comfortable as possible, to work hard as possible, 

and to earn a reasonable salary. 

With collective bargaining, what it does is, it just points out that 

the workers, if they have a good structure, are able to, you know, 

help the company, you know, strive where it needs to go. And then 

at the same time, without—I could—I don’t—I hate to use the 

term, without ‘‘greed’’ being part of the equation. Where everybody 

is doing well, normally you would get, obviously, better results. 

Better workers, people are willing to go the extra mile. And with 

collective bargaining, it allows both sides to at least be able to, you 

know, review that. And like I said—and it helps families tremendously. 

Ms. WILSON. Yes. Well, you keep up the good fight. I have always 

been a strong supporter of unions. I come from the public school 

sector, where unions play a major role in making sure that there 

is equal pay for everyone working for the school system. So it is 

a bargaining procedure to make sure that people receive health 

care, the benefits that they need to keep people at least surviving 

and not falling below the poverty level. 

And I just can’t even imagine what we would actually do in our 

school district in Miami-Dade County if we did not have the support of the unions making sure that people received a wage commensurate with what their living demanded. So thank you for 

keeping on the—stay on the path. 

Mr. ADAMS. Thank you. 

Chairman ROE. I thank the gentlelady for yielding. 

Dr. DesJarlais? 

Mr. DESJARLAIS. Thank you, Mr. Chairman. And thank you all 

for being here today. I would like to start with Mr. Marculewicz. 

If a worker center is a labor organization under federal law, what 

are the filing requirements and restrictions on activity? 

Mr. MARCULEWICZ. Well, as in any labor organization they must 

file an LM–1, which is a form with the Department of Labor that 

incorporates and includes the constitution and bylaws. And this is 

CEWDOCROOM with DISTILLER

55 

designed to provide disclosure, public information to those who 

have an interest in that. Specifically those who are seeking to be— 

you know, or that group is seeking to represent as to how officers 

are elected, what the process is, and the like. 

There are also financial disclosures, in an LM–2—or if you are 

a smaller labor organization, an LM–4—which are forms that are 

filed with the Department of Labor that incorporate references and 

describe and disclose the information, financial information, for the 

labor organization. So workers, members can understand where the 

money is coming from and where the money is going. 

Mr. DESJARLAIS. Okay. I think you have partially answered this, 

but why are the filing requirements and restrictions so important? 

Mr. MARCULEWICZ. Well, they are important because back when 

the Labor-Management Reporting and Disclosure Act was enacted 

by Congress there were really fundamental problems of corruption 

within labor unions. The McClellan hearings, which took place—actually were the first televised, to my understanding the first televised hearings in congressional history. And there was a fair 

amount of interest in the issue. And it exposed union corruption, 

exposed a wide variety of issues related to that. 

And the law was passed to ensure that workers who were members and represented by these groups had a democratic right of 

participation, a right to expression of opinion, a right to vote. I 

mean, they have to elect their leadership, in a local, every 3 years 

and in an international every 5 years. And those democratic principles are sort of at the foundation of organizational representation. 

Mr. DESJARLAIS. Okay, thank you. Where do worker centers get 

their funding? 

Mr. MARCULEWICZ. Typically, worker centers—they get them, as 

I indicated in my initial remarks, they receive funding from a wide 

variety of sources. There are grants. Foundations will make contributions to them. There are also government grants that can be— 

that they can apply for and they can obtain. They also—some of 

them also receive direct funding from labor organizations. So the 

money comes from a variety of different sources. 

Now, the reality is, is that there is no disclosure related to where 

that money comes from if that worker center doesn’t consider itself 

a labor organization. Now, recognize this. That workers—not all 

worker centers act like labor organizations, but many of them are 

starting to do so. And that is—once you become a labor organization and start engaging in dealing with an employer, there is a responsibility to file that and to disclose that information. 

Mr. DESJARLAIS. Okay. Does this affect their tax status? 

Mr. MARCULEWICZ. Well, typically—there is actually a very good 

piece written by Diana Furchtgott Roth on the worker center tax 

treatment. And typically, a labor organization is a 501(c)(5) organization, which has different type—it is a different type of tax treatment. But many worker centers file, or designate themselves, as 

501(c)(3)s. And the manner in which you can contribute is different. There are also contribution limitations by employers under 

the Labor-Management Relations Act. Section 302 also limits how 

money can be given to these worker centers. 

Mr. DESJARLAIS. Thank you, sir. 

CEWDOCROOM with DISTILLER

56 

The next question will be for Mr. Meisburg. In fiscal year 2011, 

labor unions won more than 71 percent of representation elections; 

89 percent of those elections were held pursuant to agreements of 

the union and employer, commonly referred to as voluntary consent 

agreements. The median time to proceed to an election from the filing of a petition was 38 days. It appears the NLRB elections are 

timely, and unions fare pretty well. In rare cases, the time between 

a petition election can be significantly longer. What is the source 

of these elections’ delay? 

Mr. MEISBURG. Well, I haven’t done a study of that personally. 

But my experience suggests that a lot of the delay is caused in 

blocking charge cases. I know I had one case where we—it was between the SCIU and the NUHW in California. And there was a petition for an election by the NUHW which was blocked for over a 

year by a charge filed by the SEIU. Eventually, we refused to issue 

a complaint. The block was withdrawn. 

Now, the block can be withdrawn by a regional director if the 

permission of the board at other times. But my sense is, and without having made a study, a thorough study of is, that is the source 

of a lot of delay in, and it skews the statistics higher in those cases. 

Mr. DESJARLAIS. Is this the exception to the rule? 

Mr. MEISBURG. It is. I mean, you know—— 

Chairman ROE. The gentleman is time has expired. 

Mr. DESJARLAIS. Oh, sorry, Mr. Chairman. 

Chairman ROE. Dr. Holt? 

Mr. HOLT. I thank the chair. I would like to address Mr. Adams. 

I was pleased to meet you in Brooklyn. I am impressed by your 

service. I would think that the customers of the company must be 

very pleased to know that someone such as you, so thoughtful and 

diligent, is on the job. And as a policymaker, I must say I am very 

pleased to find someone who so articulately expresses the worker’s 

point of view. 

You know, for well over half a century now labor laws in this 

country have protected workers who believe that a union, through 

collective bargaining, can improve their working conditions and 

safety and pay and benefits. And those protections, I think, have 

been well-justified because, over the intervening decades, unions 

have, and to this day continue to be, I think, continue to have a 

very beneficial effect on working conditions and safety and pay and 

benefits. 

What we see, and I have looked at this pretty closely, what we 

see there with the Cablevision instance is a textbook example of 

what has come to be known as union busting. In punishment, in 

your case firing, for those who want to organize; inducements to try 

to entice others not to organize; all sorts of statements, and then 

retractions of those statements, and delays right up to the deadlines. It is a textbook example of how you use or misuse the laws 

to prevent unionization. And even to this very day, the corporation 

is spending millions of dollars to continue to fight this. Far more 

than was at stake in the salaries and in the pay under dispute. 

You have spoken about, we have heard about, Cablevision CEO, 

Jim Dolan’s visit to the Bronx field technicians who were getting 

ready to vote on affiliating and organizing. And he said they would 

be left behind in training and investment and promotion and job 

CEWDOCROOM with DISTILLER

57 

advancement. And that group did not vote to affiliate. How do you 

distinguish that from what happened with your group of field technicians? And from what you know about the Employee Free Choice 

Act, how would that have made a difference in the Bronx? How 

would it have made it a difference for your group? 

Mr. ADAMS. Well, one of the things that would have been extremely beneficial, at least, you know, for the technicians in the 

Bronx, when Mr. Dolan went to go visit them he did so simply because he realized that by underestimating the technicians in 

Brooklyn he decided to, obviously, do something that would otherwise, like I say, point to our being irresponsible, so to speak, by 

being a bit manipulative with his message. It was very difficult to 

get the truth out to the Bronx. 

Like I said, Cablevision has an unlimited amount of resources. 

Like I said before, they have over 60 lawyers already working on 

this case. They are spending countless amount of money just trying 

to stop something that—I can’t understand why—but to stop something that we have already, like I said, strongly made a decision 

on. I just think that if, had we had the Free Choice Act, like I said, 

I would already be one year into our first contract. And then possibly at least coming together to make an even better second one. 

Because that is what I honestly thought this was all gonna be 

about. Just being able to create better structure, to basically let 

them know that obviously he proved us correct by paying the other 

workers more money to help better their situations. When those 

things are being brought up, that is really what we were hoping 

that Mr. Dolan and his management team would see. That obviously we were behind. So had that been in place, this would all be 

behind us and, like I said, we would be already one year into our 

first contract. 

Mr. HOLT. Thank you. And Mr. Chairman, I understand 55 percent of the workers still support the union, which is about equal 

to the original.. 

[Off mike.] 

Mr. ADAMS. That is correct. 

Mr. HOLT. [Off mike.] 

Chairman ROE. The gentleman’s time has expired and I appreciate the gentleman yielding. 

I will now yield myself 5 minutes. And Mr. Meisburg, if you 

would like to continue your thoughts. 

Mr. MEISBURG. Well, just at the end of that last question I had 

about whether it was typical for blocking charges to be filed, they 

are—it is not typical. It happens, but it is not the rule, I don’t believe. 

Chairman ROE. Yes, I thank you. 

And now, Mr. Burton, and I agree with Dr. Holt that basically, 

as I understand, the NLRA was passed, I think, in 1935. And then 

the NLRB was established to be a fair arbiter between the employees and employers. So that you didn’t favor either side. It is like 

being in a ball game, where you go and you hope the refs are fair. 

And you want a—you just want a fair hearing. When some people 

run the string out or whatever, they are at the tail—most of time, 

as I understand these, the unions win most elections, 71 percent. 

CEWDOCROOM with DISTILLER

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The elections are—and this happens in a fairly timely fashion. I 

think within less than a month and a week, 35 days, I believe is 

the median. So it seems like that it allows both sides to get—a 

small business especially—to get the expertise in. I was thinking 

about my own business. I wouldn’t have any idea how to go out and 

find a labor lawyer. I would have to go find somebody if I—and I 

couldn’t do it in 10 days or 15 days. It is impossible. 

So both sides need to be fair. And this case that Mr. Adams 

points out probably is at the other end of the scale. So I want to 

ask a couple of questions about—for you, Mr. Burton. And the statistics to the size of our units, they fluctuate year-to-year. And 

there is a graph over here that is up. And the Democrats are correct that the median size of units has increased from 2011 to 2012. 

However, the average size—there is a difference between median 

and average—has decreased from 71 to 65 in 2012. 

And these are interesting numbers, but they really don’t address 

the issue of Specialty Health Care where this is the fragmentation 

of the workforce. That is what I want to ask the question. And also 

Bergdorf Goodman you mentioned. How does fragmentation of the 

workforce affect the employers and employees? And number two, 

can you give me an example of workplace fragmentation by recent 

NLRB unit certification? 

Mr. BURTON. Well, fragmentation is a problem in the sense that 

you could end up having to deal with many unions. You can have 

some aspects of your company governed by one collective bargaining agreement, and another. And there is a multiplicity of 

agreements, a multiplicity of unions, complexity, inability to move 

back and forth and so on down the line. The case that I mentioned 

briefly in my oral remarks is, to me, the most dramatic—the 

Bergdorf case, where you are organizing by shoe department, a department store. 

There is another case that, out of the Northrop Grumman cited 

in my written statement, where I believe they organized 180 out 

of 2,400 technicians in the shipyard. So you end up having a lot 

of division. I think that the—and it was all launched by specialty 

health care which, of course, is a specific job description type unit. 

This is of concern to small employers, but not really small employers. Mid-size, 100, 200 type employers, which is part of our membership base. 

Chairman ROE. Next question would be, in your experience, and 

anybody can answer this, when do employers become aware that— 

of a union organizing drive? And anyone can—how do you know 

when you are being organized? 

Mr. BURTON. Well, that can vary dramatically. Sometimes it can 

be reported to you by employees. But obviously, sometimes people 

find out about it when the petition is filed by the labor union. So 

it just varies dramatically. The one thing I think that is most important to understand is, most small employers don’t know anything about labor law until they have to. They know about employment law, or maybe NRLA section 7 rights of like social media or 

what have you. 

But they don’t know about unions or union organizing. The 

unions generally do. That is what they do for a living. Six-hundred 

days is ridiculous. Ten days is also ridiculous. I mean, there needs 

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to be a reasonable middle ground found. But there is no way on 

God’s green earth that a typical small business owner is going to 

be able to find representation, understand the law, understand the 

implications for his business, explain it to his employees, and adequately present the facts to his employees in 10 days. 

Chairman ROE. Yes. I will now cut myself off. I would like to 

again thank the witnesses for taking time to testify before the committee. Y’all have been a terrific group. 

I will now recognize the ranking member for closing statements. 

Mr. ANDREWS. Well, I, too, want to thank the witnesses and our 

fellow members for their participation this morning. I think we 

heard a lot of good information. I wanted to come back to one thing 

Mr. Meisburg said which struck a chord with me. Which is that 

whatever ideological or political disputes may happen, it is very important that the dedicated career employees of the National Labor 

Relations Board be respected in the integrity of their work. And I 

appreciate that. 

And again, I—this is just my own observation. I am not putting 

words in anyone’s mouth. But one of the things that we were disturbed about previously—and Mr. Miller, Mr. Cummings and Mr. 

Conyers wrote a letter on August 12 of 2011—when the dispute 

over the Boeing case was going on and the board had filed a complaint against Boeing, there was a subpoena served on the board 

by the—not by this committee, by the Government Reform Committee, that called for all communications that took place between 

the regional office and the board pertaining to the filing of the Boeing complaint. 

Now, obviously, that was a rather hotly-contested item. But one 

of the things we were worried about then was that the trial strategy, the negotiated settlement strategy, the work that the regional 

office was doing was gonna be subject to invasion in a public forum. 

And I think that was a grave concern. So I thought about that, Mr. 

Meisburg, when you made that remark. I know that was not your 

intention, but it triggered that response with me. 

And I take it as a worthy admonition. The NLRB is a place 

where there are fierce ideological battles. It has been this way for 

a very long time. I hoped that we could bridge some of them. But 

certainly, the work of the men and women in the regional offices 

and in the main office, the career people, should not be abridged 

in any way. And I think that was a very important point that you 

made. 

Mr. Chairman, I think this panel has served us well. I appreciate 

their time and effort. Mr. Adams, we especially appreciate your efforts, as well. And we thank you for your time. 

Chairman ROE. I thank the gentleman for yielding. And I thank 

the panel. And in closing, you know, we have, in this country right 

now, a real problem with jobs. And we have had a huge problem. 

And you have noticed that the jobs in unions have dropped from 

20 percent of the population down to around 7 in the private sector. 

I grew up in a union household. My dad worked in a factory, made 

shoe heels. He belonged to the union as—after World War II until 

he died. And died before he was able to retire. 

So we have some issues. The ranking member and myself are 

gonna work on union issues with pensions. It is a huge issue. We 

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plan to work diligently on that to help save those. I believe, quite 

frankly, that we will not recreate the middle class in America until 

we recreate—bring manufacturing back to this country. There are 

estimates out there, with a coherent energy policy in this country— 

if we had just exactly like President Kennedy did when I was a 

high school student, he said we are going to go to the moon in this 

decade. And we beat that. 

Americans are that good. We beat that deadline. We put somebody on the moon in less than 10 years. We can become energy 

independent in America, if we use all the resources we have, within 

10 years. And Mr. Adams, one of the reasons that I have to look 

at energy independence, it was 40 years ago this year I was stationed just south of the DMZ in Korea. And I almost froze to death 

because we only got heat 3 hours a day. 

And the reason was because the Middle East embargoed our oil 

and we had to keep the oil for our Huey—fuel for our Huey helicopters, our Cobra gunships, our tanks and so forth. And you understand that very well. We were a hostage of what somebody else 

halfway around the world did. If I could be the President of the 

United States for 1 month—and I don’t want to be, but if I were— 

in 1 month—— 

Mr. ANDREWS. You are announcing your candidacy? 

Chairman ROE. No. 

[Laughter.] 

Mr. ANDREWS. Okay, all right. 

Chairman ROE. Trust me, I already said I don’t want to be. But 

I would have a coherent energy policy so that I think—for middle 

America, where I grew up, the price of energy affects us more than 

anything. You see a gallon of gas go up a dollar. That affects everybody. When they have got to fill their tank up where we live and 

drive miles to their job, if they are making $10 or $11 or $12 an 

hour it may take an entire day’s work just to get to and from work. 

And that is why we have to do that. And there are estimates out 

there, with people a lot smarter than I am, that say in the next 

8 to 10 years we can create 2–1/2 to 5 million manufacturing jobs 

if we become energy independent. And let me tell you, the American worker is the best worker in the world. And I was in China 

a year—a little over a year ago. And it struck me when I was in 

Beijing, you know they have done a lot of building. You hear all 

about China. 

That country has 1.4 billion, with a ‘‘B,’’ people. The United 

States of America has 300 million people, and we produce more 

goods and services than they do. The best worker in the world in 

the American, and the most productive. We have got to give them 

the tools in which to do that. And I really think recreation of the 

middle class will solve a lot of these problems for us going forward. 

I am concerned. Right now, I have got to share some real frustration with me in my job right now. 

I spent 30 years, over 30 years practicing medicine. There is one 

hospital system in my state that because of what is going on in 

health care right now is going to have to make a $250 million cut. 

We have just lost 50 residency slots, how we train young doctors 

in the community I live in Johnson City, Tennessee. This is going 

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on all over the country, the effects of the Affordable Care Act. We 

need to step back and re-look at that. 

It is affecting the economy. We have had a hospital close in 

southwest Virginia, very close. It will close the 1st of October, this 

year. I look forward to working with you all. I appreciate very 

much all of the input from the members. And you all did a great 

job. I appreciate you being here. 

With no further business, this hearing is adjourned. 

[Whereupon, at 11:37 a.m., the subcommittee was adjourned.] 

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