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75–142 PDF 2012

EXAMINING PROPOSALS TO STRENGTHEN 

THE NATIONAL LABOR RELATIONS ACT 

HEARING 

BEFORE THE

SUBCOMMITTEE ON HEALTH, 

EMPLOYMENT, LABOR AND PENSIONS 

COMMITTEE ON EDUCATION 

AND THE WORKFORCE 

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED TWELFTH CONGRESS 

SECOND SESSION 

HEARING HELD IN WASHINGTON, DC, JULY 25, 2012 

Serial No. 112–67 

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 
(II) 

COMMITTEE ON EDUCATION AND THE WORKFORCE 

JOHN KLINE, Minnesota, Chairman 

Thomas E. Petri, Wisconsin 

Howard P. ‘‘Buck’’ McKeon, California 

Judy Biggert, Illinois 

Todd Russell Platts, Pennsylvania 

Joe Wilson, South Carolina 

Virginia Foxx, North Carolina 

Bob Goodlatte, Virginia 

Duncan Hunter, California 

David P. Roe, Tennessee 

Glenn Thompson, Pennsylvania 

Tim Walberg, Michigan 

Scott DesJarlais, Tennessee 

Richard L. Hanna, New York 

Todd Rokita, Indiana 

Larry Bucshon, Indiana 

Trey Gowdy, South Carolina 

Lou Barletta, Pennsylvania 

Kristi L. Noem, South Dakota 

Martha Roby, Alabama 

Joseph J. Heck, Nevada 

Dennis A. Ross, Florida 

Mike Kelly, Pennsylvania 

George Miller, California, 

Senior Democratic Member 

Dale E. Kildee, Michigan 

Robert E. Andrews, New Jersey 

Robert C. ‘‘Bobby’’ Scott, Virginia 

Lynn C. Woolsey, California 

Rube ́n Hinojosa, Texas 

Carolyn McCarthy, New York 

John F. Tierney, Massachusetts 

Dennis J. Kucinich, Ohio 

Rush D. Holt, New Jersey 

Susan A. Davis, California 

Rau ́l M. Grijalva, Arizona 

Timothy H. Bishop, New York 

David Loebsack, Iowa 

Mazie K. Hirono, Hawaii 

Jason Altmire, Pennsylvania 

Marcia L. Fudge, Ohio 

Barrett Karr, Staff Director 

Jody Calemine, Minority Staff Director 

SUBCOMMITTEE ON HEALTH, EMPLOYMENT, LABOR AND PENSIONS 

DAVID P. ROE, Tennessee, Chairman 

Joe Wilson, South Carolina 

Glenn Thompson, Pennsylvania 

Tim Walberg, Michigan 

Scott DesJarlais, Tennessee 

Richard L. Hanna, New York 

Todd Rokita, Indiana 

Larry Bucshon, Indiana 

Lou Barletta, Pennsylvania 

Kristi L. Noem, South Dakota 

Martha Roby, Alabama 

Joseph J. Heck, Nevada 

Dennis A. Ross, Florida 

Robert E. Andrews, New Jersey 

Ranking Member 

Dennis J. Kucinich, Ohio 

David Loebsack, Iowa 

Dale E. Kildee, Michigan 

Rube ́n Hinojosa, Texas 

Carolyn McCarthy, New York 

John F. Tierney, Massachusetts 

Rush D. Holt, New Jersey 

Robert C. ‘‘Bobby’’ Scott, Virginia 

Jason Altmire, Pennsylvania 
(III) 

C O N T E N T S 

Page 

Hearing held on July 25, 2012 ............................................................................... 1 

Statement of Members: 

Andrews, Hon. Robert E., ranking member, Subcommittee on Health, 

Employment, Labor and Pensions ............................................................... 4 

Roe, Hon. David P., Chairman, Subcommittee on Health, Employment, 

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

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

Statement of Witnesses: 

Kane, Tim, chief economist, Hudson Institute ............................................... 28 

Prepared statement of ............................................................................... 30 

Messenger, William L., staff attorney, National Right to Work Legal 

Defense Foundation ...................................................................................... 10 

Prepared statement of ............................................................................... 11 

Porter, Hon. Robert Odawi, President, Seneca Nation of Indians ............... 6 

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

Virk, Devki K., Bredhoff & Kaiser, P.L.L.C. .................................................. 19 

Prepared statement of ............................................................................... 20 

Additional Submissions: 

Mr. Andrews: 

PowerPoint slide, ‘‘% Unionized Labor vs. Unemployment (6/12)’’ ....... 52 

Letter, dated May 11, 2012, to Chairman Kline ..................................... 52 

Mr. Kane, PowerPoint slide, ‘‘The Zero Recovery’’ ......................................... 32 

Miller, Hon. George, senior Democratic member, Committee on Education 

and the Workforce: 

Letter, dated May 11, 2012, to Chairman Kline ..................................... 52 

Memorandum, dated March 19, 2012, from David P. Berry, Inspector 

General, National Labor Relations Board ........................................... 54 

Memorandum, dated April 30, 2012, from Mr. Berry ............................ 67 

Rokita, Hon. Todd, a Representative in Congress from the State of Indiana, letter, dated July 24, 2012, from Brett McMahon ............................. 37 

(1) 

EXAMINING PROPOSALS TO STRENGTHEN 

THE NATIONAL LABOR RELATIONS ACT 

Wednesday, July 25, 2012 

U.S. House of Representatives 

Subcommittee on Health, Employment, Labor and Pensions 

Committee on Education and the Workforce 

Washington, DC 

The subcommittee met, pursuant to call, at 10:02 a.m., in Room 

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

of the subcommittee] presiding. 

Present: Representatives Roe, Wilson, Rokita, Noem, Ross, Andrews, Kucinich, Kildee, Tierney, and Holt. 

Also present: Representatives Kline and Miller. 

Staff present: Adam Bennot, Press Assistant; Casey Buboltz, 

Coalitions and Member Services Coordinator; Molly Conway, Professional Staff Member; Ed Gilroy, Director of Workforce Policy; 

Benjamin Hoog, Legislative Assistant; Marvin Kaplan, Workforce 

Policy Counsel; Barrett Karr, Staff Director; Brian Newell, Deputy 

Communications Director; Krisann Pearce, General Counsel; Linda 

Stevens, Chief Clerk/Assistant to the General Counsel; Alissa 

Strawcutter, Deputy Clerk; Loren Sweatt, Senior Policy Advisor; 

Tylease Alli, Minority Clerk; Jody Calemine, Minority Staff Director; John D’Elia, Minority Staff Assistant; Jonay Foster, Minority 

Fellow, Labor; Brian Levin, Minority New Media Press Assistant; 

Celine McNicholas, Minority Labor Counsel; Megan O’Reilly, Minority General Counsel; Michele Varnhagen, Minority Chief Policy 

Advisor/Labor Policy Director; and Michael Zola, Minority Senior 

Counsel, 

Chairman ROE. A quorum being present the Subcommittee on 

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

morning, everyone. 

I would like to thank the witnesses for being here with us. We 

have a distinguished panel and look forward to their testimony. 

Over the last year this committee has taken action on numerous 

occasions to defend the rights of workers and employers from the 

harmful agenda of the National Labor Relations Board. Most notably, we have passed legislation that would prohibit the NLRB from 

dictating the location of American businesses and advanced a bill 

that would preserve longstanding union election procedures that 

protect employer free speech and worker free choice. 

I hope our colleagues in the Senate will soon see the value in 

these positive proposals and hold a vote without further delay. In 
2 

the meantime, this committee must continue examining labor policies that affect the strength and competitiveness of America’s workplaces. Toward that end, we will review today a number of decisions by the board and examine their impact on the workforce and 

discuss legislative solutions offered by members of the committee. 

As we all know, foremost on the minds of many workers are the 

ongoing challenges they face in this tough economy. Roughly 13 

million Americans are unemployed and searching for work. 

Those fortunate to have a job watch helplessly as higher food and 

energy prices take more out of a paycheck that hasn’t increased 

significantly in the recent years. In fact, hourly—average hourly 

wage earnings for private sector employees has risen less than $1 

over the last 2 years. 

No individual that works hard and earns a higher wage should 

be denied the fruits of his or her labor. Yet federal labor policy actually prevents union workers from receiving higher wages if they 

are not included in a collective bargaining agreement or agreed 

on—to by the union. Over the years the board has found employees 

in violation of the law for signing bonuses, expanding pay for commissioned associates, and implementing incentive programs that 

reward good work. 

I am pleased to support a bill introduced by our colleague from 

Indiana, Representative Todd Rokita, which would amend the 

NLRA—National Labor Relations Act and permit employers to pay 

higher wages to their employees. The RAISE Act is a common 

sense reform that would provide relief to countless working families. 

Workers are not only concerned about policies to keep their 

wages down; they also worry about the effects to undermine the 

democratic rights of the workplace. In its 2007 Dana decision the 

NLRB strengthened worker access to a secret ballot in the event 

their employer voluntarily recognized a union. Recognizing that intimidation and coercion often associated with card-check campaigns 

undermine employee free choice, the board’s decision provided employees 45 days to request a secret ballot election. 

Remarkably, the Obama NLRB reversed this important proworker decision. Once an employer decides it is—is it in his or her 

best interest to voluntarily recognize the union, some workers will 

be forced to wait years before participating in a free and fair union 

election. 

We often hear the Obama board has been diligently promoting 

the workers—the rights of workers. However, its decision to restrict access to the secret ballot exposes the harsh reality behind 

such false rhetoric. 

The Secret Ballot Protection Act will end the assault on the secret ballot once and for all. The bill, which I introduced and am 

proud to have the support of 69 of my House Republican colleagues, amends the National Labor Relations Act to ensure unions 

have to first win the vote in a secret ballot election before they can 

represent workers. And every person on this dais, including the 

president, is elected by secret ballot. 

Finally, the board is simultaneously advancing policies that restrict employer rights while also working to expand its jurisdiction 

over the sovereign affairs of Indian tribes. In the 2004 landmark 
3 

San Manuel Indian Bingo and Casino decision the board overturned nearly 30 years of precedent in order to impose its authority 

on commercial activities owned and operated by Native Americans. 

The decision was issued with bipartisan support of the board members, which demonstrates that just because something is bipartisan 

doesn’t mean it is good public policy. 

We are honored to have today with us President Robert Porter, 

of the Seneca Nation of Indians, to discuss his experience with the 

board’s flawed interpretation of the law and to express his support 

for the Tribal Labor Sovereignty Act. This important legislation, 

championed by our colleague from South Dakota, Representative 

Kristi Noem, would reassert the authority of tribal leaders over 

tribal affairs, free from the NLRB intrusion. 

There is a great deal of work to be done to make NLRA more 

responsive to today’s needs in the workplace. I look forward to 

working with all of my colleagues in that important effort. 

And I will now recognize my distinguished colleague, Rob Andrews, senior Democrat member from the subcommittee, for his 

opening remarks? 

[The statement of Chairman Roe follows:] 

Prepared Statement of Hon. David P. Roe, Chairman, Subcommittee on 

Health, Employment, Labor and Pensions 

Good morning, everyone. I would like to thank our witnesses for being with us. 

We have a distinguished panel and we look forward to their testimony. 

Over the last year, this committee has taken action on numerous occasions to defend the rights of workers and employers from the harmful agenda of the National 

Labor Relations Board. Most notably, we have passed legislation that would prohibit 

the NLRB from dictating the location of American businesses and advanced a bill 

that would preserve long-standing union election procedures that protect employer 

free speech and worker free choice. 

I hope our colleagues in the Senate will soon see the value in these positive proposals and hold a vote without further delay. In the meantime, this committee must 

continue examining labor policies that affect the strength and competitiveness of 

America’s workplaces. Toward that end, we will review today a number of decisions 

by the board, examine their impact on the workforce, and discuss legislative solutions offered by members of the committee. 

As we all know, foremost on the minds of many workers are the ongoing challenges they face in this tough economy. Roughly 13 million Americans are unemployed and searching for work. Those fortunate to have a job watch helplessly as 

higher food and energy prices take more out of a paycheck that hasn’t increased significantly in recent years. In fact, average hourly earnings for private-sector employees has risen less than $1 over the last two years. 

No individual that works hard and earns a higher wage should be denied the 

fruits of his or her labor. Yet federal labor policy actually prevents union workers 

from receiving higher wages if they are not included in a collective bargaining 

agreement or agreed to by the union. Over the years, the board has found employers 

in violation of the law for signing bonuses, expanding pay for commissioned associates, and implementing incentive programs that reward good work. 

I am pleased to support a bill introduced by our colleague from Indiana, Representative Todd Rokita, which would amend the National Labor Relations Act and 

permit employers to pay higher wages to their employees. The RAISE Act is commonsense reform that would provide relief to countless working families. 

Workers are not only concerned about policies that keep their wages down, they 

also worry about efforts to undermine the democratic rights of the workplace. In its 

2007 Dana decision, the NLRB strengthened worker access to a secret ballot in the 

event their employer voluntarily recognized a union. Recognizing that intimidation 

and coercion often associated with card-check campaigns undermine employee free 

choice, the board’s decision provided employees 45 days to request a secret ballot 

election. 

Remarkably, the Obama NLRB reversed this important pro-worker decision. Once 

an employer decides it is in his or her best interest to voluntarily recognize the 
4 

union, some workers will be forced to wait years before participating in a free and 

fair union election. We often hear the Obama board has been diligently promoting 

the rights of workers. However, its decision to restrict access to the secret ballot exposes the harsh reality behind such false rhetoric. 

The Secret Ballot Protection Act will end the assault on the secret ballot once and 

for all. The bill, which I introduced and am proud to have the support of 69 of my 

House Republican colleagues, amends the National Labor Relations Act to ensure 

unions have to first win the vote in a secret ballot election before they can represent 

workers. 

Finally, the board is simultaneously advancing policies that restrict employer 

rights while also working to expand its jurisdiction over the sovereign affairs of Indian tribes. In the 2004 landmark San Manuel Indian Bingo & Casino decision, the 

board overturned nearly thirty years of precedent in order to impose its authority 

on commercial activities owned and operated by Native Americans. The decision was 

issued with bipartisan support of the board members, which demonstrates that just 

because something is bipartisan doesn’t mean it is good public policy. 

We are honored to have with us today President Robert Odawi Porter, of the Seneca Nation of Indians, to discuss his experience with the board’s flawed interpretation of the law and to express his support for the Tribal Labor Sovereignty Act. This 

important legislation, championed by our colleague from South Dakota Representative Kristi Noem would reassert the authority of tribal leaders over tribal affairs, 

free from NLRB intrusion. 

There is a great deal of work to be done to make the NLRA more responsive to 

the needs of today’s workplaces. I look forward to working with all of my colleagues 

in that important effort. I will now recognize my distinguished colleague Rob Andrews, the senior Democratic member of the subcommittee, for his opening remarks. 

Mr. ANDREWS. Mr. Chairman, thank you and good morning. We 

appreciate the good-spiritedness which you conduct all the affairs 

of the subcommittee. 

Good morning, ladies and gentlemen. Thank you for coming to 

testify with us this morning. 

This is a hearing that I think starts from the premise of a story 

that isn’t true, or an era that doesn’t exist. The basic narrative 

here is that the so-called Obama labor board has run amuck and 

has made all sorts of radical decisions that are undermining the 

health of the U.S. economy. And it makes for good television. 

But when you examine the facts of what has happened with the 

NLRB in the last couple years they tell a very different story. First 

of all, the labor board in the last couple of years has had a far 

higher percentage of unanimous decisions than the labor board did 

in the Bush years. So if there is such a radical and a huge divide 

within the board why is it that the board has had more unanimous 

decisions in the last 3 years than it did under the prior board? 

Second is the Boeing case is part of this narrative, in which the 

board is characterized as, quote—‘‘dictating where businesses can 

locate.’’ Nothing could be a further mischaracterization of the Boeing case. In the Boeing case the board filed a complaint alleging 

that Boeing had threatened to move work because of the collective 

bargaining activities of unions in the state of Washington. 

The case settled. Boeing and the board looked at the matter, they 

settled the case amicably, and the case is over. That is what the 

case was about. 

There is no rule, there is no decision, there is no statute that 

says that any business must or must not locate in any place in the 

United States. 

And so we are going to have a hearing this morning about other 

ideas about the National Labor Relations Board. I would respectfully suggest that what the Congress ought to be doing is three 
5 

things that would address the problems I think most of us hear 

about when we go back to our communities and our districts. 

First is, the president in September of 2011 proposed the idea 

that small businesses that hire people should get a tax cut for 

doing so. We have never taken a vote on that proposal. We should. 

Second is that although the private sector economy—businesses 

have added 4.3 million private sector jobs since March of 2010, 

public sector employment has dropped by over 600,000 people— 

teachers, firefighters, police officers, public works employees. There 

are a lot fewer of them than there were 2 years ago. 

The president proposed a modest program of help to states and 

cities and localities to help rehire some of those police officers and 

firefighters and teachers. We have never taken a vote on that proposal and I think we should. 

And finally, there is an unmitigated crisis in rural America because of the worst drought in decades. It is devastating the economy of rural America as we speak. 

Republicans and Democrats working together on the Agriculture 

Committee passed a farm bill, and there are things in that bill I 

like and things in that bill that I do not like. But they passed a 

bill to help with this crisis in rural America. 

The Congress is scheduled to adjourn next Friday for 6 weeks. 

As of now, from what we are hearing from the majority leadership, 

there won’t be a vote on the farm bill either, as rural America suffers. 

Now, I am not suggesting that the bills that our colleagues have 

put forward are not worth consideration. They are put forward in 

good spirit and good faith and they should be looked at. 

What I am suggesting is in the wake of the continuing chronic 

problem of unemployment that the ideas the president has put forward should merit a vote. And at a time of great economic crisis 

in rural America the farm bill, that both Republicans and Democrats supported in the Agriculture Committee, should at least be 

voted on before we leave town for 6 weeks. 

That seems to me to be a higher order of business for the Congress, and I would urge that we reconsider on that grounds. 

Mr. Chairman, again, I appreciate the chance to be with you and 

to hear from the witnesses and look forward to their testimony. 

Chairman ROE. Thank you, Mr. Andrews. 

Pursuant to Committee Rule 7c, all 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 very distinguished panel. 

First, the Honorable Robert Porter is the president of the Seneca 

Nation of Indians. 

Welcome, Mr. President. 

Mr. William Messenger is a staff attorney at the National Right 

to Work Legal Defense Foundation, located in Springfield, Virginia. 

Ms. Devki Virk is a member of the—member of Bredhoff & Kaiser, PLLC, in Washington, D.C. 

And I hope I pronounced your name correct—correctly. 
6 

Dr. Tim Kane is the chief economist at the Hudson Institute here 

in Washington, D.C. 

Before I recognize you to provide your testimony let me briefly 

explain the lighting system. You have 5 minutes to present your 

testimony. When you begin the light in front of you will turn green; 

with 1 minute left the light will turn yellow; and when your time 

is expired the light will turn red, at which point I will ask you to 

wrap up your testimony as best you can. 

And after everyone has testified members will each have 5 minutes to question the panel. 

Well, first I would like to thank the witnesses for being here 

today, and now I will start with President Porter? 

Is your mic on? 

Mr. PORTER. Oh, how about that? 

Chairman ROE. Better. 

STATEMENT OF HON. ROBERT ODAWI PORTER, PRESIDENT, 

SENECA NATION OF INDIANS 

Mr. PORTER. Excellent. 

Nya-weh Ske-no. In our language, I am thankful that you are 

well, I am thankful to be here. 

I am pleased to appear before you today to testify on how you 

might strengthen the National Labor Relations Act while at the 

same time strengthening respect for tribal sovereignty by enacting 

H.R. 2335, the Tribal Labor Sovereignty Act. I ask that my written 

testimony be placed in the record on behalf of the Seneca Nation 

of Indians, which I lead as its elected president. 

The Seneca Nation is one of America’s earliest allies, historically 

aligned with the other members of the Six Nations Iroquois Confederacy and living in peace with the American people since the 

signing of the Canandaigua Treaty over 217 years ago. In that 

treaty the United States made several key promises to the Seneca 

Nation. Of direct relevance to this hearing today, the United States 

recognized the Seneca Nation as a sovereign nation and assured us 

that our property and activities on our territory would not be interfered with. 

Because of this treaty-protected sovereign freedom, both our nation government and individual Seneca citizens have benefitted 

from the opportunity to resume our trade relations with non-Indians, especially during the last 40 years, focusing primarily on 

available businesses involving tobacco, gaming, hospitality, and related ventures. Key to our economic success has been our governmental sovereignty—our right to govern in our own way what happens in our own land. 

Unfortunately, many aspects of our treaty-recognized freedoms 

have been eroded over time. Each of the three branches of the federal government has, from time to time, overturned decades of 

precedent in federal Indian law. A prime example of this legal regression can be found in the recent tribal labor management decisions taken by the National Labor Relations Board and the federal 

courts in the 2007 San Manuel case. 

As you know well, the NLRA is the primary law governing relations between unions and employers. The NLRA defines employer 

as ‘‘any person acting as an agent of an employer, directly or indi-
7 

rectly,’’ but does not include within the term the United States, 

state governments, or any political subdivision thereof. 

In San Manuel the NLRB asserted jurisdiction over tribal government employees in a case brought against the San Manuel 

Band, a federally recognized Indian tribal government, by a union 

competing with another union for the right to organize tribal government employees. Upon appeal by the tribe the federal courts 

found against the tribe, holding that the NLRB may apply the 

NLRA to tribal government employees. This was their holding despite the fact that there had been no intervening change in the 

NLRA statute for 70 years and despite the fact that the NLRB had 

ruled otherwise for decades. 

The court’s rationale was, in reality, a political policy decision, 

concluding that because the San Manuel tribal government casino 

employees—employs many non-Indians and caters primarily to 

non-Indian customers that it must be treated like a commercial 

rather than a governmental enterprise. That rationale was wrongheaded, both as a matter of law and of policy. For the Seneca Nation, as you can safely assume for all American Indian tribal governments, it is an affront to be told that our own tribal labor management laws, enacted as an expression of our own sovereignty on 

our own tribal lands, are not sufficient to protect our tribal government employees. 

The Seneca Nation is proud of our labor policies and practices 

and cedes ground to no one, including the NLRB and the federal 

government, in our demonstrated commitment to workplace fairness, security, and benefits. For example, we have often exercised 

our sovereign right to utilize union labor in the construction of our 

casinos, and our government buildings, and our other public works 

projects. Our exercise of our sovereign control of our labor management relations reflects the fact that good government labor policy 

is good for business. 

When a regulatory body like the NLRB or a reviewing court conjures up a new interpretation of longstanding statutory law in violation of the federal laws and treaties dealing with Indian nations 

we believe it is the duty of the Congress to enact a clarifying 

amendment which makes the statute reflect the original congressional intent, consistent with the Constitution and treaties of the 

United States. 

This is why we urge you to include in your labor reform legislation the provisions of H.R. 2335, the Tribal Labor Sovereignty Act. 

This would clarify the NLRA to once again be interpreted to expressly exempt tribal government employers from the reach of the 

NLRA and the NLRB. I want to personally thank the sponsor of 

H.R. 2335, Congresswoman Kristi Noem, and her 63 co-sponsors, 

as well as the chairman of this committee, Chairman Roe, and the 

chairman of the full committee, Mr. Kline, for your support for this 

legislation. 

Tribal self-determination has long been the goal of federal Indian 

policy, dating back to at least July of 1970, when President Nixon 

issued his ‘‘Special Message to Congress on Indian Affairs.’’ Since 

then much progress has been made toward restoring recognition 

and respect for tribal sovereignty and self-determination, but the 

NLRB’s decision in the San Manuel case to override tribal author-
8 

ity and allow a federal takeover in this area of tribal governance 

is an outrage and it must be corrected. 

By acknowledging the governmental status of Indian tribes H.R. 

2335 will respect Indian nation governments as other governments 

are respected for purposes of the NLRA with regard to tribal government activities on tribal lands. The promise of labor law reform 

will positively impact Indian country only if it advances the first 

principles that are at the foundation of federal Indian policy at its 

best, that tribal nations are governments whose exclusive authority 

to govern all economic activity in our territory should be fully respected as a matter of federal law. 

Resurrecting this tribal territorial sovereignty approach should 

be the urgent focus of any new labor law reform efforts. H.R. 2335 

would do just that and deserves your support through to enactment. 

Thank you for the opportunity to provide this testimony and I 

ask that it be made part of the record of the hearing. Nya-weh. 

[The statement of Mr. Porter follows:] 

Prepared Statement of Hon. Robert Odawi Porter, President, 

Seneca Nation of Indians 

Nya-weh Ske-no. 

Chairman Roe, Ranking Member Andrews, and members of the Subcommittee, I 

am thankful that you are well and I am pleased to appear before you today to testify 

on how you might strengthen the National Labor Relations Act (NLRA) while at the 

same time strengthening respect for tribal sovereignty by enacting H.R. 2335, the 

Tribal Labor Sovereignty Act of 2011. 

I ask that my written testimony be placed in the record on behalf of the Seneca 

Nation of Indians, which I lead as its elected President. 

Background on the Seneca Nation of Indians 

The Seneca Nation of Indians (‘‘Nation’’) is one of America’s earliest allies, historically aligned with the other members of the historic Haudenosaunee (Six Nations 

Iroquois) Confederacy and living in peace with the American people since the signing of the Canandaigua Treaty over 217 years ago on November 11, 1794, 7 Stat. 

44. Our Nation has entered into numerous treaties and agreements with the United 

States since that time. We have always sought to live up to our commitments, despite the fact that, repeatedly, the United States has not reciprocated in kind. 

The United States made several key promises to the Seneca Nation in our 

Canandaigua Treaty. Of direct relevance to this hearing today, was a federal treaty 

recognition that the Seneca Nation is a sovereign nation and a federal treaty assurance that our property and activities on our Territory would not be interfered with. 

In particular, the United States expressly guaranteed that we would retain the ‘‘free 

use and enjoyment’’ of our lands. This promise has served as the basis for the unparalleled level of freedom possessed by the Seneca people today. 

Because of our treaty-protected sovereign freedom, our Seneca Nation has been 

able to achieve some success in recovering from nearly 200 years of economic deprivation inflicted upon us by the United States due to devastating losses of our lands 

and resources. Both our Nation government and individual Seneca citizens have 

benefited from the opportunity to resume our trade relations with non-Indians during the last 40 years, focusing primarily on available business involving tobacco, 

gaming, hospitality, and ancillary ventures. 

Key to our economic success has been our governmental sovereignty—our right to 

govern, in our own way, what happens on our land. 

Federal labor law must be clarified to respect tribal sovereignty 

Many aspects of our treaty-recognized freedoms have been eroded over time. All 

three branches of the federal government—judiciary, executive, and legislative— 

have directly caused or allowed this erosion to occur, sometimes even by overturning 

decades of precedent. 

A prime example of this legal regression can be found in recent tribal labor management decisions taken by the National Labor Relations Board (NLRB) and the 
9 

federal courts in the San Manuel Indian Bingo and Casino v. NLRB case, 475 F.3d 

1306 (D.C. Cir. 2007). 

As you know full well, the National Labor Relations Act (NLRA), 29 U.S.C. § 160 

et seq., is the primary law governing relations between unions and employers and 

guarantees the right of employees to organize, or not to organize, a union and to 

bargain collectively with their employers. The NLRA applies to ‘‘employers,’’ and 

Section 2(2) of the Act defines ‘‘employer’’ as ‘‘any person acting as an agent of an 

employer, directly or indirectly,’’ but does not include the United States, State governments, or any political subdivision thereof. 

In San Manuel, the NLRB asserted subject-matter jurisdiction over tribal government employers in a case brought against the San Manuel Band of Serrano Mission 

Indians, a federally recognized Indian tribal government, by a union competing with 

another union for the right to organize tribal government employees. The San 

Manuel Band appealed to the federal courts, which found against the San Manuel 

Band, holding that the NLRB may apply the NLRA to tribal government employees 

at a casino the San Manuel Band operates on its lands. Despite the fact that there 

had been no intervening change in the NLRA statute, the NLRB and the courts reversed 70 years of precedent to find that Indian tribal governments are not exempt 

from NLRA requirements because they concluded that the NLRA statutory language 

contains no express exemption as it does for the federal and state governments. We 

believe this holding was unfounded and violative of our Treaty rights. 

The judicial rationale was in reality a political policy rationale—the NLRB and 

the courts as a matter of policy concluded that because the San Manuel tribal government casino employs many non-Indians and caters primarily to non-Indian customers, it and all other similar tribal government enterprises should be treated like 

a commercial rather than governmental enterprise. 

That rationale was wrong-headed, both as a matter of law, and of policy. For the 

Seneca Nation, as you can safely assume for all America Indian tribal governments, 

it is an affront to be told our own tribal labor management laws, enacted as an expression of our own tribal sovereignty, on our own tribal lands, are not sufficient 

to protect our tribal government employees. 

The Seneca Nation is proud of our labor policies and practices. Seneca Nation employees are offered a compensation and benefits package that is more than competitive within our market, with best in class protections for employee rights and personnel procedures. We have also chosen to rely heavily on union labor, through 

project-labor agreements, in the construction of our gaming facilities. We cede 

ground to no one, including the NLRB and the federal government, in our demonstrated commitment to workplace fairness, security and benefits. Our exercise of 

our sovereign control of our labor management relations reflects the fact that good 

government labor policy is good for business. So you can imagine our displeasure 

and disappointment with the contrary judgment in the San Manuel case. 

At issue in that case was whether the exclusions in the NLRA (‘‘[t]he term ‘employer’ * * * shall not include the United States or any wholly owned Government 

corporation * * * or any State or political subdivision thereof * * *.’’) were intended 

to cover tribal government employers. The Court said the ‘‘Board could reasonably 

conclude that Congress’s decision not to include an express exception for Indian 

tribes in the NLRA was because no such exception was intended or exists.’’ Id. at 

1317. 

When a regulatory body like the NLRB or a reviewing court conjures up a new 

interpretation of longstanding statutory law in violation of federal laws and treaties 

dealing with Indian nations, we believe it is the duty of the U.S. Congress to enact 

a clarifying amendment which makes the statute reflect the original congressional 

intent, consistent with the Constitution and treaties of the United States. 

The Seneca Nation and other tribal governments have always sought to have key 

federal statutes consistently reflect and honor our treaty agreements and our governmental status. We have always insisted that federal law treat our tribal governments as it treats other governments. When court decisions or federal officials reinterpret longstanding statutory provisions to treat tribes as something other than 

governments, Congress should enact clarifying amendments to the law. 

This is why we urge you to include in your labor reform legislation the provisions 

of H.R. 2335, the Tribal Labor Sovereignty Act of 2011, which would clarify the 

NLRA to once again be interpreted to expressly exempt tribal government employers from the reach of the NLRA and the NLRB. The Seneca Nation thanks the sponsor of H.R. 2335, Congresswoman Kristi Noem, and her 63 co-sponsors, including 

you, Chairman Roe, as well as the Chairman of the full Committee, Mr. Kline. 
10 

Conclusion 

Tribal self-determination has long been the goal of federal Indian policy, dating 

back at least to July, 1970 when President Nixon issued his ‘‘Special Message to 

Congress on Indian Affairs.’’ Since then much progress has been made toward restoring recognition and respect for tribal sovereignty and self-determination. But the 

NLRB’s decision in the San Manuel case to override tribal authority and allow a 

federal takeover in this area of tribal governance is an outrage and must be corrected. 

By acknowledging the governmental status of Indian tribes, the Noem bill, H.R. 

2335, will respect Indian nation governments as other governments are respected 

for purposes of the application of the NLRA to tribal governmental activities on tribal lands. 

The promise of labor law reform will positively impact Indian Country only if it 

advances the first principles that are at the foundation of federal Indian policy at 

its best—tribal nations are governments whose exclusive authority to govern all economic activity on our territory is fully respected as a matter of federal law. Resurrecting this tribal territorial sovereignty approach should be the urgent focus of any 

new labor law reform efforts. H.R. 2335 would do just that, and deserves your support through to enactment. 

Thank you for this opportunity to provide testimony and I ask that it be made 

part of the record of this hearing. We also thank you for holding this hearing today. 

We hope it leads to prompt enactment of H.R. 2335. 

Nya-weh. 

Chairman ROE. Thank you, President Porter. 

Mr. Messenger? 

STATEMENT OF WILLIAM L. MESSENGER, STAFF ATTORNEY, 

NATIONAL RIGHT TO WORK LEGAL DEFENSE FOUNDATION 

Mr. MESSENGER. Thank you, Chairman Roe, Ranking Member 

Andrews, distinguished committee members. Thank you for the opportunity to testify today on proposals to amend the National 

Labor Relations Act. 

While the act needs to be improved in a number of areas I would 

like to focus today on the importance of protecting the right to a 

secret ballot election. I am a staff attorney with the National Right 

to Work Legal Defense Foundation. Since it was established in 

1968 the foundation has provided free legal aid to thousands of individuals employees whose rights have been violated as a result of 

compulsory unionism. 

Among other things, my colleague and I have represented many 

employees and actions to protect their right to a secret ballot, including the Dana and Lamons Gasket cases. Regrettably, the National Labor Relations Act is predicated on forcing individual employees to associate with unions based on the desires of a majority 

of their coworkers. 

This in and of itself is wrongful. The right of each citizen to freely associate should not be subjected to the tyranny of the majority. 

Congress should end this policy by amending the National Labor 

Relations Act to prohibit exclusive representation and compulsory 

dues requirements with the National Right to Work Act. However, 

to the extent that this policy persists, at a bare minimum Congress 

should ensure that at least a majority of employees desire union 

representation, and the best way to do this is to make a secret ballot election a condition for unionization. 

The secret ballot is clearly superior for ascertaining employee 

free choice than its alternative, which is employer recognition pursuant to a card-check. Individuals are obviously more apt to vote 
11 

their conscience in the privacy of a voting booth than when being 

solicited by a union organizer to sign a card. It is no accident that 

secret ballot elections are the cornerstone of all democratic systems. 

But secret ballots are also inherently superior to employer recognition for another reason, because only they are conducted and 

supervised by the board itself. In an election the board has actual 

knowledge of whether or not individual employees have voted for 

or against unionization before it is imposed. 

This is not true of employer recognition. It is truly a private 

agreement in which an employer decrees a particular union to be 

the exclusive representative of its employees. 

The board is not privy to this agreement and has no knowledge 

whatsoever of whether or not it reflects employee free choice. And 

in particular, the board has no knowledge of how those cards were 

obtained from individual employees. 

And there are compelling reasons to suspect that employer recognition does not necessarily reflect employee free choice, but rather only the perceived self-interests of the union and the employer. 

And indeed, most employer recognition in and of itself is the product of a prearranged agreement between the employer and union 

before the union becomes a representative of employees. 

Congress should not blindly entrust employees’ associational 

rights to unions and employers. It is akin to putting the foxes in 

charge of the henhouse. Instead, Congress should require that a 

federal agency, the board, independently verify whether a majority 

of employees desire union representation in a secret ballot election 

before they are unionized. 

And in addition, Congress should also amend the National Labor 

Relations Act to protect employees’ rights after they are unionized—their right to be decertify or remove a union that is currently 

acting as a representative that the employees no longer support. As 

I discussed in my written testimony, the National Labor Relations 

Board has erected an increasing number of bars and obstacles to 

employees exercising their right to decertify a union they no longer 

support, and these bars and obstacles make it exceedingly difficult 

for employees to remove unions that they no longer support. I believe that Congress should also remove these bars to effectuate employee free choice. 

Thank you. I would like to move that my written testimony be 

included in the record as part of this committee hearing, and my 

oral statement. And I look forward to answering any questions you 

may have. 

[The statement of Mr. Messenger follows:] 

Prepared Statement of William L. Messenger, Staff Attorney, 

National Right to Work Legal Defense Foundation 

CHAIRMAN ROE AND DISTINGUISHED REPRESENTATIVES: Thank you for the opportunity to testify today in this hearing to examine proposals to strengthen the National Labor Relations Act. While the NLRA needs to be improved in a wide number 

of ways, I would like to focus my testimony today on the importance of protecting 

employees’ right to a secret ballot election. 

I am a Staff Attorney with the National Right to Work Legal Defense Foundation. 

Since the Foundation was founded in 1968, it has provided free legal aid to employees who choose to exercise their right to stand apart from unions and their agendas. 

Foundation attorneys, including myself, have represented numerous employees in 
12 

cases that involve protecting their right to a secret ballot election or protecting employees from the abuses of top-down union organizing.1

Protecting employees’ privacy with a secret-ballot election is the very least that 

should be done to ameliorate the harm the government inflicts on employees 

through its policies of monopoly representation and compulsory unionism. The 

NLRA is predicated on forcing individuals to associate with unions. It does so by 

empowering unions to act as ‘‘exclusive representatives’’ of all employees in a bargaining unit under § 9(a) of the Act, 29 U.S.C. § 159(a), irrespective of whether each 

employee desires this ostensible representation, and by permitting unions to force 

employees to support them financially upon pain of losing their jobs. See 29 U.S.C. 

§ 158(a)(3). 

The federal government forcing individual employees not only to accept union representation against their will, but also to pay for this unwanted representation, is 

an affront to each individual’s right to choose with whom he or she associates. This 

compulsion is wrong irrespective of whether or not the individual’s co-workers desire 

to associate with a union. Each citizen’s fundamental right to freedom of association 

should not be subjected to the tyranny of the majority. Thus, Congress should 

amend the NLRA to repeal monopoly representation or prohibit compulsory unionism with a national Right to Work Act. 

However, to the extent that the federal government insists on imposing monopoly 

representation and compulsory unionism on workers under the NLRA, at a minimum it must ensure that a majority of workers truly support this imposition. The 

best and most obvious way to guarantee that a majority of employees want union 

representation is a secret ballot election. 

Regrettably, the NLRA currently permits unionization based on private agreements between unions and employers, and without a secret-ballot election. See 29 

U.S.C. § 159(a). Additionally, the National Labor Relation’s Board is actively pursuing policies to deprive employees of their existing statutory right to a secret-ballot 

election to decertify unions that they no longer support. See, e.g., Lamons Gasket, 

357 NLRB No. 72 (2011). Congress should thereby amend the NLRA to permit 

unionization based only on the results of a secret-ballot and to remove all Boardimposed bars on employees’ right to a decertification election. 

I. Secret-Ballot Elections Must Be Required Under the NLRA Because They Are Superior to Employer Recognition of a Union 

That the superiority of secret-ballot elections could require extended argument is 

itself remarkable. Every American understands instinctively that such elections are 

the cornerstone of any system that purports to be democratic. Thus, the Supreme 

Court has long recognized that Asecret elections are generally the most satisfactory—indeed the preferred—method of ascertaining whether a union has majority 

support.@ NLRB v. Gissel Packing Co., 395 U.S. 575, 602 (1969). 

Of course, the merit of any procedure must be evaluated in comparison to its alternatives. The alternative to the secret-ballot is ‘‘employer recognition’’ or ‘‘voluntary recognition,’’ whereby an employer decrees that a particular union shall be 

the exclusive representative of its employees. This grant of recognition is generally 

predicated on an assertion that a majority of employees signed cards authorizing the 

union to act as their representative. 

Secret-ballot elections are superior to employer recognition not only for the most 

obvious reason—that individuals are more apt to vote their conscience in the privacy 

of a voting booth than when being pressured by union organizers to sign an authorization card. See Section I(C), infra. Secret-ballot elections are also superior to employer recognition because the Board conducts and supervises the elections. By contrast, employer recognition is a private arrangement between a union and employer 

to which the Board is not privy. The Board has no actual knowledge of whether an 

employer’s recognition of a union reflects the employees’ free choice. See Sections 

I(B), infra. And there are compelling reasons to suspect that it will not. See Section 

I(C), infra. Given that Congress cannot trust the associational rights of employees 

to the self-interests of union officials and employers, unionization should only be 

permitted pursuant to a Board-conducted election. 

A. The Board Does Not Know if an Employer-Recognized Union Has the Support of a Majority of Employees 

Secret-ballot elections differ from employer recognition in that the latter is not 

conducted or supervised by the Board. Employer recognition is simply a private 

agreement in which an employer agrees to recognize a particular union as the exclusive representative of its employees. The Board is not a party to a recognition agreement. It does not review recognition agreements either before or after employers 

and unions enter into them. The Board has no actual knowledge whether or not an 
13 

employer-recognized union actually enjoys the true support of a majority of employees. 

Unions and employers generally claim in their recognition agreements that the 

union has the support of a majority of employee based on authorization cards allegedly signed by employees. But the Board has no independent knowledge as to the 

truth or falsity of this claim. Most importantly, the Board has no knowledge of the 

conditions under which the cards were procured from employees.2

Accordingly, the NLRA’s current policy of granting legal validity to employer-recognized unions, see 29 U.S.C. § 159(a), is predicated on the blindly trusting that 

a private agreement between a union and employer accurately reflects what employees actually desire. This is untenable, as the mere ‘‘fact that an employer bargains 

with a union does not tell us whether the employees wish to be represented by the 

union.’’ Seattle Mariners, 335 NLRB 563, 567 n.2 (2001) (Member Hurtgen, dissenting). 

Of course, in a secret-ballot election, the Board controls the conditions under 

which votes are cast and counts the ballots itself. In an election, unlike a card 

check, the Board has independent and actual knowledge as to whether a majority 

of those voting want union representation. For this reason alone, Board-conducted 

elections are inherently superior to card check recognition. 

B. That an Employer Makes a Union the Representative of its Employees Is 

Not a Reliable Indicator of Whether Employees Support that Union 

Not only does the government not know if employer-recognized unions actually 

have the uncoerced support of a majority of employees, there are several compelling 

reasons to believe that employee free choice is not reflected in private recognition 

agreements. Instead, the agreements reflect little more than the union and employer’s perceived self-interests. 

First, at their most basic level, recognition agreements are agreements in which 

two parties agree to take something from a third-party. Specifically, Party A (the 

employer) and Party B (the union) agree that a third-party (employees) shall surrender rights to Party B. The very construct of this arrangement makes it an inherently unreliable indicator of the desires of the third-party employees, as both parties 

to the agreement can satiate their self-interests at the expense of employees who 

are not privy to the agreement. 

Second, unions and employers have a number of self-interested reasons to enter 

into recognition agreements that have nothing to do with effectuating employee free 

choice. Indeed, there is a long and sordid history of employers recognizing unions 

that lack the uncoerced support of a majority of employees.3

A union’s self-interest in being recognized by an employer as its employees’ representative is obvious. It is to acquire more members, more compulsory dues payments (in non-Right to Work states), more contributions to underfunded pension 

and welfare plans, and more power for union officials. Gaining more dues-paying 

members is a top priority for union officials, as union membership has been in general decline for decades.4 Unions have an overwhelming self-interest in being recognized as monopoly representatives irrespective of whether or not employees actually 

support them. 

Employers are apt to recognize unions to satiate perceived business interests, and 

not to effectuate employee free choice. These business interests include getting a 

union to cease waging a coercive ‘‘corporate campaign’’ against the employer, which 

involve a ‘‘wide and indefinite range of legal and potentially illegal tactics,’’ such as 

‘‘litigation, political appeals, requests that regulatory agencies investigate and pursue employer violations of state and federal law, and negative publicity campaigns 

aimed at reducing the employer’s goodwill with employees, investors, or the general 

public.’’ Smithfield Foods v. UFCW, 585 F.Supp.2d 789, 795 (E.D. Va. 2008) (quoting 

Food Lion, Inc. v. UFCW, 103 F.3d 1007, 1014 n.9 (D.C. Cir. 1997)).5 Employers 

have also agreed to make unions the representative of their employees to obtain 

their political assistance;6 to cut off organizing campaigns of unions less-favored by 

the employers;7 to obtain bargaining concessions at the expense of other employees 

that the unions represent;8 and to obtain union concessions at the expense of employees whom the unions organize in the future.9

Employers motivated by these and other perceived interests are obviously apt to 

recognize unions irrespective of employee support for them. Employees are little 

more than chattel in these arrangementsCthe consideration the employer is willing 

to trade to get something from the union. Given that unions and employers can be 

counted on to pursue their own perceived self-interests, it is irrational for the federal government to defer to their private decisions about whether or not employees 

want to be unionized. 
14 

Third, employer recognition of a union is usually the product of a pre-negotiated 

‘‘organizing agreement’’ between the employer and union. In an organizing agreement, an employer agrees in advance to assist a particular union with organizing 

its employees. This employer assistance generally includes gag-clauses on any employer speech about the union or unionization, granting the union access to employees’ workplaces for organizing, the release of private information about nonunion 

employees to the union, such as their home addresses and contact information, and 

a ban on secret-ballot elections conducted by the NLRB.10

These private organizing agreements establish conditions inhospitable to employee free choice. For example, to ensure that employees make informed decisions 

about whether to support or oppose unionization, Congress amended the NLRA to 

facilitate an ‘‘uninhibited, robust, and wide-open debate’’ between employers and 

unions. Chamber of Commerce v. Brown, 554 U.S. 60, 67-68 (2008) (citation omitted).11 Indeed, employees have an implicit ‘‘underlying right to receive information 

opposing unionization’’ under the NLRA. Id. at 68. Yet, organizing agreements generally include gag-clauses on employer speech regarding unionization.12 Some organizing agreements go even further, requiring that employers speak and conduct captive audience meetings on behalf of the union.13 The intent and effect is to deprive 

employees of their ‘‘right to receive information opposing unionization,’’ so that employees hear only one side of the story during organizing campaigns—that spun by 

the union. 

Similarly, Congress did not grant unions any right to campaign in employees’ 

workplace, see Lechmere v. NLRB, 502 U.S. 527, 532-34 (1992), or any right to personal information about employees prior to petitioning for an election. See Always 

Care Home Health Serv., 1998 WL 2001253 (NLRB G.C. 1998). Organizing agreements generally provide unions with both forms of employer assistance to allow 

union organizers to approach and harass employees in both their workplace and at 

their homes to sign union authorization cards. 

Overall, the procedure prescribed by private organizing agreements—a systematic 

campaign jointly implemented by a union and employer against employees in their 

workplace and homes and in an environment devoid of relevant information about 

the union—are antithetical to employee free choice. These procedures are deliberately designed to ensure that employees sign cards that make the union their monopoly representative. It is unconscionable for Congress to blindly assume that the 

employer recognitions that are the fruit of this poisonous tree actually reflect the 

free will of employees. 

Finally, the Supreme Court warned decades ago that deferring to even ostensibly 

‘‘good faith’’ employer and union beliefs about employee preferences ‘‘would place in 

permissibly careless employer and union hands the power to completely frustrate 

employee realization of the premise of the Act—that its prohibitions will go far to 

assure freedom of choice and majority rule in employee selection of representatives.’’ 

International Ladies’ Garment Workers v. NLRB, 366 U.S. 731, 738-39 (1961) (emphasis added); cf. Auciello Iron Works v. NLRB, 517 U.S. 781, 790 (‘‘There is nothing unreasonable in giving a short leash to the employer as vindicator of its employees’ organizational freedom’’). The D.C. Circuit reiterated this warning in Nova 

Plumbing, Inc. v. NLRB, 330 F.3d 531 (D.C. Cir. 2003), when it overruled a Board 

decision that deferred blindly to a recognition agreement between an employer and 

union without independently verifying whether employees actually supported the 

union. ‘‘By focusing exclusively on employer and union intent, the Board has neglected its fundamental obligation to protect employee § 7 rights, opening the door 

to even more egregious violations than the good faith mistakes at issue in Garment 

Workers.’’ Id. at 537. 

Indeed, an ostensible purpose of the NLRA is to protect employee rights from employers and unions. Section 7 of the Act grants Aemployees@ the right to choose or 

reject union representation. 29 U.S.C. § 157. Sections 8(a) and 8(b) protect employee 

§ 7 rights from the machinations of employers and unions. 29 U.S.C. §§ 158(a-b). 

To blindly trust employer and union decisions about how employees want to exercise 

their § 7 rights inverts the structure of the NLRA. It is akin to putting the foxes 

in charge of the henhouse. Congress must change this irrational policy. 

C. Voting in the Privacy of a Voting Booth Effectuates Free Choice Better Than 

Being Solicited to Sign a Card By a Union Organizer 

In addition to the fact that elections are conducted and supervised by the Board, 

the procedure of a secret-ballot election is also far superior to that of a card check. 

Casting a ballot in the privacy of a voting booth is far more conducive to free choice 

than being solicited to sign an authorization cards in their presence of one or more 

union organizers. Only in secret-ballot elections are employees given the privacy and 

space to vote their conscience free from immediate external pressure. 
15 

Moreover, once an employee has made the decision ‘‘yea or nay’’ by voting in a 

secret-ballot election, the process is at an end. By contrast, a choice to ‘‘vote’’ against 

the union by not signing an authorization card does not end the decision-making 

process for an employee in the maw of a card check drive. Often, it represents only 

the beginning of the harassment. Union organizers can solicit individuals again and 

again (and again) until they break down and sign a card. 

Employee experience confirms that union organizers frequently harass, mislead, 

and threaten employees to make them sign union cards. Testimony and statements 

by employees who have been subjected to card check campaigns can be found in the 

appendix to this testimony. In the course of counseling employees who have been 

subjected to card-check campaigns, my colleagues and I at the Foundation are also 

familiar with the tactics used by union agents to cajole employees into signing 

cards: incessant home visits; informing employees that signing a card is just for 

more information, to merely express interest in the union, or to obtain a secret-ballot vote; promising employees unrealistic benefits after unionization; falsely informing employees that the union already has a majority and will soon be in power; and 

threatening employees with future discrimination when the union does come into 

power. 

Union organizers have a strong incentive under current Board law to use these 

and other deceitful and unlawful tactics. Under current law, a signed card is presumptively valid. To invalidate a card used to support employer recognition, an unfair labor practice charge must be filed with the Board within six months (which 

is itself a daunting task for individuals unfamiliar with administrative procedures 

and labor law). The employee then has the burden of presenting clear and convincing evidence that the card was obtained through a material misrepresentation 

or coercion.14 This burden is exceedingly difficult to meet because most union misrepresentations will not invalidate a card, to include union claims that signing a 

card is necessary to have a meeting, to get more information, or to have an election 

(unless the employee is expressly told that the card can only be used for this purpose).15 And usually the only evidence of what a card signer was told will be their 

recollection of a conversion—i.e., ‘‘he-said, she-said’’ testimony—that union agents 

can easily deny. Even if an employee surmounts all of these burdens, only the particular card at issue will be invalidated and not the union’s entire card-check campaign (unless the invalidated card or cards deprives the union of its majority). Given 

the low probability that pressuring and misleading employees will invalidate a cardcheck campaign, union organizers have little disincentive to using such unscrupulous to get employees to sign a card. 

Perhaps the strongest evidence of the superiority of a secret-ballot election to a 

card check is that conduct that interferes with employee free choice in elections is 

inherent to any card check. In an election, the Board attempts to ensure that ‘‘laboratory’’ conditions exist in which the uninhibited desires of the employees can be 

ascertained. See General Shoe, 77 NLRB 124, 127 (1948). Conduct by employers and 

unions that upset these laboratory conditions will result in the election being overturned, even if that conduct does not rise to the level of an unfair labor practice. 

Id. Conduct that will result in the overturn of a Board election includes: 

(1) electioneering activities, or even prolonged conversations with prospective voters, at or near a polling place because, among other things, ‘‘[t]he final minutes before an employee casts his vote should be his own, as free from interference as possible,’’ Milchem, Inc., 170 NLRB 362, 362 (1968);16

(2) the union or employer keeping a list of employees who vote as they enter or 

exit the polling place (other than the official eligibility list);17 and 

(3) a union official handling cast ballots, even in the absence of proof of tampering, because, where ‘‘ballots come into the possession of a party to the election, 

the secrecy of the ballot and the integrity of the election process are called into 

question,’’ Fessler & Bowman, Inc., 341 NLRB 932, 933 (2004). 

This sort of objectionable conduct occurs in all card check campaigns. When an 

employee signs (or refuses to sign) an authorization card, he is in the presence of 

the union organizer(s) who is attempting to get him to sign that card. In all cases 

the employee’s decision is not secret because the union has the cards and maintains 

a list of who has signed one and who has not. Union officials handle these cards, 

as they are the individuals who collect them. Conduct that would not be tolerated 

in a Board-conducted election occurs in any card-check campaign. 

The Board recognized this failing of employee-signed cards and petitions in Underground Service Alert, 315 NLRB 958 (1994). There, a majority of employees 

voted for union representation in a decertification election. However, before the electoral results were known, a majority of employees delivered a signed petition to 

their employer stating their opposition to the union. The Board held that the petition was a ‘‘less-preferred indicator of employee sentiment,’’ particularly as com-
16 

pared to ‘‘the more formal and considered majority employee preference for union 

representation which was demonstrated by the preferred method—the Board-conducted secret-ballot election.’’ Id. at 961. This is because an election, typically * * * 

is a more reliable indicator of employee wishes because employees have time to consider their options, to ascertain critical facts, and to hear and discuss their own and 

competing views. A period of reflection and an opportunity to investigate both sides 

will not necessarily be available to an employee confronted with a request to sign 

a petition rejecting the union. 

Id. at 960 (citation omitted). Moreover, ‘‘[n]o one disputes that a Board-conducted 

election is much less subject to tampering than are petitions and letters.’’ Id. 

Thus, even the rare card check drive that does not involve unfair labor practices 

committed against employees does not approach the laboratory conditions guaranteed in Board-conducted elections. In a card-check, union agents directly solicit employees to sign authorization cards (and thereby cast their ‘‘vote’’), stand over them 

as they ‘‘vote,’ know with certainty how they ‘‘voted,’’ and then physically collect and 

handle these purported ‘‘votes.’’ The superiority of Board supervised secret-ballot 

elections for protecting employee free choice to such a coercive procedure is beyond 

peradventure. Congress should thereby amend the Act to permit unionization only 

pursuant to a secret-ballot election. 

II. The Right of Employees’ to Remove a Union by Secret-Ballot Election Should Be 

Protected from the Board’s Invention of Bars and Other Obstacles to Decertification Elections 

Section 9(c)(1)(A)(ii) of the NLRA expressly grants employees the right to petition 

for a decertification election to remove the union currently acting as their representative. 29 U.S.C. § 159(c)(1)(A)(ii). Congress saw fit to prohibit the conduct of such 

elections only when ‘‘within * * * the preceding twelve-month period, a valid election shall have been held.’’ 29 U.S.C. § 159(c)(3). 

Notwithstanding that the NLRA provides for only one bar to the conduct of elections, the Board has invented numerous new bars to prevent employees from decertifying unions that they no longer support. This includes: 

(1) a ‘‘contract bar,’’ which precludes employee petitions for decertification elections during the first three years of a collective bargaining agreement, save a 30- 

day window period near the end of that period, see Waste Management of Maryland, 338 NLRB 1002 (2003); 

(2) a ‘‘recognition bar,’’ which precludes employee petitions for decertification elections for up to one year after an employer recognizes a union as its employees’ representative, see Lamons Gasket, 357 NLRB No. 72 (2011); and 

(3) a ‘‘successor bar,’’ which precludes employee petitions for decertification for up 

to one year after an employer is succeeded by another employer, see UGL-Unicco 

Services, 357 NLRB No. 76, *9 (2011). 

The latter two election bars were reinstituted by President Obama’s Board appointees to reverse prior decisions that permitted employees to request a secret-ballot election for a certain time period after employer recognition, see Dana Corp., 351 

NLRB 434 (2007), overruled by Lamons Gasket, and after a change in the identity 

of their employer, see MV Transportation, 337 NLRB 770 (2002), overruled by UGLUnicco. 

In addition to erecting flat prohibitions on decertification elections, the Board has 

also instituted policies to make decertification effectively impossible for many employees. This includes, among other things, maintaining a ‘‘merger doctrine’’ under 

which, if an employer and union agree to merge one or more bargaining units into 

a single multi-location unit, any employee-filed decertification petition must cover 

the entire merged unit. Decertification petitions filed by employees that cover only 

the facility at which they are employed will be dismissed, even if that is the unit 

in which the employees were organized.18

The result of this doctrine is that unions can organize employees one facility at 

a time—or even one department at a time under a new Board ruling 19—and then 

merge their unit into a much larger one that employees can never hope to decertify 

because merely requesting a decertification election requires a showing of interest 

signed by 30% of employees in the unit. Meeting this threshold, much less winning 

the election, is beyond the capabilities of most employees if their unit consists of 

thousands employees at multiple facilities.20

For example, assume that a grocery store chain has 20 area stores and 100 employees at each store. With the employer’s complicity, a union can organize the employees of each store, one-at-a-time, by merely obtaining authorization cards from 

51 store employees. The union can then merge each newly-organized store with all 

other organized stores into one combined unit. If the union organizes all stores, it 

can create a combined unit of 2,000 employees spread across 20 locations. An em-
17 

ployee at a given store who wishes to decertify the union will face the herculean 

task of obtaining a showing of support for decertification from 667 employees scattered amongst multiple locations. 

This example actually understates the true breadth and effect of the merger doctrine because some merged units are nationwide in scope. For example, the Teamsters have merged over 1,000 facilities of United Parcel Service (UPS) into a single 

unit.21 Even if all employees of a particular facility, or even numerous facilities, 

wanted absolutely nothing further to do with the Teamsters, they are without any 

viable recourse to vote the union out of power. 

Taken together, the combined effect of the Board’s various election bars and merger doctrine is to deny employees their statutory right to choose, by secret-ballot election, whether or not they wish to continue to be represented by a particular union. 

An employer’s recognition of a union will bar an election for up to one year. 

The union’s subsequent signing of a collective bargaining agreement will then bar 

an election for another three years, during which time the union can compel all employees to support it financially (except in Right to Work states). The merger of the 

employees’ bargaining unit into a larger unit will effectively prevent the employees 

from ever voting on whether they desire union representation. Under this regime, 

unions and employers can squelch employees’ right to reject unwanted union representation. 

Congress should not permit the Board to turn union representation into a proverbial ‘‘roach motel,’’ where employees can check in, but can never check out. To protect the right of employees to a secret-ballot election to decertify unions that they 

no longer support, Congress should amend: 

(1) NLRA Section 9(c)(3), 29 U.S.C. § 159(c)(3), to provide that ‘‘This limitation 

is the only limit that may be placed on the conduct of elections;’’ and 

(2) NLRA Section 9(c), 29 U.S.C. § 159(c), to include a new section 6 that provides 

that ‘‘In an election requested under subsection (1)(A)(ii), a bargaining unit that consists of represented employees at a single facility shall always be considered an appropriate unit notwithstanding the merger or inclusion of the employees in a larger, 

multi-facility, or multi-employer bargaining unit.’’ 

Conclusion 

For these reasons, Congress should amend the NLRA so that exclusive union representation can be imposed pursuant only to a secret-ballot election, and amend the 

NLRA to ensure that employees can choose to reject union representation via a secret ballot election at any time other than within one year after a prior election. 

If employees’ freedom to associate with a union is going to be subjected to the tyranny of the majority, at a minimum Congress should ensure that a majority of employees truly want to associate with that union. 

ENDNOTES

1See, e.g., Lamons Gasket, 357 NLRB No. 72 (2011); Dana Corp. (Int’l Union, UAW), 356 

NLRB No. 49 (2010), on appeal, No. 11-1256 (6th Cir.); Dana Corp., 351 NLRB 434 (2007); 

Mulhall v. Unite Here, 667 F.3d 1211 (11th Cir. 2012); Adcock v. Freightliner LLC, 550 F.3d 

369 (4th Cir. 2008). 2Similarly, third party arbitrators often used by employer and unions to verify card checks 

have no knowledge of how the union authorization cards were obtained from employees. These 

third parties are little more than human calculators whose role is merely to count the cards 

provided by the union against a list of employees provided by the employer. The verification of 

a card check by an arbitrator says nothing about the conditions under which the union or employer obtained the cards from employees, or the validity of the employer’s list. 3See e.g., Duane Reade, 338 NLRB 943 (2003); Fountain View Care Center, 317 NLRB 1286 

(1995), enf’d, 88 F.3d 1278 (D.C. Cir. 1996); Brooklyn Hospital Center, 309 NLRB 1163; Famous 

Castings Corp., 301 NLRB 404 (1991); Systems Mgmt., 292 NLRB 1075 (1989), remanded on 

other grounds, 901 F.2d 297 (3rd Cir. 1990); Anaheim Town & Country Inn, 282 NLRB 224 

(1986); Meyer’s Cafe & Konditorei, 282 NLRB 1 (1986); SMI of Worchester, 271 NLRB 1508 

(1984); Price Crusher Food Warehouse, 249 NLRB 433 (1980); Vernitron Electrical Components, 

221 NLRB 464 (1975), enf’d 548 F.2d 24 (1st Cir. 1977); Pittsburgh Metal Lithographing Co., 

158 NLRB 1126 (1966). 4See Laura J. Cooper, Privatizing Labor Law: Neutrality/Check Agreements and the Role of 

the Arbitrator, 83 Ind. L.J. 1589, 1591 (2008). 5See, e.g., Cooper, 83 Ind. L.J. 1589, 159-93; Daniel Yager & Joseph LoBue, Corporate Campaigns and Card Checks: Creating the Company Unions of the Twenty-First Century, 24 Empl. 

Rel. L.J. 21 (Spring 1999); Herbert R. Northrup, Union ‘‘Corporate Campaigns’’ as Blackmail: 

the RICO Battle at Bayou Steel, 22 Harv. J.L. & Pub. Pol=y 771, 779-93 (1999); Pichler v. 

UNITE, 228 F.R.D. 230, 234-40 (E.D. Pa. 2005) (corporate campaign for organizing agreement), 

aff’d, 542 F.3d 380 (3d Cir. 2008); Smithfield Foods v. UFCW, 585 F. Supp. 2d 789, 795-97 (E.D. 

Va. 2008) (same). 6See, e.g., Mulhall v. UNITE HERE Local 355, 618 F.3d 1279, 1289 (11th Cir. 2010). 

7See, e.g., Price Crusher Food Warehouse, 249 NLRB 433 (1980). 
18 

8See, e.g., Adcock v. Freightliner, LLC, 550 F.3d 369, 372 (4th Cir. 2008); Aguinaga v. UFCW, 

993 F.2d 1463, 1471 (10th Cir. 1993); Kroger Co., 219 NLRB 388 (1975). 9See, e.g., Charles I. Cohen et al., Resisting its Own ObsolescenceBHow the National Labor 

Relations Board Is Questioning the Existing Law of Neutrality Agreements, 20 Notre Dame J.L. 

Ethics & Pub. Pol=y 521, 533-34 (2006); Majestic Weaving Co., 147 NLRB 859 (1964), enforcement denied on other grounds, 355 F.2d 854 (2nd Cir. 1966); Patterson v. Heartland Indus. 

Partners, 428 F. Supp. 2d 714, 716 (N.D. Ohio 2006) (moot on appeal); Dana Corp. (Int’l Union, 

UAW), 356 NLRB No. 49 (2010), on appeal, Case No. 11-1256 (6th Cir.); Plastech Eng. Prod., 

(Int’l Union, UAW), 2005 WL 4841723, *1-2 (NLRB Div. of Advice Mem. 2005); Thomas Built 

Buses (Int’l Union, UAW), No. 11-CA-20038 (NLRB Div. of Advice Mem. 2004) see also Jonathan 

P. Hiatt & Lee W. Jackson, Union Survival Strategies for the Twenty-First Century, 12 Lab. 

Law. 165, 176-77 (‘‘Negotiations over non-Board recognition procedure often spill over to discussing the terms of a future collective bargaining agreement.’’). 10See Cohen, 20 Notre Dame J.L. Ethics & Pub. Pol’y at 522-23; A. Eaton & J. Kriesky, Union 

Organizing Under Neutrality and Card Check Agreements, 55 Indus. & Lab. Rel. Rev. 42, 47- 

48 (2001). It is doubtful whether it is lawful for employers to agree to provide this valuable organization assistance to unions. Compare Mulhall v. Unite Here, 667 F.3d 1211 (1lth Cir. 2012) 

with Adcock v. Freightliner, LLC, 550 F.3d 369 (4th Cir. 2008). 11See also 29 U.S.C. § 158(c) (speech cannot constitute an unfair labor practice absent threat 

or promise of benefit); Southwire Co. v. NLRB, 383 F.2d 235, 241 (5th Cir. 1967) (‘‘The guaranty 

of freedom of speech and assembly to the employer and to the union goes to the heart of the 

contest over whether an employee wishes to join a union. It is the employee who is to make 

the choice and a free flow of information, the good and the bad, informs him as to the choices 

available.’’); NLRB v. Pratt & Whitney Air Craft Div., 789 F.2d 121, 134 (2d Cir. 1986) (employer speech Aaids the workers by allowing them to make informed decisions while also permitting them a reasoned critique of their unions’ performance@); NLRB v. Lenkurt Elec. Co., 438 

F.2d 1102, 1108 (9th Cir. 1971) (‘‘It is highly desirable that the employees involved in a union 

campaign should hear all sides of the question in order that they may exercise the informed 

and reasoned choice that is their right’’). 12See Cohen, 20 Notre Dame J.L. Ethics & Pub. Pol’y at 522-23; Eaton & Kriesky, 55 Indus. 

& Lab. Rel. Rev. at 47-48. 13See, e.g., Dana Corp. (Int’l Union, UAW), 356 NLRB No. 49 (2010), on appeal, Case No. 

11-1256 (6th Cir.); Thomas Built Buses (Int’l Union, UAW), Case No. 11-CA-20038 et seq., at 

4-5 (NLRB Div. of Advice Mem. 17 Dec. 2004). 14See Photo Drive Up, 267 NLRB 329, 364 (1983). 15See Montgomery Ward & Co., 288 NLRB 126, 128 (1988), rev’d on other grounds, 904 F.2d 

1156 (7th Cir. 1990); Levi Strauss & Co., 172 NLRB 732, 733 (1968); see also Mid-East Consolidation Warehouse, 247 NLRB 552, 560 (1980) (falsely informing employees that everyone was 

signing union cards did not invalidate card). 16See also Alliance Ware, Inc., 92 NLRB 55 (1950) (electioneering activities at the polling 

place); Claussen Baking Co., 134 NLRB 111 (1961) (same); Bio-Medical of Puerto Rico, 269 

NLRB 827 (1984) (electioneering among the lines of employees waiting to vote); Pepsi-Cola Bottling Co., 291 NLRB 578 (1988) (same). 17Piggly-Wiggly, 168 NLRB 792 (1967). 18See, e.g., Westinghouse Elec. Corp., 227 NLRB 1932 (1977); General Elec. Co., 180 NLRB 

1094 (1970); W. T. Grant Co., 179 NLRB 670 (1969); Arrow Unif., 300 NLRB 246 (1990). 19Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011). 20Westinghouse, 227 NLRB 1932, illustrates this application of the merger doctrine. In that 

case, the Board certified the union as a representative of employees at one particular plant in 

North Carolina. Slightly over one year later, the employees petitioned to decertify the union. 

The Board dismissed the petition because the North Carolina plant had been merged into a single nationwide unit consisting of all of the employer’s plants. Thus, according to the Board, the 

only way the North Carolina employees could decertify would be on a nationwide basis. 21See United Parcel Service, 325 NLRB 37 (1997). 

APPENDIX OF EMPLOYEE TESIMONY AND STATEMENTS

Congressional Testimony of Mike Ivey (2/8/2007) 

http://www.nrtw.org/pdfs/Ivey.pdf 

Congressional Testimony of Karen Mayhews (2/8/2007) 

http://www.nrtw.org/pdfs/Mayhew.pdf 

Statement by Freightliner Employee Katherine Ivey (1/24/2006) 

http://www.nrtw.org/pdfs/20060124rico_ivey.pdf 

Statement by Freightliner Employee Timothy Cochrane (1/24/2006) 

http://www.nrtw.org/pdfs/20060124rico_cochrane.pdf 

Declaration by Dana Corp Employee Clarice Atherholt (1/13/2004) 

http://www.nrtw.org/neutrality/ClariceAtherholt.pdf 

Statement by Dana Corp Employee Donna Stinson (5/12/2004) 

http://www.nrtw.org/neutrality/Stinson-Statement.pdf 

Statement by Thomas Built Bus Employee Jeff Ward (5/12/2004) 

http://www.nrtw.org/neutrality/Ward-Statement.pdf 

Statement by Collins & Aikman Employee Edna Dawson (5/12/2004) 

http://www.nrtw.org/neutrality/Dawson-Statement.pdf 

Declaration by Renaissance Hotel Employee Faith Jetter (11/19/2003) 

http://www.nrtw.org/neutrality/FaithJetter.pdf 
19 

Declaration by Renaissance Hotel Employee David Harlich (11/19/2003) 

http://www.nrtw.org/neutrality/DavidHarlich.pdf 

Chairman ROE. Thank you, Mr. Messenger. 

Ms. Virk? 

STATEMENT OF DEVKI K. VIRK, MEMBER, 

BREDHOFF & KAISER, P.L.L.C. 

Ms. VIRK. Chairman Roe, Ranking Member Andrews, and members of the committee, thank you for inviting me to appear before 

you today. 

The title of this hearing is, ‘‘Examining Proposals to Strengthen 

the National Labor Relations Act.’’ Unfortunately, based on my 15 

years of experience as a lawyer mainly representing workers and 

their representatives, a review of these legislative initiatives shows 

that they are anything but. Indeed, in my view these measures actively undermine the fundamental structure of federal labor management relations policy. 

The central premise of the NLRA is a simple one: that workplaces better serve all the stakeholders and better serve our society 

when employees as well as employers meaningfully participate in 

shaping their shared futures. That means, as the act recognizes, 

not only that those who create jobs but those who do those jobs deserve to be heard and deserve the right to insist that they be 

heard. 

By allowing workers an effective voice in their economic future, 

collective bargaining serves as an important counterweight to everincreasing wealth concentration and allows workers, families, and 

their communities to sustain economic stability even through difficult times, and to grow and advance in times of prosperity. 

U.S. workers today in virtually every industry face a challenging 

economic climate: rising costs, stagnant or decreasing wages, employment levels that have yet to fully recover from the 2008 collapse. And employers live and operate in this same difficult environment. 

Successful, mature collective bargaining relationships are those 

in which the representatives of both workers and management recognize that they are both invested in the success of the enterprise 

and that their best hope to solve difficult problems, be they economic or operational, is to make every effort to do so together. 

These are relationships in which both employers and employees 

recognize the fundamental truth, which is that they are in it together. Employees depend on the employer for their jobs; and the 

employer depends on employees to get the job done. 

Employers and employees in collective bargaining relationships 

face challenges together, and in a successful relationship, one that 

involves give and take, ones in which both workers’ and employers’ 

views are considered and respected—they build a record of quietly 

remarkable accomplishment. In times of stability and growth employers invest in their workers’ futures and their families. In tough 

times workers may forego negotiated economic gains to save jobs, 

permit the company to refinance debt, invest in infrastructure. 

The shared prosperity and shared sacrifice occurs as demanded 

by ebbs and flows in the economy. The most visible recent example 
20 

of the latter, of course, is the American auto industry. But compromises, albeit on a smaller scale, are made by workers and employers every day to ensure the success of the operation as well as 

the success of the people who work there. 

In my work I have had the opportunity to meet and advocate on 

behalf of people whose lives and those of their families were 

changed by the protections they were able to collectively bargain— 

scores of people who were unfairly fired, who would have lost their 

livelihoods if not for the due process protection required under 

their contracts; men and women who were able rise through the 

ranks because promotions were made on neutral, objective criteria 

rather than on who the hiring manager personally favored; countless workers who, but for the leave protections in their contracts, 

would have been subject to termination for taking time off to care 

for sick children, aging parents, or to address their own health. 

The National Labor Relations Act framework is only that—a 

framework. It sets out ground rules for workers and employers to 

engage on reasonably equal footing. It does not prescribe outcomes. 

That is left for the parties in any individual collective bargaining 

relationship using creativity, leadership, and sheer determination 

in many cases to make things work. These are all traits, I would 

argue, that have historically been among the most valued in our 

national character. 

Unfortunately, the proposals we are examining today do nothing 

to strengthen the NLRA’s framework of self-determination. How 

can proposals that allow employers to ignore their workers’ wishes 

to be represented, to destroy their rights to meaningful recourse 

and effective enforcement, would divest the board even of the jurisdiction to enforce the federal laws that created it be said to 

strengthen the NLRA? Only in an Orwellian sense. 

That is bad for workers, of course, but the absence of meaningful 

workers’ voice from the crucial decisions in their workplaces also 

means that those voices are largely absent from the national discourse to shape economic policies that will affect the future of our 

country for decades to come. And that is bad for all of us. 

I thank the members for their time, and I welcome the committee’s question and request that my written testimony be submitted 

as part of the record. 

[The statement of Ms. Virk follows:] 

Prepared Statement of Devki K. Virk, Bredhoff & Kaiser, P.L.L.C. 

Chairman Roe, Ranking Member Andrews and Members of the Committee, thank 

you for your invitation to appear here today. My name is Devki Virk and I am a 

Member of the law firm of Bredhoff & Kaiser, P.L.L.C., in Washington, D.C. Since 

joining Bredhoff & Kaiser in 1996, I have represented labor organizations and workers in the public and private sector in a wide array of industries, including hospitality, manufacturing, public safety (fire and police), railway, and construction. My 

practice involves both federal and state court civil and administrative litigation, 

ranging from complex multi-party cases to individual employment matters, as well 

as arbitration. And much of my work is devoted to providing day-to-day advice regarding the rights of workers and their unions, and participating in collective bargaining and contract enforcement. After graduating from the University of Chicago 

in 1989, I worked for several years for a Chicago-based non-profit organization, and 

then obtained a law degree from the University of Illinois College of Law in UrbanaChampaign, graduating with honors in 1995 and serving as a law review editor and 

a teaching assistant for first-year contracts and the Uniform Commercial Code 

(UCC). Following law school, I clerked for the Honorable Martin L.C. Feldman, U.S. 
21 

District Judge for the Eastern District of Louisiana in New Orleans from 1995-1996 

before joining Bredhoff and Kaiser as an associate. 

Workers and employers face challenging economic times 

U.S. workers today in virtually every industry face a challenging economic climate: rising costs, stagnant or decreasing wages, and employment levels that have 

yet to fully recover from the 2008 collapse. Employers, too, live and operate in this 

same difficult environment. And, although the stereotypical construct of labor-management relations usually involves unions unreasonably insisting on ‘‘more’’ without 

regard to the employer’s future financial health, the Committee should not be surprised to hear that, at least in my experience, that stereotype—like most stereotypes—has little to do with the reality of labor-management relations today. Indeed, 

it is my experience that successful, mature labor management relationships are 

those in which the representatives of both the workers and management recognize 

that they are both invested in the success of the enterprise, and that their best hope 

to solve a difficult problem, be it economic or operational, is to make every effort 

do so together. These are relationships in which both employers and employees recognize the fundamental truth, which is that they are in it together: that employees 

depend on the employer for their jobs—paychecks to keep body and soul together 

or raise a family, and benefits with which a person can live and retire with dignity—and that the employer depends on the employees to get the job done. 

That is not to say that solving problems is easy, even in an ‘‘adult’’ relationship. 

Far from it: in many instances, these are discussions that progress inch by painful 

inch, with stops and starts, and steps backwards and sideways, both sides pushing 

not only their counterparts, but themselves, and holding their breath. Furthermore, 

the more difficult the problem, usually the more difficult the range of solutions: creativity, the ability to maintain an open mind, strong leadership, and, above all, perseverance, must be present on both sides to reach a workable agreement. The precise traits necessary to succeed in this process—innovation, open-mindedness, decisiveness, leadership, and sheer determination—closely mirror those that, I would 

argue, have historically been among the most valued in our national character. This 

is the process that I know as collective bargaining. 

Employers and employees who face challenges in collective bargaining face them 

together and, in a successful relationship—one that involves give and take, and one 

in which both workers’ and employers’ views are considered and respected—build 

a record of quietly remarkable accomplishments. In times of stability and growth, 

employers invest in the futures of workers and their families, agreeing to offer dependent health care and to set aside a portion of compensation to fund workers’ retirement. In tough times, workers may forego negotiated economic gains, or agree 

to concessions to save jobs, to permit the company to refinance debt, to invest in 

infrastructure. This shared prosperity—and shared sacrifice—occurs as demanded 

by the ebbs and flows of the economy: the most visible recent example of the latter, 

of course, is in the American auto industry. But compromises, albeit on a smaller 

scale, are made by workers and employers every day to ensure the success of the 

operation, as well as that of its people. 

In the private sector, it is the framework supplied by the National Labor Relations Act that—by making employees’ collective voice a right, and not a privilege, 

and by requiring employers to sit down in good faith and on reasonably equal footing with the representatives chosen by their workers—permits this process to succeed. In turn, the bargaining process expressly ties together the fortunes of workers 

and employers, allowing workers the right to negotiate a fair share of the wealth 

they help to create, and requiring both employers and workers to make tough compromises to sustain the long-term growth of the organization. 

The role of workers’ rights in strengthening the economy 

The central premise of the NLRA is that workplaces better serve all stakeholders 

when employees, as well as employers, meaningfully participate in shaping their 

shared futures. That means, as the Act recognizes, that not only those who create 

the jobs, but those who do them, deserve to be heard, and deserve the right to insist 

that they be heard. That premise has largely been borne out over the last 75 years: 

studies show that when workers can come together in the workplace and bargain 

with their employer, the middle class is stronger, poverty is lower, racial and gender 

wage disparities are reduced, and health and educational outcomes are better.1

Workers who have a collective voice on the job earn more, on average, than those 

without such a voice, have more access to health care and are more likely to be able 

to retire. Historically, when more workers were in collective bargaining relationships, our country’s middle class was by allowing workers an effective voice in their 

economic future, collective bargaining serves as an important counterweight to ever- 
22 

increasing wealth concentration, and allows workers, families, and their communities to sustain economic stability even through difficult times, and to grow and 

advance in times of prosperity. In my work, I have had the opportunity to meet and 

advocate on behalf of people whose lives, and those of their families, were changed 

by the protections that they were able to collectively bargain: 

• Scores of people who would have lost their livelihoods if not for the due process 

required under their contracts. Among them—a cashier wrongfully fired for a single 

error after more than twenty years of faithful service—an error that we were able 

to prove she did not even make. Firefighters—who had in fact saved lives, and who 

time and again had shown not only their willingness, but their eagerness, to sacrifice on behalf of others—facing termination based on incorrect facts and negative 

publicity. Waiters and waitresses fired based on the unfounded complaint of a single 

dissatisfied customer or an anonymous internet review. 

• Dishwashers and housekeepers who were able to see their lifetime of backbreaking, dirty work pay off as they raised themselves out of poverty, and even were 

able to send their children to college; 

• Men and women who were able to rise through the ranks because promotions 

were made based on neutral, objective criteria—rather than on who the hiring manager personally favored; 

• Countless workers who, but for the leave protections in their contracts, would 

have been subject to termination for taking time off to care for sick children, aging 

parents, or to address their own health problems; 

• People who, after a lifetime of working with dangerous chemicals, were able to 

preserve their collectively bargained right to retire with affordable health care. 

Unfortunately, I have also encountered people whose attempts to seek similar protections were repeatedly frustrated, blocked, and, ultimately, punished; these are 

people whose lives changed for the worse when they were unable to obtain timely 

or effective recourse from the Board. 

The trials of one group of workers, employed by a hotel here in Washington, D.C., 

illustrates just how substantial and real the hurdles to self-organization can really 

be. This group, mostly immigrant women and men who clean rooms, prepare and 

serve food, and assist guests, approached the union in May 2003. Housekeepers (the 

women who clean up after guests) were alarmed by the mounting workload, which 

had risen to thousands of square feet per day. Most of these workers earned between $9.50 and $10.50 an hour for their labor, and could not afford the premium 

payments charged for health insurance. They also could not afford to stop working, 

and at least one woman had miscarried on the job. Restaurant servers, on the other 

hand, were concerned by their supervisors’ apparent tendency to give busier sections 

and more hours to those he favored. These workers were so desperate for better conditions that even after they were illegally threatened with closure of the hotel, even 

after they were granted benefits to dissuade them from unionizing, and even after 

one of their leaders, a restaurant server, was illegally fired, they still voted by a 

margin of 2-1 to unionize. 

The employer engaged in extensive pre and post-election litigation, contesting the 

composition of the bargaining unit, and filing and litigating—and losing—objections 

and unfair labor practices following the election. At the end of June 2004, almost 

one year after the election petition was initially filed, the Board finally certified the 

results. Within a few days, the employer announced that it was closing the restaurant for an indefinite period and laying off all of the workers (including the 

brother of the worker who had been illegally fired). Following the restaurant closure, the employer systematically ignored the union’s requests for basic information 

about the unit (names of employees, current wage rates and classifications, current 

employee handbook and rules) and its requests to set a meeting date. Finally, after 

the union threatened to file charges with the NLRB, the employer agreed to a single 

bargaining date. That date was cancelled by the employer, as were subsequent 

dates, and the parties did not, in fact, sit down for the first time until March 30, 

2005—nine months following certification, eighteen months following the election, 

and almost two years after the workers first began their organizing effort. 

Once dragged to the table, the employer employed a series of tactics designed to 

frustrate the process, including refusing to put proposals in writing, refusing to 

schedule more than one session at a time, and delaying or refusing to provide necessary information. But at the same time as it was impeding workers from obtaining their goals at the table, the employer was also using a mixture of threats and 

bribes in the hotel to undermine collective bargaining, including intimidating workers, and promising substantial rewards—including a wage increase of $2.50, a hike 

of between 15 and 25% for most—if workers signed a petition disavowing their support for the union. Shortly after the one-year anniversary of the NLRB certification, 
23 

the employer advised the union that it was withdrawing recognition. It then held 

a meeting in the hotel and granted the workers the promised wage increase. 

Unfair labor practice charges were filed and, following investigation, the Region 

not only issued complaint, but advised that it would take the highly unusual step 

of seeking injunctive relief in federal district court, to get the employer promptly 

back to the table. Following a trial, the Board prevailed on its motion, and an injunction indeed issued on June 5, 2006: just about three years after the election petition was filed. It should surprise no one that, although the employer indeed finally 

returned to the bargaining table, the workers no longer believed that they would 

ever realize the gains they had hoped—at least not without risking further firings, 

intimidation, and delay. As a consequence, no contract was reached. 

I share this experience with the Committee not to provide an example in which 

the system failed. To the contrary: the ‘‘system,’’ such as it is, worked as well as 

it could in this case. The Board dealt with the election litigation as promptly as its 

caseload permitted. Charges were filed and investigated, and complaint issued well 

within usual administrative processing timelines. And, indeed, this was one of the 

rare cases in which the Board authorized, and obtained, injunctive relief. And, although the employer did file pre and post-election litigation, it did not, in fact, take 

advantage of every lawful appeal or avenue of delay available to it. The process still 

took three years. I, for one, cannot blame workers for losing faith in a system under 

which, in the best case scenario, they still must wait three years simply for the employer to be ordered to recognize their chosen representative. 

My experiences with workplace problems and solutions, both at and away from 

the bargaining table, have convinced me that real improvements to people’s lives, 

and real economic and social progress, can be made when workers and their employers come together under the framework of the NLRA. That is why, as I explain in 

more detail below, I am alarmed by several of the measures being proposed which, 

it appears to me, attempt to fundamentally alter this framework and, in doing so, 

will effectively deprive workers of meaningful opportunities to participate in shaping 

not only their own futures, but the economic future of the country. I am also aware 

that the limitations of the current NLRA processes for self-organization are so extreme as to render it, even when it works as well as it can, practically ineffective. 

That is also why I believe that the modest efforts made by this NLRB to advise 

workers of their rights under the law and to streamline the process by which workers may choose a representative are worthwhile, if small, steps that make it slightly 

more likely that more workers who so choose will be able to have meaningful involvement in the vital decisions that affect not only their workplaces and their families, but their communities and, ultimately, our economy. 

Recent NLRB initiatives to increase the effective enforcement of workers’ rights 

As this Committee is aware, the NLRB is the sole forum in which workers and 

their representatives may enforce the rights conferred by the NLRA. It should go 

without saying that a functional, fully-funded agency is essential to effective enforcement of these important federal rights. In addition to working diligently to 

clear its docket and more efficiently administer its business, the NLRB recently initiated two modest steps to increase effective enforcement of the Act’s protections. 

Election Rulemaking 

Last December the NLRB issued a final rule to improve the process through 

which workers decide whether to form a union. 

The Board’s election procedures have been roundly criticized as antiquated, delayridden and easily susceptible to manipulation.3 Changes were proposed by the 

Board in a Notice of Proposed Rule Making which issued in 2011. The Board held 

a two-day public comment hearing last July, and received testimony from numerous 

witnesses, as well as tens of thousands of written comments. In late November, the 

Board decided to issue a final rule on only certain portions of the proposed rules 

and did so on December 22, 2011. A federal district court judge recently ruled that 

the statute’s quorum requirement was not satisfied on the day the rule was issued. 

Chamber of Commerce v. NLRB, Civil No. 11-2262 (D.D.C.) (May 14, 2012) 

(Boasberg, J.). I understand that the Board subsequently submitted a motion for rehearing, detailing the workings of its electronic system of voting and how Board 

Members are present in and participate in that process. That motion has not been 

decided, but while it remains pending, the rules have not been applied. 

That is unfortunate. The new rules are aimed at ensuring that when workers are 

seeking an election to decide whether or not to choose a representative, they will 

have an election, not an endless series of litigation. These changes are aimed at creating a uniform, standardized process for resolving pre- and post-election disputes 

so that workers who want a vote get one as promptly as possible. The current sys-
24 

tem has, over time, incorporated processes that delay finality of elections, sometimes 

for years, and create obstacles for workers who want to use the process. The new 

rules minimize opportunities for delay, and discourage frivolous and duplicative litigation. Further, the rules modernize the process to reflect changes in the ways in 

which people communicate, and also harmonize practices across the Board’s Regions. 

Specifically, the new election rules address the following: 

• Ensure that administrative hearings are devoted to those issues relevant to determining an appropriate bargaining unit and other questions relating to whether 

an election should be conducted. Currently, parties can and do raise issues at the 

hearing which are not relevant to these issues and which result in unnecessary, expensive and time-consuming litigation which unduly burdens both this government 

agency as well as the parties. 

• Consistent with many other administrative and judicial systems, provides the 

Board with discretion over its review of cases, including the extent to which briefing 

is allowed; the current system increases parties’ litigation costs by mandating Board 

review of all post-election cases and requiring legal briefing regardless of the routine 

nature of the issues involved. 

• Reduces litigation by consolidating appeals. Current rules require parties to file 

two separate appeals to seek Board review of pre-election issues and issues concerning the conduct of the election. These two appeal processes are consolidated, 

which reduces costs to all and avoids appeals which become moot as a result of the 

election results. 

Notice Posting Rule 

The Board also took an important step towards making its processes accessible 

and enhancing enforcement when it issued a requirement that a notice of employee 

rights be posted in workplaces covered by the statute. Enforcement of the Act’s protections is dependent on workers knowing their rights. Yet, to the extent that workers know of the NLRA, they believe it applies only in already-unionized workplaces.4

That, of course, is not the case. The NLRA applies in every workplace, unionized 

or not, and allows workers to engage in such basic activities as sharing information 

about their pay, banding together to petition for a change in policy, or asking for 

improved safety, and to do so free of reprisal. 

In order to make sure that both workers and employers know the rights and obligations set forth in the Act, in late 2010, the Board issued a Notice of Proposed 

Rule-Making and, on August 30, 2011, a final rule, requiring NLRA-covered employers to post a Notice of Employee Rights in the workplace. This Notice is virtually 

identical to the notice already required by the Department of Labor for federal contractors, except that the NLRB Notice adds, in the introductory sentence describing 

workers’ rights, the right to ‘‘refrain from engaging in any of the above activity.’’ 

The Notice gives examples of violations of the law by both employers and unions 

and lists NLRB contact information. In does not, in any manner, instruct workers 

how to form a union. 

Workers cannot be expected to exercise rights that they do not know about; by 

the same token, employers cannot be expected to respect such rights. It is difficult 

for me to construe legislation that would forbid the Board from implementing any 

rule requiring the posting of a notice of rights as anything other than an attempt 

to keep workers in the dark. 

Recent House initiatives that diminish workers’ ability to have a meaningful voice 

in the workplace 

The House has before it a number of initiatives to rework the NLRA that would 

further undermine workers’ economic rights and, by doing so, make it less and less 

likely that the voices of workers will meaningfully count as we struggle to rebuild 

our economy and achieve a sustainable recovery. The following paragraphs address 

a few of those initiatives: 

Undermining the Right to Bargain Collectively 

H.R. 4385, THE REWARDING ACHIEVEMENT AND

INCENTIVIZING SUCCESSFUL EMPLOYEES (‘‘RAISE’’) ACT

The stated purpose of this bill is to reverse the NLRB’s supposed ‘‘ban on individual raises’’ by permitting unionized employers to negotiate and provide wage improvements to individual employees above and beyond those offered to or negotiated 

through the union. In my experience, however, employers who believe strongly in 

fairly rewarding productivity or quality, or who wish to offer workers opportunities 

to earn beyond their base salary, easily find ways to do so within the NLRA’s collec-
25 

tive bargaining framework. Agreements in many industries contain incentive pay or 

bonuses, profit-sharing, production bonuses, additional compensation for work above 

and beyond the employee’s regular duties, or rewards for innovation or exceptional 

quality. And merit increase systems, where increases are based on the employer’s 

annual reviews or ratings, are not at all uncommon, particularly in professional or 

technical occupations. There is no ‘‘ban’’ on such provisions, so long as they are mutually agreed. But that is the key: mutual agreement by structurally independent, 

freely chosen representatives. That principle is, as noted above, the premise on 

which the NLRA is built. Both the employer and the workers must agree that such 

a provision is in their interest. 

This bill would erase the workers’ voice from that determination, and leave such 

wage increases completely in the hands of employers. Employers alone would decide 

who was deserving of extra money and who was not, and could do so free of any 

statutory standard (indeed, the statute does not even require that the raises it permits in fact be tied to individual achievement or success at all), without any objective, measurable metrics—and without any review or recourse by employees who felt 

that they were unfairly passed over. 

One of the most commonly voiced reasons that workers want a binding contract 

is to ensure that the rules by which economic benefits and opportunities are apportioned are clear, objective, and uniformly applied; that is, to take these critical decisions out of the employer’s sole discretion. This bill permits employers to unilaterally set the rules and apply them as they see fit—to institutionalize favoritism and 

employer discretion—and to do so regardless of the desires of the workers as a 

group. If the workers thought the exercise of such discretion was in their interest, 

they would agree to it, and any need for the proposed legislation would disappear. 

Indeed, it is only in those circumstances where workers would not agree that the 

legislation would have any effect, and would permit the employer to step in and 

override their wishes. 

This legislation strikes at the core of the NLRA’s framework of self-determination 

by workers, and active engagement on equal footing between workers and their employers. If enacted, it would essentially render collective bargaining on wages meaningless: why bargain collectively if, in the end, the employer maintains complete discretion over individual rewards? 

Undermining the Right to Self-Organize 

Despite its title, H.R. 3094, Workplace Democracy and Fairness Act, this bill 

would place further hurdles in the path of workers’ right to self-organize. It would 

change the NLRB’s election process to mandate that workers wait months and years 

for a vote by encouraging wasteful litigation and impose arbitrary waiting periods, 

even if the parties involved want to proceed sooner. It would incentivize marathon 

litigation by requiring that any and every issues be fully litigated and resolved before workers can have an opportunity to vote—regardless of whether the issues are 

even relevant to the election. Other provisions in the bill overthrow decades of 

Board rules that have been formulated in response to the needs of specific industries and, instead, applies a limited, inflexible, ‘‘one size fits all’’ standard to determine which groups of workers can be represented together. It will flood the Board 

with frivolous appeals, which will require additional funds and needlessly waste taxpayer monies. 

Moreover, the bill would further restrict the already extremely limited ability of 

unions to contact workers. In most circumstances under current law, labor organizations are not allowed in the workplace—indeed, they are often not even allowed outside the workplace if that area is private land—and are relegated to contacting 

workers during their non-work time and in non-work locations. This bill would permit a labor organization only a single method by which to reach each worker (it envisions each worker selecting the method and disclosing that selection to the employer, to pass on to the NLRB), in contrast to the addresses that have routinely 

been required by law since the 1960s. Of course, all the while, employers have unlimited access to these same workers during their work-days, can compel their attendance at meetings to communicate their views, can compel them to furnish personal contact information, and can use that information to further communicate 

their views. These revisions undermine, rather than promote, fairness. 

H.R. 2810, the Employee Rights Act, among other aspects, sets minimum (but no 

maximum) timelines for holding administrative hearings and elections, and prohibits the Regional Offices as well as the NLRB from exercising any discretion to 

move their dockets and streamline procedures. Further, notwithstanding the wealth 

of scholarly research and literature on the abuses of workers’ rights by companies 

during organizing efforts set forth in the endnotes, this proposal actually imposes 

additional penalties only on union misconduct. Even a cursory review of NLRB data 
26 

reveals that the vast majority of unfair labor practice charges involve employer, not 

union, misconduct;5 those claims also are found sufficient to issue complaint at a 

far higher rate.6 Of 1,166 formal actions taken by the NLRB in Fiscal Year 2010 

(the most recent year for which I was able to find data), 1,028 of those actions, almost 90%, were taken against employers. Further, the bill would change the rule 

that has governed workplace elections for more than 75 years—a rule that honors 

the choice of a majority of voting workers—to require a majority vote of the entire 

affected workforce. We do not apply such a rule when we elect our Congressional 

representatives; why, then, is it necessary in all of our workplaces, other than to 

make workers’ selection of a representative even more difficult a task? 

The Secret Ballot Protection Act, H.R. 972, is another measure that would strip 

workers of current rights. Since 1935, workers have had the right to decide whether 

to form a union through either an NRLB-conducted election process or to demonstrate their support for a union through signing cards or a petition authorizing 

a union to represent them in collective bargaining. This right has been endorsed by 

Congress and by the U.S. Supreme Court. This bill eliminates that right. Even if 

a majority of workers tell their employer that they want a union, and even if the 

employer wants to accede to their wishes, this bill nevertheless inflexibly injects a 

government agency into the process, expending time and resources, and delaying 

achievement of the parties’ shared goal. It is difficult to understand the rationale 

for such a requirement. Nothing under current NLRA law that I am aware of requires an employer to recognize a labor organization without an election, even upon 

an unquestioned showing of majority support. Those employers who do agree to recognize without an election therefore do so voluntarily. This bill seeks, as I understand it, to categorically forbid such voluntary arrangements, even though the employer thought it a desirable alternative to the burdensome, expensive, and frictionladen NLRB election process. 

The push to eliminate voluntary recognition as an option on grounds that unions 

‘‘coerce’’ workers to sign cards is puzzling. According to the most recent data released by the Board, charges brought against labor unions account for just over onequarter of all unfair labor practice charges filed (6,330, in comparison to over 17,000 

charges brought against employers).7 The Board finds merit and issues complaint 

in only a very small percentage of all cases filed—about 1,200 in FY 2010 8—and, 

only about 10% of charges brought against unions on any theory resulted in a complaint, much less a determination of culpability. The fraction of claims found to have 

merit is even lower in the objections setting: only 3 were sustained out of the 92 

objections filed in representation cases disposed of in FY 2010.9 I am not aware of 

research showing that there exists any significant difference between the rate of coercion claims against unions in connection with card-signing initiatives as opposed 

to elections; certainly, in both situations, the rate of such claims is extremely small, 

and the likelihood that they have merit smaller yet. 

Weakening Workers’ Entitlement to Redress for Wrongful Acts 

The House recently passed a proposal that takes broad aim at workers’ rights by 

further weakening already ineffective remedies. H.R. 2587, titled ‘‘Protecting Jobs 

from Government Interference,’’ would prohibit the NLRB from ever ordering an 

employer to reinstate work that was illegally eliminated—for example, closing and 

subcontracting of a department believed to be spearheading an organizing campaign, or abolishment of an individual workers’ job because she exercised her federally protected right to challenge harsh working conditions. To be sure, the workers 

involved might receive some backpay. But the bill will immunize the employer from 

undoing its wrongful act, notwithstanding an adjudication that it violated federal 

law. For employees who have illegally lost their jobs, a right without a reinstatement remedy is hollow indeed. Most workers and their families rely on each paycheck for housing, food, and other essentials; little fat is left in most families’ budgets these days. Yet, under this law, even when an employer decimates that family’s 

budget by illegally outsourcing that worker’s job, the employer need only pay what 

will amount, in most cases, to a modest fine: an amount equal to the fired worker’s 

wages for the time period in question, but crediting back to the employer all of the 

money actually earned by the worker from other sources during that period. As 

most workers who have been fired or laid off can attest, a check is not a job: it is 

a band-aid, not a lasting solution. What rational worker, particularly when, as now, 

unemployment is high, would take the already substantial risk of protesting workplace conditions or lending support to an effort to organize a union, if he or she 

knew that no meaningful recourse was available for wrongful retaliation? 
27 

Other Impediments to Meaningful Enforcement of Workers’ Rights 

Several current proposals, such as H.R. 2854, forbid the NLRB from ever requiring employers to post notices informing employees about their federal rights under 

the NLRA. Other proposals are wholesale efforts to eliminate the NLRB as an enforcement agency. H.R. 2118 appears aimed at divesting the NLRB of the authority 

to enforce the Act’s protections against contrary state law. 

Other proposals either drastically restrict, or eliminate entirely, the NLRB’s ability to enforce the law. H.R. 2978 reduces the agency to an investigative body, while 

providing for enforcement of unfair labor practice provisions of the Act exclusively 

through private rights of action. Theoretically, such a revision could provide workers 

with a more potent tool with which to enforce their rights; however, given the substantial expense of federal court actions and the relatively unequal resources of 

workers and employers, absent a cost-shifting provision similar to what is found in 

other federal workplace laws, that tool would, unfortunately, remain out of reach 

for the vast majority of workers who need it. Written on a broader scale, H.R. 2926 

simply eliminates the Agency. 

Conclusion 

None of the legislative measures discussed will do anything to further the central 

purposes of the NLRA: to grant workers a meaningful opportunity to join together, 

if they wish, to better their own lives and those of their families and communities, 

and to insist on their right to be heard in workplace decisions that affect them. Indeed, taken together, it is difficult to view these measures as anything other than 

a broad-based, politicized attack on these purposes. Furthermore, these measures do 

not address the economic issues that I believe are most vital to our country, in both 

the short and the long term: the need for good jobs that can sustain generations 

and anchor our communities, and the growing concentration of wealth in the hands 

of a small proportion of the population. It is my hope that future hearings will focus 

on those urgent matters. 

ENDNOTES

1 John Schmitt, Unions and Upward Mobility for Latino Workers, Center for Economic and 

Policy Research, September 2008; http://www.cepr.net/index.php/publications/reports/unionsand-upward-mobility-for-latino-workers/; Unions and Upward Mobility for African-American 

Workers, Center for Economic and Policy Research, April 2008; http://www.cepr.net/documents/publications/unions—2008—04.pdf; Unions and Upward Mobility for Young Workers, October 2008; http://www.cepr.net/index.php/publications/interactive-reports/unions-and-upward-mobility-for-young-workers/; Unions and Upward Mobility for Women Workers, Center for 

Economic and Policy Research, December 2008; http://lcc.aflcio.org/WhatsNewDocuments/ 

EFCA/CEPRupwardwomenworkers2008.pdf; The Union Wage Advantage for Low-Wage Workers, Center for Economic and Policy Research, May 2008; http://lcc.aflcio.org/ 

WhatsNewDocuments/EFCA/LowWageWorkers.pdf.; Shawn Fremstad and John Schmitt, 

Unions Improve Jobs at the Bottom, November 29, 2007, http://www.policyinnovations.org/ 

ideas/commentary/data/unionization. Bureau of Labor Statistics, 2006 Employment Benefits 

Survey, available at: http://data.bls.gov/PDQ/servlet/ SurveyOutputServlet;jsessionid=f03045af62dfW$3F$08$. 2 An Analysis of the Distribution of Wealth Across Households, 1989-2010, Linda Levine, Specialist in Labor Economics, Congressional Research Service, July 17, 2012 3Dropping the Ax: Illegal Firings During Union Election Campaigns, 1951—2007, John 

Schmitt and Ben Zipperer, Center for Economic and Policy Research, March 2009: http:// 

www.cepr.net/documents/publications/dropping-the-ax-2009-03.pdf; No Holds Barred: the Intensification of Employer Opposition to Organizing, Kate Bronfenbrenner, Economic Policy Institute and American Rights at Work Education Fund, 2009; http://www.epi.org/publications/ 

entry/bp235; Unfair Advantage: Workers’ Freedom of Association in the United States under 

International Human Rights Standards, Human Rights Watch, 2000: http://lcc.aflcio.org/ 

WhatsNewDocuments/EFCA/UnfairAdvantage.pdf; Neither Free Nor Fair: The Subversion of 

Democracy Under National Labor Relations Board Elections, Gordon Lafer (American Rights at 

Work, July 2007): http://www.americanrightsatwork.org/publications/general/neither-free-norfair.html; Consultants, Lawyers and the ‘Union Free’ Movement in the USA Since the 1970s, 

John Logan, Industrial Relations Department, London School of Economics, 2002: http:// 

www.americanrightsatwork.org/dmdocuments/OtherResources/Logan-Consultants.pdf. 4See, e.g. Ronald Meisburg and Leslie E. Silverman, Why Should a Non-Union Company Care 

About the NLRB?, Society for Human Resource Management (August 11, 2010); see also Jonathan A. Segal, Labor Pains for Union Free Employers: Don’t be caught unaware of nonunion 

employees’ labor law rights, HR Magazine, Vol. 49, No. 3 (March 2004) (‘‘Because these [Section 

7] rights are granted under the NLRA—a law that HR professionals working in nonunion environments may be relatively unfamiliar with—they may come as a surprise to many employers 

that operate without unions.’’). 5See Table 1A.—Unfair Labor Practice Cases Received, Closed, and Pending, Fiscal Year 

2010, NLRB, available at: http://www.nlrb.gov/sites/default/files/documents/3580/table— 

1a.pdf 6Out of a rough total of 17,000 charges filed against employers, according to Table 1A, 1,028, 

or 6%, resulted in a formal complaint, according to Table 3A. In contrast, less than 2% of the 
28 

6,300 charges filed against unions resulted in complaint. Table 3A.—Formal Actions in Unfair 

Labor Practice Cases, Fiscal Year 2010, NLRB, available at: stronger, and wealth distribution 

less concentrated than it today. As documented in a recent Congressional Research Service 

study, the top 10% of the population held about two-thirds of the nation’s wealth in 

1989.stronger, and wealth distribution less concentrated than it today. As documented in a recent Congressional Research Service study, the top 10% of the population held about two-thirds 

of the nation’s wealth in 1989.stronger, and wealth distribution less concentrated than it today. 

As documented in a recent Congressional Research Service study, the top 10% of the population 

held about two-thirds of the nation’s wealth in 1989. http://www.nlrb.gov/sites/default/files/ 

documents/3580/table—3a.pdf. 7See Table 1A.—Unfair Labor Practice Cases Received, Closed, and Pending, Fiscal Year 

2010, NLRB, available at: http://www.nlrb.gov/sites/default/files/documents/3580/table— 

1a.pdf 8See Table 3A.—Formal Actions in Unfair Labor Practice Cases, Fiscal Year 2010, NLRB, 

available at: http://www.nlrb.gov/sites/default/files/documents/3580/table—3a.pdf 9Table 11-D., Disposition of Objections in Representation Cases Closed, Fiscal Year 2010, 

available at: http://www.nlrb.gov/sites/default/files/documents/3580/table—11d.pdf 

Chairman ROE. Thank you. 

Dr. Kane? 

STATEMENT OF DR. TIM KANE, CHIEF ECONOMIST, 

HUDSON INSTITUTE 

Mr. KANE. Chairman Roe, Ranking Member Andrews, and distinguished members, thank you for this opportunity to testify today. 

As an aside, Congressman Kildee, it is a particular honor to 

speak before you today. I know my grandfather would be proud. 

I will share an analysis I have done of the RAISE Act, sponsored 

by Congressman Rokita, of Indiana. The views expressed in this 

testimony are mine alone and do not necessarily represent those of 

the Hudson Institute. 

As the grandson of an elected Democrat, Edward Kane, who was 

inspired by FDR to run for office in the city of Wyandotte, Michigan during the Great Depression, won, and served for decades in 

Michigan, I can promise you that I represent a family that puts the 

working man first. Also, I am honored to share my perspective as 

an economist and an entrepreneur. 

I would like to thank all the members here for your tireless efforts to pull the U.S. economy out of the recession. The truth is 

that the policies put in place since 2009 have been an abject failure 

in terms of creating a jobs recovery despite the promises of the 

Obama administration’s leading economists. 

Recent calculations I did show that the employment-to-population ratio collapsed by a staggering 4 percent and has not recovered at all in the last 3 years. The employment ratio averaged 63 

percent for 2 decades before the current recession, but it crashed 

to a modern low level of 58.2 where it has held steady, representing a permanent loss of 12 million jobs. 

On the screens is a chart I recently put together in a Hudson report. My analysis of this ratio shows a complete recovery in four 

of the last five recessions, back to 1970. There was a 0 percent recovery today. The status quo is a powerful reminder that policies 

in place have prevented a recovery of 12 million jobs. 

Turning to workers’ rights, what are workers’ rights? There is no 

economic or logical reason to require workers to surrender their individual rights when they bargain collectively or merely consent to 

a collective agreement. A collective agreement should be understood to establish minimum standards for all, not the maximum potential for anyone. 
29 

Unfortunately, U.S. labor law now allows collective bargaining 

rights to mean the suppression of individual bargaining rights. 

Now, as an economist, not a specialist in labor law, I had no idea 

that giving higher pay to union workers is illegal under the National Labor Relations Act. 

In 2009, for example, the Brooklyn Hospital Center was ordered 

to stop giving $100 gift cards to its top nurses. This fails the common sense test and the economic test as well. 

To predict the economic effects of the RAISE Act the key variable 

is what will happen to labor productivity. A 2003 academic study 

by David Metcalf found that a unionized firm’s labor productivity 

was 14 percentage points more likely to be below the union—or 

pardon me, the industry average. 

Now, in theory a unionized workforce will have positive effects 

and negative effects on productivity. Metcalf outlines four negative 

and five positive channels. 

On the negative side, and I am quoting directly, ‘‘First, unions 

may be associated with restricting work practices. Second, industrial action may have an adverse impact. Third, union firms may 

invest less than non-union firms. Fourth, if unions are associated 

with an adversarial style of industrial relations the consequent low 

trust and lack of cooperation between the parties may lower productivity.’’ 

On the positive side—unions have a positive effect—‘‘First, firms’ 

responses to union relative wage effects may result in higher labor 

productivity, but this should not be interpreted as raising the welfare of society’’—again, quoting directly. ‘‘Second, unions may play 

a monitoring role on behalf of the employer. Third, the familiar collective voice arguments may have favorable consequences. Fourth, 

it is sometimes held that a union presence may make managers 

less lethargic. And finally, unions stop the exploitation of labor, resulting in improved productivity.’’ 

So which of these wins out? Well, the RAISE Act has potential 

to remove some of the negative effects on productivity, but I don’t 

see how it removes any of the positive effects. 

The most important negative effects this act will remove is the 

ban on performance incentives. One study found that 20 percent of 

workers employed through CBAs, which include 7.6 million private 

sector union employees, operate under contracts that allow performance-based pay. This means 80 percent aren’t allowed that 

pay. I think it is safe to assume a 10 percent productivity increase 

across the board for all 7.6 million union workers affected by the 

RAISE Act, which would be given directly—would mostly be given 

directly to workers in the form of higher pay. 

Other economic effects that the act will make possible include 

higher firm revenues. Because the marginal productivity of labor 

will increase, affected firms will soon move to hire more workers 

in two waves. 

Bottom line, I estimate a 200,000 new job estimate because of 

the RAISE Act over the next few years. Again, let me emphasize, 

the legislation has no potential to hurt jobs or wages. 

Thank you. 

[The statement of Mr. Kane follows:] 
30 

Prepared Statement of Tim Kane, Chief Economist, Hudson Institute 

CHAIRMAN ROE, RANKING MEMBER ANDREWS, AND DISTINGUISHED MEMBERS OF

THE CONGRESS: Thank you for this opportunity to testify today on the vital issue 

of worker rights, jobs, and the U.S. economy. I will share an analysis I have done 

of the RAISE Act, sponsored by Congressman Rokita of Indiana, which would allow 

employers to lift the ‘‘seniority ceiling’’ on workers’ wages by allowing employers to 

pay individual workers more—but not less—than a Collective Bargaining Agreement (CBA) specifies. The views expressed in this testimony are mine alone and do 

not necessarily represent those of the Hudson Institute. 

As the grandson of an elected Democrat, Edward Kane, who was inspired by 

President Franklin Delano Roosevelt to run for office in the city of Wyandotte, 

Michigan during the Great Depression, won, and served for decades in Michigan, 

I can promise you that I represent a family that has long put the American working 

man first and foremost. Also as the son of the president of a small manufacturing 

company, I can promise you that I bring the perspective of someone who appreciates 

how jobs are truly created. I’ve spent my career studying the U.S. economy, but 

have also founded and run a few software companies, so I am honored to share my 

perspective as an economist and entrepreneur. 

I’d like to thank all of the Members here for your tireless efforts to pull the U.S. 

economy out of the recession. I know you share with me some frustration that the 

recession may have technically ended years ago, but job market remains mired in 

recession. We need to face the truth that the policies put in place since 2009 have 

been an abject failure in terms creating a recovery in U.S. employment, despite the 

promises of the Obama administration’s leading economists. 

Recent calculations I did show that the employment-to-population ratio collapsed 

by a staggering 4 percent during the recession, and it has not recovered at all in 

the last three years. Other measures of labor utilization such as the unemployment 

rate or payroll jobs created are not demographically neutral, masking elements such 

as worker discouragement and population change. The employment-population ratio 

averaged 63 percent for two decades before the current recession, but crashed to a 

modern low level of 58.2 percent in late 2009. In the most recent report from the 

Labor Department, it remains stuck 58.6 percent, where it has held steady for two 

and a half years, representing a permanent loss of 12 million jobs under this policy 

regime. 

My analysis of employment-to-population shows a complete recovery after 54 

months in 4 of the last 5 recessions going back to 1970. There was a 50% recovery 

after 2001 and a zero percent recovery today. The status quo is a powerful reminder 

that the policies in place today have prevented what should be by now a recovery 

of all 12 million jobs. 

Worker rights 

If I may turn the clock back in time to 1934 when my Grandfather ran for tax 

assessor in Wyandotte, the labor movement then was fighting to promote workers’ 

rights against the abuses of some corporations. The abuses were real and the eventual victory of workers’ rights represented what I believe was true progress. 

What are workers’ rights? Some say that workers have a right to bargain collectively, and I agree. Some say this is the limit of workers’ rights, and I disagree. 

There is no economic or logical reason to require workers to surrender their individual rights when they bargain collectively, or merely consents to a collective 

agreement. A collective agreement should be understood to establish minimum 

standards for all, not the maximum potential for everyone. 

Unfortunately, U.S. labor law has regressed over the decades such that the existence of collective bargaining rights now means the suppression of individual bargaining rights. To be honest, I am an economist, not a specialist in labor law, so 

I had no idea that giving higher pay to union workers is illegal under the National 

Labor Relations Act of 1935. The Supreme Court has actually upheld the law in extreme cases, and the NLRB routinely blocks companies that attempt to give individual raises. In 2009, for example, the NLRB ordered the Brooklyn Hospital Center 

to stop giving $100 gift cards to its top nurses. This fails the common sense test, 

and I believe it fails the economic test as well. 

Economic analysis 

I’ve conducted an analysis of the RAISE Act on the U.S. economy and would like 

to share the results briefly here. The RAISE Act—remarkable in its brevity—would 

allow companies with unionized workforces to offer bonuses and higher wages to 

some or all its workers than the current baselines contract. That is the whole matter at hand. 
31 

To predict the economic effect of the RAISE Act, the key variable is what will happen to labor productivity. The economic literature on unionization and productivity 

is mixed. A widely respected 1984 book by Freeman and Medoff (What Do Unions 

Do?) asserted a positive effect of unions on productivity in the U.S., but the claim 

has not held up well to more sophisticated statistical analysis in more recent studies, and has not been substantiated by any other broad-based studies. Barry Hirsch 

revisited the question in a 2004 paper published by the Journal of Labor Research 

and cited numerous other papers, notably Clark (1984) which find a negative relationship. For example, a 2003 study by Metcalf found that a unionized firm’s labor 

productivity was 14 percentage points more likely to be below the industry average. 

In theory, a unionized workforce will have positive and negative effects on productivity, which is why disentangling them across multiple industries and legal-market 

contexts is muddled. All economists agree and empirical data show that unions hurt 

firm profitability. That effect also is known to limit productivity growth, if not initial 

levels, which may be why the private sector industries with high unionization rates 

have declined so dramatically since the 1980s. Metcalf outlines four negative channels and five positive channels. On the negative side: 

First, unions may be associated with restrictive work practices. Second, industrial 

action may have an adverse impact. Third, union firms may invest less than nonunion firms. Fourth, if unions are associated with an adversarial style of industrial 

relations the consequent low trust and lack of cooperation between the parties may 

lower productivity. 

On the positive side: 

First, firms’ responses to union relative wage effects may result in higher labor 

productivity, but this should not be interpreted as raising the welfare of society. Second, unions may play a monitoring role on behalf of the employer. Third, the familiar collective voice arguments may have favorable consequences. Fourth, it is sometimes held that a union presence may make managers less lethargic. Finally, unions 

should stop exploitation of labor, resulting in improved productivity. 

It is important to understand that none of the positive effects of unionization 

would be diminished by the Act. Indeed, the worst-case outcome of passing RAISE 

is a completely neutral effect on the economy. However, the Act has potential to remove some of the negative effects of unions on productivity. The most important 

negative effect this Act will remove is the ban on performance incentives. Metcalf 

discusses incentives, but I believe this merits consideration as one of the main productivity inhibitors of unionization. Seniority, rather than work effort and competence, is the dominant consideration for promotion and raises under most union 

rules. 

Economic research shows that workers respond to incentives, with estimates of 

the increase in worker earnings ranging from 6 to 10 percent when pay is performance-based. The productivity gain is at least that high, but possibly much higher. 

We can imagine the effect will be even larger in firms which have never had meritbased pay. One study found that only 20 percent of workers employed through 

CBAs, which includes 7.6 million private sector union employees, operate under contracts that allow performance-based pay. That means 80 percent (6.1 million) of 

union workers have a wage ceiling enforced by U.S. law that makes individual performance bonuses and raises illegal, but would be legal after passage of the RAISE 

Act. I think it is safe to assume a 10 percent productivity increase across the board 

for all 7.6 million union workers affected by the RAISE Act, most which would be 

given directly to workers in the form of higher pay. The typical union worker will 

get a 5-10 percent raise in take-home pay. 

Other economic effects that the Act will make possible include higher firm revenues. Because the marginal product of labor will increase, affected firms will soon 

move to hire more workers in two waves. The first wave will be to hire workers 

rather than expand capital investment because of labor’s increased relative productive impact, but the second wave will be in response to higher profit potential as 

the firm expands. A conservative estimate is that each wave will increase employment by 1-2 percent above current levels, or roughly 200,000 new jobs over the next 

few years. Union jobs. The effects could be much higher. Again, let me emphasize 

the legislation has no potential to hurt jobs or wages. 

Conclusion 

Currently, the National Labor Relations Act allows collective bargaining agreements (CBAs) that suppress individual bargaining rights. Specifically, CBAs can set 

wage floors and wage ceilings, barring merit-pay, even barring across the board 

raises by the employer to all workers. A better approach would not put collective 

rights at odds with individual rights, but to allow both to be realized. 
32 

The RAISE Act—less than 200 words of legislation—will restore the upside of individual worker rights and allow firms to give individual bonuses and raises. 

Lifting the pay cap on union workers across America would provide a much needed boost to our economy. I estimate the RAISE Act will generate an average raise 

of 10 percent to union workers in response to new productivity gains based on new 

incentives. The follow-on effects will lead to increased firm revenues and the creation of an additional 200,000 union jobs in the United States. 

REFERENCES

Clark, K. (1984) ‘Unionisation and Firm Performance: The Impact on Profits, 

Growth and Productivity’, American Economic Review, Vol.74 (5), December, 

pp.893-919. 

Freeman, R. B., and J. L. Medoff (1984): What Do Unions Do? New York: Basic 

Books. 

Hirsch, B. T. (2004): ‘‘What Do Unions Do for Economic Performance?’’ Journal of 

Labor Research, 25, 415-456. 

Metcalf, D. (2003): ‘‘Unions and Productivity, Financial Performance and Investment: 

Evidence,’’ International Handbook of Trade Unions, pp. 118-171. 

Sherk, James, and Ryan O’Donnell (2012): ‘‘RAISE Act Lifts Pay Cap on Millions 

of American Workers.’’ Heritage Foundation. 2702, 1-6. 

Chairman ROE. I want to thank all the witnesses for being under 

the time—amazing. So thank you all. 

I am going to start by just going through three things very quickly. These are three very simple bills, and I will start with President 

Porter. 
33 

You know, first of all, I want to—basically to apologize to the 

Seneca Nation for the abysmal treatment that the federal government has done—U.S. government has done—it is embarrassing— 

over the 200 years of—it really is. I have reviewed your nation’s 

history, and I come from an area where the Cherokee Nation in 

East Tennessee, and I am not sure what a sovereign nation is, and 

does this country keep a treaty. 

So I wholeheartedly agree that you have a right on your nation’s 

land to follow your nation’s laws, and we have a treaty that said 

you could do that. So I want to—— 

Mr. PORTER. Appreciate that, Mr. Chairman. 

Chairman ROE [continuing]. I want to make that statement to 

start with. 

Secondly, I can’t think of anything more precious than a secret 

ballot. I put a uniform on, left this country, spent 13 months in a 

foreign nation to help allow people to have that right. 

And I have said many, many times on here, I am a—the son of 

a union labor—I grew up in a union household. And I can’t think 

of anything more important than you as an individual—I exercised 

this right a week ago when I went and voted for myself. Our election is next week and we have early voting. So no one was behind 

that booth with me. 

I say this, my wife claims she votes for me but I don’t really 

know. It is a secret ballot. And she says she does, but—that is the 

importance of it. No one can intimidate you when you are back 

there. 

If you want a union that is fine. It is a right in this country. You 

can do that. 

But it is also your right not to have a union, and you should be 

free of any intimidation from an employer or an—the union to 

make that decision. A worker should have that right. 

And lastly, I am astonished. I didn’t know this either, that as an 

employer—we—I have a non-union workplace; we have 450 employees in my medical practice, and if I were unionized, I didn’t 

know either, Dr. Kane, that it was illegal for me to take a good employee and incentivize them. And there are great employees in 

every business, there is no question about it. 

As a matter of fact, I would not have had a successful medical 

practice for over 30 years without the great people I worked with. 

They helped make me what I was. It wasn’t me; it was the people 

who worked directly with me every day. And I didn’t look at them 

as working for me, they worked with me because our purpose was 

to take care of patients. 

So that is the attitude I have about employees, is that they are 

the most valuable thing you have. And you reward the most valuable thing you have and you take care of it. And I think one of the 

great rewards you can have is to give that person a raise and help 

them during these times. 

So just three statements, and one other statement, Dr. Kane, you 

made, which I found as the employment-to-population ratio—that 

is an amazing statistic. And I guess another way to put it, I have 

heard, in 2000—we have 11 million more people living today than 

we did in 2000 in this nation but we have 500,000 less people that 
34 

are employed than we did in 2000. So I think that says basically 

a different way the same thing. 

President Porter, just your comments on your relationship with 

the—with what has happened to you and how this affects the running of your businesses in your nation. 

Mr. PORTER. Well, thank you, Mr. Chairman, for the question. 

We have a very strong relationship with our workforce, both in 

our government services side and also our revenue side. You know, 

the businesses that we operate exist because we don’t have a tax 

base in our nation. 

And so we have been wrestling with this specter that through 

this San Manuel decision and the changes in the NLRB that there 

will be a union-organizing activity that will occur in a way that 

would be inconsistent with the policies and goals of our government 

approach. We are a good employer. We provide good benefits to our 

workers and we have had a very positive working relationship during that time. 

The interference with our sovereignty is of great concern in the 

abstract as well as in what might be the application in the future, 

and that is why I am here today and I am glad to have a chance 

to testify. 

Chairman ROE. Thank you. 

And, on the secret ballot, Mr. Messenger? 

Mr. MESSENGER. Yes. The secret ballot is obviously something 

that should be protected—the right of each individual employee to 

vote in the privacy of the voting booth. As you said, you know, an 

individual—there is no one behind them when they are—— 

Chairman ROE. Is there any reason not to do it? 

Mr. MESSENGER. Not that I can think of, Mr. Chairman. 

Chairman ROE. Okay. Thank you. 

And, Dr. Kane, on the RAISE Act, I can’t—it is a 200-word bill. 

I can’t see any reason why you wouldn’t take good employees and 

give them a raise. I can’t imagine why anybody in the union would 

mind. 

Mr. KANE. Exactly, Congressman. I was—Mr. Chairman—I tried 

to analyze this economically and look what the negative effects on 

productivity would be. I couldn’t see them. 

So outside of the productivity conversation I am open to hearing 

ideas but, you know, there are these conflicting pressures on productivity, some positive, some negative. This bill, it is all positive. 

And as you said, it is 200 words. There is no hiding the ball in 

there. 

Chairman ROE. I thank you. 

I yield my time now to Mr. Andrews? 

Mr. ANDREWS. Thank you, Mr. Chairman. 

I thank the witnesses for their excellent preparation this morning. 

Mr. Messenger, you are in favor of repealing exclusive representation for unions. Is that correct? 

Mr. MESSENGER. Yes, sir. 

Mr. ANDREWS. And do you think that—is it a fair statement that 

you assume that that repeal would help to create more economic 

growth and more jobs in the country? 

Mr. MESSENGER. I believe that it would. 
35 

Mr. ANDREWS. Dr. Kane, do you agree with that conclusion? Do 

you think that the abolition of the exclusive representation rights 

of unions would create more jobs and more economic growth? 

Mr. KANE. Abolition of rights—I don’t follow, sir. 

Mr. ANDREWS. Well, Mr. Messenger’s testimony says that he 

thinks that the monopoly representation that is achieved when a 

union is recognized should be repealed and that all members of the 

bargaining unit should have the right to opt out of that. Do you 

think that that would lead to more jobs and more economic growth? 

Mr. KANE. Congressman, the way I looked at it—if I can limit 

myself to the RAISE Act, and I don’t know if I can—— 

Mr. ANDREWS. Well, you could answer my question. 

Mr. KANE. Yes, sir. 

Mr. ANDREWS. If you don’t have an opinion, tell us. But do you 

think it would engender more economic growth, or less, or the 

same? 

Mr. KANE. I don’t think it would hurt growth, but I disagree with 

the premise, sir, that there is a conflict between collective rights 

and individual rights. 

Mr. ANDREWS. You don’t think it would hurt growth. Do you 

think it would encourage more economic growth? 

Essentially, this is what is I guess known in the political parlance as ‘‘right-to-work.’’ So right-to-work laws, do you think that 

they encourage or discourage economic growth? 

Mr. KANE. I think right-to-work laws encourage economic 

growth. 

Mr. ANDREWS. Okay. 

I want to ask you, do you know—assuming that position, then, 

I assume you would think that unemployment rates would be lower 

in right-to-work jurisdictions than in non-right-to-work jurisdictions. Is that right? 

Mr. KANE. Depends on too many factors to make a claim like 

that. 

Mr. ANDREWS. So you don’t think it necessarily will be the driving force? 

Mr. KANE. I think if I did an econometric analysis I might be 

able to isolate an effect that it would be—right-to-work would have 

a net positive effect, but I don’t think you can do a simple analysis. 

California has got a lot of negative weight on it—— 

Mr. ANDREWS. Do you know what the median unemployment 

rate is in right-to-work states? 

Mr. KANE. No, sir. 

Mr. ANDREWS. Do you know how it compares to the median 

right-to-work—median unemployment rate in unionized states? 

Mr. KANE. No, sir. 

Mr. ANDREWS. Would it surprise you to know that the median 

unemployment rate in right-to-work states is 7.8 percent and the 

unemployment rate—median rate in the non-right-to-work states is 

lower, is 7.5. That contradict your conclusion? 

Mr. KANE. Absolutely not. I mean, you can look for a cure for 

cancer and say it affects one race of people more than another race 

and it is somehow their fault. You have to look at a lot of factors. 
36 

Mr. ANDREWS. That is true, although I am not sure what the aberrant factor would be. You are a very skilled economist. You know 

what a regression analysis is, right? 

Mr. KANE. Sure. 

Mr. ANDREWS. When you look at a correlation coefficient—am I 

correct, because I am an amateur at this—assuming that if the correlation coefficient is one you have a perfect match between a cause 

and an effect, basically; and if it is zero you have no relationship 

at all. 

Mr. KANE. Yes, sir. 

Mr. ANDREWS. I am going to submit for the record this graph, in 

which we plotted the unemployment rates in right-to-work states 

against the unemployment rates in states that do not have rightto-work statutes. Could you guess for us what the correlation coefficient is? 

Mr. KANE. Based on where you are leading I can guess. 

Mr. ANDREWS. What do you think it is? 

Mr. KANE. Well, this would be what we call—you are leaving 

out—you have omitted variable bias when you do a direct chart 

like that. You are omitting variables that matter for the unemployment rate that would then isolate the actual effect. So I would actually suggest that—— 

Mr. ANDREWS. So you must disagree with Mr. Messenger, then, 

who said that he thinks that the repeal of exclusive representation 

authority of unions would promote economic growth. You disagree 

with him? 

Mr. KANE. I don’t think I disagree with him, but I—— 

Mr. ANDREWS. You agree with him? 

Mr. KANE. Sorry, sir. I am still—— 

Mr. ANDREWS. He says that right-to-work laws encourage more 

job growth. Do you agree or disagree? 

Mr. KANE. Absolutely, I agree. 

Mr. ANDREWS. So how do you explain a correlation coefficient of 

0.05 when you look at right-to-work—when you actually look at the 

percentage of unionized workforce—— 

Mr. KANE. Yes. 

Mr. ANDREWS [continuing]. And you plot that against the unemployment rate in the state the correlation is 0.05. How do you explain that? 

Mr. KANE. Well, barring a lecture on econometrics I would explain it by—— 

Mr. ANDREWS. Well, you are barred from giving such—— 

Mr. KANE. Yes, sir. I would say one, it has omitted variable bias; 

two, it depends on the timeframe. So I am curious what the timeframe of the chart is. 

Mr. ANDREWS. What might some of those variable biases be? 

What else would cause—you would admit that at least looking at 

these two factors there is no correlation whatsoever between the 

percentage of the unionized workforce and the unemployment rate, 

right? 

Mr. KANE. Well, sir, I would say one of the omitted variables 

would be a hurricane. So, for example, New Orleans—you know, 

weather—droughts, as you mentioned. 
37 

Mr. ANDREWS. What about the other 49 states that didn’t have 

a hurricane, or 47 that didn’t—— 

Mr. KANE. Absolutely. So there are so many factors that go into 

this that it is hard to say just one thing. You would have to consider them all and then do a chart based on that. 

But also, the timing matters. So is this over the last 10 years, 

the last 20 years? I could probably get a chart for you 10 years before that one that would show a different relationship. 

Mr. ANDREWS. I would love to see that. 

Thank you. 

Chairman ROE. Thank you. 

Mr. Rokita? 

Mr. ROKITA. Thank you, Mr. Chairman. 

Real quickly, Dr. Kane, did you want to respond any more to Mr. 

Andrews’ line of questioning before I went on? 

Mr. KANE. No, sir. Thank you. 

Mr. ROKITA. Okay, thank you. 

I want to thank all the witnesses for being here today. I want 

to thank the chairman for holding this hearing, as it regards the 

RAISE Act. I want to thank my—so many of my colleagues, including Ms. Noem, Mr. Ross, and the chairman for co-sponsoring the 

RAISE Act. 

I want to quickly read some excerpts from a letter sent by a firm 

called Miller & Long, which is a contracting firm here in the D.C. 

area. And Mr. Brett McMahon says, ‘‘Even though we are not a 

union company I have met plenty of hardworking union members. 

However, their contracts do not permit their employers to reward 

their effort. The RAISE Act would allow union employers to grant 

individual merit raises to employees covered by a collective bargaining agreement. I cannot think of anything more fundamental, 

logical, or conducive to greater productivity and job satisfaction 

than loosening the unfair constraints on individual achievement. 

The RAISE Act would reward hard work. It seems so simple to say 

that hard work should be rewarded in this country. It is a sad testimony on the nature of our politics that such a bill does not enjoy 

unanimous support. Every working person deserves a chance to get 

ahead and to have their individual effort justly rewarded.’’ Mr. 

Chairman, I ask for inclusion in the record. 

[The information follows:] 

July 24, 2012. 

Hon. PHIL ROE, 419 Cannon House Office Building, 

U.S. House of Representatives, Washington, DC 20515. 

DEAR REPRESENTATIVE: I am proud to say that Miller & Long DC is a merit shop 

company. Advancement in rank and compensation is earned through individual effort and hustle. One of my primary tasks is to continuously evaluate each person. 

I seek out those that go the extra mile. It makes us a more productive, positive and 

profitable place to work. The younger people entering the business need to know 

that they can get ahead, and that their hustle will be rewarded. The more experienced folks enjoy working with people whose efforts have garnered their respect. 

I firmly believe that these values are universal. Even though we are not a union 

company, I have met plenty of hard-working union members. However, their contracts do not permit their employers to reward their effort. Union organizers have 

targeted Miller and Long in the past, but our employees have consistently decided 

that remaining a merit shot best served their interests. I am concerned that—if a 

future organizing campaign succeeded—a union contract would prevent us from rewarding hustle and hard work. This would undercut our productivity and would be 

a serious threat to the health of our business. 
38 

I was disappointed, but not shocked when the union leadership’s political arm decided to oppose the RAISE Act. The RAISE Act would allow union signatory employers to grant individual merit raises to employees covered by a collective bargaining 

agreement. I cannot think of anything more fundamental, logical, and conducive to 

greater productivity and job satisfaction than loosening the unfair constraints on individual achievement. 

The RAISE Act would reward hard work. It seems so simple to say that hard 

work should be rewarded in this country. It is a sad testimony to the nature of our 

politics that such a bill does not enjoy unanimous support. Every working person 

deserves a chance to get ahead and to have their individual effort justly rewarded. 

Sincerely, 

BRETT MCMAHON, President, 

Miller & Long DC, Inc. 

Chairman ROE. Without objection, so ordered. 

Mr. ROKITA. Now, the reason I took some time to state that is 

because I am in complete association with the chairman’s remarks 

when he started the questioning and I can’t do any better by them. 

But the moral imperative that he laid out here with regard to these 

three bills is exactly on point. 

Given that then, starting with Dr. Kane, can you give me specific 

examples of unions telling a company not to pay workers more? Because given what I just read that seems like a strange objection. 

Mr. KANE. Yes, sir. I read a few examples. There is a background 

paper from the Heritage Foundation—I forget the publication—by 

James Sherk that lists a few examples that surprised me. 

One example had a firm that wanted to give everyone in the 

company the exact same raise and the union objected to it. It was 

taken to the NLRB, and the NLRB, in I think what might have 

been a unanimous decision, to Mr. Andrews’ point, agreed with 

what the law says today that the firm wasn’t allowed to make that 

raise. So I would probably vote the same way on the NLRB even 

though I disagree with the law. 

So it is up to Congress to free companies and to free workers to 

get these merit raises. 

Mr. ROKITA. Well, how can an employer provide a performancebased pay increase? How often are provisions allowing the performance-based pay increases found in collective bargaining agreements, and why are they excluded? 

Mr. KANE. The analysis I have seen by—in a paper by David 

Metcalf in 2003 that 20 percent of CBAs already allow merit pay, 

so it is not an extraordinary thing. But the fact that it is already 

allowed means it should be logical and that it could be spread to 

the other 80 percent of workers under unions without harming 

those unions. 

In fact, I would predict this would be a shot in the arm for 

unions, which have been declining. So if you care about union 

health over the future U.S. economy this would be a bill you would 

support, as well. 

Mr. ROKITA. Okay, so just to be clear, union contracts don’t raise 

wages, or do they, or how often? 

Mr. KANE. I don’t think you can make a claim one way or the 

other. I think the fact that there is a collective bargaining agreement raises wages across the board, but having the RAISE Act in 

place would also allow that collective right to still exist and individual raises to occur, as well. 
39 

Mr. ROKITA. And why would businesses pay more if they did not 

have to? 

Mr. KANE. Well, let’s look at the minimum wage. Two percent of 

the American workforce gets paid the minimum wage, so it is this 

great puzzle: Why do 98 percent of the workers get more than that 

when firms don’t have to? 

As a former employer, I pay people what they are worth, especially if a worker is extremely talented and gets a job offer from 

somewhere else, I want to be able to give them a raise to retain 

them. And in fact, we see that happen to unions, that the—there 

are losses of talented workers and the firms and the unions aren’t 

able to retain those individuals. The RAISE Act would change that. 

Mr. ROKITA. And what kind of data do you have—and again, if 

it was in your testimony, if you can repeat it—do you have to show 

how much performance pay raises wages, by percentage or—— 

Mr. KANE. That is my analysis. My analysis is the productivity 

difference between firms that have incentive pay and don’t, that— 

what effect it would have where it is barred. I analyzed 10 percent 

increase, maybe a 200,000 job increase—union job increase as a result of the RAISE Act. But that is my analysis. 

As far as citation about losing workers, I can get that to you and 

add it to the testimony. 

Mr. ROKITA. Okay. And percent pay increase? 

Mr. KANE. Well, if we have a 10 percent increase in marginal 

productive labor you could say it is half and half—half goes to the 

workers, half goes to the firm. But I think that will filter back into 

hiring more workers, as well. 

Mr. ROKITA. Thank you. 

Mr. Chairman, my time is expired. Thank you for having the 

hearing. 

Chairman ROE. I thank the gentleman for yielding. 

Mr. Miller? 

Mr. MILLER. Thank you, Mr. Chairman. 

For the past 75 years, as has been discussed here in this hearing, 

the decision was made that the right to form a union belonged to 

the workers themselves, and the exercise of these rights has 

served, I believe, this country well. I believe that they contributed 

to the building of the middle class and to ensure the prospect that 

our children can build even a better life for themselves, and that 

there—better than their parents. 

Certainly I have been dedicated to the idea of strengthening the 

National Labor Relations Act to make sure that, in fact, this decision rested with the workers. And yet, throughout this entire Congress we have seen the majority here continue to propose legislation—and throughout the hearings here—to really take away much 

of the say the workers have over their workplace. 

We have seen them pass the Outsourcers Bill of Rights, which 

eliminated the National Labor Relations Board authority to order 

an employer to restore job and production after employers unlawfully retaliate. You don’t get to retaliate for people exercising their 

rights under the law, and yet that is what that legislation would 

do. 

Republicans passed the Election Prevention Act, which effectively 

delays and ultimately prevents union elections. How does that 
40 

strengthen the National Labor Relations Act? How does outsourcing jobs strengthen the National Relations Act? 

Republicans introduced the Secret Ballot Protection Act, which 

eliminates the ability of employers to voluntarily recognize unions 

based upon the showing of majority support. And yet, we see in 

many instances where in workplaces that is done the working relationships are better among those organizations with their employees. 

The Republicans—the RAISE Act that is just under discussion 

here, which lets employers avoid discussing wage increases with 

employees, going around the employer organization, offering wage 

increases to selected individuals to break down the strength of the 

union under the National Labor Relations Act. And it doesn’t require any wage increases at all. 

Ms. Vick—Virk—excuse me, Ms. Virk, in your opinion, you have 

listened to this back and forth here, do you believe that this is 

strengthening the National Relations Act? 

Ms. VIRK. No, sir, I do not. In fact, I believe it fundamentally alters the structure of self-determination that the—that is the very 

premise of the act. As you pointed out, the notion that has been 

in place for 75 years is that workers themselves have a right to 

choose—a federally enforceable right to choose whether or not they 

want to deal with their employers individually or whether they 

wish to deal with their employers collectively. And if the workers 

choose to deal with their employers collectively the act provides 

that the employers must respect that choice so that the workers 

can insist that their voices be heard. 

Mr. MILLER. That is the premise of the law. 

Ms. VIRK. That is the premise of the law. 

Mr. MILLER. This decision belongs to the workers. 

Ms. VIRK. That is exactly right. And legislation such as the 

RAISE Act, which was just under discussion, what it does is effectively take wages, which are obviously a critical component of any 

collective bargaining negotiation, and takes that decision and puts 

it back exclusively, essentially, in the hands of the employer. 

It destroys or it takes exclusive representation and chips at it. 

It goes a ways towards Mr. Messenger’s proposal, or what he would 

like to see happen, which is the death of exclusive representation 

and having everybody atavistically individually bargain. 

That is not the premise of the National Labor Relations Act. The 

premise of the act is that if people want to join collectively and 

want to deal with their employer collectively they have the absolute right to do so. 

Mr. MILLER. Well, I am just struck by the fact that as we title 

this hearing, ‘‘Strengthening the National Labor Relations Act,’’ 

and as we talk about that throughout the year, this committee has 

let go unaddressed probably the most corrosive scandal in the 

board’s history that has not been addressed at all by this committee despite repeated requests. Are you familiar with reports by 

the board’s inspector general as regarding member Hayes and 

member Flynn? 

Ms. VIRK. I am generally familiar with them, yes, sir. 

Mr. MILLER. So we have two reports of the passage of confidential deliberative material now from former member Terence Flynn 
41 

to select private parties outside the board. You represent people in 

these contests all the time. Can you imagine that you would—it 

would be appropriate to pass deliberative, confidential information 

from the board to the outside parties? 

Ms. VIRK. No. I can’t see why that would be proper. 

Mr. MILLER. Do you know what—for what use these documents 

were used that they were passed outside of the board? 

Ms. VIRK. I can’t imagine. 

Mr. MILLER. Mr. Kane, do you know for what purposes these documents were used that were passed outside the board? 

Mr. KANE. I am not familiar with it, sir. 

Mr. MILLER. Mr. Porter, do you know for what reasons these documents were used when they were passed outside the board? 

Mr. PORTER. I am not familiar with the issue. 

Mr. MILLER. Mr. Messenger, do you know? 

Mr. MESSENGER. No, sir. I do not know. 

Mr. MILLER. And neither does this committee. And yet, in fact, 

the processes of the board were violated by members of the board, 

according to the inspector general, and we find no interest in this 

committee at all. You talk about undermining the law is when people start leaking deliberative information to lawyers and to others 

outside the board. 

We tried to contact—Mr. Andrews tried to contact the lawyer to 

get Mr. Chambler here to attend this hearing to explain this and 

his lawyer can’t find him. Apparently he is hiding from his attorney. But he said to send the message that he wasn’t turning down 

the request to appear; he just couldn’t find him. So I guess he is 

hiding in a culvert somewhere while his attorney searches for 

them. 

But it is just unbelievable that this committee would engage in 

this activity of undermining the board and not deal with the scandal going on on the—in the board at the same time. Thank you. 

Chairman ROE. Thank the chairman for yielding back. 

Mrs. Noem? 

Mrs. NOEM. Thank you, Mr. Chairman, for holding this hearing 

today on all these issues regarding the National Labor Relations 

Act. While I am supportive of all the bills that are being heard 

today, obviously the Tribal Labor Sovereignty Act highlights an 

issue that is very dear to me and the tribes in South Dakota and 

others across the country. 

So I want to thank you, President Porter, for being here and for 

your testimony on this legislation. I found it very insightful, and 

a hands-on experience is always good insight to have when we are 

talking about policy and what happens in real life. 

The NLRB decision from several years ago is an affront to the 

principle of tribal sovereignty, which is referenced in the Constitution. It is especially concerning given the activist stance that the 

NLRB has taken. While the Tribal Labor Sovereignty Act stands 

to defend the constitutionality protected principle of tribal sovereignty, I believe it would also go a long way in continuing to promote economic opportunities and development on tribal lands by 

eliminating ambiguity that exists in current law. 

One of the things I hear most from businesses in my state, tribally owned and others, is the need for certainty from the govern-
42 

ment, that they will know what the rules are and what they will 

be in the future and can plan accordingly. And I believe that this 

is one of the glaring examples of the need for certainty and agree 

with you, President Porter, in—that clarification is needed. 

On behalf of the federal government and this hearing, this is a 

step in the right direction. 

So for you, President Porter, I have a question: You mentioned 

in your testimony that the Seneca Nation has strong employee 

rights protections in place and procedures as well. And I think that 

this gets to the heart of what the Tribal Sovereignty Act is all 

about, allowing tribes to govern their own affairs in accordance 

with their sovereignty. So could you talk about how those policies 

were implemented within your nation and within your tribal government? 

Mr. PORTER. Thank you, Congresswoman. 

Our nation does have due process and protections for our workforce in a couple of different ways. Our nation’s council, or legislature, has established laws, you know, that govern the regulation of 

workers in the—in our government. 

We have created separate governmental bodies that have administered our workforce in our casinos and other businesses. They 

have also their own policies and procedures that have been adopted 

by which employees have a definition of their rights and also a recourse, through grievance procedures, by which they can be heard 

in the event of disagreement between them and their immediate 

supervisors. 

So we do our best. As our businesses have grown they have 

grown very rapidly, and my prediction is that over time and in the 

years to come they will continue to evolve and advance as the 

needs of workers grow and our government continues to mature in 

this responsibility. 

Mrs. NOEM. So what has been the response by tribal members 

and employees that have been working for the tribally owned government? 

Mr. PORTER. Well, I have learned, you know, in my short time 

in elected office that it is difficult to make everyone happy. But it 

is true that we have provided, I think, a mechanism that provides 

a substantial degree of responsible employer relations, that, you 

know, we have a recourse, disputes are addressed. You know, people go to work every day. They are happy that they have jobs. 

We have created 4,000 jobs in the last 10 years and it has been 

a very significant benefit for not just our nation but for all of the 

people in Western New York who want to work. And from that 

standard I think it is working very well for us. 

Mrs. NOEM. Is there an opportunity for them to give feedback to 

you into those policies and procedures so that you can work to put 

changes in place that they would recommend as employees? 

Mr. PORTER. Absolutely. You know, I receive a lot of just unsolicited requests from members of our own nation as well as some of 

our employees about different problems that they have. I always 

try to work within the chain of command in terms of, you know, 

taking it back to the executives or the directors who are responsible for the workforce. 
43 

But we do find a way in our small society of decision-makers to 

be able to address concerns that our people as well as our workers 

are raising. 

Mrs. NOEM. Have you found it—you know, that ability to dynamically react and meet the needs of the employees has been of benefit to you in setting up some of these policies and—— 

Mr. PORTER. Absolutely. We have fantastic businesses. Our gaming business does well. The private sector businesses—the individually owned businesses are struggling to continue to improve, and 

people have choices, you know, when it comes to where they want 

to work within our nation government businesses, the private sector, or even off the territory. 

So I think it is working as best as it can. After most of the last 

200 years of our people living in abject poverty we have done an 

awful lot over the last 40 years and I hope to continue that growth 

in the future. 

Mrs. NOEM. Great. I just was curious, what—do you know what 

the standard was that was used by the NLRB to determine whether it had jurisdiction over a tribal enterprise before San Manuel? 

Mr. PORTER. As to why they continue to recognize our sovereignty? 

Mrs. NOEM. What the standard was before that decision—— 

Mr. PORTER. I think it was common sense, quite honestly, because we are governments, and no differently than the statute 

reads that the United States or state governments are exempted 

from the coverage of the law, I think it was a common sense understanding that tribal governments would also be exempted. And I 

think it is only because we decided to grow businesses and generate monies for our people that the board, frankly, without almost 

no principle, changed the standard. 

Mrs. NOEM. Well, thank you. Thank you for being here. 

Chairman ROE. Dr. Holt? 

Mr. HOLT. I thank the chair. 

I would point to the statements of Mr. Miller and Mr. Andrews 

at the beginning of this hearing that there are things that we 

should be dealing with today, whether it is leaks that completely 

undermine the ability of the NLRB to function, or whether it is 

ways to have more workers employed. And I think Mr. Andrews at 

least laid the groundwork for the case that moving to right-to-work 

is not going to result in more workers being employed; and I think 

Mr. Miller made the case that if we are going to have a functioning 

NLRB we have to exert some oversight. 

Ms. Vick—Virk, I beg your pardon—first one specific question 

that I would like to clear up: It has been repeatedly stated that it 

is now illegal for a unionized employer to give bonuses to their employees. Is that true? 

Ms. VIRK. I thank you for the opportunity to speak on that question. No, it is not true. It is only unlawful if the employer does not 

deal with the representative chosen by the workers if the workers 

have chosen a representative. Is—— 

Mr. HOLT. Thank you. 

Well, now I wanted to talk a little more generally, Ms. Virk, 

about why we are even talking about a representation for a group 

of workers collectively. Without the body of law and precedent asso-
44 

ciated with the NLRB, that whole body, do you think workers have 

equal footing with employers when it comes to wages and working 

conditions, benefits and the other matters of employment? 

Ms. VIRK. Do you mean, are workers—do they exercise the same 

level of bargaining power—— 

Mr. HOLT. I guess I am asking, why was the National Labor Relations Act and associate—and associated law passed in the first 

place? Historically, are workers on an equal footing with their employers? 

Ms. VIRK. No, they are not. And that is the reason that Congress 

gave them an enforceable right to act collectively if they so chose. 

Mr. HOLT. So in this legislation that the majority has laid out 

today for our consideration, the legislation that would eliminate the 

NLRB’s authority to order an employer to restore jobs as part of 

a—if an employer unlawfully retaliates against employees, or legislation that would delay union elections, or what is called the Secret 

Ballot Protection Act, or the so-called RAISE Act that we were 

talking about that would allow an employer to set wages outside 

of the collective bargaining agreement, or legislation that would restrain the enforcement of any state law on grounds that it is preempted by or conflicts with the National Labor Relations Act—in 

other words, a state could pass laws in direct conflict to federal 

labor law—do you see, in any or all of these bills, any anti-union 

bias or pro-union bias? In other words, is this really about making 

the NLRB more efficient, more functional, or is it really to get at 

whether unions can operate in the interest of workers? 

Ms. VIRK. I guess the way that I would see it, Congressman, is 

that these measures taken individually or collectively undermine 

workers’ rights, and in doing so they undermine the rights of workers’ chosen representatives, which in many cases where workers 

have chosen collective representation are labor unions. But what 

they really do is chip away at individuals’ rights or allow employers 

to ignore individuals’ own wishes to be represented collectively, or 

their own wishes at the bargaining table, or their own wishes as 

to whether to be represented at all. 

Mr. HOLT. So let’s take, for example, the Secret Ballot Protection 

Act. How does that reduce workers’ rights? 

Ms. VIRK. Well, voluntary recognition, which this act would 

eliminate, has been in place and has been a part—a historical part 

of the National Labor Relations Act since its inception in 1935. 

Thousands and thousands and thousands of workers have freely 

and easily chosen to be represented by an agent collectively for the 

purpose of bargaining with their employer and have done so simply 

by signing a card or signing a petition that have been presented 

to their employer, and their employers have agreed to respect their 

workers’ wishes without an election. 

The act permits secret ballot elections and many thousands of 

employees have also been organized, if they so choose, by secret 

ballot election. 

What the Secret Ballot Protection Act, as I understand it, would 

do is take away that first option of voluntary recognition—take 

away the option of employees to simply come together and say, a 

majority of them, ‘‘We want a union,’’ and present a petition or 
45 

cards to their employer saying exactly that and allow the employer 

the right to respect that. That is what it would take away. 

Mr. HOLT. Thank you. 

Chairman ROE. Thank you. 

Mr. Tierney? 

Mr. TIERNEY. Thank you. 

You know, I took your point, Ms. Virk, on the notion that most 

of these statutes that are being proposed seem to be more about 

taking away the strength of the National Labor Relations Act than 

increasing it, but one—aside from one of the statutes here, one that 

always got me was the provision—the ruling of the board that 

there would be a notice posted which would inform members of 

unions of their right to join or to refrain from joining a union. And 

my understanding is that that notice could be downloaded for free 

of charge off the Labor Relations Board’s site and then need only 

to be posted the same place that all other work notices are posted. 

Can you explain to me what the problem with that seems to be, 

for people that object to that? 

Ms. VIRK. I don’t understand why anyone would take a position 

that people should remain ignorant of rights that they—clearly are 

enshrined in federal law. And I would say, member Tierney, that 

in fact, the notice posting is required in all workplaces, union and 

non-union, to inform non-union people of their rights. 

And in fact, you know, given that most non-union workers don’t 

even know that they have the right to act collectively, don’t even 

know that they have a right to discuss wages or working conditions 

or complain about those conditions to each other or to their employer to try to seek redress, seems to me that informing those 

non-union workers, which are an ever-growing percentage of our 

workforce, of their rights, I really see no reason not to do that. 

Mr. TIERNEY. Well, part of the charge of the National Labor Relations Board, of course, is to enforce its own statutes, rules, and 

regulations. Is that correct? 

Ms. VIRK. That is correct. 

Mr. TIERNEY. And how would a—how would not posting this or 

not giving people information about their own rights strengthen 

the board’s position or ability to do that? 

Ms. VIRK. I don’t see how it could strengthen it at all. I could 

only see that it would further undermine people’s knowledge and, 

therefore, their enforcement of those rights that they absolutely 

have. 

Mr. TIERNEY. With respect to the so-called RAISE Act, my understanding under current law—and correct me; you are the expert 

here—under current law collective bargaining agreements already 

provide for merit pay raises if people—increases if people want to 

do that? 

Ms. VIRK. If the parties mutually agree to it. And member Tierney, I mean, member Rokita said—asked of witness Kane how 

often are these arrangements of merit pay allowed, and I think the 

real answer to that is—Mr. Kane said 20 percent of agreements. 

I don’t know whether that is right or not. 

But the real answer is, as often as both parties agree to that. 

And that is the beauty of the act is that it sets up a process and 

then the parties who are involved in—the bargaining parties them-
46 

selves select what provisions work for them under their particular 

circumstances. It is as often as those parties decide there should 

be. 

Mr. TIERNEY. Can you explore a little bit broadly for us, how 

does changing that and passing the RAISE Act, how would that undermine the purpose of the statute? 

Ms. VIRK. As I understand it, it would, as I said before, take 

away the union’s right or labor organization’s right to exclusively 

represent workers with regard to wages. Wages are a critical—perhaps the most or one of the most critical economic components in 

any package, and it would allow the employers to agree with the 

workers’ chosen representative to one thing and then go, without 

consulting with the union, behind the backs of workers’ chosen representative to decide in their discretion who was deserving of additional money and who was not. 

And if a majority of the workers in that workplace don’t believe 

that employers’ discretion to decide who is deserving and who is 

not is in their interest, that wish should be respected. And that is 

what the RAISE Act undermines. 

Mr. TIERNEY. Well, currently under the existing law, if a state 

were to pass any legislation that conflicted with or undermined or 

preempted federal law under the National Labor Relations Act does 

the board have the authority to take any action? 

Ms. VIRK. It is my understanding that the general council has 

the authority to sue in federal court. 

Mr. TIERNEY. And that strengthens their position of being able 

to enforce their own rules and regulations in the National Labor 

Relations Act, is that the theory here? 

Ms. VIRK. Certainly. And strengthens the national labor policy of 

uniform federal labor law. 

Mr. TIERNEY. So could you explain to me how passage of H.R. 

2118 would—which would strain them from taking such action, 

would say that they cannot go in and challenge a state who does 

that, how does that somehow strengthen the National Labor Relations Act? 

Ms. VIRK. As I said, really only in an—the Orwellian sense, in 

that it does the opposite. 

Mr. TIERNEY. Seems there is a lot of that going around here 

today. 

Thank you. I yield back. 

Chairman ROE. Mr. Kildee? 

Mr. KILDEE. Thank you, Mr. Chairman. 

First of all, Tim, it is good to see you again. You come from a 

great family. I have great memories of your grandfather. 

Mr. KANE. Thank you, sir. 

Mr. KILDEE. We may not agree on these issues, but I certainly 

respect you personally. 

Mr. Virk, how have the recently enacted rules of the NLRB improved the efficiency of union elections and reduced delays? 

Ms. VIRK. As I understand those rules, sir, they have been enacted but not enforced. They would do two main things. 

They would streamline the pre-election and post-election hearing 

processes, which currently can be, even in the best case scenario, 

very long, drawn-out affairs in which an employer pre-hearing, pre- 
47 

election, after a majority of employees have decided that they want 

a representative or decided that they want an election, an employer 

can stall that process for weeks and even months on end, raising 

any number of issues that are irrelevant to the—that might be irrelevant to the ultimate outcome of the election. 

What the new rules do—and they can do the same thing postelection. After an election is held an employer has a right—a union 

has a right, as well—to file objections as to the conduct of the election and another hearing process is held. Both of those outcomes 

of those processes can be separately appealed to the labor board. 

They are held in front of an administrative law judge and the outcomes can be appealed to the labor board, which again adds additional delay both on the front end and on the back end. 

You know, the example that is in my written testimony is actually sadly an example in which the board did every single thing 

they could and the union, which was voted in by a two-to-one margin by the employees, did not actually receive certification until almost a year after the election petition was filed. The new rules that 

the board wanted to promulgate would streamline that so they 

would consolidate appeals and have certain timelines that would 

have to be met, and also limit the kinds of issues that could be 

raised pre-election so that the purpose is that the employees want 

an election, they get an election and they get an election promptly, 

again, trying to respect the wishes of the workers whose rights are 

protected by the NLRA. 

The second thing that they would do is, as I understand it, under 

current law the employer is required to provide names and addresses of employees only. Most people these days communicate 

most often by phone or by e-mail, and under the board’s rule there 

would be additional information provided to the—to a labor organization about how to communicate with the individual employees 

within the bargaining unit. Mind you, the employer, of course, has 

access to all of that information as well as access to each and every 

member of the bargaining unit every day, day in and day out, because they work there and the employer controls their time when 

they work. 

All the new rules would do would be to give a labor union who 

sought to organize that workforce an additional method of communication—essentially, to modernize the methods of communication. 

That is my understanding as to the two major parts of that rule. 

Mr. KILDEE. Thank you. 

I yield the balance of my time to the gentleman from New Jersey. 

Mr. ANDREWS. I thank my friend for yielding. 

I want to ask Mr. Messenger a question: My understanding of 

the present law is that if a majority of workers in a bargaining unit 

sign a card or petition to say they don’t want the union anymore 

and the employer then unilaterally says, okay, I am going to stop 

collectively bargaining, that the law doesn’t require a secret ballot 

to decertify the union, does it? 

Mr. MESSENGER. It does not. However—— 

Mr. ANDREWS. I mean, you spoke movingly about your devotion 

to secret ballot. Would you have a secret ballot in that circumstance? 
48 

Mr. MESSENGER. Yes. 

Mr. ANDREWS. You would? 

Mr. MESSENGER. Yes. 

Mr. ANDREWS. Is that in the bill that is before the committee, or 

does that omitted—is that change omitted? 

Mr. MESSENGER. I don’t know off the top of my head. I would 

have to look—— 

Mr. ANDREWS. My reading of the bill is that it does not create 

that situation. So would it be your recommendation that if the bill 

before the committee does not require a secret ballot to decertify 

the union that be added? 

Mr. MESSENGER. Yes. However—— 

Mr. ANDREWS. Thank you. 

I yield back. 

Chairman ROE. Mr. Kucinich? 

Mr. KUCINICH. Thank you very much, Mr. Chairman. 

Question for Ms. Virk: In Mr. Kane’s testimony he argues that 

current labor law suppresses individual bargaining rights. Can you 

tell this committee or subcommittee, how have collective bargaining rights affected the living standards of the middle class 

since the enactment of the National Labor Relations Act? 

Ms. VIRK. I am not an economist like Mr. Kane, but my understanding is that historical trends show quite clearly than when 

workers choose to join together in any given workplace or industry 

they better themselves. When there are profits to distribute workers get a share of that; when there is income to the farm workers 

get a share of that if they bargain collectively. And they are much 

more likely—and more workers as a group are more likely to get 

more when they bargain together. 

And that is, I think, has been, historically, since 1935 when the 

Labor Act was passed in the depths of the Depression, it was 

viewed as an engine to stimulate wage growth, to stimulate and increase economic stability within communities—— 

Mr. KUCINICH. Well, wait a minute. You know, you say stimulate 

wage growth. You are speaking not only the organized workforce 

but the part of the workforce that is not organized, their wages go 

up as well because there is such a thing as patterns that are set 

in organized labor—— 

Ms. VIRK. That is exactly correct, Mr. Kucinich. There is essentially a halo effect. Miller & Long, the employer whose letter member Rokita put into the record, compete regularly in the Washington, D.C. area with construction employers who are unionized, 

and one of the reasons, perhaps, that they pay good wages is because the unionized construction industry in Washington, D.C. 

pays good wages. 

And it is a rising tide when there is an industry that has significant unionization, and it is a rising tide that lifts all the boats in 

that industry. 

Mr. KUCINICH. So as someone who is involved in negotiating collective bargaining agreements, the people who you work on behalf 

of, as their counselor explain to us what they tell you why it is important to them. 

Ms. VIRK. Why it is important to them to have that—— 

Mr. KUCINICH. Yes. To have that right. 
49 

Ms. VIRK. I think for two reasons, fundamentally. First, they believe that they—if they band together that they will be able to 

share when an employer prospers, and that they will—secondly, I 

think, that they will have a meaningful voice in workplace decisions other than economic decisions that affect them in their everyday working life. Respect and dignity on the job are two things that 

I think most lawyers who represent labor organizations and workers hear as one of the main reasons that people want to unionize. 

Mr. KUCINICH. Thank you, Ms. Virk. 

Mr. Chairman and members of the committee, we are looking at 

a particular right here that workers have, the right to collective 

bargaining, but really it is part of a penumbra of rights: the right 

to organize, the right to collective bargaining, the right to strike, 

the right to decent wages and benefits, the right to a safe workplace, the right to a secure retirement. These are part and parcel 

of rights that workers in a democratic society have. 

And so what we are speaking about here is not simply the economics that may become involved. There is a very powerful social 

and even moral statement here that has to do with the rights of 

workers. And there is a moral tradition that is connected with the 

annunciation of those rights. 

I thank the chair. 

Chairman ROE. Thank you for yielding. 

I will now yield time to Mr. Andrews for his closing statement? 

Mr. ANDREWS. Well, thank you, Mr. Chairman. I, again, would 

like to thank you for conducting the hearing and the ladies and 

gentlemen for their preparation this morning. 

I think what the American people want us to do is to work together to create the conditions where jobs can be created by entrepreneurs and employers in the country. That is their agenda. And 

I think that the litmus test we have to run anything we do here 

through is that. 

And although the legislative proposals made are certainly important and made in good faith, I think they fail that litmus test of 

really addressing the problem of jobs in the country. 

As I said earlier, there are many other things that the Congress 

could be doing that we are ignoring, and frankly, the evidence—the 

record here is devoid of any evidence that the enactment of these 

bills would engender economic growth; I think some of the evidence 

points in the other direction, that the less collective bargaining you 

have the higher unemployment can be. At best it is controversial, 

but there is certainly no record that would show that an assault 

on collective bargaining would grow jobs. 

The particular points being made here I think are lacking, that 

we have heard that employers who have a collective bargaining 

agreement can’t give merit pay, that is just not true. What is true 

is if the collective bargaining agreement allows for a merit pay system you have one; if it isn’t, you don’t. And if the workers want 

to decertify the union they can. 

We have heard about the sanctity of the secret ballot. Well, the 

truth of the matter is that under the present law the employees 

can always choose to have a secret ballot under present law, should 

they choose to in the way of choosing whether they want a union 

or not, with one exception, which is if the employer unilaterally 
50 

withdraws from collective bargaining because there has been a petition signed by a majority of the workers, then there is no secret 

ballot. 

Now, I think to Mr. Messenger’s credit, he is consistent and he 

agrees that that is an inadequacy in the law. But the bill before 

the committee doesn’t fix that inadequacy; it goes after the other 

ones. 

So I certainly think these are important topics that are offered 

in good faith but they are the wrong agenda for the country right 

now. I think the agenda for the country right now should be tax 

cuts for small businesses that create jobs. It should be the ways to 

get police officers, firefighters, teachers back to work. It should be 

to deal with the terrible drought conditions in rural America that 

are destroying the agricultural economy. That is what we should be 

working on. 

And I know some of those things are outside of our jurisdiction 

but they are not outside of our responsibility. That is what I think 

we should be doing here today, but I do very much appreciate the 

witnesses’ participation, and you, Mr. Chairman. 

Chairman ROE. I thank the gentleman for yielding. 

And I also want to thank this very succinct group of witnesses. 

You got to the point quickly and made your points well and I appreciate that. 

I agree with my friend, Mr. Andrews, about the need in this 

country to create jobs, and I think one of the things that I go back 

to is my position as a small business person and as a local mayor. 

The way I ended up helping create jobs was—how the government 

did where I was—was created an environment where businesses 

could succeed, and that is by lowering regulations and making it 

easier to operate your business. 

And I would give you an example: In our small community of 

60,000-plus people, for the 3 years prior to coming to Congress, in 

2005 to 2008, we issued $200 million in building permits in a city 

of 60,000 people. That is pretty good. And guess what I knew by 

doing that? By having those businesses grow—we are not an income tax state in Tennessee—that allowed, I knew down the line 

those property taxes were going to be paid and those sales taxes 

were going to be paid. And with that money I didn’t have to borrow 

money; I could go have that money to pay teachers and firefighters. 

Not borrow money and hire them, but to do it in that way. 

To show you how fiscal management works, we increased our 

fund balance in our local community from 2003 to $2 million to $24 

million without raising taxes. We cut the size of government. 

And guess what happened? In 2008 in little Johnson City, Tennessee, when everybody else was going off a fiscal cliff our bond 

rating went up, and it went up because we had money in the bank. 

So that is how you run, by limited government making business— 

a business-friendly environment and allowing that to happen. 

And I had to chuckle. Mr. Andrews made my palms sweaty back 

to my statistics class when he talked about the correlation coefficient. My heart rate went up. 

But I do believe in America they don’t know what that is, and 

I think what they want is a job with a higher paycheck. I think 

in very simple terms that is what we want. 
51 

And in 1935 a very basic flaw in workers’ rights was recognized 

and a good law was passed, the NLRA. But there needs to be some 

improvement to that NLRA, I think, and I know that for myself 

this, I believe—I agree with Chairman Miller when he said he 

wanted to strengthen worker rights, and that is what I think we 

are trying to do, first by allowing a good worker to be—and Ms. 

Virk is correct, you can do that now, but there are also good workers—I have had them work for me, and I can tell you, one of the 

worst days of your life as a physician is when your nurse leaves. 

I mean, that is a bad day because you have got to hire someone 

else who doesn’t know what they are doing. So you want to keep 

good employees and you want to allow—you should have the right 

to—if you have a sterling employee outside that agreement—to do 

that. 

Number two, I think, I am so passionate about someone’s right 

to a secret ballot, and I wholeheartedly agree with Mr. Andrews, 

and I certainly would be open to having the secret ballot for decertification, and if we include that I would love to have him on the 

bill, since it was your suggestion, so I would be glad to do that. 

And lastly, I think it—and to President Porter, I think it is a requirement that we keep our word. And I appreciate what you are 

doing for one of the most disadvantages of—disadvantaged populations in our country, that is our Native Americans. It is shameful. 

My father could not stand one of the Tennessee presidents, Andrew Jackson, because of his treatment of the Cherokee Nation. 

And I think what we need to have the federal government in your 

case is to—excuse my French, but to butt out and to allow you to 

carry on your own business. 

And I appreciate your all being here, and I want to close by what 

I think is an Indian, maybe a Seneca saying, and it is, ‘‘When you 

were born you cried and the world rejoiced. Live your life so that 

when you die the world cries and you rejoice.’’ 

And with that, our meeting is adjourned. 

[Additional submission of Mr. Andrews follows:] 
52 

1See, Memorandum, Report of Investigation-OIG-I-467 from Board Inspector General David 

Berry to Board Chairman Mark Pearce and Board Member Brian Hayes (January 23, 2012). See 

also, Memorandum, Report of Investigation-OIG-I-468 from Board Inspector General David 

Berry (March 19, 2012) and Memorandum, Supplemental Report of Investigation-OIG-I-468 

from Board Inspector General David Berry to the Board (April 30, 2012). 2Supplemental Report of Investigation-OIG-I-468 at 13. 

3 Id. At 10 and 11 

[Additional submissions of Mr. Miller follow:] 

U.S. CONGRESS, 

Washington, DC, May 11, 2012. 

Hon. JOHN KLINE, Chairman, 

Committee on Education and the Workforce, 2181 Rayburn House Office Building, 

Washington, DC 20515. 

DEAR CHAIRMAN KLINE: To date, the Committee Majority has requested thousands of documents from the National Labor Relations Board (‘‘the Board’’) and held 

six legislative and oversight hearings related to the Board and the National Labor 

Relations Act. The Majority has also stated in its Budget Views and Estimates for 

FY 2013 that ‘‘[t]he committee will remain vigilant in oversight of the NLRB * * *’’ 

Such vigilance is particularly needed now as we confront the most corrosive scandal 

in the Board’s history. 

As you know, the Board’s Inspector General has issued three investigative reports 

so far this year that raise serious questions about the conduct of current and former 

Members of the Board.1 The most recent reports on Member Terence Flynn detail 

extensive disclosure of internal, deliberative information by Mr. Flynn to select private parties for their private benefit. Such behavior threatens the Board’s integrity 

and strikes at the very heart of its ability to effectively and efficiently function as 

an adjudicatory and rulemaking body bound by principles of due process and fair 

play. The Inspector General has called these matters ‘‘a serious threat to the 

Board’s decisional due process.’’ 2 After concluding that Member Flynn released deliberative nonpublic information, the Inspector General in his most recent report 

states that: 

Members of administrative bodies such as the Board cannot freely discuss decisions and points of law and fact if they are fearful that the positions that they take 

during deliberative discussions or in drafts of documents are going to be made public, distributed to pundits, or leaked to parties.3

These reports cannot be ignored by our Committee. We respectfully request that 

you convene a full Committee hearing post haste with the Inspector General to pro-
53 

vide all of our members the opportunity to ask questions and explore in depth the 

findings and potential consequences of his investigative reports. 

A hearing with the Inspector General is only a preliminary step in our efforts to 

fully investigate these matters. We have begun the process of seeking the voluntary 

cooperation of a number of principals to provide the Committee with information on 

their involvement. 

Evidence from all three investigative reports has been shared with the Department of Justice. While the Department of Justice is responsible for investigating 

whether any of the subjects in the Inspector General’s investigative reports committed crimes, we are responsible for directly overseeing the effective and efficient 

performance of the Board. According to the Inspector General’s latest report, such 

performance is in peril. With the Board’s ability to properly function at stake, it is 

incumbent upon us to fully engage as the oversight committee. 

Thank you for your consideration of this request. 

Sincerely, 

GEORGE MILLER, Senior Democratic Member, 

Committee on Education and the Workforce; 

ROBERT E. ANDREWS, Ranking Member, 

Subcommittee on Health, Employment, Labor and Pensions. 
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[Whereupon, at 11:25 a.m., the subcommittee was adjourned.] 

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