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Corporate Campaigns and the Nlrb: the Impact of Union Pressure on Job Creation

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Corporate Campaigns and the Nlrb: the Impact of Union Pressure on Job Creation CORPORATE CAMPAIGNS AND THE NLRB: THE IMPACT OF UNION PRESSURE ON JOB CREATION 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 FIRST SESSION HEARING HELD IN WASHINGTON, DC, MAY 26, 2011 Serial No. 112–24 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 U.S. GOVERNMENT PRINTING OFFICE 66–429 PDF WASHINGTON : 2011 For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800 Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001 COMMITTEE ON EDUCATION AND THE WORKFORCE JOHN KLINE, Minnesota, Chairman Thomas E. Petri, Wisconsin George Miller, California, Howard P. ‘‘Buck’’ McKeon, California Senior Democratic Member Judy Biggert, Illinois Dale E. Kildee, Michigan Todd Russell Platts, Pennsylvania Donald M. Payne, New Jersey Joe Wilson, South Carolina Robert E. Andrews, New Jersey Virginia Foxx, North Carolina Robert C. ‘‘Bobby’’ Scott, Virginia Bob Goodlatte, Virginia Lynn C. Woolsey, California Duncan Hunter, California Rube´n Hinojosa, Texas David P. Roe, Tennessee Carolyn McCarthy, New York Glenn Thompson, Pennsylvania John F. Tierney, Massachusetts Tim Walberg, Michigan Dennis J. Kucinich, Ohio Scott DesJarlais, Tennessee David Wu, Oregon Richard L. Hanna, New York Rush D. Holt, New Jersey Todd Rokita, Indiana Susan A. Davis, California Larry Bucshon, Indiana Rau´ l M. Grijalva, Arizona Trey Gowdy, South Carolina Timothy H. Bishop, New York Lou Barletta, Pennsylvania David Loebsack, Iowa Kristi L. Noem, South Dakota Mazie K. Hirono, Hawaii Martha Roby, Alabama Joseph J. Heck, Nevada Dennis A. Ross, Florida Mike Kelly, Pennsylvania 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 Robert E. Andrews, New Jersey Glenn Thompson, Pennsylvania Ranking Minority Member Tim Walberg, Michigan Dennis J. Kucinich, Ohio Scott DesJarlais, Tennessee David Loebsack, Iowa Richard L. Hanna, New York Dale E. Kildee, Michigan Todd Rokita, Indiana Rube´n Hinojosa, Texas Larry Bucshon, Indiana Carolyn McCarthy, New York Lou Barletta, Pennsylvania John F. Tierney, Massachusetts Kristi L. Noem, South Dakota David Wu, Oregon Martha Roby, Alabama Rush D. Holt, New Jersey Joseph J. Heck, Nevada Robert C. ‘‘Bobby’’ Scott, Virginia Dennis A. Ross, Florida (II) CONTENTS Page Hearing held on May 26, 2011 ............................................................................... 1 Statement of Members: Andrews, Hon. Robert E., ranking minority 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 Wilson, Hon. Joe, a Representative in Congress from the State of South Carolina, prepared statement of .................................................................. 6 Statement of Witnesses: Bego, David A., president and CEO, Executive Management Services, Inc. ................................................................................................................. 7 Prepared statement of ............................................................................... 9 Fisk, Catherine L., chancellor’s professor of law, University of California, Irvine .............................................................................................................. 36 Prepared statement of ............................................................................... 38 Fritts, Jonathan C., partner, Morgan, Lewis & Bockius LLP ...................... 45 Prepared statement of ............................................................................... 47 Karnas, F. Chet, president and owner, Lone Sun Builders, Inc., on behalf of Associated Builders and Contractors ...................................................... 26 Prepared statement of ............................................................................... 28 Additional Submissions: Mr. Andrews: Cincinnati Post article, ‘‘Justice for Janitors,’’ July 31, 2007 ................ 86 Indianapolis Star article, ‘‘Pay and Hours Improve for Indianapolis Janitors,’’ April 20, 2008 ....................................................................... 87 Indianapolis Clergy Committee, statement of principles ....................... 87 Executive Management Services, Inc., employee manual for hourly employees ............................................................................................... 91 Chairman Roe: Ritsema, Bill, president, Ritsema Associates: Prepared statement of ....................................................................... 76 Additional materials .......................................................................... 78 Questions submitted from Hon. Martha Roby, a Representative in Congress from the State of Alabama ................................................... 106 Response from Mr. Fritts to questions submitted .................................. 108 (III) CORPORATE CAMPAIGNS AND THE NLRB: THE IMPACT OF UNION PRESSURE ON JOB CREATION Thursday, May 26, 2011 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 10:00 a.m., in room 2175, Rayburn House Office Building, Hon. Phil Roe [chairman of the subcommittee] presiding. Present: Representatives Roe, Wilson, Thompson, Walberg, DesJarlais, Hanna, Rokita, Bucshon, Noem, Andrews, Kucinich, Kildee, Hinojosa, Tierney, Holt, and Scott. Also Present: Representatives Kline, Gowdy, and Miller. Staff Present: Katherine Bathgate, Press Assistant/New Media Coordinator; Casey Buboltz, Coalitions and Member Services Coor- dinator; Ed Gilroy, Director of Workforce Policy; Benjamin Hoog, Legislative Assistant; Marvin Kaplan, Professional Staff Member; Barrett Karr, Staff Director; Ryan Kearney, Legislative Assistant; Brian Newell, Deputy Communications Director; Krisann Pearce, General Counsel; Molly McLaughlin Salmi, Deputy Director of Workforce Policy; Ken Serafin, Workforce Policy Counsel; Linda Stevens, Chief Clerk/Assistant to the General Counsel; Loren Sweatt, Professional Staff Member; Aaron Albright, Minority Com- munications Director for Labor; Kate Ahlgren, Minority Investiga- tive Counsel; Tylease Alli, Minority Hearing Clerk; Jody Calemine, Minority Staff Director; John D’Elia, Minority Staff Assistant; Brian Levin, Minority New Media Press Assistant; Jerrica Mathis, Minority Legislative Fellow, Labor; Richard Miller, Minority Senior Labor Policy Advisor; Megan O’Reilly, Minority General Counsel; Julie Peller, Minority Deputy Staff Director; and Meredith Regine, Minority Labor Policy Associate. Chairman ROE. A quorum being present, the Subcommittee on Health, Employment, Labor, and Pensions will come to order. Good morning, everyone. And welcome to our witnesses. And thank you for joining us today. Today, we will examine the role of the National Labor Relations Board in corporate campaigns. I realize this is a general definition of the term, but a corporate campaign is a union effort to disrupt the employer’s routine busi- (1) 2 ness. The campaign can take the form of negative advertising, com- plaints against employers with various government agencies, and can even include appeals to political and religious leaders to put pressure on a targeted employer. The intent of these tactics is to undermine the reputation as well as break the will of an employer who refuses to accept union de- mands. In some cases, an employer can either concede to the de- mands that may undermine the success of his or her business or accept public contempt, government penalties, outside interference, and extraordinary litigation costs. Regardless of the potential out- comes, these campaigns can have a detrimental impact on the busi- ness’ bottom line and threaten the livelihoods of its workers. Over the years, the use of corporate campaigns has accelerated. According to one study, between 1974 and 1999, only 200 corporate campaigns were identified. Yet, in 2005, it was estimated that be- tween 15 and 20 corporate campaigns were under way at any given time. And, recently, the NLRB has taken a number of steps to expand the arsenal of tactics available for a corporate campaign. The Board has removed bannering restrictions previously placed on boycotts of neutral employers. Employees of on-site contractors have been granted greater access to the property of the contracting employer connected to an organizing activity. The Board has also requested briefs that would allow even greater access to an employer’s prop- erty. In one case, the Board moved to uphold an election tainted by intimidation of workers because the intimidation originated with nonparties to the election. According to the Board’s logic, the out- come of an election can be overturned only when the threats by nonparties are ‘‘so aggravated as to create a general atmosphere
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