and appreciate the time they spent with us this morning. thank you. [ applause ] up next on c-span 3, a hearing on a recent national labor relations board decision on the franchise industry and collective bargaining. then congresswoman loretta sanchez discussing some of the military challenges facing america. after that, a conversation on vladimir putin and russian security. next monday on c-span's new series "landmark cases," in 1830

dred scott was enslaved to u.s. army surgeon dr. john emerson. emerson was assigned to duties in several free states, during which dred scott married frida. exploring 12 historic supreme court rulings by revealing the life and times of the people. "landmark cases" next monday on c-span, c-span 3, and c-span radio. order your copy of "landmark cases" companion book. it is available for 8.95 plus shipping. next, a senate panel looks

at a recent national labor relations board ruling on the franchise industry, which says that companies can be held responsible for labor violations committed by their contractors. the senate health education labor and pensions committee is chaired by senator lamar alexander of tennessee. the senate committee will come to order.

we'll discuss the legislation i've introduced to undo this decision or restore the law the way it was before the nlrb decision. we'll introduce our panel of witnesses. we thank each of you for coming. after the witness testimony, each senator will have five minutes of questions. last week i met a man named oslon khan. he's an immigrant from pakistan. he's become a very successful owner of church's chicken franchises. he talked about achieving the american dream. he said it was possible because of our nation's free entrepreneurial enterprise. it threatens to destroy that free enterprise entrepreneurial spirit. the labor board's new joint

employer standard will make big businesses bigger and make the middle class smaller by discouraging larger companies from franchising and contracting work to small businesses. it's the biggest attack on the opportunity for small businessmen and women in this country to make their way up the economic ladder that we've seen in a long, long time. i'm committed to fighting it with legislation. for three decades, federal labor policies have held that two separate employees are joint employers if both have direct and immediate control over employment terms and working conditions. that means two employers who are both responsible for tasks like hiring and firing, work hours, issuing directions, determining compensation, and handling day-to-day recordkeeping. under the new joint employers standard adopted in august, a 3

to 2 majority said indirect control or unexercised control of work conditions could make a franchisee or franchiser joint employers. sometimes spend 12 hours or more a day serving customers, pay taxin taxin taxes, trying to make a profit. they're just one of the workers' employers. for the businesses that have franchised their brand or used subcontractors to haul their waste or clean their offices and are now considered one of the employers of these company's works, there will be a huge incentisencentive to take contr those franchises and those contracted tasks. you might be much better off being the boss. that means costs go up, less

ability to invest capital. business owners will be forced to engage in collective bargaining and share liability for labor law violations. millions of employees will lose the ability to negotiate things like pay hours and leave time with their direct supervisor. those decisions will be made between the employee and the union. franchising will be particularly impacted by this decision. there's 780,000 franchise establishments across the country. they create nearly 9 million jobs. last week, i met with chattanooga, tennessee, couple who started their own company, two men and a truck. they're grown their franchise

into six locations. this decision is causing them to put their plans on hold. two men and a truck is a good example of how franchising allows entry into business ownership in the middle class. it was started in michigan by a mom with two sons who she was ready to put to work. her franchisee was her daughter. it's now 8,000 jobs. 38% of their franchisees began working on a truck. women co-own nearly half of all franchise businesses. the protecting local business opportunity act that i have introduced along with 45 cosponsors would roll back the nlrb ruling and reaffirm than an employer must exercise actual direct and immediate control over essential terms and

conditions of employment. this is the common sense standard that's been applied for decades. we have 45 cosponsors of our bill. i hope we'll add more. i hope that will include some democratic members of the senate. this is an issue that's important. i believe it's time for congress to act as soon as possible to stop a destructive policy that damages middle class growth, the middle class growth that's made this nation what it is today. senator murray. >> thank you very much, mr. chairman. our economy and our workplaces in our country should work for all of our families, not just the wealthiest few. i assume everyone agrees. we can't make that happen without considering the massive changes in the labor market over the past 30 years. many big corporations increasingly rely on temp agencies, franchises, and other third-party sources to stay competitive and lower labor

costs. and sometimes corporations still maintain significant control over the workers performing their day-to-day operations of franchises and subcontractors. now some of these corporations work very hard to ensure workers are treated fairly and have access to the protections that they deserve. unfortunately, when some other parent companies maintain this control, it can often come at a huge cost to the workers and to small business owners alike. for example, some of the biggest corporations can dictate a franchise's pricing and store hours. they decide how many people are on a franchisee's staff. they sometimes have a say in how much employees can earn. these parent companies can escape all liabilities for poor work conditions and rock bottom wages.

when those workers sit down to negotiate, they find out that not all of the people who have control over the terms and conditions of their jobs have to show up at the bargaining table. take for example a worker who worked for a temp agency that supplied workers for a warehouse in california. in a report from the national employment law project, he said he and his coworkers barely made more than minimum wage. they never knew when their shift would end and they never had a set day off for work. that made it impossible for them to plan their lives. but when they joined together to form a union, the company that owned the warehouse threatened to close that temp agency and fire all the workers. now these employment arrangements can be bad for small agencies as well. he had been a franchise owner

for nearly a quarter of a century. over time, the parent company had enacted tighter and tighter controls over his business and that has really limited his ability to free up resources to treat his workers better. he said, and i quote, when i lived in bombay, this is not what i thought that was meant by the american dream. while there are many responsible corporations, other parent companies put all liability for low wages and poor working conditions squarely on the shoulders of the small business owner. i believe we need to help our workers and grow our economy from the middle out, not from the top down, and that means that we, as a nation, should not turn our backs on empowering workers, especially since that's the very thing that's helped so many of the workers climb into the middle class. there has been an overwhelming amount of disinformation about there about the nlrb browning

fair's decision. when workers want to join together with their coworkers, they are not looking for special treatment. they are simply exercising their basic rights that are guaranteed by law. secondly, one of the board's responsibilities is adapting to the realities of today's workplaces to make sure workers can exercise their right to collectively bargain. some of my republican colleagues have claimed that this decision is somehow an overreach. given the changes in the workplace, the board is carrying out its duties under law. i've heard some opponents of this decision use sweeping language about the scope of this decision. let's be clear. this decision does not change the relationship between a local business owner and her employees. if she was deciding who to hire and who on her staff deserved a raise before this decision, she will continue doing that going

forward. the browning fair's decision only clarifies if another company also has substantial control in the critical terms of employment like how much to pay franchise owner's employees, the nlrb is going to take it at its word and treat it as an employer as well. workers can only exercise their basic rights, rights that are guaranteed under the constitution and the national labor relations act, when all of the employers who have a say in the working conditions are at the table. again, the labor market looks a lot different today than it did 30 years ago. rather than using these trends to end basic worker protections and undermine the fundamental fairness of due process, this committee should study those trends and discuss what we can do for workers and small business owners. grow the economy from the middle

out and ensure our country and workplaces work for all of our families, not just the wealthiest wealth iest few and the biggest corporations. thank you, mr. chairman. >> thank you, senator murray. ms. clara stokeland is the founder of mode stores. ed martin is the president of tilson corporation in austin, texas. tilson homes a family-owned build on your lot custom home builder that's been in business for 80 years. mark mark kisicki is an

attorney. michael rubin specializes in class action and appellate litigation representing workers. we thank the four of you for

working to enact using the protecting local business opportunity act s-2015. thank you very much. >> thank you, ms. stokeland. mr. martin? >> thank you, chairman. good morning. my name is eddy martin. i am a home builder from austin, texas, and president and chief executive officer of tilson

corporation. i am honored to participate in this hearing. i have over 30 years of experience in the home building industry. tilson homes has been a family-owned and operated company since 1932. we currently have 140 employees with a wide range of disciplines, including construction supervisors, design and drafting professionals, warranty tech, and administrative staff. beyond our full-time staff, tilson contracts with 287 companies to perform a range of specialized services that are required to build a home. like roofers, framers, and cleaners. on average, each of our contracts has about 15 employees. because we contract with so many small companies, we are very concerned about the potential impact of the nlrb's browning

ferris decision. the browning ferris decision leaves employers guessing over how much indirect control constitutes a joint employer. of particular concern to me is whether basic business acts like choosing a project's completion date or scheduling an electrician to come to a job would trigger joint employment. if tilson contracted with a paint company for a home in austin, texas, we would be prevented from telling a subcontractor when to paint the walls or even when the walls would be constructed. you might argue that indirect or potential control over just one essential term of employment like scheduling would not be sufficient to justify a finding of joint employment. but because the new indirect test is so vague and

nonspecific, the nlrb has not excluded that possibility. browning ferris simply does not make sense in the real world. i also question whether i have indirect control if i ask a contractor to bring on extra staff to make up for delays. in an industry that is at the mercy of weather, if rain sets my schedule back, shouldn't i be able to ask a contractor to increase the labor on the job site without becoming a joint employer? browning ferris is so ambiguous and creates blurry lines that even a homeowner could be viewed as a joint employer. a homeowner is going to be involved in decisions regarding when workers begin and end the workday and will set deadlines for the completion date. those acts could meet the test of joint employer. or consider a homeowner who has a clogged drain.

they may call a plumbing company and ask for a specific plumber that they've used in the past. does that homeowner have indirect control over staffing by requesting a specific employee and then scheduling a time for completion? this new standard is fundamentally flawed because it does not provide and clear and definite role for determining if a company is a joint employer. home building is highly decentralized supporting numerous local small businesses. it promotes competition, which ultimately benefits home buyers by helping them keep construction costs down. how can a business like mine work with hundreds of other businesses to navigate this maze of uncertainty? this ruling may very well put

people out of business and ultimately less competition amongst small firms leads to higher home prices for consumers. congress must act quickly to restore the traditional definition of joint employment so companies like tilson can have a clearer picture of our responsibilities. thank you again and i look forward to your questions. >> thank you, mr. martin. mr. kisicki. >> thank you. i appreciate the opportunity to be here and testify about this very important legislation. the protecting local business opportunities act would amend the national labor relations act, but it would accomplish far more than its title or simple language suggests. it would require the nlrb to employ an ordinary meaning of the term employer when

interpreting the act just as congress intended. not the farfetched definition that the board just adopted in bfi, or browning ferris. the touch stone of the national labor relations act is the right of employees as a group to decide if they want union representation to act on their behalf collectively or if they want to deal directly with their employer on an individual basis. in order for them to exercise that right and indeed for employers to know what their rights and obligations under this law are, it is of fundamental importance to be able to identify who is the employer of any particular group of employees. yet the board has limited who can be defined as an employer, in fact congress has limited who can be defined as an employer to

just one employer of a particular unit. that can be two companies acting together as an employer, but it can only be one employer. because it is so important for employees and employers to know their rights and the limits of this act, defining who is a joint employer is necessary. the board, however, failed to define what a joint employer was or provide any clear standards until 1984 when it finally decide so and it adopted the ordinary meaning that we all understand constitutes an employer. it's the entity that actually exercises direct and immediate control over significant terms and conditions of employment. the things that we all associate with an employer, the ability to hire, to direct the employee by supervision, to reward the

employee through compensation, and when necessary to discipline and discharge. in browning ferris, however, the board undid that clarity that had existed under this act uninterrupted for 30 years. it adopted a new standard that in reality is no standard at all. employers and indeed no union can be comfortable thinking it can determine who is a joint employer under this standard because the nlrb failed to give us any guidance as to how this very nebulous standard is going to be employed. the new joint employer standard is a two-part test. but the first part of the test is another multi-part test. in fact, the standard that the board adopted, the common law

test, is in fact rooted in the common law, but it was a test that was developed not to determine an employer-employee relationship, but to distinguish between employees and independent contractors. when there's no question that individuals at issue are somebody's employees, this test does very little to help us figure out whose employees they actually are. moreover the board failed to give us any guidance as to how it would weigh the remaining factors of this test that are actually relevant once we can conclude we're dealing with an individual who is somebody's employee. the board left that entirely to its own discretion in future cases and the discretion of its general counsel. one thing that the board did make clear, however, in browning ferris is that indirect control by one company over another's employees or the potential to

control them is enough to create a joint employer standard in a relationship as a joint employer. but that standard is inherently nebulous because of the ability to exercise indirect control or the ability to potentially control employees is inherent at least to some extent. i would posit in every business relationship where one employer is providing goods and services to another. it will take years of litigation and costs before we have standards that can be applied consistently and can be understood by all the constituents of this act. employers unions and employees alike. until then, this standard will do violence to the very purpose of the national labor relations act, which is to provide stability in labor relations. further undermining the purpose of the act is the damage this

new standard will cause throuo collective bargaining process. bargaini bargaini bargaining initial contracts is a very difficult and time-consuming process. this new standard is going to put together some employers who have some interests in common, but have competing interests because they are in fact different employers. >> wrap up your testimony, please. >> thank you, senator. what the appropriate terms of a collective bargaining agreement should be. congress should act to restore stability and labor relations to protect the national labor relations act fundamental purpose by adopting this legislation. thank you. >> thank you, mr. kisicki. mr. rubin. >> thank you for giving me this opportunity to testify about the

practical impacts of the national labor relations boards browning ferris decision. i would like to focus on why the board's joint employer standard is entirely consistent with the purposes of the national labor relations act and why the board reached the proper results on the actual facts of that case. i've had more than 30 years of experience representing low-wage workers in industries like warehousing, garment production, and janitorial services. in those industries and in others where the use of perma temp employees has become increasingly common violations of laws are rampant. often those violations can be traced to the economic pressures that result when a company that in the past would have employed those workers directly instead decides to obtain those workers

through a staffing agency and then decides to contract away to the staffing agency all responsibility for legal compliance, particularly in low-wage industries. staffing agencies and labor services contractors are frequently undercapitalized. they operate on the tightest of profit margins. even when they are caught breaking the law, they often lack the resources to pay significant back pay rewards. they almost always lack the ability to provide injunctive relief. their staffing contract is likely to be terminated leaving them and their workers without work. the statistics cited by the board dramatically illustrate the recent upsurge in labor outsourcing. between 1990 and 2008 the number

of workers hired through staffing agencies doubled from 1.1 to 2.3 million. last year the number was almost 3 million and it is expected to jump to almost 4 million by 2022. not surprisingly studies have shown a strong correlation between labor outsourcing and high levels of employment law violations as well as lower wages, limited or no benefits, and tremendous job insecurity. 50 years ago, there would have been no question that a worker performing conveyor belt or assembly line work in a plant like browning ferris's would be considered the employee of the company that owned and operated that plant, but 50 years ago it was unusual for a company like browning ferris to consider contracting out its core operation functions. although browning ferris had contracted out its implant recycling work, it continued to

control crucial terms and conditions of the plant workers' employment. browning ferris required lead points workers to meet its own pre-employment screening standards. it trained them how to do their jobs. it reserved the right to reject any worker offered by lead point for any reason or no reason at all. browning ferris also set the pace of the conveyor belts that the workers worked on. it decided when to allow workers to take products. it established safety and productivity standards. it decided when overtime would be required and how many workers would be required to work that overtime and it gave job instructions to those workers directly and through their supervisors. it also placed a cap on any hourly rate a lead point worker could make. on these facts, it should have been come as no surprise that

the board found that browning ferris and lead point were both statutory employers of the plant workers for purposes of collective bargaining. it makes sense that a company with the power to determine or codetermine workplace conditions should have a corresponding duty to engage in collective bargaining over those conditions. the board's ruling was entirely consistent with the long standing collective bargaining policies of the act, including the right to control language in the restatement of the law of agency, which has set forth the common law standards since before the national labor relations act was enacted. to limit the definition of an employer to a company's control that is direct or immediate would be to impose a harsh standard that would undercut the goal of encouraging meaningful collective bargaining and it

would be far more restrictive than the common law standard or other workplace statutes like the equal pay act and many state law statutes. certainly the proposed bill's change and the definition of employer would have serious negative impacts on workers leaving those without remedy. but it would also hurt small business owners because it would make them solely responsible for collective bargaining, even when they lack meaningful authority to fulfill their statutory responsibilities. any company that wants to avoid responsibility for bargaining can give its supplier companies greater independence in controlling wages, hours, and working conditions. we've seen the practical impacts of the modern workplace in industry after industry. warehouse workers, garment workers, performing free piece

work -- >> could you wind it up soon? >> i will. the nlra's central promise is to promote collective bargaining as an alternative to labor strife. thank you. >> thank you, mr. rubin. thanks to all of you. we'll now have five-minute round of questions. i'll begin. mr. kisicki, fo40 years ago, wh i was a young lawyer, i represented a company called ruby tuesday's. i think i could understand then the issue of what direct control might be over a ruby tuesday franchisee. that company has now grown -- and i'm not involved with it anymore, but it has now grown to 800 restaurants.

some are franchise. some are owned by the parent company. i'm trying to figure out how i could advise the headquarters of ruby tuesday or any other restaurant company how they could not have unexercised potential to control hiring, firing, wages, all these decisions, or how they could not have indirect control of all these decisions, which would cause me, i think, to suggest to them if they wanted to be sure to avoid liability, they would simply own all their stores rather than allow them to be franchised. what would you advise them? >> i'm afraid that i'm not going to try and advise ruby tuesday's. sounds like you would take care of that yourself, senator, but you're absolutely right that the lack of clariirrity in this are makes it extremely difficult --

>> wouldn't a franchisor -- >> they could terminate the franchise contract. >> if you don't do this, i could terminate the contract, so that seems, to me, to be de facto unexercised potential to control any franchisee. >> the tests that the nlrb has adopted allows for just that. we just don't know. >> based on your experience and knowledge of companies, would you not think as a result of that liability or that uncertainty that the tendency for a lot of large companies would be to own their own stores rather than to allow franchisees to own stores? >> yes, senator. because of the potential trying

out whether some employer is a joint employer when its job is really worker safety? >> the only answer i have for that, senator, is it appears to be part of a concerted effort by labor and its allies to hold incredible leverage over employers by being able to federal agencies to step outside of the bounds for which they were created by congress to protect and try and go after other areas that then give labor leverage in various ways in our economy. i don't understand osha's reach, and i certainly think it is possible that other federal agencies will try the same thing and try and extend the nlrb's

bfi decision. >> thank you, senator murray. >> mr. rubin, let me start with you. i think we all know we have a lot of workers today who are struggling with stagnant wages, poor working conditions on the job, and you have worked with a lot of them. oftentimes those works have very little recourse to try to join together to improve their working conditions, even in some of the major corporations that are making massive profits. here today we have some colleagues who want to continue to advocate to a return to a very narrow standard. could a return to that old standard as advocated in the protecting local business opportunities act have a negative impact on small businesses and their employees? >> absolutely.

first of all, the standard that the board in browning ferris adopted is the old standard. it's the common law standard. that's the standard that's been effect for the first quite a few decades after the board was enacted. to go back to a standard that requires actual direct and immediate control in this era, given the large number of contingent workers, would certainly hurt the workers, but even more it would hurt the contractors. the contractors are caught in vice like pressure between the contractors that hire them and their obligation to comply with the law. they have no real power to meaningfully bargain. they're often undercapitalized. they have no choice but to keep the contractor that hires them happy. they need to get the next job. they're more interested in

getting those contracts in legal compliance because they know the workers are powerless. the workers fear retaliation. they know their entire contract will be terminated if the workers organize and complain about working conditions. the return to the old standard would harm small businesses. it would deprive them of the opportunity to become truly independent, to become true entrepreneurs because if the larger companies back off and let them control their own work forces and bargain for themselves, then they're much better off. >> okay. in its decision on bfi, the board noted its supreme court mandated responsibility to adapt the national labor relations act to the changing patterns of industrial life. in your testimony, you touched on these, especially the current fissured nature of the workplace that you're talking about. in your practice, what real-world issues have you seen with current worker

arrangements, and what impact will this decision have on those arrangements? >> this would help a great deal. it would help both the workers, the local economies, and the contractors who employ them. in low-wage industries the workers are absolutely powerless. they have to take whatever the temp agencies or staffing agencies give them. this happened in my warehouse workers case. we had a situation where walmart owned warehouses. schneider operated them. the works as soon as they were complained were terminated by bringing a lawsuit and by making joint employer allegations not under the browning ferris standard, but under the far more protective flsa standard. what the board has done here is

just bring the nrla in compliance with common law, but there are plenty of statutes out there that are passed by this congress that are far more protective. in that circumstance, the woe workers had no opportunity in these warehouses to complain. but by bringing a joint employer complaint, they kept their jobs. they got raises. they were compensated for the violations. otherwise, you have a very vulnerable work force subject to exploitation because they know if they do anything to organize, their jobs are gone and their coworkers' jobs are gone. there's group pressure to keep your mouth shut. >> the supreme court has said the board has the responsibility to adapt the act to the changing patterns of industrial life. what you were talking about with

major corporations that are controlling the franchises and workers' pay is vastly different than what i heard ms. stokeland talk about with her franchisees. >> absolutely. that's not the problem. what she's doing with her company is great the way she describes it. the massive use of temp agencies, contract workers, that compete amongst each other into a race to the bottom. by contracting out this work, the kpacompanies are able to saa tremendous amount in labor cost. in the warehouse case there was a jump in $8 per hour or so between what the direct employees were making and what the perma temps were making. we've seen that disparity because all the temp agencies have to compete on is labor costs and therefore they have a great incentive to cut it to the bone. >> thank you. >> thank you, senator murray.

senator isakson. >> thank you, mr. chairman. mr. martin, you've been in business 83 years and you have 140 employees. is that right? and 140 employee court reporter contractors average 15 employees. >> yes. >> if the indirect standard were aplayed by has been portend by some of the testimony today that means you go from 140 people to 4,305. is that about right? >> if all of them were considered employees. >> you'd be doing no more business, the same business. >> right. >> could you stay in business adding that many employees to your responsibility? >> the biggest problem -- there's all sorts of froproblem with it. we schedule subcontractor to work on our jobs. if we had to schedule subcontractors and their

workers, the logistics of that statewide would be unsurmountable. would have to gear up my high man resources department to such a degree that would quadruple our costs in trying to manage or employees. so i would be very concerned about staying in business with doing the same amount of homes with 4,000 or even -- even if you were very conservative, 200 to 300, which is still double my size would be very difficult. >> which would probably mean you would have to consider selling your company, is that not correct? >> yes. >> to one of the big -- >> er horton, syntax. >> that had the critical mass to absorb that, is that not correct? >> right. >> when you get a subcontractor to do hvac or grading work or

sheetrock, you require two things of that contractor, one is a bond and second is insurance, is that correct?? >> we require insurance. we don't require a bond. not typical in residential construction. >> beyond that requirement in residential construction, the work schedule is determined by the weather, by other conditions and not determined by you. you determine what you need done but they have to do it within the confines of that product is that not right? >> that's correct. we have a critical path that we try to stick to given the weather and homeowner involvement. >> you don't pour concrete when it's below 32 degrees, right? >> it doesn't get below 32 degrees too much in texas. >> you never know. >> i know. >> i was in the business for 33 years and i appreciate home builders very much. i would not have educated my kids would home builders having homes to sell. i appreciate that very much. >> sure. >> you were talking about staffing companies, first of

all, talking about the economic pressures on those staffing companies because they have the tightest of margins, that was your quote. >> that plus the quotas with the auditing and the real time. it's one of a number of factors. great economic pressures, that's correct. >> but if the company that was getting the staffing company to provide independent contractors all of the sudden was a coemployer, they might have a deeper pocket is that not correct? >> in many cases they do. but as long as they hire a sufficientlyized contractor and ensure that the contractor doesn't commit any unfair labor practices, they don't have anything do fear from the decision. it only applies in the narrow circumstances where there could be a board proceeding and there are only two circumstances where that can happen. the first is where fair labor practices are committed.

second, it only arises if there's a request for bargaining by a majority of the employees of the contractor. and there the question is simply is there going to be meaningful bargaining without the larger companies. so it's not as much a deep pocket problem as it is what's the point of having collective bargaining unless you can meaningful affect the terms and conditions. that's why you have to include the company that can share or codetermine the essential determines of conditions of ploim. >> don't take this statement, don't take any defense to this statement. as somebody who has been on the other side, and i respect lawyer bs, especially my own, but is the reasonable fear by a lot of franchisors that they might be the deeper pocket that the lawyers would go after because the franchisee had a smaller pocket? >> the concern that franchisors would have about the deep pocket would be under statutes that have the suffer or permit test

which is going to make them liable as a joint employer far before that. the back pay are you believely not that large, discrimination claims, wage and hour claims, those are the claims where a deep pocket might be a concern. this decision hassi nothing to with that. >> mr. chairman, could i ask unanimous consent that the letter from the hotel association be entered into the record? >> it will be. thank you senator isakson. senator franken? >> thank you, mr. chairman. we've heard a lot of the claims, the boards brown farris decision would be bad for mall businesses. the title of today's hearing, quote, stealing the american dream of business ownership, the

nlrb's joint employer decision. it's provocative title, i'd say. mr. ruben, how does the joint decision differ from the traditional interpretation of the law which was used prior to 1984, a period where countless small businesses and businesses flourished and the middle class expanded? >> it does not differ. the new standard goes back to the common law standard to what the standard had been as set forth in numerous board cases and court of appeal cases. the point i made in my opening statement is it's a completely consistent with a restatement of agencies and its comments which set forth that standard. the board at great length went through that law. >> mr. martin, your company has been in existence for 83 years,

51 years around the standard that we're talking about now. so i don't understand how this would be the death of small business or a business ownership. mr. rubin, you cite figures showing in enters where outsources is common, studies have shown significantly higher levels of employment law violatio violations, lower wages and job security. these figures confirm what i've been hearing in minnesota from subcontracted janitors across the twin cities area who have been fighting the bargain for better working conditions. can you tell us what your 30 years of experience representing struggling low wage workers have shown you about the fis sured

workplace and what effect have these long term pressures have been on workers' wages and the opportunities for americans to work their way to middle class life. >> it's had a significant decrease, wages are lower, there are fewer benefits. i've experienced this in case after case. workers fear a complaining, bringing lawsuits. they can't find attorneys who would pursue claims. they have no right to bargain. the percentage of bar gin in these industries is extremely low. and large companies are encouraged because of the weak law to exert more and more control. the reason it's hard as a small business person is a large companies not only dictate productivity and price, but because of modern technological advances, they can audit the workplace more. they know exactly in many industries where houses in

particular, where any product is at any time, what any worker is doing. workers have to push bump bars after they finish a task. there's much more detailed control ever over what the workers do. the larger companies know about it and they're prern suring their subcontractors to cut the price to the bone knowing that the workers can't concern. >> what we've seen in the last 31 years is really a flattening of the median wage, if not lowering. and we hear on the campaign trail, the presidential campaigns, talk about the middle class and getting into the middle clas, those aspiring to be in the middle class. i hear from workers that they can't afford to be a good parent. you have -- you know, we talk

about the woman who worked as a housekeeper in a hotel. people in warehouses, janitors, their wages make it impossible for them -- i hear from them saying i can't make enough money to be a good parent. a single parent who has to take -- this isn't their own job. they do two jobs. they don't make enough money so that their kid can go to camp in the summer. and they can't be home with their kid because they're working two jobs. and that's because they're getting such low wages from these subcontractors who are being controlled by the contractor. this isn't about your business,

ms. stokeland, this is about a different thing. and to say we're killing the american dream with this, the american dream worked pretty good before 1984. we're not trying to kill the american dream. we're trying to stir the american dream. >> thank you, senator franken. senator roberts. >> thank you, mr. chairman. thank you for holding this hearing. thank you all for being here today. i want to point out 96% of the businesses in kansas are small businesses nap's the answer in terms of economic development for our state. with those folks being our job creators we need to act with partners with our businesses and not against them. i think this new standard delivered by the national labor relations board seems to stand in the way of opportunity and growth.

millions of franchisors, n subcontractors with temporary staffing firms will be harmed, in addition to those wishing to be employed by one of those industries. and i've heard from folks all around kb asking me what this means for their business. that means uncertainty. that means they can't really predict the future and that's a pretty good question. the uncertainty this brings is open ended. jed i had a chance to hear from a woman in wichita who opened her business as a franchisee, and the experience she needed to start began a lifetime ago working with our local businesses in the community. she got a lot of help. as a franchisee and a new business owner she looked for a strong brand name that would do well in her community. she enjoyed the franchise model. when asked if she would have

still open her dream store if this standard had been in place, she sansed, you know, i'm not sure. this would have been a huge red flag. i didn't open a store to have others run it. the franchisee happens to be ms. stokeland and it's a designer outlet, an outstanding business. the standard when applied disincentivizes young entrepreneurs and would make fran ch fran chie sers liable. are you exploiting anybody. >> i am not. >> i didn't think so. you do this because you have confidence in them to use your trademark, your business model and the reputation of the built. i see that you hope to open 75

sfors by 2024 is that correct?? >> that is correct. >> i think that's a wonderful goal and i wish you the best of luck in this opportunity. it's not a matter of luck. it's a matter of expertise. do you think the possibility of the standard applying to your franchisees impact the number of entrepreneurs who contact you? >> absolutely. it will impact the interest to take those phone calls by me. >> i appreciate that. finally, a store owner in overland park, the fastest growing community that we have in kansas, full of small business people and exactly the people that was described by the distinguished senator when we was in business u himself. he told me, said look, i bought a business model, not a business manager. and i fear that they will choose not to invest in the business or in their community and what could turn out to be a family one business.

i don't know why we can't with all of the federal agencies involved with this regulatory overkill that makes it almost impossible to progress. i just had an old boy call me out in western kansas, i don't feel governed, afeel ruled. that's the problem. i don't care if it's energy, education, small business, farming and ranching or whatever. the regulatory overkill is just unbelievable. i just don't know why we continue down this road. ms. stokeland, thank you for your example and i hope you're able to continue with the way you want to run your business. >> thank you. >> thank you all for you time. thank you, mr. chairman. >> thank you senator roberts. senator warren. >> thank you, mr. chairman. now historically if an employer violated the rights of its workers through an illegal firing, the employer would be on the hook for damages. today, though, some giant

companies have figured out they can hide behind complex arrangements like subcontracts or franchises to dodge their legal responsibilities toward their workers. so i just want to pull this together about how this works. big parent company controls every tiny detail of what the workers do, including how much they get paid, how they're trained, when they have bathroom breaks. but when, for example, an employee didn't get paid their guaranteed overtime or when the employees want to exercise their legal right to collective bargaining, the big company steps back and dumps all of the league responsibilities and all of the costs on the subcontractors. that way the big company gets all of the benefits of having a bunch of employees with none of the responsibilities that go with it. small companies can't do that. they're still on the hook to their employees, but not the big guys. so mr. rubin, you spent a long time representing workers who

get hurt when their legal rights are violated. and the big parent companies making the money throw up their hands saying don't look at me. the problems are for the subcontractor. how do we get to a point where little companies have a whole bunch of legal obligations to their employees but big companies can duck out on these basic obligations for their workers? >> the laws had softened, and that's one of the things that this new board decision strengthens again, to give large companies an opportunity to contract out the work and to contract out their legal responsibility when things go wrong, when the law is violated. that's what has happened with contingent workers in the modern economy. >> so what's happened is the nlrb changed the standard through a series of case by case decisions. what's been the consequence of narrowing the definition of an

employer over the last 30 years? >> it's meant that there is far less meaningful bargaining because companies that control terms and conditions aren't brought to the bargaining table. there's far less responsibility. and what happens in practice is the first sign of complaint on the workplace floor, the larger company terminates -- all of these are at-will contracts. they terminate the subcontractor, terminate the workers. that's why in a warehouse workers' case getting an injunction to preserve the workers jobs resulted in better wages and benefits for the first time and made a huge difference for these workers getting up to middle class. >> for these giant corporations, what i'm hearing you say is this change at the rule in the nlrb has triggered a race to the bottom that has squeezed workers. >> absolutely. also squeezing the small companies that employ the workers.

the only companies that benefit from this race to the bottom are the ones that can get the work done in the corporations without having the legal consequences. >> in comes the nlrb last august. they finally acknowledge the problem that it created baing in the 1980s and it began closing this loopholely broadening the definition of who is an employer so that workers' rights would be protected under those circumstances. my republican colleagues didn't seem to have a problem when the nlrb narrows the definition. but now that the nlrb is going back to the original approach that it had used for many decades, they want to pass legislation to stop the nlrb. how would that affect workers? >> it would be devastating to the workers. it would result in a greater race to the bottom than we're already experiencing. and with a bill that passes that makes this even more public, more large companies would be

inspared to do what the other companies have done to the great disadvantage of the types of workers i represent. >> thank you, mr. rubin. i think this is pretty simple. the law says that an employer has certain legal obligation to its employees, like collective bargaining on responsibility when an employee gets hurt. and small employers have to abide by those rules. but some big corporations dodge the law by pretending that they're not employers. they don't fool the nlrb or much of anyone else and now the nlrb has called them out on this. it is no surprise that giant corporations that use this scheme and their republican friends don't like what the nlrb is doing. let's be clear. the nlrb is following the law and standing up for american workers which is exactly what the nlrb by law is supposed to do. thank you, mr. chairman.

>> thank you, senator warren. senator hatch. >> thank you, mr. chairman. actually, the assertion that is a return to an old standard, it isn't, is it? >> no, senate. it's quite a bit of over statement by the board majority in this decision because there was in fact no standard that the nlrb applied consistently at any time. it did not start adjudicating cases where there was a dispute about what was and what was not a joint employer until the 1960s. so this idea that somehow this standard existed is incorrect. and in fact the nlrb was so confused itself at times that it at times referred to entities as single employers when it in fact was intending to refer to a

joint employer relationship. a single employer is essentially where one company is not truly independent of another and they operate together. it's almost an alter ego theory under the law. >> let me ask you this. in 2014 the nlrb finally issued a decision in the case that had been pending at the board for over ten years called cnn american. now the board found cnn to be a joint employer provided by a contractor tbs. despite the fact that the board certified tbs as the employer, unquote, some to years early, as the board now found that cnn was a quote joint employer, unquote, cnn then owed back pais to hundreds of highly compensated employees. if the nlrb's certification can be overturned and significant liability imposes, how can any

employer in america feel confident that this liability isn't looming over them as well? and how, just to at add another question, how many employers have the resources to engage in ten years of lit las vegas before the nlrb? >> senator, let me take your second question first which is how many employers can afford this. i don't know but i don't think it's many. certainly not the small businesses that are the engine of growth in this economy and have been for decades now. those companies with not afford the hundreds of thousands of dollars. i's not cheap to try and litigate a case with the nlrb because the nlrb is the federal government. they do the work. the unions don't have to spend the money on this. i want to correct a comment about there being no issue if there's not an unfair labor practice violation. that's untrue. the fact is that the nlrb files

complaints routinely against it employers if there is a dispute of fact that if they accept the employee or the union's version of the facts would constitute a ulp, not that they have concluded that it's likely that the employer actually violated the law. so let's go then to the issue that you raised with cnn. and that certainty that's provided by the nlrb in labor relations. that's why this act exists. and again with all due respect to my colleague mr. rubin, i haven't heard anything about all those other situations actually involved employees exercising their rights under the nlra. it is a different wall. it has a different standard for determine whog is an employer and that is absolutely necessary

if the nlrb is to give efferesp to this. stability has been tossed to the wind in this last term by the nlrb and this case is one of them. the cnn case that you just mentioned is another. if employers cannot rely upon the federal government agency's determination that the employer of a group of employees, that is their obligation, the nlrb has to define the employer, not an employer. if they cannot rely upon that and ten years later the nlrb can come along and decide we're going to change our mind and now you're liable for millions of back pais -- >> not very consist. mr. martin i appreciate your testimony. i heard you made the comment that the big guys will get bigger and the small guys will go out of business.

exposure to joint employer liability under the nlrb a new standard stifles many small business models and i know many small business owners who got their start and were able to grow their businesses with contracts from local family owned businesses. how will this new rule impact local business creation and how la this ruling stifle tunts for our nation's plumbers, electricians and tradesmen, one of which i was at the time. >> like i said -- >> i was a member of the flcio, too. >> this indirect test provides so much instability that it is hard to go forward. just to repeat, you cannot -- you don't -- companies like ours does not have the legal resources to fight the nlrb if they come to me and say, you're -- because you're in direct control, you're a joint

employer, i can't fight that. i don't have the funds to do that which means i go out of business, as do subcontractors. they have the same problem. from thank you, mr. chairman. sorry i went over a little bit. >> thank you, senator hatch. senator baldwin. >> thank you, plrmt chairman. i want to thank the witnesses today. i think it's important to briefly mention the underlying statute that we're discussing today. in 1935 congress enacted the national relations act to protect the rights both of employees and businesses, to encourage collective bargaining and to curtail practices that harm workers, businesses and the economy at large. and congress gave the authority of the national labor relations

board to revise administrative decisions and adjust for changing workplace realities. and the supreme court has reaffirm that authority of the nlrb. and in my view, that's exactly what the board has done in this recent decision. i have such great respect for small business owners in america. and it kind of -- this hearing, i think, gets to the heart of the very matter of what it means to be a small business owner. and more specifically, does that small business owner actually have the ability to manage their workforce or is that autonomy an illusion. the small business owners that i speak to from the state of wisconsin are a very proud and independent lot and they are risk takers and innovators. and they provide livelihoods for

millions across the nation. now i recently met with a group of wisconsin small business owners, both franchisors and franchisees. and they have been following this decision and they're concerned about the impact of the joint employer decision and what it would -- what sort of impact it would have on their businesses. so i want to get into some of the specifics today. we've heard a lot of discussion about stability, bright line, clarity, sort of all of none. but it seems to me that one would want to have the ability to look at each of -- say, each franchise agreement as unique and look at these issues on a case-by-case basis. so, mr. rubin the new joint

ruling a blanket ruling that says in all cases these will be considered joint owners, a franchisor or a franchisee or an independent contractor or none or is this a case by case analysis depending upon the relationship between the two? >> it's a case by case analysis which is thou board ajude cates, which is how the board accommodates the law to evolving conditions in the workplace. it's simply in responding to my colleague, because if you require every company that can meaningfully affect terms and conditions to be at the bargain tab table, you can have a meaningful collective bargaining agreement. case by case is the way the board has always done it, done anytime the past and obviously the way that courts do it as well. >> under the nlrb ruling the

board states "moreover as a rule, a joint employer will be required to bargain only with respect to such terms and conditions which it possesses the authority to control." if i'm a franchisor and i don't possess the ability to control wages, hours, hiring, firing or discipline, can i be forced to bargain over those terms and conditions? >> no. and the freshy case decided by the general counsel's division of advice just last apriling with both under the new standard and the new standard concluded that a franchisor was not responsible for an unfair labor practice, retaliation by a franchisee, precisely senator baldwin. because the franchisor did not maintain the elements and control of those conditions. >> in look agent the freshy case that you just referred to, as

you said, it was a determination -- or the general counsel issued a memorandum of advice. >> that's right. >> can you tell the committee a little more about how the freshy situation was different than the situation in browning fare ris? >> sure. in freshy, the franchisor had nothing to do with personnel policies. all of its guidance was entirely optional. the franchisee used its own employee handbook, did not use the freshy handbook. freshy only had input to aspects pertaining to the product itself. there was no auditing. the franchisee trained its own staff. there was no consultation before the individuals were fired by the franchisee. by contrast in browning ferris, browning ferris retained the right to hire or fire an employee, told the workers where to work, it decided when they

could have breaks, decide whad the speed of the line was. there's a world of difference between those cases. and as you point out in case by case adjudication, every one of these differences matters and that's why you need an experienced administrative agency that is familiar with the modern workplace to evaluate the facts and decide on which side of the line a particular case falls. >> thank you. >> thank you. >> thank you senator baldwin. senator casey. >> thank you, mr. chairman. and i wanted to first of all note that the title of the hearing is, i think, misleading. i won't go into the analysis of that. but stealing is a crime and i think it's a violation of the ten commandments. so we're not -- we're nowhere near that in this hearing. i wanted to go back to the fundamentals not just of the decision and the implications of it but also the reality of what we see in the real world.

i think, mr. rubin, you made maybe the best summation of what the reality is for workers, looking at page two of your testimony, you say, and i'm quoting, in the low wage economy in which many of my clients are employed, wage and hour violations, discrimination and other unlawful conduct is rampant. yet, the workers whose rights are violated rarely complain or adjoin together to enforce their rights, unquote. then you go on to say later, in terms of the advantage that the prior, the prior cases allowed, that -- and i'm quoting here, that the employer was able to kind of have it both ways. they were able to have the

advantage of dictating the terms and conditions while avoiding the bargaining about those same, those same terms and conditions. so that's just the way i see it. i also think it's not this traditional standard that we're going back to now made a lot of sense. i mean, it spoke directly to this question of the control you have of the work and how much control you have. and then the conditions that were -- the three conditions set forth that had to be met, direct or indirect control over a significant and conditions. that's a reasonable inquiry when you're doing a fact-based analysis, number two, the join employer would have the ability to control, you have to make a determination about that. and then thirdly, that joint employer was necessary for

meaningful collective bargaining. i think that it makes sense in terms of the reality of the workplace today, the reality of the economy today with, gosh, i guess it's doubled in terms of the number of temp workers. but also it's not such a -- it's not a test that is so con training that it doesn't reflect some flexibility that comes with making a fact based determination. so i think it makes a lot of sense. but i wanted to ask you, mr. rubin, one particular question on the question of control. it's always difficult to pose a hypothetical, but could you kind of walk through the length which a company like browning ferris or companies like the would go to control subcontractors? >> sure. first of all, under the old standard it's so easy for a

company to circumvent the direct actual immediate standard. all you have to do is set up a company, hire a company, and instruct that company to tell the workers what to do. but browning ferris did far more than that. browning ferris was so involved -- there were 240 workers inside this plant sorting, cleaning the recycling line. they were working on a conveyer belt. they controlled them by setting the speed, the productivity levels, deciding when to stop the line so they could take breaks. the hand 2013 terms and subjects of bargaining were almost all controlled directly and indirectly by browning ferris. and the reality of the situation was that if browning ferris was dissatisfied with the worker, even if they passed the screening criteria, browning ferris could get rid of them. and in the workers began to organize, browning ferris could

get rid of the contractor all together. the old standard was susceptible to manipulation and abuse. and the once that were hurt were the contractors squeezed in the middle and certainly the workers. >> my time is up. thank you very much. >> senator isakson has questions, so i would say to senator baldwin and senator casey, we'll go to a second round if any of you have further questions. senator isakson. >> thank you. i wanted to engage senator warren with regard to her statements regarding big businesses. i looked at senator baldwin who has tv in tennessee and coca-cola in georgia. big business is not a bad thing in america. rather we caught to call out

people because they actually violated the law. i'll submit that statement for the record rather than take advantage of her absence. but my question is this. you every heard of a lady named >> do you do any business in texas in. >> i do. >> probably the most famous woman real estate brokers in the united states of america. she's 93 years old. started out as an independent contractor in texas and built one of the biggest independent businesses. and if you take one of the things i have concern about, if you construe the indirect responsibility, indirect control too liberally to business, you'll do away with almost all small business. would you agree with that in. >> yes, sir. >> and if you do away with all small businesses, the title of this hearing comes into play because stealing the american dream of small business

ownership is a an accurate title because abby could not do what she did at that time if this law was not no practice today. i wanted for the record, there is an application about stealing the opportunity for ownership that pays exactly attention to exactly what we talked about today. i appreciate the time, mr. chairman. i yield back. >> thank you. i'll go to senator murray and then senator baldwin then senator casey. >> i'll make a remark that i think all of us understand that big businesses, there are good big businesses and no one is denigrating them. there are great small businesses. we all want them to survive. what i think is the important point about this ruling is that we do have some corporations who are completely disconnected from the workers that they control. they don't have to hold any liability before this hearing on any kind of poor working

conditions or poor standards or anything, because they have a franchise owner that was carrying the liability. this is not fair to franchise owners themselves because they can can't control their market because somebody is telling them how to do it and they're taking all of the liability for it. ie wanted to make that point because u think it' important to this ruling. i want to thank all of our witnesses today for your testimony and i appreciate you being here. >> thank you senator murray. senator baldwin, do you have any more questions? >> one more. and i appreciate the opportunity to get to it. i indicated they met with a group of franchisors and franchisees recently specifically about this case. one of the concerns i heard from them was in regard to the ability of the franchisor to provide training to help their franchisees be successful but also to protect their brand.

there was a concern that new standard might limit this ability. now, we had a back and forth about the freshy case and the memorandum of advice on freshy. we see in that case that the franchisor provided an operations manual with mandatory and some suggested specifications, standards, operating procedures and rules that were prescript tif. in addition, all owners and managers, required to go through an four-week training fear idea. the agreement also stated that freshy could terminate the franchise agreement for 20 different it rated reasons, including franchisee's failure to comply with the operations

manual. now based on this information, do you believe that the franchisors that i met with in the state of wisconsin should be concerned that their training programs could lead to being held as joint employers in and of themselves? >> i don't think that should be a concern, no, i don't think that that would be a problem, the training by itself. and in my experience in dealing with employees of franchisees, the only time we get into a joint employer issue is when the franchisor exercises far more control than in the freshy exam. or the example that we heard from my fellow witness this morning. many franchisors control every detail of what goes on in the workplace, including, not only how the product is presented to the customer but what the employees do, how they do it, when they do it and a range of activeities that they closely

monitor. >> senator baldwin, may i speak? >> please feel free. >> thank you. i'm new to this. i just want to say that there's been some discussion about how i feel senator franken brought up myself, i think senator murray also that you are applauding small business owners and are excited open don't feel this applies to me. i would say that what mr. rubin just said is case in point. he said that he doesn't think an operations manual, you know, would -- excuse me, i'm nervous. he said that he doesn't think that they should have concern over that anden that's just the point. there's in definition here. and so who decides if a franchisor is big or small, where does that line come, who decides that and when is that decided. and that uncertainty is which gives me cause to pause and look at further expanding my business because i don't want the

liability of having to run and operate employees and those labor standards across the franchise systems that i have. thank you very much. >> inl the senator asked for any opinion so i prefaced it with i think. but the way we analyze issues as they arise on a case-by-case basis is we look to precedent and we look to things like advice memos. so where we have an analysis in a case like freshy, that guides us. i can say with confident that would not be a problem for you and your franchisees. >> senator casey. >> thank you, mr. chairman. one point on this question of franchis franchises. i don't think this decision is directed that way -- directed at franchises in any way. if you look at the nlrb majority decision, even explicitly speaks to this question when it says the decision is not con

franchises. and i'm reading now, this is page 20, footnote 120 of the decision, quote, none of those situations, meaning franchise situations are before us today and we decline the implied invitation to address the facts in every hypothetical situation which the board might be called on to make a joint employer determination, unquote. so i think even the decision itself is explicit on the question of franchises. >> well, thanks to all of you. i'll just make a -- i don't have a question. i'll just make a closing comment. i thank all four of you for coming. we appreciate your comments. and if you have anything you would like further to say, we'd be glad to receive it if you'll give it to us in the next few days. my thought about this is i think

stealing the american dream is pretty accurate. and this is why i think so. there are 780,000 franchise operations in the country. the new joint employer standard, which according to observers like mr. navarro of the ucla labor center who i quoted earlier, he said, you no longer have to show direct control over operations. if you have a franchise agreement or a contractual agreement depending on the industry, that's enough to show you have influence over working conditions. the language in this new decision is if you have unexercised to tenl to control, or if you have indirect control, it's hard for any to see how there could be any franchise in the country over which the franchisor would not have some

unexercised potential to control or some indirect control. and if that is the case, the inevitable consequence of a decision like this is to greatly reduce the number of franchise opportunities in america. people like ms. stokeland will think twice before opening a new franchise. that will reduce the growth of new jobs in america, the gr growth of opportunities to lead up the ladder. we have some strong differences of opinion on this committee. but we have 44 senators who would like to restore the law before the browning ferris decision and i hope other senators will join. i thank the witnesses once more. the hearing record will remain open for 10 days. members may submit additional information and questions for the record within that time if they would like. the committee will stand adjourned.

agriculture secretary and health and hugh hand services secretary will testify today about new nutrition guidelines the obama administration is proposing. we'll have live coverage at 9:00 a.m. eastern here on c-span3. on thursday, michael horn on volkswagen faces questions on capitol hill. a house energy and commerce committee is investigating the

company. watch live coverage 10:00 a.m. eastern on thursday also here on c-span3. ♪ staunt cam is c-span's annual documentary competitions for students in grades 6 through 12. it's an opportunity for students to think critically of issues of national importance by creating a five to seven-minute documentary in which they can express those views. it's important for the statutes to get involved because it gives them an opportunity to have their voices heard on issues important to them. they can express those views by creating a documentary. we get a wide range of entries. the most important aspect for every documentary that we get is going to be the content. we have had winners in the past created by just using a cell phone and we have others created using more high-tech equipment.

but it's really the content that matters and shines through in these documentaries. the response from students in the past has been great. we've had many different issues that they have created videos on that are important to them. we have topics ranging from education, the economy and the environment, really showing a wide variety of issues that are important for statutes. >> having more water in the river would have positive impact to better serve the tulsa community. >> a car cannot run without oil, we've come to the consensus that humans cannot run without food. >> prior to the individuals with education act, children with disabilities were not given the opportunity of an education. >> this year's theme is road to the white house. what's the most important issue that u you want the candidates to discuss in the 2016 presidential campaign. it is full on into the campaign season. there are many different candidates discussing several issues. one of the key requirement in

creating documentary is to include some c-span footage. this footage should compliment and further their point of view and not just dominate the video. it's a great way to for them to include more information on the video that furthers their points. >> the first bill i'll sign today is the water resources reform development act. >> you know, we've all heard the jokes about school meals and the burns fish sticks and mystery meat tacos. >> tles 0 a vital role that the federal government plays. it's vital for students with disabilities -- >> students and teachers can go to our website and on that website they'll find more information about the rules and requirements but they'll also find teacher tips, rubrics to help them include it in their classroom, more information about prizes and ways to contact us if they have any further questions. the deadline for this year's

computation is january 20, 2016 which is one year away from the next presidential inauguration. california congresswoman loretta sanchez talks about some of the military challenges facing the u.s. from washington journal, this is 40 minutes., a >> joining us now is representative loretta sanchez, democrat from california, a member of the armed services committee. cst: also a member of the task force on combatting terrorists and foreign travel. good morning. >> good morning. >> thank you for joining us.at e the papers this morning all have stories about the bombing in afghanistan that happened in kunduz. can you give a picture of what went on, what do you think about the role of u.s. military in that operation?guns >> well, it seems that there waa a u.s. gunship going into one ot

the main areas where the taliban has overrun. t and initially the u.s. the department of defense has said u that it was to protect our american troops who were in then fight there. but the reality -- it's turnings out that the -- or they have confirmed that the gunship was actually in there because it was called in by the afghan army forces h.ite severa and it hit, consistently, a hospital run by doctors without borders. and there were several deaths and many casualties.init so everybody's trying to figure? out what the heck happened here. >> what do you think, first of all, about the change in story of what we initially heard to li what we're now hearing? what does that suggest to you? >> of course, not good. >> not good. dec this is always the difficult ,

part, especially for a policymaker, like myself.o we someone who's, you know, trying to decide, do we stay in can afghanistan, do we put our military there, who do we back s there, how do we do that, what h types of moneys are the american taxpayer going to put towards that? we don't have a good sense sometimes of what's going on. and worse, for a policymaker, it's not like i could fly in any take a look at what happened and come back and say guys, this asp this and this. we're always subject to the fac. that it's in a combat zone. and so in some ways, we're y relying on our military to tell us what happened, and yet it was, in particular, our own military who made this mistake. it's the difficulty.in get the >> what's the best way forward, what we know and what we have to find out about this situation? >> well, it's preliminary. again, our own military is the one, in some sense, making the' investigation. and we're trying to get the reas facts on the ground before --

really it's the president's call in this. he's the commander of those forces to decide what to do. obviously the congress wants to interject itself in this, but this is a very tactical mistaken versus an overall policy mistake. what it reflects back to a lawmaker is what the heck is going on in afghanistan?tthos >> as far as looking into it e being a member of the committee, do you expect hearings? will we hear testimony from those involved? what do yo you imagine will happen? >> well, general campbell, who commands our forces out there in afghanistan, i believe will be here in washington, d.c. before a committee. ul i believe it's thursday. so certainly i would anticipate this would be number one on the list of what both democrats and republicans on the armed services committee will be ific asking about. happe >> so as questions specifically, what are you asking? what are you going to be searching for? >> what's going on in afghanistan?ly

what we really doing at this bm point?n the how could something like this k happen? was there not any -- especially because it seems -- again, i th don't have all the details. everything is hearsay at this point because i'm not on the ground being able to ask out questions.top but it seems from the hospital came the call saying you're bombing the hospital, this is doctors without borders.in please stop this.s a majo i mean, in the fog of being shot at, or bombed.possibil and yet it continued.ding 500 so it's a major problem for us.r >> you mentioned afghanistan. there's a story in the papers n. today about the possibility of the obama administration leavina 5,000 or so troops in gues afghanistan currently from the n 9800 or so that we have that remain. first of all, what do you think about that prospect and is it a. necessary one? >> i haven't spoken to either our department of defense or to our administration to see what i it is that they're contemplatint here. i will tell you the minute that

obama came into office, i sent a message to him to say, listen, afghanistan is a major problem,s and you've either got to get out or you've got to get in.on but this whole lingering of what's been going on with respect to the corruption of the governments that are in there, that election that went on with karzai, inability for the afghan army, and the types of monies we've put in there, making deals with the taliban, i mean, this is a totally -- it's just a bad situation in afghanistan. >> the post says that there's no final decision. 3,000 to 5,000 troops envisioned under general dempsey's proposal would be part of an emerging plan for a global counterterrorism footprint developed after the islamic state's rampage through iraq anh syria. >> well, certainly, you know, we have put the pressure on os afghanistan to remember why we're there. there were the training camps, and building up under osama bin

laden. financial tutelage to be able to do the terrorist attacks, for example, that happened to us on 9/11.cothe. there's the direct correlation to that. but to be in this country now 13 years later, or however long ant it's been, 14, i guess. really begs the question, what is our role there and what's really happening. us >> loretta sanchez, ons representative loretta sanchez, our guest joining us to talk but about military operations, not only in iraq or afghanistan, but other areas of the world as well. you can call and ask her ns questions. 202-748-8001 for republicans.8-2 202-748-8000 for democrats.ts, o for independents, 202-748-8002.s if you want to tweet us comments or questions for our guest, you can do so @cspanwj. i want to get your thoughts on syria.he rhow ha currently, not only what's going on there as far as u.s. operation, but the russian d? involvement now. how has that complicated the situation in your mind?

>> it's completely complicated the situation. you have two major powers, military powers, not coordinating with each other. in a very limited air space, and area.bi could r basically in the possibility of combat mode, and they could run into each other at any point, and it could really escalate completely out of control. so it is a bad situation. remember what's happening here.o russia's gone in and said listen, we're trying to get to isis. has what the united states is trying to do is go after isis.namic wi the united states has said assad has got to go. russia has propped up assad. in fact, in the dynamic with him. you have syrian rebels. we don't know how many and who and how anymore, who have been fighting for their "democracy" " across assad, wanting to take down assad. you just have a series of

players in there in a confined space, where some really bad se things could happen when they'r running into each other.e wash >> richard cohen today in "the washington post" lays syria at the feet of the president. one of the statements he makes is this saying the war that the president has avoided in syria has cost many lives. the war he has avoided has swamped europe with migrants. it has made a muddle of the u.s. policy, providing for an opening of the russians exhibiting americans in resoluteness and cause much pain. is that a fair characterization? >> no, i would not say that at all. >> why not?hat >> people think it's so easy for us to just go into any country e any time that something is going on in that country and interjecr ourselves. remember, the president also ha to follow laws. the governing law around the world is the united nations

charter, which gives specific reasons of how and why we go to war. we go to war, someone attacks us, right? we have that possibility to go to war if someone attacks us. if we think they're about to attack us. and we go if we're invited in by the government to help them. ie, allies. and the fourth is, if we have ae u.n. resolution from the security council that says go h in. we have none of those in order to be able to go to syria. so it begs the question, all those people run in, oh, my goodness, we've got go to syria, we've got to get rid of assad. you just don't march into a't country to get rid of somebody. that's not the law, that's not the international law that we tt live under.ian >> but the training of syrian o rebels by the united states, spending lots of money to do so. >> four or five trainees? >> what do you do with that kint number? >> well, you are looking at somebody who has always that

questioned that that strategy. and i will tell you why.fill in i saw it fail in iraq.raq we're not talking about even government troops. let's go in and equip in iraq.re a complete failure from our ls standpoint. we see it in afghanistan.ilure we have those air strikes on a . hospital that has nothing to do with anything of the combat going on. now we're doing it with syrians. some of them very well-intentioned, some of them who want their homeland, some who want democracy, etc. but it's very difficult to thes figure out who these people are how to vet them when the whole country is falling apart. whether we're vetting them to go after assad or in the long run equipping and training and they'll go after assad, versus what we want, which is to

eliminate the threat of isis or isil or whatever you want to call them.rk, d i have not seen this strategy l: work very well. >> our first call for you comes from new york. this is david for our guest. go ahead. >> caller: good morning, congresswoman. >> good morning. >> caller: could you please share with us, why is it that s congress is not decisively going after the main cause and the root of social terrorism, which is through the arabias, sponsoring isil, daesh, al of te qaeda, taliban, and tell them point-blank they should stop once and for all their them t ideological and military supports, which incidentally our government in the '70s gave them the blessing to go ahead with ic because we were fighting the russians in afghanistan. if we do that, we don't even have to get involved and they can sort it out themselves.yo >> well, certainly, you know,

you reap what you sew. we have definitely in this, whether it was the cold war, the russians, the united states and axis of what's happening in the middle east after the fall of the cold war.he mid the continuation or the up rise of iran having gone into iraq. by the way, i voted not to go be into iraq because i believed that it would destabilize the area and we didn't have a good f game plan for what happened n after we got rid of saddam. the rise of iran as an influential player sitting in there. and so i believe that there are some in the policymaking world that see saudi arabia and other, sort of in this -- if you will, counterbalance to iran and its terrorism going on there.iran you know, there's a lot of with complications with that. and who knows?ow i mean, i don't know, and believe me, i ask a lot of

questions on the committees thae nistrati and with respect to the administration, about, you know, who's what and what is it that we're working with saudi arabia and others that would make us not put our foot down and say okay, this has all got to stop, guys. you're also destabilizing what's happening there.ca >> here is anthony from new yorf for our guest.repres democrats line. hi. y >> caller: hi, thank you for the opportunity. representative sanchez, do you foresee any hearings or anything in the way of accountability for the invasion of iraq? or are there any policy changesa or anything being implemented to safeguard the united states ol military from being infiltrated by people who came to office, be it george bush, rumsfeld, condoleezza rice, for the conflict of interest?

because it seems as though there was an ulterior agenda that dragged us into iraq and there really was no justification.e wa as well, it was a war crime. and should there not be accountability of those people? because they have created a disaster in the middle east.thee the amount of misery we've caused these people. none of it makes sense to me as an american citizen.ghborhoo the iraqs, the afghanis, they don't use drones to drop bombs s on my head. they're not causing me any inc grief. so i don't understand why we have destroyed a civilization. the world is tough enough on als of us. not to mention, we can't afford what we've done, these incursions is beyond the pale of anything. we can't even take care of

detroit or our own cities in pea this country. >> okay.day, i d we'll let our guest respond, s anthony.rson >> well, first of all, thank you for asking that question. i think that question has been asked over and over, and to you. first point, do i see congress opening investigations into i te that? honestly, the way the congress is working today, i don't see an ability in a very bipartisan manner for us to really take accountability to what happened in previous administrations or e the continuation of some of this.ve leg and i take that to heart. i take what you said to heart very seriously, because ystem remember, that in order for america to work, for our systemo of government, you have to have a real counterbalance.e you have legislative. you have the administration. you have the judicial is. and it is the responsibility of the congress as the representatives of the people to take to task and to investigate the administrative -- the executive powers. some of which it completely, in, my opinion, went the wrong way. again, i'll reiterate. i wil i voted against the iraq war.

i was one of the strongest people on the committee to o question rumsfeld, his actions, our strategies, what was going g on. the type of money that we spent. everything with the syria issue, we've got libya falling apart.fl we don't know where egypt is going. it seems to be stable right now, but we don't know. iraq, of course, we know is falling apart. a lot of people here in the in e congress rushed to use our military as the only tool that we have whenever a problem arises somewhere. use t a no fly zone.hetool w bomb these people. put troops on the ground. send in the special forces.zone guys, that is just -- that's one tool that we have to use, and it's been used and overused, and it's an expensive way to do business. and it's not necessarily the usa right way to do business. so i sit on armed services committee.