[Senate Hearing 107-529]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 107-529



     WORKERS' FREEDOM OF ASSOCIATION: OBSTACLES TO FORMING A UNION

=======================================================================

                                HEARING

                               BEFORE THE

                    COMMITTEE ON HEALTH, EDUCATION,
                          LABOR, AND PENSIONS
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             SECOND SESSION

                               __________

                             WASHINGTON, DC

                               __________

                             JUNE 20, 2002

                               __________

 Printed for the use of the Committee on Health, Education, Labor, and 
                                Pensions

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                            WASHINGTON : 2003
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          COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS

               EDWARD M. KENNEDY, Massachusetts, Chairman
CHRISTOPHER J. DODD, Connecticut     JUDD GREGG, New Hampshire
TOM HARKIN, Iowa                     BILL FRIST, Tennessee
BARBARA A. MIKULSKI, Maryland        MICHAEL B. ENZI, Wyoming
JAMES M. JEFFORDS (I), Vermont       TIM HUTCHINSON, Arkansas
JEFF BINGAMAN, New Mexico            JOHN W. WARNER, Virginia
PAUL D. WELLSTONE, Minnesota         CHRISTOPHER S. BOND, Missouri
PATTY MURRAY, Washington             PAT ROBERTS, Kansas
JACK REED, Rhode Island              SUSAN M. COLLINS, Maine
JOHN EDWARDS, North Carolina         JEFF SESSIONS, Alabama
HILLARY RODHAM CLINTON, New York     MIKE DeWINE, Ohio
           J. Michael Myers, Staff Director and Chief Counsel
             Townsend Lange McNitt, Minority Staff Director


                            C O N T E N T S

                              ----------                              

                               STATEMENTS

                             June 20, 2002

                                                                   Page
Kennedy, Hon. Edward M., Chairman, Committee on Health, 
  Education, Labor, and Pension, opening statement...............     1
Hutchinson, Hon. Tim, a U.S. Senator from the State of Arkansas..     3
Wellstone, Hon. Paul D., a U.S. Senator from the State of 
  Minnesota......................................................     4
Clinton, Hon. Hillary Rodham, a U.S. Senator from the State of 
  New York.......................................................     5
Dodd, Hon. Christopher J., a U.S. Senator from the State of 
  Connecticut....................................................     6
Edwards, John, a U.S. Senator from the State of North Carolina...     7
Sweeney, John J., President, AFL-CIO, Washington, DC.............     8
    Prepared statement...........................................    10
Roth, Ken, Executive Director, Human Rights Watch, New, NY.......    37
    Prepared statement...........................................    39
Vizier, Eric, Mariner, Galliano, LA..............................    48
    Prepared statement...........................................    50
Yager, Dan, Senior Vice President and General Counsel, Labor 
  Policy Associatio, Washington, DC..............................    52
    Prepared statement...........................................    54
Buffkin, Sherri, Former Supervisor, Smithfield Packing Company, 
  Tar Heel, NC...................................................   108
    Prepared statement...........................................   111
Schweikhard, Nancy, R.N., St. John's Medical Center, Ventura, CA.   113
    Prepared statement...........................................   116
Vidales, Mario, Former Food Server, Santa Fe Hotel and Casino, 
  Las Vegas, NV..................................................   118
    Prepared statement...........................................   119
MacDaniels, Robert, President, Oncore Construction, Bladensburg, 
  MD.............................................................   120
    Prepared statement...........................................   122

              ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD

Enriquez, Felizardo, Residential Roofer, Metric Roofing, Arizona.   146
Lail, Edith, Program Analyst, Federal Aviation Administration, 
  Washington, DC.................................................   146
Mason, Michael, Forklift Driver, Nabors' Alaska Drilling, Alaska.   147
O'Sullivan, Terence M., General President, Laborers' 
  International Union of North America...........................   148
Taylor, Andrea, Flight Attendant, Delta Air Lines, New York, NY..   149
Gulf Mariners,...................................................   151
Smithfield Foods' Systematic, Illegal Campaign to Suppress 
  Workers........................................................   154
Letter:
    Pearson, Michael, Nabors' Alaska Drilling....................   153

 
     WORKERS' FREEDOM OF ASSOCIATION: OBSTACLES TO FORMING A UNION

                              ----------                              


                        THURSDAY, JUNE 20, 2002

                                       U.S. Senate,
       Committee on Health, Education, Labor, and Pensions,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10:06 a.m., in 
room SD-430, Dirksen Senate Office Building, Hon. Edward M. 
Kennedy (Chairman of the Committee) presiding.
    Present: Senators Kennedy, Dodd, Harkin, Wellstone, Murray, 
Edwards, Clinton, and Hutchinson.

              OPENING STATEMENT OF SENATOR KENNEDY

    The Chairman. We will come to order.
    The fundamental right of workers to associate freely and 
join together to form a union is under attack in the United 
States today. Hard-won rights gained by American workers over 
two centuries have been undermined and distorted by law-
breaking U.S. employers. Instead of respecting workers' rights 
to freely choose to form a union, more and more employers are 
resorting to threats, intimidation, and firings to thwart the 
exercise of these fundamental human rights.
    American workers have sacrificed too much for too long to 
lose their right to form unions here in the 21st century. They 
have given their lives to improve the wages and working 
conditions of their fellow workers. In this time of Enron and 
corporate disregard for the well-being of workers, we should 
strengthen the ability of workers to protect themselves, not 
weaken it. That is what our hearing is all about today.
    Despite our great labor traditions, it is extraordinary how 
commonplace illegal employer tactics have become when workers 
attempt to form unions. A Cornell study of the NLRB elections 
found that one-quarter of employers fire workers for union 
activity during organizing campaigns. Each year, employers 
unlawfully discriminate against more than 20,000 workers just 
for exercising their basic rights in the workplace. A majority 
of employers threaten to close down their plants in response to 
union activity. During the 1990s, the percent of employers 
engaging in full-scale anti-union campaigns to prevent a 
collective bargaining contract, even after the workers have 
prevailed in an NLRB election, jumped from less than 10 percent 
to more than a third.
    Employers use these unlawful tactics because they are 
cruelly successful in thwarting the formation of unions. 
Although more than two-thirds of the workers say that 
protecting the right to choose a union is essential or very 
important, far fewer workers are able to overcome the onslaught 
of illegal employer tactics designed to avoid unionization.
    When employers illegally threaten to close a plant, workers 
understandably fear for their jobs, and their chance of success 
in forming a union declines dramatically.
    Once workers successfully brave employer intimidation to 
vote to form a union, they face enormous obstacles in actually 
getting a first contract. Employers refuse to bargain. They 
fire workers who support the union. They threaten to close down 
the facility and continue mandatory meetings designed to 
intimidate workers. Even the lucky few who persevere in the 
face of such tactics still must spend years fighting to 
vindicate their democratic victory in the union election.
    Far too often, employers get away with it. They face 
minimal penalties for violating labor law. In this day and age, 
workers can be fired for their union activity, and all 
employers found in violation have to do is rehire the worker 
and offer back pay. That is a slap on the wrist for obstructing 
the freedom of choice of America's workers and for denying them 
their dignity on the job.
    The situation is far worse for immigrant workers, many of 
whom don't even have these minimal protections. After the 
Supreme Court's recent decision in Hoffman Plastics, millions 
of immigrants are left without any real means to exercise these 
fundamental rights.
    We know that unions make a difference in the lives of 
average workers. Forming a union is the best way for workers to 
lift themselves out of poverty and improve their working 
conditions. Union workers earn 25 percent more than non-union 
workers. Joining a union is what lifts millions of janitors, 
farm workers, waitresses, and textile workers out of poverty-
level wages.
    When it comes to retirement security, the smartest step is 
for workers to join a union. Union workers are almost twice as 
likely to be covered by a pension plan and more than four times 
as likely to have a secure defined benefit pension plan.
    Workers in the United States must have their fundamental 
rights protected in the workplace. At the core of our democracy 
is respect for the electoral process and the protection of 
basic human rights.
    The culture of impunity in which employers routinely 
violate the law with few consequences for squelching the 
democratic voice and right to free association of America's 
workers is unacceptable. We should not stand for this. 
America's workers deserve far better. Indeed, American 
democracy deserves far better.
    I want to especially commend my friend and colleague, 
Senator Paul Wellstone, who chairs the Labor Subcommittee, for 
his leadership on this issue. He has been a tireless advocate 
for workers' rights over his distinguished career in the U.S. 
Senate and is our leader on this issue and many others. So I 
value his friendship and his leadership, and I look forward to 
this morning's hearing.
    Just finally, I asked the staff to go back and look at the 
figures of those who get the restoration of the back pay. It is 
tens of thousands every year. These are people that are fired 
illegally and they have to get the back pay. It is just a way 
of doing business for many of these companies and corporations. 
But for those individuals who are out of pay and fired without 
the prospects for joy, it is their whole sense of livelihood 
and their whole sense of being and their families. It is just a 
way of doing business. These numbers haven't shifted or changed 
over a period of time, and it is a scandal.
    Senator Hutchinson.

            OPENING STATEMENT OF SENATOR HUTCHINSON

    Senator Hutchinson. Thank you, Mr. Chairman. I look forward 
to the witnesses today, and I want to thank them for coming 
before the committee. I look forward to the exchange of ideas 
on how best to effectuate the Section 7 rights of workers to 
form, join, or assist labor organizations and, quote, ``to 
refrain from any of these activities''.
    At today's hearing, we are going to hear of legitimate 
concerns from workers, unions, and companies about many 
shortcomings in the National Labor Relations Act. Many of the 
concerns expressed today and much of the testimony and the 
specifics of the testimony that we are going to hear are 
already illegal under current law, and it is likely that 
effective enforcement and education would alleviate the most 
serious problems.
    Other topics today have been hotly debated for more than 25 
years with no clear consensus reached. Still more issues such 
as coordinated corporate campaigns and card check 
certifications deal with newer tactics that operate outside the 
protections and procedures of the National Labor Relations Act.
    I would like to just make one comment as to something the 
Chairman said. We all are very concerned, I think, about 
workers' rights. We should be. But we also realize that much of 
the antagonism that has historically existed between management 
and labor should be something in the past, that we should work 
toward a more cooperative arrangement between labor and 
management, and that while unions have played a very, very 
vital role in the history of our Nation, in the last 20 years 
the wages of non-union workers have risen faster than union 
workers, according to the Bureau of Labor Statistics.
    So I want to make clear from the outset of the hearing that 
no one here supports the firing of workers because they seek to 
join a union. As the law states, workers must be free from 
threats, coercion, or intimidation, and it is my hope that no 
one here supports tactics designed to force unionization onto 
workers who do not want it or to drive a company out of 
business that resists illegal demands.
    The National Labor Relations Act as amended is designed to 
be balanced and fair, and any proposed changes to the act must 
maintain that fundamental design or, as history has shown, 
there will be no changes.
    Today's hearing may or may not be the opening event in a 
renewed campaign to overhaul the rules governing labor-
management relations and union organizing. Like all of our 
workplace laws, changing times call for modernizing reforms, 
and with this in mind, Mr. Chairman, I look forward to the 
testimony of our witnesses.
    The Chairman. Senator Wellstone.

             OPENING STATEMENT OF SENATOR WELLSTONE

    Senator Wellstone. Thank you, Mr. Chairman. I am really 
pleased that we are holding these hearings, and I think it is 
long past time that we focus on the concerns that we are going 
to hear about today. I am particularly grateful to the workers 
who have come here along with President Sweeney. Thank you for 
stepping forward and having the courage to tell your stories. 
To Ms. Buffkin, a particular thanks to you for your candor and 
your honesty and your willingness to do the right thing no 
matter what it costs you personally.
    There are a lot of battles that many of us or many of our 
parents or many of our grandparents fought for, and I think we 
thought those battles were over--the integrity of Social 
Security, the 40-hour week--but issues that were raging at the 
turn of the last century and that we thought were settled a 
long time ago are resurfacing at the turn of the new century. I 
think nowhere is this more evident than the subject before us, 
which is the workers' freedom of association, the basic human 
right to join a union and bargain collectively.
    As one of our witnesses, Mr. Roth, says, if the rights of 
workers are not respected and protected, then the strength of 
American democracy and freedom is diminished. I agree.
    One organizer told me that all too many times you have to 
be a hero to organize at the workplace and, for that matter, 
the men and women who are willing to be a part of the efforts 
have to be heroes and heroines. I believe this is heroic work 
to organize the unorganized, but I do not believe that this was 
the promise of democracy and participation and of the freedom 
of association that really was in the National Labor Relations 
Act 70 years ago. You should not have to be a hero to exercise 
your basic rights in a democracy in the United States of 
America today.
    Mr. Chairman, very quickly, just to show what we are 
dealing with, let me just ask a few questions and answer them.
    What is the remedy under current law if an employer 
illegally fires workers during an organizing drive? Ten 
thousand working Americans lose their jobs illegally every 
year. The Dunlop Commission found that one in four employers 
illegally fired union activists during organizing campaigns. 
What is the remedy?
    The employer must reinstate the worker and give him or her 
back pay. This only happens if the National Labor Relations 
Board orders a remedy which, as we are going to hear today, can 
take years and years. As Human Rights Watch says in their 
report, ``Many employers have come to view remedies like back 
pay for workers fired because of union activities as a routine 
cost of business, well worth it to get rid of organizing 
leaders and derail workers' organizing efforts.'' In other 
words, it is profitable to break the law.
    If an employer oversteps the boundaries in captive-audience 
meetings or in one-to-one supervising meetings or threats to 
close the plant if workers vote for a union, do you know what 
the penalty is? The employer must post a blue and white notice 
saying they violated the law and they won't do it again. That 
is today the law. That is the sanction.
    If the NLRB finds that there is no first contract because 
the employer has been engaged in bad-faith bargaining, do you 
know what the remedy is? The NLRB can order the employer back 
to the bargaining table for more delay and more bad-faith 
bargaining.
    Something must be done, and we are focused on labor law 
reform. There are going to be many bills. We will all work 
together. I introduced S. 1102, which is the Right to Organize 
Act, and what I am interested in remedying are the following 
severe problems: captive-audience meetings, insufficient 
remedies for workers who are discharged for organizing, 
extended delays in holding elections, even where a majority of 
the workers have indicated a desire to join the union, and, 
finally, bad-faith first contract negotiations.
    Mr. Chairman, I really appreciate this hearing, and as 
Chair of the Subcommittee on Employment, Safety and Training, 
which has jurisdiction over the National Labor Relations Act, I 
want to just assure everyone in here that this hearing is just 
the beginning of all of our legislative work together, could 
not be a more important issue, could not be a more important 
set of questions, and I am ready to go to work.
    The Chairman. Very good.
    I see our friends Senator Dodd and Senator Clinton are 
here. If they wanted to make a brief comment on this, we would 
be glad to hear from them.

              OPENING STATEMENT OF SENATOR CLINTON

    Senator Clinton. Well, thank you, Mr. Chairman, because 
unfortunately I cannot stay, and I am very sorry about that. 
But we have, as the Chairman knows, a long-scheduled meeting 
with representatives of the Hispanic organizations, and I know 
that many of them are deeply concerned about these issues as 
well, because I know from my own experience in New York, we 
have many immigrants who are basically denied all of their 
rights under labor laws. That I hope will be a focus of our 
concern.
    I want to thank President Sweeney for being here and for 
once again articulating, as he does in his testimony so well, 
the need for an overhaul of our labor laws. We need labor laws 
for the 21st century. We have had very good success until 
relatively recently with the labor laws that we began to put 
into place at the beginning of the last century, culminating in 
the 1940s and 1950s and 1960s.
    But now we do need to take a look. Work has changed. The 
kind of problems that workers run into are different. We have 
to focus on using some new tools to try to better enforce the 
contract between employers and employees.
    So I am very grateful that the Chairman has held this 
hearing and that Senator Wellstone and others are committed to 
working with the witnesses who will appear. I particularly want 
to thank Ken Roth from New York and also from Human Rights 
Watch for focusing on this, because it is not just a labor 
issue; it is a human rights issue.
    Since I won't be here for Mr. Roth's testimony, I would 
hope people will focus on some of the concerns that he 
expresses about the way people are being treated, which 
violates not only labor laws but basic standards of human 
decency. I have been very disappointed that one of the new 
tools that we have, which is using the Internet and using the 
disclosure of information basically to create an environment in 
which employers would be motivated to do the right thing 
without legal sanctions, has seen a big step backwards. That is 
particularly true in the garment industry with sweatshops, 
because at the end of the last administration we began to, 
through the Department of Labor, post the names of factories 
that violated the law, that didn't pay minimum wage, that 
didn't follow basic health and safety regulations, that didn't 
apply Fair Labor Standards Act provisions. I was very 
disheartened to learn that the Bush administration discontinued 
this practice shortly after taking office.
    This is a really good idea that should be reinstated, and I 
would call on the Department of Labor and the administration to 
do that, because while we are looking for ways to overhaul the 
laws to make them 21st century labor and employment laws that 
recognize the new realities in the workforce, let's continue to 
use moral suasion, let's continue to use full disclosure to 
bring into the light those employers that really are violating 
the standards of their industry as well as labor standards and 
human rights standards.
    So I would hope that the Secretary of Labor would reinstate 
this very simple program where labor inspectors who found wage 
violations, who found fake or incomplete records, since we know 
that trying to get any kind of legal remedy takes so long that 
basically it doesn't really amount to a remedy--it is a 
violation and a process that doesn't result in a realistic 
remedy--you know, let's at least go back and use the tools that 
we have got that were beginning to work.
    So I thank all of our witnesses. I look forward to 
reviewing the testimony, and I thank the Chairman for, you 
know, really bringing attention on the need for us to do, as 
President Sweeney said, a very complete analysis of our 
existing laws and try to bring them up to date.
    Thank you, Mr. Chairman.
    The Chairman. The Senator from Connecticut.

               OPENING STATEMENT OF SENATOR DODD

    Senator Dodd. Very briefly, Mr. Chairman. Thank you for 
doing this. This is the first hearing I think we have had on 
this subject matter since the late 1980s. Going back I think 
the late 1980s was the last time we talked about this very 
fundamental right that is guaranteed, of course, by Section 7 
of the NLRB, and the National Labor Relations Act, the United 
Nation's charters, the international concepts incorporated the 
right of people to organize and choose the people who represent 
them.
    The statistics that John Sweeney and others will share with 
the committee should alarm every Member. Whether you agree with 
every organizing campaign or not, when you end up with 
statistics that exceed 50 percent where there are acts of 
intimidation when it comes to people's exercising their rights 
to organize and to choose the people who represent them, then 
it ought to concern 
everyone.
    I note in Mr. Sweeney's testimony that he cites some recent 
data collected by some national polling operations in the wake 
of Enron and related scandals that there is this growing 
sense--and it is not just an impression, but I think one that 
the realities are beginning to catch up with the impressions--
that ordinary people are being disadvantaged all the time, 
whether it is in their pensions at Enron or their right to pick 
who will sit and negotiate their working conditions and their 
wages and salaries, that this is not an equal, level playing 
field. It never really has been, but it is getting less equal 
all the time.
    Hank Paulson of Goldman Sachs had the guts and the 
intestinal fortitude a week ago to pretty much call it as it is 
when he described the situation in the country as one that is 
really getting out of control. He said very much that the 
criticism is very much deserved when it comes to some of the 
actions being taken by corporate America.
    So I think it is important we not only have a hearing--and 
we certainly commend Senator Wellstone for his efforts 
legislatively, the suggestion that Senator Clinton has just 
made as well, Mr. Chairman, I think are worthy of pursuit. I 
think having a hearing like this is critically important to 
raise in the public profile of what is occurring. I certainly 
look forward to some ideas and suggestions on how we can 
strengthen this basic right.
    It is not just about strengthening the rights of workers. 
That in itself would be important. But it is strengthening the 
economic condition of our country, and that is why this works. 
The great engine of American success economically can be 
attributed to many things, not the least of which has been the 
right of American workers to organize and to play a critical 
role in the economic well-being of this country. Too often when 
people talk about how successful we are, they leave out that 
piece of the equation. This hearing today gives us a chance to 
talk about the critical role that labor has played in America's 
success story, and we are delighted to have you here today.
    Thank you, Mr. Chairman.
    The Chairman. We are joined by Senator Edwards, and if you 
would like to make a comment, then we will proceed with the 
testimony.

              OPENING STATEMENT OF SENATOR EDWARDS

    Senator Edwards. Very briefly, Mr. Chairman.
    Mr. Chairman, first of all, thank you for having this 
hearing, and thank you to the witnesses for being here. This is 
a matter that is of actual personal concern to me. I have a 
brother who is in the IBEW, a mother who was a member of the 
Letter Carriers; my father worked in textile mills all his 
life, and I know how important it is for workers' rights to be 
protected, for organized labor to give voice to people who have 
no voice, no chance without them being heard through their 
representatives. This hearing is long overdue, Mr. Chairman. I 
know it has been, I think, 14, 15 years since we have had a 
hearing on this subject, and the problem, of course--and I have 
seen it firsthand with my own family's experiences--is that the 
right to join a union, which every employee should have, exists 
on paper, but we know what the reality of the workplace is many 
times. A lot of the men and women I see in this room understand 
it, and understand it very well firsthand. Some of the 
practices that have been engaged in, some of which I think we 
will hear about today, are outrageous.
    We have got to get to the place where this right doesn't 
just exist on paper. This is not about statutes and about laws 
and about regulations, although those things matter. It is 
about people's lives and real people having a real chance to 
have decent working conditions and to have access to health 
care. That is what this is about.
    So I am very proud to be here, proud, Mr. Chairman, that 
you are calling this hearing and for all of your leadership on 
this issue for so long. I am particularly proud of the men and 
women who are here to testify today and who devoted their lives 
to making sure that people like my mother and my brother had 
half a chance.
    Thank you, Mr. Chairman.
    The Chairman. We will ask John Sweeney, Ken Roth, Eric 
Vizier, and Dan Yager if they would come forward.
    John Sweeney, as we all know, is the president of the AFL-
CIO. He has been a valued friend of mine for many, many years. 
He is the spokesman for workers in this country, a tireless 
advocate for their rights and their families' rights, and he is 
always at the barricades on every issue affecting working men 
and women. We welcome him to our hearing.
    Mr. Roth is the executive director of Human Rights Watch, 
the largest human rights organization based in the United 
States. The dedicated work of Human Rights Watch has kept a 
spotlight on human rights abuses around the world. Human Rights 
Watch issued a comprehensive report on workers' freedom of 
association. Thank you, Mr. Roth, for joining us.
    Eric Vizier is a third-generation oil-field boat captain, 
an extremely accomplished mariner, worked for Guidry Brothers 
towing service, an offshore rig in the Gulf of Mexico. He was 
fired for his attempts to organize the mariners in the Offshore 
Mariners United Union.
    Dan Yager is the senior vice president and general counsel, 
Labor Policy Association, a public policy organization based in 
Washington, DC that represents corporate interests in the human 
rights policy.
    Mr. Sweeney.

 STATEMENT OF JOHN J. SWEENEY, PRESIDENT, AFL-CIO, WASHINGTON, 
                               DC

    Mr. Sweeney. Thank you, Senator Kennedy, for your 
introductions. Thank you for your continued support for working 
families and for your leadership in holding this hearing.
    I also want to thank Senator Wellstone for his longstanding 
attention to the issues being discussed today, and I also am 
happy that Senator Hutchinson is here with us as well.
    I want to say to all of you that you obviously share our 
anger and our outrage over the secret and pervasive war against 
workers that is being carried on by American employers. Your 
presence and the testimony here today help us shine a light on 
the responsible parties from the highest pedestal of our 
Government and begin to expose that war and all its ugliness.
    This morning, as Senator Kennedy has told us, you will hear 
testimony from Ken Roth, the director of Human Rights Watch. He 
will tell you that the world's most enduring democracy is 
greatly lacking in its respect for human rights, freedom of 
association, and other international standards of corporate 
conduct.
    You will also hear from workers who will translate this 
awful truth into stark terms of aggression and oppression. They 
will tell you that workers I our country are routinely denied 
the basic freedom to make their own decision to join with their 
coworkers to gain a voice on the job. They will tell you that 
when workers try to form unions to lift up their lives, 
employers use despicable tactics to interfere with their 
choice--and pay no price for it.
    What I want to tell you this morning is that the actions 
Mr. Roth and these workers will describe are an international 
disgrace and the shame of our Nation.
    Last week, Henry Paulson, CEO of Goldman Sachs, noted the 
scandals at Enron and Arthur Andersen, at Tyco and 
MicroStrategy, and dozens of other firms, and said, ``In my 
lifetime, American business has never been under such scrutiny 
and, to be blunt, much of it is deserved.''
    In a national survey taken in May, findings by Pollster 
Stanley Greenberg echoes that observation. Eighty-six percent 
of likely voters found ``some'' or ``a great deal of truth'' in 
the following statement, and again I quote:

          Enron was very bad on its own, but Enron represents a bigger 
        problem in America. Too many people in powerful positions are 
        acting irresponsibly, hurting ordinary people, and they are not 
        being held accountable for their actions.

    Those of us who talk to workers like those here today on a 
regular basis--and to other men and women who are struggling to 
join or form unions so they can improve life for their 
families--have known for some time about the growing and 
scandalous corporate abuse of power.
    For the past 25 years, businesses have been twisting, 
manipulating, and ignoring our country's labor laws and getting 
away with it. Even when they get caught, the penalties are so 
weak and the process so unfair that few, if any, are ever held 
accountable for their actions.
    In 25 percent of union organizing campaigns, employers 
illegally fire workers for supporting a union, and they do it 
because they know they will be punished lightly, if at all.
    As with many of the revolting actions taken by Enron, many 
of the sordid deeds being carried out against workers who try 
to form or join unions are also perfectly legal.
    When faced with a union campaign, for instance, 92 percent 
of employers demand that workers attend mandatory anti-union 
meetings, and 78 percent force them into one-on-one meetings 
with their supervisors who have been charged with reversing 
their decision in favor of unionizing.
    It isn't illegal, but it should be.
    Seventy percent of employers send an average of 6.5 anti-
union letters to workers' homes during union drives. It isn't 
illegal, but, goddammit, it should be.
    Seventy-one percent of employers in manufacturing threaten 
to close or relocate plants if workers chose a union, and when 
they threaten, it scares the hell out of workers and cuts the 
organizing success rate nearly in half.
    Such threats are illegal, but they parse words and do it 
anyway and it is outrageous.
    When these kinds of tactics succeed, they destroy not just 
the chances of workers for a better life, they tear at the 
moral and economic fiber of our national community.
    Union workers make 25 to 30 percent higher wages, and 
greater percentages of union members have good health insurance 
and decent pensions. It means they can provide for their 
families' needs, and they don't have to work two and three 
jobs, so they can spend more time with their children and 
contributing to their communities.
    Whether legal or illegal, the tactics that oppress workers 
and block their free choice are disgusting, disgraceful, and 
damaging to our nation.
    I submit to you that the need for overhaul of our labor 
laws is overdue.
    At this hearing today, we will not attempt to outline 
comprehensive solutions, but to lay out the dimensions of the 
problem that workers in this country face. I want to remind you 
that the voices you will hear today are but a few of the 
hundreds of thousands who are affected.
    We must begin now working towards laws that give American 
workers a meaningful right to a voice in their workplace, laws 
that prohibit employers from thwarting a worker's own decision 
to form or join a union and laws that guarantee a meaningful 
right to bargain a contract.
    When we make those laws, we must extend their protection to 
all workers in our new economy, and back them up just as 
seriously as we do our race, sex, and age discrimination laws, 
as diligently as we enforce our antitrust laws and our 
environmental laws.
    We must do so mindful that a strong majority of Americans 
believe it is wrong for employers to interfere with the freedom 
of workers to join unions.
    We do so secure in the knowledge that there are 30 million 
American workers who say they would join a union and lift 
themselves up if they had the opportunity.
    Reform will not be an easy task, and it may take years. In 
the meantime, we ask elected officials at every level and from 
all parties to join with us in exposing the failures of our 
current laws and to stand publicly with workers who are 
struggling to win a voice at work, despite the shortcomings of 
our laws and the employer greed they endorse.
    Thank you for undertaking this initiative.
    The Chairman. Thank you very much, Mr. Sweeney.
    [The prepared statement of Mr. Sweeney follows:]
       Prepared Statement of John J. Sweeney, President, AFL-CIO
    Thank you, Sen. Kennedy, for your remarks, for your continued 
support for working families, and for holding this hearing.
     I also want to thank Sen. Wellstone for your longstanding 
attention to the issues being discussed today. I appreciate the 
comments and concerns of other Senators, as well, who obviously share 
our anger and outrage over the secret and pervasive war against workers 
that is being carried out by American employers. Your presence and the 
testimony here today help us shine a light on the responsible parties 
from the highest pedestal of our government and begin to expose that 
war in all its ugliness.
     This morning, you will hear testimony from Ken Roth, the director 
of Human Rights Watch. He will tell you that the world's most enduring 
democracy is greatly lacking in its respect for human rights, freedom 
of association and other international standards of corporate conduct.
     You will also hear from several workers who will translate this 
awful truth into stark terms of aggression and oppression. They will 
tell you that workers in our country are routinely denied the basic 
freedom to make their own decision to join with their co-workers to 
gain a voice on the job. They will tell you that when workers try to 
form unions to lift up their lives, employers use despicable tactics to 
interfere with their choice--and pay no price for it.
     What I want to tell you this morning is that the actions Mr. Roth 
and these workers will describe are an international disgrace, and the 
shame of our nation.
     Last week, Henry Paulson, CEO of Goldman Sachs, noted the scandals 
at Enron and Arthur Anderson, at Tyco and MicroStrategy and dozens of 
other firms, and said, ``In my lifetime, American business has never 
been under such scrutiny and, to be blunt, much of it is deserved.''
    In a national survey taken in May, findings by pollster Stanley 
Greenberg echoed that observation: 86 percent of likely voters found 
``some truth'' or a ``great deal of truth'' in the following statement:

          Enron was very bad on its own, but Enron represents a bigger 
        problem in America. Too many people in powerful positions are 
        acting irresponsibly, hurting ordinary people, and they are not 
        being held accountable for their actions.

    Those of us who talk to workers like those here today on a regular 
basis--and to other men and women who are struggling to join or form 
unions so they can improve life for their families--have known for some 
time about the growing and scandalous corporate abuse of power.
     For the past 25 years, businesses have been twisting, manipulating 
and ignoring our country's labor laws and getting away with it. Even 
when they get caught, the penalties are so weak and the process so 
unfair that few, if any, are ever held accountable for their actions.
     In 25 percent of union organizing campaigns, employers illegally 
fire workers for supporting a union and they do it because they know 
they will be punished lightly, if at all.
     As with many of the revolting actions taken by Enron, many of the 
sordid deeds being carried out against workers who try to form or join 
unions are also perfectly legal.
    When faced with a union campaign, for instance, 92 percent of 
employers demand that workers attend mandatory anti-union meetings and 
78 percent force them into one-on-one meetings with their supervisors 
charged with reversing their decision in favor of unionizing.
    It isn't illegal, but it should be.
    Seventy percent of employers send an average of 6.5 anti-union 
letters to workers' homes during union drives.
    It isn't illegal, but it should be.
     Seventy-one percent of employers in manufacturing threaten to 
close or relocate plants if workers choose a union, and when they 
threaten, it scares the hell out of workers and cuts the organizing 
success rate nearly in half.
    Such threats are illegal, but they parse words and do it anyway and 
it's outrageous.
     When these kinds of tactics succeed, they destroy not just the 
chances of workers for a better life, they tear at the moral and 
economic fiber of our national community.
     Union workers make 30 percent higher wages and greater percentages 
of union members have good health insurance and decent pensions. It 
means they can provide for their families' needs, and they don't have 
to work two and three jobs, so they can spend more time with their 
children and contributing to their communities.
     Whether legal or illegal, the tactics that oppress workers and 
block their free choice are disgusting, disgraceful and damaging to our 
nation.
    I submit to you that the need for overhaul of our labor laws is 
overdue.
    At this hearing today, we will not attempt to outline comprehensive 
solutions, but to lay out the dimensions of the problem workers in this 
country face--and I want to remind you that the voices you will hear 
today are but a few of the hundreds of thousands who are affected.
     We must begin now working towards laws that give American workers 
a meaningful right to a voice in their workplace, laws that prohibit 
employers from thwarting a worker's decision to form or join a union 
and laws that guarantee a meaningful right to bargain a contract.
     When we make those laws, we must extend their protection to all 
workers in our new economy, and back them up just as seriously as we do 
our race, sex and age discrimination laws, as diligently as we enforce 
our anti-trust laws and environmental laws.
     We must do so mindful that a strong majority of Americans believe 
it's wrong for employers to interfere with the freedom of workers to 
join unions.
     We do so secure in the knowledge that there are 30 million 
American workers who say they would join a union and lift themselves up 
if they had the opportunity.
     Reform will not be an easy task and it may take years. In the 
meantime, we ask elected officials at every level and from all parties 
to join with us in exposing the failures of our current laws, and to 
stand publicly with workers who are struggling to win a voice at work, 
despite the shortcomings of our laws and the employer greed they 
endorse.
    Thank you very much for undertaking this initiative.

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    The Chairman. Mr. Roth.

  STATEMENT OF KENNETH ROTH, EXECUTIVE DIRECTOR, HUMAN RIGHTS 
                      WATCH, NEW YORK, NY

    Mr. Roth. Thank you very much, Chairman Kennedy, for 
holding this important hearing today, which represents much 
needed attention to a serious but neglected violation of human 
rights in this country. My thanks also as well to Senator 
Wellstone for your leadership on this matter, and to the other 
Members of the Senate who, in their presence today, recognize 
the importance of the matters we are discussing.
    Let me begin, if I could, with a word about Human Rights 
Watch. We are neither pro-union nor pro-management. Our work on 
labor rights stems exclusively from our commitment to the 
freedom of association and the freedom of individual choice for 
individual workers. This is a right that we champion around the 
world. Despite the many freedoms that Americans enjoy, it is a 
right that here at home is severely in jeopardy.
    Human Rights Watch has conducted the first comprehensive 
analysis of workers' freedom of association in this country 
under international human rights norms. We published our 
findings in this 213-page report entitled ``Unfair Advantage.'' 
The methodology that we followed in investigating this report 
sought to paint a broad picture of the state of workers' rights 
in this country. We examined the issue in different States and 
regions. We looked at different sectors of the economy: 
services, industry, transport, high-tech. We looked at 
different types of workers: high-skill and low-skill, blue-
collar and white-collar, resident and migrant, women and men, 
people of all races, ethnicities, and national origins.
    Our study included some of the most vulnerable American 
workers and also many workers who work for employers that are 
stable and profitable. We included factory workers, shipyard 
workers, food-processing workers, nursing home workers, 
computer programmers, and many more.
    Human Rights Watch found widespread violation of the right 
to form labor unions, to bargain collectively across every 
region, industry, and employment status that we looked at.
    We found deficiencies in both law and in practice. Our 
findings can be grouped roughly in six categories, which I will 
briefly review in my testimony now.
    First, U.S. law allows employers to intimidate and coerce 
workers when they try to organize. Although it is illegal, each 
year thousands of workers in the United States are fired from 
their jobs or suffer other reprisals when they try to organize 
unions. Indeed, we have gone from hundreds of dismissals on 
these grounds per year in the 1950s to 23,000 dismissals in 
1998. The problem is getting worse, not better.
    Workers are spied on, harassed, pressured, threatened, 
suspended, fired, deported, and otherwise victimized by 
employers in reprisal for the simple fact that they attempt to 
exercise their right to freedom of association.
    The law allows them to be held in captive-audience meetings 
in which employers berate them about the dangers of joining a 
union while unions themselves are denied comparable access to 
workers.
    Though employers cannot formally threaten workers, they 
have become extraordinarily skilled at predicting terrible 
consequences should unions organize--should laborers organize, 
subtly, that is, threatening these consequences to occur. 
Undocumented workers are especially vulnerable because many 
employers threaten to turn them in to the INS.
    Second, we found that the remedies and penalties for 
violations of labor rights are woefully inadequate. For 
example, an employee fired for union activity usually receives 
a reinstatement order and back pay, less the money that he or 
she earned on other jobs in the interim. As has been noted by 
Chairman Kennedy and others, many employers today simply look 
at these modest penalties as a routine cost of doing business. 
Indeed, the problem is now much, much worse since the Supreme 
Court's Hoffman Plastics decision, which denies any back pay to 
an undocumented worker. It represents a misguided decision by 
the Supreme Court to value legislation governing illegal 
immigration more highly than legislation protecting the rights 
of workers, a decision that Congress needs to reverse.
    Third, we found that the system allows major delays in 
enforcing rights. Employers can continue to appeal rulings for 
years and years before they are finally resolved. There is 
little added financial penalty because, as noted, most workers 
have to find another job and their new salary is then offset 
against any back pay award that they might later be granted. 
The substantial delays allow employers to sap the spirit of 
workers and to kill the drive to unionize.
    Fourth, we found a major problem that even if workers 
succeed in creating a union, bad-faith or so-called surface 
negotiations on the part of an employer lead to an almost 
useless remedy, an order simply to return to the bargaining 
table and continue the same practices. New solutions such as 
first contract arbitration are clearly needed.
    Fifth, we found that the right to strike is undermined when 
employers are allowed to permanently replace workers, as they 
are entitled to do under U.S. law for any strike that occurs 
for economic reasons. That power effectively nullifies the 
right to strike as defined by the International Labor 
Organization. Allowing permanent replacement workers crosses 
the line balancing the rights of employers and workers and tips 
the so-called balance of pain decidedly in favor of the 
employers.
    Finally, we found that too many workers are excluded 
altogether from the limited protections that U.S. labor laws 
currently afford. Farm workers, household domestic workers, 
low-level supervisors, contingent workers, and so-called 
independent contractors who are really dependent on a single 
employer--all of these categories of workers are denied basic 
rights under the NLRA. There is clearly a need to update the 
law to meet the new employment categories of the new economy, 
such as temporary workers and independent contractors.
    Taken together, these abuses we found constitute a huge 
obstacle to workers' choices to try to form a labor union. 
They, of course, are not insurmountable. Unions sometimes 
succeed. Workers sometimes get their choice. But they have 
created an unfair playing field tilted sharply against the free 
choice of workers. There is an urgent need for Congress to take 
action to restore fairness in our labor relations and to 
improve respect for this basic right of our Nation's workers.
    Thank you very much.
    The Chairman. Thank you very much.
    [The prepared statement of Mr. Roth follows:]

        Prepared Statement of Kenneth Roth, Executive Director, 
                           Human Rights Watch

                              INTRODUCTION

    Nico Valenzuela and his coworkers at a Chicago-area 
telecommunications castings company voted by a large majority in 1987 
to form and join a union. Valenzuela is still working, but collective 
bargaining proved futile in the face of a management campaign to punish 
workers for their vote. Despite repeated findings by the National Labor 
Relations Board (NLRB) that the company acted unlawfully, legal 
remedies took years to obtain. The workers abandoned bargaining in 
1999, 12 years after they formed a union, never having achieved a 
contract. The delays ``took away our spirit,'' said Valenzuela of the 
bargaining process. ``I don't know how the law in this country can 
allow these maneuvers.''\1\
---------------------------------------------------------------------------
    \1\ Human Rights Watch interview, Chicago, Illinois, July 8, 1999.
---------------------------------------------------------------------------
    These midwestern telecommunications workers have much in common 
with workers across the country who are seeking to exercise their labor 
rights. In the first comprehensive analysis of workers' freedom of 
association in this country under international norms, Human Rights 
Watch found widespread labor rights violations across regions, 
industries, and employment status. The cases revealed in our research 
and described in this testimony are not exceptional, but rather are 
indicative of a systemic failure to ensure the most basic right of 
workers: their freedom to choose to come together to negotiate the 
terms of their employment with their employers. The right to associate 
freely with others--to pursue common goals, to express ideas, to 
further a shared desire to work in safety and with dignity--is a 
fundamental freedom of democratic societies and a core American value. 
America owes it to its workers to respect this right. It also 
compromises its ability to champion this freedom around the world when 
it is imperiled at home.
    Human Rights Watch is neither pro-union nor pro-management. Our 
work on labor rights stems from our commitment to freedom of 
association and freedom of choice for individual workers. Our 
commitment is to enable workers to exercise their right to organize, 
bargain collectively, and strike, not to serve the institutional 
interests of either unions or employers.
    Many Americans think of workers' efforts to organize, bargain 
collectively, and strike solely as union-versus-management disputes. 
They do not see these disputes as raising human rights concerns that 
implicate core freedoms. Simply put, if the rights of workers are not 
respected and protected, then the strength of American democracy and 
freedom is diminished. Both historical experience and a review of 
current conditions around the world indicate that freedom of 
association is a vital element of democratic societies. Human rights 
cannot flourish where workers' ]ights are not enforced.

                        SCOPE OF HRW'S RESEARCH

    Our report, released in August of 2000, is entitled Unfair 
Advantage: Workers' Freedom of Association in the United States Under 
International Human Rights Standards. The report was based on field 
research undertaken during 1999-2000 in California, Colorado, Florida, 
Illinois, Louisiana, New York, North Carolina, Michigan, Washington, 
and other states. Our research includes case studies from a range of 
sectors--services, industry, transport, agriculture, high tech--in 
order to assess the State of workers' freedom of association across the 
economy. We looked at cases that arose in cities, suburbs, and rural 
areas in different parts of the United States. We deliberately focused 
on a cross-section of workers--high skill and low skill, blue collar 
and white collar, resident and migrant, women and men, involving people 
of different races, ethnicities, and national origins. Many of the 
cases involved the most vulnerable parts of the labor force. These 
include migrant farmworkers, sweatshop workers, household domestic 
workers, undocumented immigrants, and welfare-to-work employees. The 
report, however, also examines the rights of U.S. workers with many 
years of employment at stable, profitable employers. These include 
packaging factory workers, steel workers, shipyard workers, food 
processing workers, nursing home workers, and computer programmers.
    Our research examines a cross-section of workers' attempts to form 
and join unions, to bargain collectively, and to strike. Although this 
hearing focuses largely on obstacles to forming unions, it is important 
to emphasize that these three rights are inextricably linked.
    Freedom of association, of course, is the bedrock workers' right 
under international law on which all other labor rights rest. In the 
workplace, freedom of association takes shape in the right of workers 
to organize, most often by forming and joining trade unions, to defend 
their interests in employment. Protection of workers' right to organize 
is an affirmative responsibility of governments to ensure workers' 
freedom of association.
    The right to organize, however, does not exist in a vacuum. Workers 
organize for a purpose: to give unified voice to their need for just 
and favorable terms and conditions of employment when they have freely 
decided that collective representation is preferable to individual 
bargaining or management's unilateral power. The right to bargain 
collectively stems from the principle of freedom of association and the 
right to organize. Protecting the right to bargain collectively 
guarantees that workers can engage their employer in dialog, exchange 
relevant information, and debate proposals governing terms and 
conditions of employment. It is the means by which the right of 
association shapes the lives of workers and employers.
    The right to bargain collectively is compromised without the right 
to strike. This right also must be protected because without it there 
cannot be genuine collective bargaining. There can be only collective 
entreaty. As with collective bargaining, international norms 
contemplate a greater level of regulation of strikes because strikes 
can affect not only the parties to a dispute, but others as well. 
Congress nonetheless should keep these rights squarely within its 
sights as it focuses on obstacles to forming and joining unions. The 
right to organize, the right to bargain collectively, and the right to 
strike, all derive from the basic right to freedom of association. The 
case studies detailed in our report reflect violations and obstacles 
that workers encountered in the exercise of these three interrelated 
rights.

                          SUMMARY OF FINDINGS

    Human Rights Watch found that freedom of association is a right 
under severe, often buckling pressure when workers in the United States 
try to exercise it. Violations of this right occur across regions, 
industries, and employment status because U.S. labor law is feebly 
enforced and filled with loopholes. Some workers still succeed in 
organizing new unions, but only after surmounting major obstacles.
    According to statistics from the National Labor Relations Board 
(NLRB), the Federal agency created to enforce workers' organizing and 
bargaining rights, the problem is getting worse. In the 1950's, workers 
who suffered reprisals for exercising the right to freedom of 
association numbered in the hundreds each year. In 1969, the number was 
more than 6,000. By the 1990's, more than 20,000 workers each year were 
victims of discrimination that was serious enough for the NLRB to issue 
a ``back-pay'' or other remedial order. There were nearly 24,000 such 
workers in 1998, the last year for which official figures are 
available. Meanwhile, the NLRB's budget and staff have not kept pace 
with this growing need.
    Freedom of association is a fundamental human right recognized 
under international law. The International Covenant on Civil and 
Political Rights (ICCPR), which the United States ratified in 1992, 
declares: ``[E]veryone shall have the right to freedom of association 
with others, including the right to form and join trade unions for the 
protection of his interests.'' The ICCPR requires ratifying states ``to 
respect and to ensure to all individuals within its territory and 
subject to its jurisdiction the rights recognized in the present 
Covenant'' and ``to adopt such legislative or other measures as may be 
necessary to give effect to the rights recognized in the present 
Covenant.'' The ICCPR also constrains ratifying states ``to ensure that 
any person whose rights or freedoms as herein recognized are violated 
shall have an effective remedy.'' These principles have been further 
developed by the International Labor Organization (ILO), a U.N.-related 
body with tripartite representation by governments, workers, and 
employers and nearly universal governmental membership. The ILO's 
Committee on Freedom of Association has elaborated authoritative 
guidelines for implementing the rights to organize, bargain 
collectively, and strike.
    The basic provisions of the NLRA comport with international human 
rights norms regarding workers' freedom of association. The NLRA 
declares a national policy of ``full freedom of association'' and 
protects workers ``right to self-organization, to form, join, or assist 
labor organizations, to bargain collectively through representatives of 
their own choosing, and to engage in other concerted activities for the 
purpose of collective bargaining or other mutual aid or protection. . . 
.'' \2\ The NLRA makes it unlawful for employers to ``interfere with, 
restrain, or coerce'' workers in the exercise of these rights. It also 
creates the National Labor Relations Board (NLRB) to enforce the law by 
investigating and remedying violations.
---------------------------------------------------------------------------
    \2\ 29 U.S.C. Sec. Sec. 151-169, Section 7.
---------------------------------------------------------------------------
    Despite the law's facial compliance with international human rights 
principles, Human Rights Watch found in our research that the reality 
of NLRA enforcement falls far short of these standards. Private 
employers are the main agents of abuse, but international human rights 
law makes governments responsible for protecting vulnerable persons and 
groups from patterns of abuse by private actors. In the United States, 
efforts to enforce labor law often fail to deter unlawful conduct. When 
the law is applied, enervating delays and weak remedies invite 
continued violations.
    Violations of workers' freedom of association in the United States 
fall into five broad categories:

1. Reprisals for Trying to Organize Unions
    Each year thousands of workers in the United States are spied on, 
harassed, pressured, threatened, suspended, fired, deported, or 
otherwise victimized by employers in reprisal for their exercise of the 
right to freedom of association. Firing a worker for organizing is 
illegal but commonplace in the United States. Many of the cases 
examined by Human Rights Watch reflect the frequency and the 
devastating effect of discriminatory discharges on workers' rights. An 
employer determined to get rid of a union activist knows that all that 
it risks, after years of litigation if the employer persists in 
appeals, is a reinstatement order that the worker is likely to decline 
and a modest back-pay award. For many employers, that is a small price 
to pay to destroy a workers' organizing effort.
    Employers also often threaten to call the Immigration and 
Naturalization Service (INS) to have immigrant workers deported if they 
form and join a union.
    These abuses are facilitated by one-sided rules on communications 
in the course of a labor dispute. Employers can take advantage of the 
lack of level playing field regarding communications by waging 
aggressive campaigns against workers' self-organization through 
written, oral, and filmed communications, and ``captive-audience 
meetings'' while workers are severely limited in their ability to 
communicate with union representatives at the workplace.

2. Inadequate Remedies
    Labor law is so weak that companies often treat the minor penalties 
as a routine cost of doing business, not a deterrent against 
violations. Any employer intent on resisting workers' self-organization 
can drag out legal proceedings for years, fearing little more than an 
order to post a written notice in the workplace promising not to repeat 
unlawful conduct and grant back pay to a worker fired for organizing. 
In one case, a worker fired for 5 years received $1,305 back pay and 
$493 interest.\3\ Many employers have come to view remedies such as 
back pay for workers fired because of union activity as a routine cost 
of doing business, well worth it to get rid of organizing leaders and 
derail workers' organizing efforts. As a result, a culture of near-
impunity has taken shape in much of U.S. labor law and practice. 
Moreover, the recent Supreme Court decision in Hoffman Plastic 
Compounds v. NLRB denying back pay to an undocumented worker because he 
was not legally authorized to work in the United States makes the 
problem even more severe for undocumented workers. The case, which was 
decided in March of this year, represents a decision by the Supreme 
Court to value legislation governing illegal immigration more highly 
than legislation protecting the rights of workers.
---------------------------------------------------------------------------
    \3\  Under the NLRA, back-pay awards are ``mitigated'' by earnings 
from other employment. Employers who illegally fire workers for 
organizing need only pay the difference, if any, between what workers 
would have earned had they not been fired, and what they earned on 
other jobs during the period of unlawful discharge. Since workers 
cannot remain without income during years of litigation, they must seek 
other jobs and income, leaving the employers who violate their rights 
with an often negligible back-pay liability.
---------------------------------------------------------------------------
3. Procedural Delays
    Employers can resist union organizing by dragging out legal 
proceedings for years. Workers fired for organizing and bargaining 
often wait years for their cases to be decided by labor boards and 
courts, while employers pay no price for deliberate delays and 
frivolous appeals. Debilitating delays occur in unfair labor practice 
cases. Most cases involve employers' discrimination against union 
supporters or employers' refusal to bargain in good faith. After the 
issuance of a complaint, several months usually pass before a case is 
heard by an administrative law judge. Then several more months often go 
by while the judge ponders a decision. The judge's decision can then be 
appealed to the NLRB, where 1, 2, or 3 years can go by before a 
decision is issued. The NLRB's decision can then be appealed to the 
Federal courts, where again up to 3 years pass before a final decision 
is rendered. Many of the workers in cases we studied had been fired 
years earlier and had even won reinstatement orders from administrative 
judges and the NLRB, but they were still waiting for clogged courts to 
rule on employers' appeals.
    In another example, U.S. law forbids permanent replacement of 
workers who strike over employers' unfair labor practices, as distinct 
from ``economic strikers'' seeking better contract terms. The latter 
can be permanently replaced; unfair-labor-practice strikers are 
entitled to reinstatement when they end their strike. However, it often 
takes years of NLRB and Federal court proceedings before a final 
decision is made on whether replaced workers have a right to 
reinstatement.

4. Undermining the Right to Strike
    Employers have the legal power to permanently replace workers who 
exercise the right to strike. This power in the hands of employers 
effectively nullifies the right to strike. While international norms 
limit the right to strike, for example exempting members of the 
military and the police, they do not authorize permanent replacements. 
Permanent replacement crosses the line balancing the rights of workers 
and employers and undercuts a fundamental right of workers. With the 
one-sided pain of a strike marked by permanent replacements, the 
employer maintains operations, workers who exercised the right to 
strike are left to languish, and after just 1 year permanent 
replacement workers can vote to extinguish the strikers' right to 
representation and collective bargaining. In addition, harsh rules 
against ``secondary boycotts'' frustrate worker solidarity efforts. 
Mutual support among workers and unions recognized in most of the world 
as legitimate expressions of solidarity is harshly proscribed under 
U.S. law as an illegal secondary boycott.
5. Exclusion of Workers From Coverage Under Labor Laws
    Millions of workers--including farm workers, household domestic 
workers, low-level supervisors, and ``independent'' contractors who are 
really dependent on a single employer--are excluded from labor laws 
meant to protect workers' organizing and bargaining rights. They can be 
fired with impunity for trying to form a union, and their number is 
growing. The H2-A program, for example, grants migrant workers a 
temporary visa for agricultural work in the United States. They labor 
at the sufferance of growers who can fire them and have them deported 
if they try to form or join a union.
    Labor laws have failed to keep pace with changes in the economy and 
new forms of employment relationships, creating millions of part-time, 
temporary, subcontracted, and otherwise ``atypical'' or ``contingent'' 
workers whose exercise of the right to freedom of association is 
frustrated by the law's inadequacy. Many workers find themselves caught 
up in a web of labor contracting and subcontracting, which effectively 
denies them the right to organize and bargain with employers who hold 
real power over their jobs and working conditions.
    Without diminishing the seriousness of the obstacles and violations 
confronted by workers in the United States, a balanced perspective must 
be maintained. U.S. workers generally do not confront gross human 
rights violations where death squads assassinate trade union organizers 
or collective bargaining and strikes are outlawed.\4\ However, the 
absence of systematic government repression does not mean that workers 
in the United States have effective exercise of the right to freedom of 
association. On the contrary, workers' freedom of association is under 
sustained attack in the United States, and the government is often 
failing its responsibility under international human rights standards 
to deter such attacks and protect workers' rights.
---------------------------------------------------------------------------
    \4\ At the same time, Human Rights Watch did find instances in 
various case studies of interference with workers' rights by government 
authorities. They included biased intervention by police and local 
government authorities and government subsidization of workers' rights 
violators. While these cases do not rise to a level of systemic abuse, 
they are no less troubling and, if they are not addressed and stopped, 
such abuses could spread.
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      SELECTED CASE STUDIES FROM THE HUMAN RIGHTS WATCH REPORT \5\

1. Service Sector Workers
            Nursing Home Workers In Southern Florida
    At the Palm Garden nursing home in North Miami, managers forged 
signatures on warning notices against Leonard Williams, a key union 
activist. They backdated the notices, then fired Williams shortly 
before a union election in April 1996. The union lost the election 35-
32. Soon afterward, the company fired Marie Sylvain, another organizing 
leader.
---------------------------------------------------------------------------
    \5\ The cases detailed in this testimony are described in Human 
Rights Watch's August 2000 report. Human Rights Watch has not yet done 
a follow-up investigation to that report. Developments occurring since 
August 2000 thus are not described in this testimony.
---------------------------------------------------------------------------
    The NLRB has ordered Palm Garden to offer Williams and Sylvain 
reinstatement to their jobs with back pay. The agency also ordered a 
new election because of management's unlawful conduct. The company had 
appealed both rulings, and they were tied up in courts. Meanwhile, 
Williams and Sylvain were obliged to wait.
    ``Why does it take so long?'' asked Marie Sylvain. ``I've been 
fired for more than 3 years. Everything takes too long. Where is the 
justice? Everything is at the boss's advantage with all these delays. 
The law gives you something with one hand then takes it away with the 
other hand.'' Asked if she would accept reinstatement, Sylvain said, 
``I would like to come back for 1 week just to show them the union can 
win.''
    Workers at the King David Center in West Palm Beach voted 48-29 in 
favor of union representation in an NLRB election in August 1994. ``I 
had a determination to get respect,'' said Jean Aliza, the first of 
several workers fired for organizing activity at King David. ``I am a 
citizen, and I deserve respect.'' The NLRB ruled that the company 
proceeded systematically to fire the most active union supporters, 
including Jean Aliza and Ernest Duval. In 1999, however, the workers 
had still not been reinstated because of appeals to the courts.
    Jean Aliza was ``set up'' by managers and fired early in the 
organizing effort, after a year-long ``satisfactory'' record suddenly 
became ``unsatisfactory'' based on warning notices he never saw. The 
NLRB said that King David ``was determined to rid itself of the most 
vocal union supporter from the beginning,'' referring to Ernest Duval.
    Ernest Duval was still vocal about his union support when he spoke 
to Human Rights Watch in July 1999, but he was also frustrated. ``I see 
the government protecting management,'' he said. ``It's been 4 or 5 
years now, and I've got bills to pay. Management has the time to do 
whatever they want.''

2. Food Processing Workers
            Pork Processing Workers in North Carolina
    Smithfield Foods hog-processing plant in Tar Heel, North Carolina 
is the largest hog slaughtering facility in the country. According to 
NLRB complaints, ten workers were fired between 1993 and 1995 for union 
activity at the Smithfield plant, and five more organizing leaders were 
fired in 1997 and 1998. Besides firing key union activists, Smithfield 
management opposed workers' organizing efforts with interference, 
intimidation, coercion, threats, and discrimination. These unfair labor 
practices came so fast and furious that a hearing originally set for 
1995 on complaints from the 1994 campaign did not take place until 
1998-99 as new complaints were consolidated with earlier ones.
    The NLRB complaints describe in detail Smithfield's offensive 
against union supporters. In dozens of instances cited in the 
complaints, Smithfield managers and supervisors issued oral and written 
warnings and suspensions against union supporters; threatened to close 
the plant, deny pay raises and promotions, fire workers, and blacklist 
any striking workers from employment at other conlpanies; confiscated 
union flyers from workers; asked workers to spy on other workers' union 
activity; grilled workers about other workers' union activities; 
interrogated workers about their own union sentiments; spied on the 
activities of pro-union workers; indicated to workers that management 
was spying on their union activities; applied a gag rule against union 
supporters while giving union opponents free rein; applied work rules 
strictly against union supporters but not against union opponents; 
offered benefits to workers if they would drop support for the union; 
and assaulted and caused the arrest of an employee in retaliation for 
workers' engaging in union activity.

3. Manufacturing Workers
            Low-Wage Packaging Workers in Maryland
    In the mid-1990s, a new company called Precision Thermoforming and 
Packaging, Inc. (PTP) employed more than 500 workers in a Federal 
``empowerment zone'' in a Baltimore, Maryland neighborhood called 
``Pigtown.'' This company in an urban factory setting, with low-wage 
workers exercising their right to freedom of association, offers an 
example of even harsher anti-organizing tactics.
    The company received indirect State subsidies worth millions of 
dollars through a low-cost lease of manufacturing space in a converted 
warehouse bought by the State in 1994. PTP also received a Federal 
subsidy of $3,000 for each employee it hired who lived inside the 
empowerment zone. It hired more than 250 such workers. Thanks to 
subsidies, the Federal Government's empowerment-zone designation is 
worth a lot of money to employers who set up operations in a zone. The 
government, however, does not use this financial leverage to condition 
empowerment-zone benefits on the fair treatment of workers.
    PTP ran a plastic packaging and shipping operation for flashlights, 
batteries, and computer diskettes. Major customers included Eveready 
Battery and America Online (AOL). AOL shipped millions of free 
diskettes to consumers from the PTP plant.
    In mid-1995, a group of PTP workers began an effort to form and 
join a union. A complaint issued by the NLRB finding merit in unfair 
labor practice charges filed by the union tells what happened next. PTP 
management fired nine workers active in the union-organizing effort. In 
addition, PTP managers and supervisors threatened to close the plant if 
a majority of workers voted in favor of union representation; 
threatened to move work to Mexico; threatened to move the AOL 
production line to another country; threatened that Eveready Battery 
would pull its business from PTP; threatened to fire workers who 
attended union meetings; threatened to fire anyone who joined the 
union; threatened to replace American workers with foreigners if the 
union came in; threatened to transfer workers to dirtier, lower-paying 
jobs if they supported the union; told workers not to take union flyers 
from union organizers; told workers that upper management was going to 
``get them'' for supporting the union; asked employees to report to 
management on the activities of union supporters; stationed managers 
and security guards with walkie-talkies to spy on union handbilling and 
report on workers who accepted flyers; interrogated workers about their 
union sympathies and activities; and denied wage increases and 
promotions to workers who supported the union.
    Charges of massive unfair labor practices by PTP were upheld by the 
NLRB's regional director, who issued a wide-ranging complaint on the 
management conduct described above. The NLRB found PTP's conduct so 
egregious that the regional director announced he would seek a Gissel 
bargaining order, an unusual remedy in U.S. labor law based on a 1969 
Supreme Court decision. Under the Gissel doctrine, a union that has 
obtained majority support from workers who sign cards joining the union 
and seeking bargaining can be certified as the bargaining agent even if 
it loses an election. The Supreme Court in Gissel said that the 
bargaining-order remedy is not limited to ``exceptional'' cases marked 
by ``outrageous'' and ``pervasive'' unfair labor practices. The court 
said that a bargaining order can also be applied ``in less 
extraordinary cases marked by less pervasive practices which 
nonetheless still have the tendency to undermine majority strength and 
impede the election process.'' However, in practice, the NLRB and the 
Federal courts have applied the Gissel remedy sparingly, effectively 
undermining the right of many workers to bargain collectively.
    The NLRB also sought reinstatement and back pay ranging from $6,000 
to $21,000 for workers fired for union activity. In March 1997, 
however, PTP shut its Baltimore plant and declared bankruptcy, citing a 
legal dispute with AOL. With no employer to order to bargain with the 
union, the NLRB fashioned a settlement of the unfair labor practice 
case before it went to hearing. Under the settlement, PTP acknowledged 
the actions outlined in the complaint, promised not to repeat them, and 
promised back pay to the fired workers in the amounts sought by the 
NLRB. Thereafter, the fired PTP workers waited in vain to receive the 
first penny of back pay for their unlawful firings. The Gissel remedy 
is meaningless when there is no employer with whom to bargain. However, 
had the NLRB been empowered to act quickly to initiate bargaining, 
workers might have been able to negotiate over severance pay, continued 
medical insurance, and other conditions in a bankruptcy-related 
closing, or indeed to have offered steps to avoid closing.
            Steelworkers in Colorado
    Oregon Steel Co. permanently replaced more than 1,000 workers who 
exercised the right to strike at its Pueblo, Colorado steel mill in 
October 1997. Many of the replacements came from outside the Pueblo 
area, drawn by the company's newspaper advertisements throughout 
Colorado. A company notice declared, ``It is the intent of the Company 
for every replacement worker hired to mean one less job for the 
strikers at the conclusion of the strike.''
    On December 30, 1997, 3 months after their strike began, Oregon 
Steel workers ended the strike and offered unconditionally to return to 
work. The company refused to take them back except when vacancies occur 
after a replacement worker left. Some workers returned under this legal 
requirement, but most of the Oregon Steel workers were still out of 
work in 2000 because the company permanently replaced them with new 
hires.
    According to a judge who held an 8-month-long hearing on the case, 
the company was guilty of interference, coercion, discrimination, and 
bad-faith bargaining. In all, said the judge, Oregon Steel's unfair 
labor practices ``were substantial and antithetical to good faith 
bargaining.''
    Under this ruling, workers are entitled to reinstatement, because a 
company that violates the law loses the right to permanently replace 
strikers. However, the company appealed the decision and vowed to keep 
appealing for years before a final decision is obtained in the case. In 
the meantime, the workers remained replaced and without their chosen 
means to support themselves and their families.
    Joel Buchanan, a worker with twenty-nine years in the Oregon Steel 
plant, told Human Rights Watch, ``Before the strike the company was 
pushing us for forced overtime. When we asked them to hire new people 
to give us some relief, they told us they couldn't find qualified 
workers anywhere in Colorado. But when we went out, suddenly they came 
up with hundreds of replacements.''
            Apparel Workers in New York
    The resurgence of sweatshops in America reflects a ``race to the 
bottom'' on labor rights and labor standards more often attributed to 
export processing zones in Third World countries. For workers in the 
United States, as is often the case in Central American or East Asian 
sweatshops, freedom of association is the first casualty.
    Researching violations of workers' freedom of association in U.S. 
sweatshops posed a sharp challenge. Workers trapped in the sweatshop 
system are so victimized in every aspect of their working lives that an 
open exercise of the right to organize and associate is an 
extraordinary event. Most sweatshop workers are so burdened by the need 
to make it through another day that forming a union is beyond their 
energies. Moreover, as Human Rights Watch found in other, non-
sweatshop-sector cases, immigrant workers' problems with authorization 
papers and fear of deportation also prevent efforts to organize in 
sweatshops.
    Sweatshop workers turn to collective action as a last resort, 
usually when they realize that their employer has no intention of 
paying them even their sub-minimum wages for weeks of work already 
performed. Minimum-wage violations, overtime-pay violations, health and 
safety violations, sexual harassment, and other problems in the garment 
industry are an accepted fact of working life, especially in the two 
largest urban regions in the country, New York and Los Angeles.
    A 1994 report by the Federal Government's General Accounting Office 
found that sweatshops were widespread in the garment sector. The report 
noted declining resources for labor-law enforcement by Federal and 
State authorities and concluded that ``In general, the description of 
today's sweatshops differs little from that at the turn of the 
century.''\6\
---------------------------------------------------------------------------
    \6\ See U.S. General Accounting Office, ``Prevalence of 
Sweatshops,'' GAO/HEHS-95-29, November 2, 1994.
---------------------------------------------------------------------------
    Apparel manufacturing is a multibillion-dollar industry employing 
more than 700,000 workers in the United States. The garment sector is 
the biggest manufacturing industry in New York and Los Angeles, where 
in each region more than 100,000 workers labor in some 5,000 
contracting and subcontracting sewing shops. Women who have recently 
migrated to the United States from Asia and Latin America are a 
significant majority of the workforce. These small shops compete 
fiercely for business from the manufacturers. Violating wage and hour 
laws is the quickest and easiest way to gain a competitive advantage, 
particularly when workers are not likely to complain or organize for 
improvements.
    Under current law, retailers and manufacturers who profit from 
sweatshops' race to the bottom on labor standards are not held 
responsible for labor-law violations committed by contractors or 
subcontractors, including violations of workers' organizing rights. The 
large companies are insulated by the hierarchical structure of the 
industry and the reliance on onejob, quick-turnaround, unpredictable 
subcontracting arrangements that have largely displaced traditional 
longer-term, stable contracting relationships.
    One example illustrates the difficulties faced by workers in the 
apparel industry. According to UNITE representative Bertha Wilson, 
employees from a Manhattan sewing shop called YPS came to the union-
sponsored workers' center in 1997 because they were owed back wages, 
even though YPS subcontracted production for brand-name companies such 
as Lord & Taylor, Ann Taylor, and Express. One of the workers told 
Human Rights Watch that workers were not being paid on time, that 
managers mistreated workers, that drinking fountains did not work, and 
that workers received no rest or lunch breaks. ``We were aware that we 
were illegal,'' she said, ``so we were kind of like slaves.'' She said 
that women workers were especially mistreated. ``One of the managers 
would touch the women,'' she said. ``If they complained they were 
fired. A few women were actually fired, and others just took it. We 
didn't know what our rights were, so we just accepted things.'' With 
four to 5 weeks' back pay owing to workers, ``the boss wanted to pay us 
with clothes. But how were we going to sell them for money?''
    In November 1997,YPS employees stopped work and demanded union 
recognition and 4 to 6 weeks of back pay. According to Bertha Wilson, 
the owner said he would recognize the union as long as the union did 
not contact Ann Taylor. In December, the owner signed an agreement 
calling for an end to sexual harassment, a forty-five-minute lunch 
break, and incremental back-pay disbursements each week.
    The YPS agreement held up only for 2 weeks. The owner again halted 
back-pay disbursements, and employees stopped work. YPS shut its doors 
and went out of business. UNITE organized a workers' demonstration at 
the headquarters of brand-name companies that had contracted for work 
with YPS. Those companies agreed to make workers whole for lost wages, 
but by then workers had scattered to other locations. Many failed to 
collect their pay, fearing to come forward, said Wilson, because they 
were undocumented and afraid of INS action.

4. Migrant Agricultural Workers
            Apple Workers in Washington
    Thousands of workers are employed in the warehouse sector of the 
Washington apple industry. Like apple pickers, many seasonal workers in 
the warehouses are migrants from Mexico.
    Apple-warehouse workers are not defined as agricultural workers. 
They are covered by the NLRA, which makes it an unfair labor practice 
to threaten, coerce, or discriminate against workers for union-
organizing activity. But when workers at one of the largest apple-
processing companies sought to form and join a union in 1997 and 1998, 
management responded with dismissals of key union leaders and threats 
that the INS would deport workers if they formed a union.
    Here is how one worker described the company's tactics:

          At the meetings they talked the most about the INS. . . . 
        [T]he company keeps talking about INS because they know a lot 
        of workers on the night shift are undocumented--I would guess 
        at least half. . . . It is only now that we have started 
        organizing that they have started looking for problems with 
        people's papers. It is only now that they have started 
        threatening us with INS raids. . . . They know that we are 
        afraid to even talk about this because we don't want to risk 
        ourselves or anyone else losing their jobs or being deported, 
        so it is a very powerful threat. . . .

    The union lost the NLRB election even though a majority of workers 
had signed cards to join the union and authorize the union to bargain 
on their behalf.
            H-2A Farmworkers in North Carolina
    About 30,000 temporary agricultural workers enter the United States 
each year under a special program called H-2A giving them legal 
authorization to work in areas where employers claim a shortage of 
domestic workers. H-2A workers have a special status among migrant 
farmworkers. They come to the United States openly and legally. They 
are covered by wage laws, workers' compensation, and other standards.
    But valid papers are no guarantee of protection for H-2A workers' 
freedom of association. As agricultural workers, they are not covered 
by the NLRA's anti-discrimination provision meant to protect the right 
to organize.
    H-2A workers are tied to the growers who contract for their labor. 
They have no opportunity to organize for improved conditions and no 
opportunity to change employers to obtain better conditions. If they 
try to form and join a union, the grower for whom they work can cancel 
their work contract and have them deported.
    More than 10,000 migrant workers with H-2A visas went to North 
Carolina in 1999, making growers there the leading employers of H-2A 
workers in the United States. North Carolina's H-2A workers are mostly 
Mexican, single young men, who harvest tobacco, sweet potatoes, 
cucumbers, bell peppers, apples, peaches, melons, and various other 
seasonal crops from April until November.
    At home ``there's no work,'' workers told Human Rights Watch, 
explaining their main reason for emigrating. Many of the workers come 
from rural villages in Mexico. In most cases earnings in U.S. dollars 
from their H-2A employment were the only source of income for their 
families and for their communities.
    Human Rights Watch found evidence of a campaign of intimidation 
from the time H-2A workers first enter the United States to discourage 
any exercise of freedom of association. Legal services attorneys and 
union organizers are ``the enemy,'' they are told by growers' 
officials. Most pointedly, officials lead workers through a ritual akin 
to book-burning by making them collectively trash ``Know Your Rights'' 
manuals from legal services attorneys and take instead employee 
handbooks issued by growers.
    On paper, H-2A workers can seek help from legal services and file 
legal claims for violations of H-2A program requirements (but not for 
violation of the right to form and join trade unions, since they are 
excluded from NLRA protection). However, in this atmosphere of grower 
hostility to legal services, farmworkers are reluctant to pursue legal 
claims that they may have against growers. ``They don't let us talk to 
legal services or the union,'' one worker told Human Rights Watch. 
``They would fire us if we called them or talked to them.''
5. Contingent Workers
            High-Tech ``Perma-temps'' in Seattle
    An example of temporary-agency workers' dilemma is found among 
workers at the cutting edge of the new economy. At the time of our 
report, more than 20,000 workers were employed at Microsoft's 
facilities in the Seattle area. Six thousand of them, however, were not 
employed by Microsoft. Instead, they were employed by temporary 
agencies supplying high-tech workers to Microsoft and other area 
companies. Many had worked for several years at Microsoft, and had come 
to be known as ``perma-temps.''
    Some Microsoft perma-temps formed the Washington Alliance of 
Technology Workers (WashTech) in early 1998. WashTech has a ``Catch-
22''-type problem. By defining perma-temps as contractors employed by 
various temporary agencies, Microsoft avoided being their employer for 
purposes of the NLRA's protection of the right to organize. Meanwhile, 
the agencies told temps that in order to form a union that agency 
management would deal with, they would have to organize other employees 
of the agency, not just those working at Microsoft.
    ``First we asked our Microsoft managers to bargain with us,'' said 
perma-temp Barbara Judd, describing an effort by her and a group of 
coworkers to be recognized by Microsoft. Management refused. Responding 
to press inquiries, a spokesman for Microsoft said, ``bargaining units 
are a matter between employers and employees and Microsoft is not the 
employer of the workers.''
    Attempts to be recognized by the temp agencies were equally 
unavailing. `` ` We don't have to talk to you, and we won't' is what 
they told us,'' said Judd. ``They told us we had to get all the temps 
that worked at other companies besides Microsoft. We had no way to know 
who they were or how to reach them. Besides, they had nothing to do 
with our problems at Microsoft.''
    Barbara Judd's perma-temp post at Microsoft ended in March 2000 
when the company announced it was abandoning the tax-preparation 
software project that she and her coworkers developed. ``We received 2 
days notice'' before being laid off, Judd told Human Rights Watch. Some 
workers moved to another tax-preparation software company, but Judd 
decided to look for full-time employment. ``I don't want to be a part 
of that system,'' she said. ``Workers who take temp jobs do not realize 
there is a larger impact than just the absence of benefits. You 
essentially lose the ability to organize. . . . [T]he legal system is 
just not set up to deal with these long-term temp issues.''
       undermining u.s. promotion of labor rights internationally
    The United States has long been a global leader in promoting human 
rights and fundamental freedoms. Freedom of association is a basic 
human right and a bedrock principle of democratic society. The United 
States, however, cannot champion this right effectively around the 
world unless it is protected here at home.
    Over the past few years, the U.S. Government has periodically 
endorsed calls for integrating human rights and labor rights into the 
global trade and investment system. Freedom of association is the first 
such right cited. To give effective leadership to this cause, the 
United States must confront and begin to solve its own failings when it 
comes to workers' rights. Moving swiftly to strengthen labor-rights 
enforcement and deter labor-rights violations in the United States will 
advance U.S. concern for ensuring worldwide respect for core labor 
standards.

                               CONCLUSION

    Our report, Unfair Advantage, contains numerous specific 
recommendations for remedying violations of workers' rights in the 
United States and promoting workers' freedom of association. I urge the 
members of the Committee to review these recommendations and give them 
careful consideration as the Committee formulates its response to the 
problems detailed in today's testimony.
    There is, however, a more overarching point that bears emphasis. 
Freedom of association occupies a fundamental place in the American 
legal system and among American values. Beyond the technicalities of 
administrative regulations, jurisprudence or statutory reforms, a 
larger reality looms over labor law and practice in the United States. 
So long as worker organizing, collective bargaining, and the right to 
strike are seen only as economic disputes involving the exercise of 
power in pursuit of higher wages for employees or higher profits for 
employers, change is unlikely. Human Rights Watch took on this issue 
because it is a human rights issue, and we believed that our 
involvement could provide an impetus for change by carefully 
documenting violations and obstacles confronting workers seeking to 
organize, and analyzing these issues as human rights concerns.
    The United States should look to international human rights 
standards to inform its analysis of the problem and of possible 
remedies. Such a perspective is critically important for the 
government, but employers, workers, and unions should also carry out 
their affairs with a clear recognition that workers' self-organization 
is a fundamental human right and a core American value. In addition, 
the United States should ratify ILO Conventions 87 and 98 on worker 
organizing and protections against anti-union discrimination to 
demonstrate that it is serious about workers' freedom of association. 
U.S. Government efforts to stand tall for freedom around the world will 
be strengthened by supporting freedom of association at home.
    In the end, what is most needed is a new spirit of commitment by 
the labor law community and the government to give effect to both 
international human rights norms and the still-vital affirmation in the 
United States' own basic labor law for full freedom of association for 
workers. The specific findings and recommendations contained in our 
report should be seen in this broader context. We are hopeful that 
today's hearing will shine a spotlight on the human rights implications 
of the obstacles to workers' freedom of association in the United 
States, and that the Congress will lead an effort to protect and 
promote this fundamental freedom.

    The Chairman. Mr. Vizier.

       STATEMENT OF ERIC J. VIZIER, MARINER, GALLIANO, LA

    Mr. Vizier. Good morning, Chairman Kennedy, Senators, and 
staff. Thank you for providing me, on behalf of my fellow 
mariners from the Gulf of Mexico, the opportunity to tell you 
what we face in the oil industry. Joining me today are Captain 
Mark Cheramie, who worked for Guidry Brothers, and his wife 
Sherry, and Captain Michael Cheramie, who works at Trico Marine 
Services.
    My name is Eric J. Vizier. I am a licensed U.S. Coast Guard 
master of 1,600-ton merchant vessels. I am a third-generation 
mariner from South Louisiana.
    In 2000, Mark and I tried to organize a union at Guidry 
Brothers, an offshore towing company in the gulf, with about 
120 mariners. Our union is Offshore Mariners United, OMU, a 
federation of four maritime unions: SIU, AMO, MEBA, and MM&P. 
We knew we needed a union because we are forced to break U.S. 
Coast Guard rules and forced to break environmental laws. The 
pay is poor, the benefits aren't good, and there is no respect. 
The owners think of us mariners as ``boat trash.''
    There was a lot of support among the Guidry mariners for a 
union, and a majority signed union pledge cards. But Guidry's 
response was swift and vicious.
    Guidry Brothers fired four captains for their union 
support, including Mark and myself. The owners interrogated the 
mariners, spied on us, and harassed us. They threatened to 
blackball union supporters. They told us they would shut the 
company down if the union came in. Guidry owners tried to run 
me off the road, and they had me illegally arrested. A Guidry 
owner walked into a restaurant where he knew there would be 
folks from the union. He broke a bottle, held up the jagged 
edge, and said he would use it to cut the throats of union 
organizers.
    But that wasn't enough. Guidry used all the resources of 
the boat owners and the oil and gas industry that have come 
together to fight unions in the gulf.
    The boat owners' own association, Offshore Marine Service 
Association, OMSA, set up an anti-union fund getting 
contributions from every sector of the offshore oil and gas 
industry. OMSA runs training sessions for the boat companies on 
every manner of fighting pro-union mariners and the unions.
    One OMSA member, a boat company called Edison Chouest 
Offshore, formed a front group know as the Concerned Citizens 
for the Community, CCFC, to fright everyone from supporting the 
union. All the boat owners use CCFC's anti-union procedures and 
materials.
    For instance, my wife, Nikki, who joins me today, was 
harassed with lewd sexual phone calls and jeers from CCFC 
supporters. We know this because the phone calls came from 
Chouest's office.
    My mother's boss, another CCFC supporter, told her she 
could lose her job at a restaurant if I did not stop supporting 
the union. She was also harassed.
    One of the fired pro-union Guidry captains was visited by 
CCFC. He was given a choice. If he stayed pro-union, his son at 
Chouest would lose his job. If he became anti-union, then he 
could go to work at Chouest, too.
    My house was broken into, and a dead fish was left on my 
doorstep. While investigating the break-in, the police received 
a phone call. They stopped investigating and just left without 
completing the report.
    Further, the dock owners and boat companies make access to 
the mariners' workplace impossible. To prevent contact between 
mariners and union staff, the dock owners put up fences, guard 
shacks, and hired security officers.
    The boat companies also use the police to prevent mariners 
from organizing. For example, police arrested union staff for 
leafleting. Police in their squad cars followed union 
organizers. Police detained an international trade union 
delegation, forced them out of their vans, and told them to 
turn over their IDs.
    Port police told mariners and union staff that Federal laws 
protecting the right to organize do not apply at Port Fourchon. 
Boat companies hire police to do anti-union activities in their 
off-duty time, but under the law, the police can still wear 
their uniforms, carry their guns, and use their patrol cars.
    This anti-union campaign is not just limited to Guidry 
mariners. For 2 years, Trico's mariners have sat through weekly 
anti-union meetings. Trico has fired two pro-union captains. 
Mike Cheramie, the captain from Trico who is here today, will 
probably be fired and blackballed by Trico for daring to come 
to Washington, DC, to tell you what is going on in the oil 
patch.
    To whom do we mariners turn for justice? The National Labor 
Relations has failed us. The NLRB found that Guidry had 
illegally fired four captains for union activity, and 40 other 
violations of the law. It was so bad, the Board recommended 
bargaining order was the remedy. But then the Board failed to 
seek a bargaining order either in trial or in settlement, and 
the Board seemed more interested in just getting rid of the 
case than in getting justice. For example, the Board attorney 
told me to take a cash settlement instead of proceeding with 
the case. A few months later, the Board told me a second time 
to take a cash settlement, and when I said I needed to talk to 
the union, the Board attorney told me not to talk to the union.
    A few months after that, the Board attorney called me a 
third time to pressure me to take the settlement, but told me 
she hadn't read it. A few months ago, I asked the Board 
attorney what was happening on the case. She said the Board had 
to pick a side, and they were going with the company. Today, 
Mark and I are still not back at work at Guidry.
    It shouldn't be this hard to form a union. Mariners 
shouldn't have to fight their own company, the other boat 
companies, their customers, the big oil and drilling companies, 
the dock owners, and the police just to have the right to 
choose to be represented by a union.
    We ask this committee to investigate this situation in the 
oil fields. We will provide more detailed information for the 
record. Come to south Louisiana where the industry is based. 
Talk to all the parties involved. Together, let's figure out a 
way that mariners in the oil and gas industry can win their 
rights, their rights to freedom of association and freedom of 
speech.
    Thank you all for your time, Senators.
    The Chairman. Thank you. I have difficulty in understanding 
how a person would break a bottle and come and threaten you, 
but we will talk about it. You look like you are able to handle 
yourself, quite frankly, no matter what they have in their 
hand.
    [The prepared statement of Mr. Vizier follows:]

      PREPARED STATEMENT OF ERIC J. VIZIER, MARINER, GALLIANO, LA

    Good morning, Chairman Kennedy, Senators and staff.
    Thank you for providing me--in behalf of my fellow mariners from 
the Gulf of Mexico--the opportunity to tell you what we face in the oil 
patch. Joining me today are Captains Mark Cheramie, who worked for 
Guidry Brothers Towing, and Michael Cheramie, who works at Trico Marine 
Services.
    My name is Eric J. Vizier. I am licensed by the U.S. Coast Guard to 
serve as a Master of 1600 GT vessels. I am a third generation mariner 
from South Louisiana.
    In 2000, Mark and I tried to organize a union at Guidry Brothers, a 
general offshore towing company in the Gulf of Mexico with about 120 
mariners. Our union is the Offshore Mariners United (OMU), a federation 
of four maritime unions--SIU, AMO, MEBA and MM&P.
    We knew we needed a union because:
     We are forced to break U.S. Coast Guard rules and forced 
to break environmental laws.
     The pay is poor, the benefits aren't good.
     And there's no respect--the owners think of us mariners as 
``boat trash.''
    There was a lot of support among the Guidry mariners for a union 
and a majority signed union pledge cards. But Guidry's response was 
swift and vicious:
     Guidry Brothers fired four captains for their union 
support, including Mark and myself.
     The owners interrogated the mariners about their views on 
the union, they spied on us and they harassed us.
     They threatened to blackball union supporters so they 
won't work again.
     They told us they'd shut the company down if the union 
came in.
     Guidry owners tried to run me off the road and had me 
illegally arrested.
     A Guidry owner walked into a restaurant where he knew 
there would be folks from the union. He broke a bottle, held up the 
jagged edge and said he would use it to cut the throats of union 
organizers.
    But that wasn't enough. Guidry used all the resources of the boat 
owners and the oil and gas industry that have come together to fight 
unions in the Gulf.
    The boat owners own association--the Offshore Marine Service 
Association (OMSA)--set up a union-fighting fund getting contributions 
from every sector of the offshore oil and gas industry. OMSA runs 
training sessions for the boat companies on every manner of fighting 
pro-union mariners and the unions.
    One OMSA member, a boat company called Edison Chouest Offshore, 
formed a front group known as the Concerned Citizens for the Community 
(CCFC) to frighten everyone from supporting the union.
    All the boat owners use CCFC's anti-union procedures and materials.
    For instance, my wife, Nikki, who joins me today, was harassed with 
lude sexual phone calls and jeers from CCFC-supporters. We know this 
because the phone calls came from Chouest's office.
    My mother's boss, another CCFC-supporter, told her she could lose 
her job at a restaurant if I did not stop supporting the union. She was 
also harassed.
    One of the fired pro-union Guidry captains was visited by the CCFC. 
He was given a choice. If he stayed pro-union, his son at Chouest would 
lose his job. If he became anti-union then he could go to work at 
Chouest too.
    My house was broken into and dead fish left on my doorstep. While 
investigating the break-in, the police received a phone call. They 
stopped investigating and just left without completing a report.
    Further, the dock owners and boat companies make access to the 
mariners' workplace impossible. To prevent contact between mariners and 
union staff, the dock owners put up fences, guard shacks and install 
security officers.
    The boat companies also use the police to prevent mariners from 
organizing. For example:
     Police arrest union staff for leafleting.
     Police in their squad cars follow union organizers.
     Police detained an international trade union delegation, 
forced them out of their vans and told to turn over their IDs.
     Port police told mariners and union staff that Federal 
laws protecting the right to organize do not apply at Port Fourchon.
     Boat companies hire police to do anti-union activities in 
their off-time. But under law, the police can still wear their 
uniforms, carry their guns and use their patrol cars.
    This anti-union campaign is not just limited to Guidry mariners. 
For 2 years Trico mariners have sat through weekly anti-union meetings.
    Trico's fired two pro-union captains. Mike Cheramie, the captain 
from Trico who is here today, will probably be fired and blackballed by 
Trico for daring to come to Washington, D.C. to tell you what is going 
on in the oil patch.
    And to whom do we mariners turn for justice?
    The National Labor Relations Board has failed us. The NLRB found 
that Guidry had illegally fired four captains for union activity and 40 
other violations of the law. It was so bad, the Board recommended a 
bargaining order as a remedy.
    But then, the Board failed to seek a bargaining order either in 
trial or in settlement. And the Board seemed more interested in just 
getting rid of the case than in getting justice. For example:
     The Board attorney told me to take a cash settlement 
instead of proceeding with the case.
     A few months later, the Board told me a second time to 
take a cash settlement and when I said I needed to talk to the union, 
the Board attorney told me not to talk to the union.
     A few months after that, the Board attorney called me a 
third time to pressure me to take the settlement but told me she hadn't 
read it.
     A few months ago, a Board attorney contacted me about my 
back wages. I asked her what was happening on the case. She said the 
Board had to pick a side and that they were going with the company.
     And, today, Mark and I are still not back at work at 
Guidry.
    The OMU also has an access charge against two companies--Trico and 
Seacor. That case has been before the NLRB for a year-and-a-half. The 
Board hasn't even taken the first step and issued a complaint.
    It shouldn't be this hard to form a union. Mariners shouldn't have 
to fight their own company, the other boat companies, their customers 
the big oil and drilling companies, the dock owners and the police just 
to have the right to choose to be represented by a union.
    We ask this Committee to investigate this situation in the Gulf oil 
fields.
    We will provide more detailed information for the record. Come to 
South Louisiana where this industry is based. Talk to all the parties 
involved. Together, let's figure out a way that mariners in the oil and 
gas industry can win their rights--their rights to freedom of 
association and freedom of speech.
    Thank you.

    The Chairman. Mr. Yager.

STATEMENT OF DANIEL V. YAGER, SENIOR VICE PRESIDENT AND GENERAL 
       COUNSEL, LABOR POLICY ASSOCIATION, WASHINGTON, DC

    Mr. Yager. Thank you, Mr. Chairman. It is a pleasure to be 
here this morning.
    As I think was reflected by some of the statements by the 
Members of the committee, this is a long-running debate. I have 
been doing labor policy issues in Washington for about 20 years 
now, and I have seen a lot of other issues come and go, but it 
seems like this one we have been talking about for a long, long 
time.
    For that reason, I think the best statement our association 
has ever given on this issue was before the Dunlop Commission 
in 1994. I have attached to this testimony our testimony from 
that. I took a look yesterday. I think some of the numbers have 
changed, but I did some spot checks on them, and they really 
haven't changed a whole lot. Obviously, in the question and 
answer period, I would be happy to take any questions and any 
discussion on that.
    What I would really like to talk about in my limited time 
is an issue that is, I think, the most pressing concern to our 
Members in this area, and that is what they see as an erosion 
of employee choice in the issue of selection of a collective 
bargaining representative, and essentially a turning away from 
the secret ballot election process. Now, that is a process that 
has been widely endorsed. The Supreme Court, no less than 
Justice William Douglas, has said that that is the procedure 
that should be favored under the statute. The AFL-CIO, in an 
amicus brief on the issue of whether or not there should be a 
secret ballot election when the employees choose to get rid of 
an unpopular union, said that the secret ballot election system 
provides the surest means of avoiding decisions which are the 
result of group pressures and not individual decisions.
    I also noted even in the Human Rights Watch report, they 
indicated that secret ballot elections still have a moral 
primacy. I think that is a good phrase that I will probably 
embrace myself as I talk about this issue.
    The reality is, though, as organized labor's market share 
has declined in recent years, it has embraced a new tactic 
which really goes at, instead of organizing employees, 
organizing employers. The process is getting employees to sign 
a card. Now, this card, unlike a secret ballot election, is 
signed in the presence of an interested party--a union 
organizer, a pro-union coworker. It does not--which in and of 
itself means at a minimum the employee who is being asked to 
sign this card is going to be subjected to peer pressure, but 
oftentimes it is a lot worse than that. We have attached to our 
testimony a number of cases, court cases over the years that 
have documented some of the tactics that have been used to get 
employees to sign these cards.
    Once a majority of the workers have signed these cards, the 
union then can go to the employer and ask them to recognize the 
union. At that point, on the basis of those cards, it is legal 
for an employer to basically say, OK, we will do it this way, 
we won't have an election.
    The law has tolerated that over the years, I think because 
of an assumption that since an employer can ask for an 
election, they--the only reason they would agree to something 
like this would be if they would believe that an election would 
be superfluous, because obviously the union does enjoy the 
support of their workers. So let's forget the election, let's, 
you know, start bargaining and get that going.
    Unfortunately, that assumption can no longer be made 
because today's tactic of getting employers to agree to card 
check recognitions is through something called a corporate 
campaign. You are going to hear a taste of that from one of the 
witnesses in the next panel, so I won't really walk through the 
tactics other than just to give a couple quotes on some 
descriptions.
    For example, the number two person at the AFL-CIO, Rich 
Trumka, has described a corporate campaign as ``a death of a 
thousand cuts.'' A UFCW official indicated--characterized it as 
``putting enough pressure on employers, costing them enough 
time, energy, and money to either eliminate them or get them to 
surrender to the union.'' In this Law Review article, he 
described how, in fact, his local had eliminated a grocery 
concern that had refused to agree to a card check recognition. 
A variety of tactics are used, and I would refer you to my 
testimony to see what some of those are.
    I just want to talk about one instance where this happened, 
and this was a situation involving MGM Grand in Las Vegas, 
where there was about--after the hotel opened, there was a 3-
year corporate campaign to get the company to agree to a card 
check recognition. Finally, the company capitulated, agreed to 
the card check, and at that point a lot of employees got very 
angry because they had not been given a chance to vote on this 
issue. In fact, there were stories about coercion tactics being 
used by the hotel workers union to get them to sign it. So, in 
fact, a majority of the workers--that is 3,000 workers. A 
majority of those workers on three different occasions took a 
petition to the National Labor Relations Board asking for a 
secret ballot election, and the Board refused that over the 
course of year, saying, no, the law is we give the employer and 
the union a reasonable period for bargaining before we will 
have an election on this issue.
    Ultimately, at the end of the year, a collective bargaining 
agreement was reached. At that point, because of the contract 
bar rule, the employees were forbidden from having an election 
for the life of that contract.
    Essentially what happened in that situation was, since the 
employees never got to, in a confidential, uncoerced manner, 
register their views, it was really a decision made by the 
employer. It was really a deal between the employer and the 
union that the union would represent that employer's workers. 
So we would encourage the committee to consider--there is 
legislation pending in the House on this issue, H.R. 4636. We 
would encourage this committee to consider a ban on card check 
organizing, making it an unfair labor practice for the employer 
and the union to enter into these kinds of arrangements. We 
would urge you to take that under advisement.
    I appreciate the opportunity to appear, and I am happy to 
take any questions.
    [The prepared statement of Mr. Yager follows:]

   Prepared Statement of Daniel V. Yager, Senior Vice President and 
             General Counsel LPA, Labor Policy Association

    Mr, Chairman, and Members of the Committee: I am pleased to appear 
before you today to, present the views of LPA, the Labor Policy 
Association, regarding ``Workers' Freedom of Association: Obstacles to 
Forming a Union.'' My name is Daniel V. Yager and I serve as Senior 
Vice President and General Counsel for LPA. As I will discuss in this 
statement, we believe the most serious problem in union organizing 
today is the erosion of employee choice through so-called card check/
neutrality agreements.
    As you may know, LPA is a public policy advocacy organization 
representing senior human resource executives of over 200 leading 
employers doing business in the United States. LPA provides in-depth 
information, analysis, and opinion regarding current situations and 
emerging trends in labor and employment policy among its member 
companies; policymakers, and the general public. Collectively, LPA 
members employ over 19 million people worldwide and over 12 percent of 
the U.S. private sector workforce. LPA's members are employers--with 
both represented and non-represented workforces--covered by the 
National Labor Relations Act. LPA has played an active role over the 
years in congressional consideration of statutory changes in the labor 
laws. We also seek to help shape the law through amicus curiae briefs 
filed with the National Labor Relations Board and the courts. In 
addition, we report extensively on labor law developments through our 
newsletter NLRB Watch and other publications.
    The issue of whether the current American labor laws impose 
unacceptable obstacles to union organizing is assuredly not a new one. 
Since organized labor began experiencing a decline in its market share 
of the workforce in the latter part of the previous century, there have 
been calls for dramatic changes in those, laws which have been 
consistently rejected or ignored by the U.S. Congress. Early in the 
1990's, this issue was fully aired before the Commission on the Future 
of Worker-Management Relations (the so-called Dunlop Commission). At a 
Dunlop Commission hearing in September 1994, Howard Knicely, Executive 
Vice President, Human Resources & Communications for TRW, Inc., and 
Chairman of LPA at the time, delivered a comprehensive statement 
addressing the various aspects of.this debate. I have attached a copy 
of Mr. Knicely's statement to my testimony as it continues to represent 
our views on these issues [see Appendix A]. If anything, since Mr. 
Knicely delivered his testimony, the law has become more favorable 
toward union organizing as a result of 8 years of consistently pro-
labor rulings by the National Labor Relations Board during the Clinton 
administration.
    I would like to direct my testimony to a practice that LPA 
believes, in recent years, has seriously undermined the basic 
protections of our labor laws. One of the cornerstones of American 
labor policy has been that unionization is a matter of employee choice. 
Yet, because in recent years fewer employees have chosen to elect 
unions in traditional secret ballot elections, organized labor has 
adopted a different approach called card check organizing.\1\ Using 
this approach, employers are pressured--typically through a strategy 
called a ``corporate campaign''--into recognizing unions on the basis 
of union authorization cards signed in the presence of a union 
organizer. These agreements are often accompanied by the employer's 
agreement to remain neutral while the union seeks the employees' 
signatures. Where a union is recognized on the basis of a card check, 
the result may be viewed as a deal between the employer and the union 
that the latter will represent employees who have never had an 
opportunity to declare their position in a confidential manner. LPA 
strongly supports legislation that has been introduced in the House--
H.R. 4636, the ``Workers' Bill of Rights''--which would ban card check 
recognition.

                    HOW CARD CHECK ORGANIZING WORKS

    Historically, under the National Labor Relations Act, the decision 
as to whether a union will serve as a collective bargaining 
representative of a group of employees is made through a secret ballot 
election. The election typically takes place after the union has made a 
required showing of sufficient interest among the employees--at least 
30 percent of those it is seeking to represent--in having an election. 
This interest is usually demonstrated by signed union authorization 
cards that indicate a desire by the employee to be represented by the 
union or to have an election to determine that issue. When the election 
is held, it is supervised by the National Labor Relations Board, which 
ensures that employees cast their ballot in a confidential manner with 
no coercion by either management or the union.
    However, the law has allowed an exception in situations where an 
election may be superfluous because it is clear to the employer that 
the union enjoys the support of a majority of the employees. Thus, 
under current law, when presented with union authorization cards signed 
by more than 50 percent of the employees, the employer may voluntarily 
recognize the union. This has been tolerated under the law despite the 
absence of numerous safeguards in the so-called card check process 
compared to those that exist in an NLRB representation election [see 
Chart I].

                 HOW UNIONS GET EMPLOYEES TO SIGN CARDS

    Unlike a secret ballot election, union authorization cards are 
signed in the presence of an interested party--a pro-union co-worker or 
an outside union organizer--with no governmental supervision. There is 
no question that this absence of supervision has resulted in 
deceptions, coercion, and other abuses over the years. Even in the best 
of circumstances, an employee is likely to be subject to peer pressure 
from other pro-union employees to sign the card. At worst, the employee 
may be subjected to deception and threats by organizers to get them to 
sign the cards. The card-signing process is loosely regulated and 
almost always escapes the attention of authorities. However, on 
occasion, a courageous employee has brought to the attention of the 
NLRB or the courts coercive activity, which has been documented in 
numerous decisions over the years [see Appendix B].
    For example, in HCF, Inc. d/b/a Shawnee Manor,\2\ an employee 
testified that a co-employee soliciting signatures on union 
authorization cards threatened that, if she refused to sign, ``the 
union would come and get her children and it would also slash her 
tires.'' Incredibly, the Clinton Board refused to find the union 
responsible for the misconduct of the employee card solicitor. While 
acknowledging that workers assisting a union in card solicitations are 
typically acting as union agents, the Board concluded that ``alleged 
threats of violence, even when made in the course of card solicitation, 
cannot be construed by any reasonable person as representing `purported 
union policies.' ''

         CHART 1: PROCEDURAL SAFEGUARDS: ELECTION V. CARD CHECK

    The following side-by-side comparison explains some of the 
procedural safeguards found in the NLRB election process along with any 
counterpart card check protections:

    Election: An NLRB-approved notice that explains the workers' rights 
must be posted by the employer at least 3 days prior to the election.
    Card Check: Workers are informed of their rights only to the extent 
articulated by the union organizer.
    Election: ``Captive audience'' speeches within 24 hours of the 
election are prohibited.
    Card Check: Employees are subject to unrebutted, pro-union speeches 
up until the time they sign an authorization card.
    Election: The election is conducted by an agent of the NLRB in 
conjunction with an equal number of observers selected by the union and 
employer.
    Card Check: Union authorization cards are solicited in the presence 
of union organizers.
    Election: The election ballot box is physically inspected and 
sealed by the NLRB agent immediately prior to voting.
    Card Check: The union maintains control over signed authorization 
cards.
    Election: The names of prospective voters are compared against a 
previously established eligibility list before they may cast their 
ballots.
    Card Check: Anyone may sign union authorization cards. Although 
forgery of authorization cards is prohibited, there is no safeguard 
that prevents forgeries before the fact.
    Election: The NLRB agent retains positive control over the ballots 
at all times.
    Card Check: The union retains control over authorization cards at 
all times.
    Election: The ballots are secret: no name or other identifying 
information appears on the ballot to indicate how an employee voted.
    Card Check: Both the employer and the union know which employees 
signed authorization cards.
    Election: Employees may not be assisted in casting their votes by 
agents of the union or employer.
    Card Check: Union organizers may fill out and, sign authorization 
cards on behalf of the workers with their express or implied 
permission, regardless of whether they have read the cards.
    Election: Electioneering near the polls is prohibited.
    Card Check: Solicitation of authorization cards may be accompanied 
by any pro-union propaganda that does not rise to a material 
misrepresentation regarding the consequences of signing the card.
    Election: Neither the employer nor the union may engage in coercive 
or threatening conduct prior to the election:
    Card Check: The union may not use threats or coercion in order to 
obtain signed cards nor may the employer use threats or coercion to 
prevent cards from being signed.
    Election: Neither the employer nor the union may grant or promise 
benefits prior to the election.
    Card Check: The union may not promise or grant benefits in order to 
obtain signed cards nor may the employer make promises or grant 
benefits to prevent cards from being signed.
    Election: The ballot box is opened, and the votes are counted by 
the NLRB agent in the presence of the employer and union observers.
    Card Check: The employer may, but is not required to, request that 
a neutral party compare the names on authorization cards to the 
employer's payroll list.

    Yet, even where abuses such as those in Shawnee Manor do not occur, 
union authorization cards are an inadequate method for determining 
employee choice, as the U.S. Supreme Court has acknowledged:

          The unreliability of the cards is not dependent upon the 
        possible use of threats. . . . It is inherent, as we have 
        noted; in the absence of secrecy and the natural inclination of 
        most people to avoid stands which appear to be nonconformist 
        and antagonistic to friends and fellow employees.\3\

    Thus, the Court, in an opinion authored by Justice William O. 
Douglas, concluded that ``in terms of getting on with the problems of 
inaugurating regimes of industrial peace, the policy of encouraging 
secret elections under the Act is favored.'' \4\
    Indeed, even organized labor has sung the virtues of secret ballot 
elections when the issue has been whether or not a union should 
continue to represent a group of employees who apparently no longer 
support it. In recent brief, the AFL-CIO, quoting the U.S. Supreme 
Court, asserted to the NLRB:

          A representation election ``is a solemn . . . occasion, 
        conducted under safeguards to voluntary choice,'' . . . other 
        means of decisionmaking are ``not comparable to the privacy and 
        independence of the voting booth,'' and [the secret ballot] 
        election system provides the surest means of avoiding decisions 
        which are ``the result of group pressures and not individual 
        decision[s].'' \5\

  USE OF CORPORATE CAMPAIGNS TO GET EMPLOYERS TO AGREE TO CARD CHECKS

    Historically, card check recognition has been tolerated because of 
an assumption that, with a legal right to refuse card check 
recognition, an employer would only agree to forego an election if it 
was clear to the employer that such an election would be superfluous 
because of the strong employee support for the union. This assumption 
may have been valid in previous years but, in recent years, employers 
are more likely to be forced into recognition by a strategy called a 
``corporate campaign.'' \6\
    Although there is no simple definition for the term ``corporate 
campaign;'' the substance of the strategy is now well documented by 
academics, the courts, and the unions themselves.\7\ The U.S. Court of 
Appeals for the District of Columbia Circuit summed up the term well 
when it stated that a corporate campaign:

        ``encompasses a wide and indefinite range of legal and 
        potentially illegal tactics used by unions to exert pressure on 
        an employer. These tactics may include, but are not limited to, 
        litigation, political appeals, requests that regulatory 
        agencies investigate and pursue employer violations of State or 
        Federal law, and negative publicity campaigns aimed at reducing 
        the employer's good will with employees, investors, or the 
        general public:'' \8\

    The AFL-CIO likewise explains the process as follows:

          A coordinated corporate campaign applies pressure to many 
        points of vulnerability to convince the company to deal fairly 
        and equitably with the union. In such a campaign, the strategy 
        includes workplace actions, but also extends beyond the 
        workplace to other areas where pressure can be brought to bear 
        on the company. It means seeking vulnerabilities in all of the 
        company's political and economic relationships--with other 
        unions, shareholders, customers, creditors and government 
        agencies--to achieve union goals.\9\

    A more graphic description of a corporate campaign has been 
provided by AFL-CIO Secretary-Treasurer Richard Trumka:

          Corporate campaigns swarm the target employer from every 
        angle, great and small, with an eye toward inflicting upon the 
        employer the death of a thousand cuts rather than a single 
        blow.\10\

    Corporate campaigns can involve a seemingly unlimited number of 
individual pressure tactics. For example, one common tactic is the use 
of legal and regulatory harassment, as described in A Troublemaker's 
Handbook--a veritable how-to manual for corporate campaigns:

          Private companies are subject to all sorts of laws and 
        regulations, from the Securities and Exchange Commission to the 
        Occupational Safety and Health Act, from the Civil Rights Act 
        to the local fire codes. Every law or regulation is a potential 
        net in which management can be snared and entangled. A 
        complaint to a regulatory agency can cause the company 
        managerial time, public embarrassment, potential fines, and the 
        cost of compliance. One well-placed phone call can do a lot of 
        damage.\11\

    One UFCW official; in an article about how his union drove a 
grocery concern out of business, explained this strategy as ``putting 
enough pressure on employers, costing them enough time, energy and 
money--to either eliminate them or get them to surrender to the 
union.''\12\
    Yet, when an employer seeks to defend itself against corporate 
campaign tactics, it often finds that its hands are tied. For example, 
despite the availability to the union of harassment through litigation 
and regulatory complaints, employers that take legal action to defend 
themselves against the union will often be found by the NLRB to have 
retaliated against protected activity and will be ordered to reimburse 
the union for its legal expenses.\13\

                    MGM GRAND AND NEW OTANI EXAMPLES

    There are numerous examples in recent years of unions using, 
corporate campaigns to try to coerce employers into granting card check 
recognition. Two in particular--MGM Grand and the New Otani Hotel & 
Garden--are noteworthy because they highlight how the law is currently 
tilted against employee choice in this area.
    In the case of the MGM Grand Hotel, the hotel had opened for 
business in December 1993 and, for nearly 3 years, operated nonunion 
while the Hotel Employees & Restaurant Employees International Union 
(HERE) waged an extensive corporate campaign against the company 
demanding that it agree to a card check recognition. The tactics HERE 
used to pressure MGM Grand included negative reports issued to 
investment analysts, opposition to MGM's planned expansion into other 
locations, a sit in of 500 people in the hotel's lobby, and numerous 
public demonstrations.\14\
    Ultimately, on November 15, 1996, the company voluntarily 
recognized HERE as the exclusive collective bargaining representative 
of its employees on the basis of a card check. At that time, there were 
approximately 2,900 employees. This number increased to approximately 
3,100 employees by October 1997.
    The hotel's recognition of the union was not well received by the 
employees. Many believed that their co-employees had been coerced into 
signing the cards, including threats of being fired or deported. One 
employee was reportedly even told that if management learned she was 
gay, she would be fired by the company if she didn't sign a card so 
that the union could protect her.\15\ Events soon made it clear that a 
majority of the employees did not support the union. Petitions for an 
election--signed by over 60 percent of the employees--were filed by the 
employees with the NLRB regional office on April 17, 1997, September 
16, 1997, and November 6 1997. These were dismissed on the basis that a 
``reasonable time to bargain'' had not elapsed.
    Finally, on November 8, 1997, 2 days after the employees filed the 
third petition, the company announced to its employees that it had 
reached a tentative collective-bargaining agreement with HERE and on 
November 13, 1997, 2 days before the 1-year anniversary of the 
company's recognition of HERE, the union held a ratification vote at 
its headquarters. Although the voting was open to all employees, fewer 
than, one-third of the bargaining unit employees participated in the 
ratification vote, and the collective bargaining agreement was approved 
by a vote of 740 to 103.
    Eventually, a divided National Labor Relations Board upheld the 
decisions by the regional office to deny the employees a secret ballot 
election.\16\ Under the law, the employees could not appeal the Board's 
decision, because Federal courts are barred from considering appeals 
from employees in cases involving NLRB election processes. Furthermore, 
once the hotel and the union signed a collective-bargaining agreement, 
the employees were barred by the so-called contract bar doctrine from 
seeking an election for the life of the contract.
    The case of the New Otani Hotel and Garden in Los Angeles provides 
an example of an employer who stood its ground on insisting that 
unionization be a matter of employee choice but was unable to secure a 
secret ballot election to resolve the matter. Unfortunately, this 
insistence was not cost-free to either the employer or the public. HERE 
Local 11 brought the full force of the L.A. political community to bear 
in seeking card recognition of the union by the hotel.\17\ The union, 
which was rejected by 88 percent of the New Otani workers in an 
election in 1982, had no interest in reprising its defeat. With the 
ultimate goal of ensuring there were no nonunion hotels in downtown 
L.A., another large election loss would be devastating. Thus, the 
union's strategy was to apply sufficient pressure on the company until 
it capitulated and agreed to a card check.
    For 4 years, the union focused its efforts on pressuring the hotel 
itself. It enlisted the support of the AFL-CIO at, the highest levels, 
with personal participation by President Sweeney, who led a 
demonstration of 2,000 supporters in downtown Los Angeles, 
characterizing the effort as ``a fight between a valid international 
labor movement and a multinational law breaker.''\18\ After a 
continuing lack of success, the union tried a new approach in 1997. In 
addition to pressuring the hotel, the union also began attacking the 
hotel's parent company, Kajima Corp., a construction company that 
performs a substantial amount of work in Los Angeles. The vulnerability 
of construction companies with regard to government agencies is well 
known, particularly in a highly regulated market like Los Angeles.
    Thus, when the L.A. City Council was considering bidding procedures 
for a $1 billion section of a high speed railway, many of the city 
council members expressed concerns about the possibility of Kajima 
being awarded the contract. Councilman Mike Hernandez stated: 
``Companies like Kajima that we have other issues with will be bidding 
on these contracts. . . . What do we do if we have a company that, for 
example, we don't want to work with?'' The ``other issues'' were an 
apparent reference to the fact that 10 of the 15 council members had 
endorsed a boycott of New Otani. After the discussion, it was decided 
that the council would play a stronger role in fashioning the bidding 
standards. As it turned out, Kajima decided not to submit a bid.
    In another instance, HERE was able to demonstrate its ability to 
punish those politicians who failed to join its crusade against New 
Otani/Kajima. L.A. School Board Member Victoria Castro voted to award 
Kajima a large contract for development of a learning center in a 
largely immigrant community in her district. In response, the local 
unions poured money into the campaign of her opponent in the primary 
for a State assembly seat. That contributed to an upset victory for her 
opponent, former county employees' union official Gil Cedillo.
    The union's efforts also influenced nongovernmental entities. When 
the union learned that the Japanese-American National Museum was 
considering using Kajima for an expansion project, a letter-writing 
campaign was organized within the civil rights community, including one 
activist who had been honored by the museum. The letters called into 
question the propriety of associating the museum with a company accused 
of using Chinese slave laborers during World War II. In response, the 
museum opened the process to bidding and Kajima did not submit a bid.
    Throughout this brutal assault on the hotel and its parent company, 
what was the employer's response to the union's demand that it agree to 
a card check? Rather than making the decision for its employees, the 
hotel insisted that the matter be resolved by a secret ballot election 
conducted by the NLRB, and filed an employer petition with the Board's 
regional office seeking an election. Once again, a divided NLRB trumped 
employee choice when it ruled that such elections are only available to 
an employer where the union demands recognition. The Board held that, 
in this situation, the union had simply demanded that the employer 
agree to a process that could ultimately lead to recognition.\19\ Yet 
using the secret ballot election to resolve this matter would not only 
have spared the employer and its employees from the turmoil being 
created by the union's continuing pressure tactics, it, also would have 
spared the Los Angeles taxpayers from having critical political 
decisions made on the basis of a labor-management battle that few of 
them cared about.

                WHY ORGANIZED LABOR PREFERS CARD CHECKS

    Organized labor has made no secret about its pursuit of card check 
organizing. Recently, in his maiden speech as the new President of the 
UAW, Ron Gettelfinger reportedly pledged that the union ``would use its 
leverage whenever possible to pressure employers to remain neutral 
during union recruiting drives and [agree to] so-called `card checks'. 
. . .'' \20\ Meanwhile, HERE claims that 80 percent of the 9,000 
workers the union organized last year never cast a ballot.\21\
    A 1999 study undertaken for the AFL-CIO's George Meany Center for 
Labor Studies, entitled ``Organizing Experiences Under Union-Management 
Neutrality and Card Check Agreements,'' shows why card checks are so 
important to organized labor. Using a traditional NLRB secret ballot 
election, unions only win about half the time (53.6 percent in 2001). 
The study, which examined union organizing experiences under 114 card 
check/neutrality agreements, found that unions scored victories in 78 
percent of the campaigns where card checks were used and 86 percent 
where this was coupled with employer neutrality.

        SECRET BALLOT SUREST MEANS FOR ENSURING EMPLOYEE CHOICE

    The decision by a unit of employees regarding representation by a 
union is a decision that should be made by those individual employees 
after hearing views on as many sides of the issue as possible. The 
American industrial relations system is founded on this principle. 
While not without flaws, the best way for resolving the question of 
representation continues to be by employees expressing their opinion in 
a secret ballot election conducted by the National Labor Relations 
Board. The secret ballot election process, which in the vast majority 
of situations occurs within 60 days after it commences, guarantees 
confidentiality and protection against coercion, threats, peer 
pressure, and improper solicitations and inducements by either the 
employer or the union.
    Unfortunately, this system is being threatened by an alternative 
procedure, known as card check recognition, which lacks these same 
protections. On the critical issue of union representation, employers 
should not be allowed to substitute their own judgment for that of 
their employees. There is simply no acceptable alternative to secret 
ballot election for assessing those employees' views. If the employer 
and the union ignore those procedures, union representation becomes 
nothing more than a deal between the employer and the union that the 
latter will represent the former's employees. Ideally, the law should 
prohibit such agreements, and we would encourage this committee to 
consider legislation, to provide this prohibition.
    Thank you for giving me the opportunity to express our 
organization's position on these issues and I will be happy to answer 
any questions.

                                ENDNOTES

    1. For a more thorough discussion of card check organizing and its 
implications, see Daniel V. Yager, Timothy J. Bard, Joseph L. LoBue, 
Employee Free, Choice. It's Not in the Cards (1998).
    2. 321 N.L.R.B. 1320 (1996)
    3. NLRB v. Logan Packing Co., 386 F.2d 562, 566 (4th Cir. 1967), 
cited in NLRB v. Gissel, 395 U.S. 575, 602 n.20 (1969).
    4. Linden Lumber v. NLRB, 419 U.S. 301, 307 (1974).
    5. Joint brief of the AFL-CIO et al. in Chelsea Industries & Levitz 
Furniture Co. of the Pacific, Inc., Nos. 7-CA-36846, et al. at 13 (May 
18, 1998), quoting NLRB v. Gissel Packing Co., 395 U.S. 575,602 (1969) 
and Brooks v. NLRB, 348 U.S. 96, 99, 100 (1954).
    6. For a comprehensive study of corporate campaigns, see Jarol B. 
Manheim, The Death of a Thousand Cuts. (2001).
    7. See, e.g., Diamond Walnut Growers v. NLRB, 113 F.2d 1259 (D.C. 
Cir, 1997), cert. denied, 118 S. Ct. 1299 1998) (generally discussing 
union corporate campaign tactics); Food Lion v. United Food & 
Commercial Workers Int'l Union, 103 F.3d 1007, 1014 n.9 (D.C. Cir. 
1997) (defining the term ``corporate campaign''). See also Industrial 
Union Department, AFL-CIO, Developing New Tactics: Winning With 
Coordinated Corporate Campaigns (1985); Dan La Boltz, A Troublemakers 
Handbook (1991); Service Employees International Union, Contract 
Campaign Manual (1988); Herbert R. Northrup, Union Corporate Campaigns 
and Inside Games as a Strike Form, 19 Empl. Rel. L.J. 507 (1994); 
Herbert R. Northrup, Corporate Campaigns: The Perversion of the 
Regulatory Process, 17 J. Lab. Research 345 (1996).
    8. Food Lion, 103 F.3d at 1014 n9.
    9. Industrial Union Department, AFL-CIO, supra note 7, at 1.
    10. ``Union Officials Stress International Scope of Organizing, 
Bargaining Campaigns,'' Daily Lab. Rep. (BNA), A-5 (Nov. 16, 1992).
    11. La Botz, supra note 7, at 127 (emphasis in original).
    12. Joe Crump, The Pressure is On: Organizing Without the NLRB, 18 
Lab. Relations Rev. 33, 35-36 (1991) (emphasis added).
    13. See BE & K Const. Co., 329 NLRB No. 68 (1999), aff 'd, 246 F.3d 
619 (6th Cir. 2001)., The Supreme Court has granted certiorari in BE & 
K (No. 01-518) and is considering the issue of whether liability may be 
imposed simply because the employer filed a losing suit--as is the 
Board's current rule--or whether it should also find the lawsuit to be 
``objectively baseless.'' LPA has filed an amicus curiae brief with the 
Supreme Court on behalf of the employer.
    14. Michelle Amber, ``First Pact Between HERE, MGM Grand Calls for 
On-site Child Care Facility,'' Daily Lab. Rep. (BNA), No. 225, A-1 
(Nov. 21, 1997); Aaron Bernstein, ``Sweeney's Blitz,'' Business Week, 
Feb. 17, 1997, at 56; Steven Greenhouse, ``Unions, Bruised in Direct 
Battles With Companies, Try a Roundabout Tactic,'' N.Y. Times, Mar. 10, 
1997, at B-7.
    15. Lisa Kim Bach, ``MGM Workers Seek to Oust Culinary,'' Las Vegas 
Review Journal, Apr. 23, 1997, at D-1.
    16. MGM Grand Hotel, Inc., 329 NLRB No. 50 (Sept. 30, 1999).
    17. See Ron Kipling, The New Otani Hotel & Garden: A Corporate 
Campaign Case Study (1998); Ted Rohrlich, ``Union's Eight with Hotel 
Reverberates Across L.A.,'' Los Angeles Times, Dec. 5, 1997, at A1.
    18. Patrick J. McDonnell & Stuart Silverstein, ``AFL-CIO Chief to 
Press L.A. Case in Japan,'' Los Angeles Times, Feb. 20, 1997, at D1.
    19. New Otanl Hotel & Garden, 331 NLRB No. 159 (2000).
    20. ``Auto Union Chief Vows to Bolster Ranks,'' Reuters, June 8, 
2002.
    21. David Wessel, ``Aggressive Tactics by Unions Target Lower-Paid 
Workers,'' Wall Street Journal, Jan. 31, 2002, at A-1.
                                 ______
                                 
                               APPENDIX A

Prepared Statement of Howard V. Knicely, Chairman, Board of Directors, 
                        Labor Policy Association

    My name is Howard Knicely. I am Executive Vice President of TRW, 
and I am appearing before the Commission this morning as the Chairman 
of the Board of Directors of the Labor-Policy Association. Appearing 
with me is Rex Adams, Vice President of Administration for Mobil and a 
member of the Association's Executive Committee. As Stephen Darien 
testified at the August 10 hearing, the comments LPA is presenting 
during this final set of hearings are the product of considerable 
discussion of the Fact Finding Report\1\ by the members of the 
Association in a series of meetings specifically called for this 
purpose.
---------------------------------------------------------------------------
    \1\ Hereinafter referred to as the Report
---------------------------------------------------------------------------
    At the outset, we would like to express our appreciation to 
Secretary of Labor Robert Reich and Secretary of Commerce Ronald Brown 
for assembling this Commission to begin not only improving our nation's 
employment policies, but also the process by which those policies are 
formulated. Work systems, work design and work relationships are in a 
constant State of evolution with each century bringing new attitudes, 
expectations, and forms of association. The present one is no 
exception. Before the industrial revolution, the concepts of union 
representation and collective bargaining as we know them today were not 
even being discussed in a theoretical sense. As the workplace changed 
in the late 19th century with the introduction of systems of mass 
production, however, collective bargaining and third party 
representation of rank-and-file employees became the dominant system of 
labor-management relations in large enterprises. That system reached a 
peak during the middle part of this century, but since then, the 
workplace and work practices continued to evolve, and with it worker-
management relationships. Traditional forms of collective bargaining 
now cover only 10 percent of the employed private sector workforce. The 
system of industrial relations that guided employment policy in the 
1940's, 1950's, and 1960's is now exemplified by millionaire baseball 
owners and millionaire baseball players having shut down a sector of 
the U.S. economy by a strike that may not be resolved for several 
months to come. The baseball strike is instructive because it involves 
one of the few remaining American industries that is still shielded 
from competition, thus giving the two sets of millionaires the luxury 
of pursuing what many non participants view as ethereal demands. The 
vast majority of American companies, however, no longer operate in 
sheltered markets. Rather, we are constantly pressured by a host of 
highly competitive forces which have led front-line employees, 
managers, and unions to seek more cooperative ways of working with one 
another to ensure the long term viability of our organizations.
    It is for these reasons that the members of the Labor Policy 
Association, the NAM and hundreds of other business organizations were 
pleased that the Commission in its Report recognized the existence of 
these new forms of work relationships, generically described as 
employee participation or employee involvement. While, as expressed in 
our testimony on August 10th, LPA members are still not certain whether 
the Commission understands the full significance of employee 
involvement in today's workplace, you have made an invaluable 
contribution to the continued progress of employment policy by ensuring 
that any future discussion of changes in those policies will deal with 
this new reality. In our August 10th statement, we detailed our 
concerns with the conclusions reached and the suggestions made in 
Chapter II, but on the whole we believe that its findings provide the 
necessary factual basis on which substantive discussions of policy 
changes can proceed.
    We would additionally point out that Chapter II asks whether these 
new forms of employee involvement are little more than ``temporary fads 
that will ebb and flow.'' \2\ No one has yet discovered the perfect 
workplace, and we fully expect that the progressive organizational 
designs that have been described to you will eventually be replaced by 
even better ones. In the year 2094 when the Department of Labor (or 
whatever it is called by then) convenes a commission similar to this 
one, we are certain that its findings of fact will include descriptions 
of late 21st century work systems that are fundamentally different than 
the ones that were commonly prevailing in the mid-20th century.
---------------------------------------------------------------------------
    \2\ Report, 48.
---------------------------------------------------------------------------
    We were also pleased with Chapter IV of the Report because it 
acknowledges perhaps the most important employment policy development 
since the 1960's--the shift in employee power in worker management 
relations from unions to plaintiff attorneys. The chapter breaks new 
ground in dealing with the legal gridlock that this shift has generated 
by again providing the necessary factual basis for substantive 
discussions. Regarding Chapter I of the Report, LPA has not offered a 
detailed economic analysis of its portrait of gloom nor do we intend to 
do so. Granted, the U.S. has significant economic and social problems 
that cry out for improvement. We would only say that, accepting your 
picture as correct, it is surprising that:
    1. Our borders are being overrun by so many people desperately 
seeking entry into the good life of the United States,
    2. Our rate of joblessness is so much lower than in Canada, Europe 
and other countries that have what the Commission may believe to be far 
more progressive employment policies, and
    3. American business is competing so well with countries whose 
workers don't earn in a day what U.S. employees earn in an hour.
    That brings us to Chapter III of the Report, the subject of today's 
hearing. In our opinion, it can be described most charitably as a 
disappointment. Not only does it present a decidedly one-sided view of 
the issues of union representation and collective bargaining, it 
perpetuates a number of myths about labor-management relations. As long 
as policymakers continue believing in these myths, which are only 
reinforced by Chapter III's findings, any serious attempt at improving 
worker-management relations in this particular arena will be 
frustrated. Unlike Chapters II and IV of the Report, we do not feel a 
good faith attempt has been made in Chapter III to establish a set of 
facts that could bring the parties together to begin serious policy 
discussions, nor do we accept several of your findings as facts.
    The findings the Commission has either explicitly made or strongly 
implied in Chapter III can be summarized as follows:
    I. American workers have a strong preference for traditional union 
representation and collective bargaining that is being frustrated by 
employer hostility to unions.
    2. This hostility is the primary, if not the sole, reason for the 
decline in union representation in America.
    3. The principal manifestation of this hostility is employees 
seeking union representation who are intimidated into voting against 
the union by employers who routinely fire anyone sympathetic to such 
representation.
    4. If a majority of employees in a bargaining unit has the courage 
to overcome this hostility and vote in favor of union representation, 
one-third of the workplaces desiring such representation will never be 
able to negotiate their first contract because employers will do 
everything in their power both inside and outside the law to frustrate 
agreement.
    5. There is a ``dismal side'' to labor relations in that some 
employers break the law to resist unionization.
    We would like to deal with each one of these ``findings'' in turn.

                          EMPLOYEE PREFERENCES

    Regarding the question of employee preference for union 
representation, the Report attaches great significance to surveys which 
show that 30 percent of the non-union workforce wishes to be 
represented by a union. We attach greater significance to the fact that 
70 percent do not wish to be represented. A number of recent surveys 
reinforce this finding. Three surveys conducted in the mid-1980's, 
including one specifically for the AFL-CIO, found that 65-75 of all 
non-union workers would reject union representation in a secret ballot 
election.\3\ These percentages are matched by the percentage (64,9 
percent) of votes cast against union representation in all NLRB 
elections.\4\ Attitudes have not changed since, as was shown in a 1991 
Penn + Schoen poll conducted for the Employment Policy Foundation which 
found that 73 percent of all employees do not favor having a union in 
the workplace.
---------------------------------------------------------------------------
    \3\ 75 percent--``The Lifeline for Unions: Recruiting,'' Washington 
Post, Sept. 13, 1987, H1; 65 percent--Louis Harris and Associates, 
Inc., A Study on the Outlook for Trade Union Organizing 63 (Nov. 1984) 
(survey conducted for the AFL-CIO); 67 percent--Institute for Social 
Research, Quality of Employment Survey (University of Michigan, 1977), 
cited in James L. Medoff, The Public's Image of Labor and Labor's 
Response (National Bureau of Economic Research, Harvard University, 
1984), 10.
    \4\ Leo Troy, ``Will An Interventionist NLRA Revive Organized 
Labor?,'' 13 Harvard Journal of Law & Public Policy 583, 599 (1990).
---------------------------------------------------------------------------
    We would bring to the attention of the Commission a survey 
conducted by the AFL-CIO's Department of Organization and Field 
Services that was released in February 1989, a copy of which is 
attached to our statement. In a cover letter to AFL-CIO affiliates, Ms. 
Vicki Saporta, then Director of Organizing for the Teamsters, said the 
survey summarized interviews with union organizers involved in 189 NLRB 
elections in units over 50 held, between 1986 and 1987. The survey 
itself states:

          In order to obtain this data, lengthy interviews were 
        conducted with the lead organizers in these campaigns, during 
        which questions were. asked concerning the union's tactics, the 
        company's tactics, and characteristics of the workforce.\5\
---------------------------------------------------------------------------
    \5\ Department of Organization and Field Services, AFL-CIO 
Organizing Survey: 1986-1987 NLRB Elections, (AFL-CIO, Washington, DC:, 
February, 1989), 46 [hereinafter, AFL-CIO Survey].

    This survey, we would submit, may help the Commission determine the 
accuracy of the facts contained in its Report that it now desires to 
become the basis for discussions of policy changes.
    Interestingly, the survey found that the northeast, particularly 
New England, is the most inhospitable for union organizing with the win 
rate there only 32 percent. We would point out that states like 
Connecticut, Massachusetts and Rhode Island constitute an area with a 
large percentage of workforces represented by unions. At the same time, 
the survey found that the greatest percentage of organizing success was 
in the west/southwest, a region in which union representation is much 
less prevalent. There the organizers enjoyed a 51 percent rate of 
victory. One would assume that if unionized working relationships were 
as successful as Chapter III makes them out to be, then the.areas of 
the country with the heaviest unionization rates would be those with 
the highest union win rates, yet that is not the case. An inference 
that may reasonably be drawn from these statistics is that the more 
employees know about the actual operation of unions in the workplace, 
the less likely they may be to vote in favor of union representation. 
This same inference can also be drawn from another statistic in the 
AFL-CIO survey in the section entitled, ``Prior Union Exposure'' which 
came to the following conclusions:

          Familiarity and prior experience with unions has an ambiguous 
        effect on the ability of unions to win NLRB elections. If 
        former union members make up a small portion of the workforce, 
        the win rate rises slightly. However, if former members made up 
        more than half the workforce, the win rate is only 29 
        percent.\6\
---------------------------------------------------------------------------
    \6\ AFL-CIO Survey, 52.

    As the Commission undertakes an examination of government policies 
to determine how they might be altered to increase unionization of the 
workforce, we would suggest that this particular, statistic be given 
very careful consideration.
    We would also direct the Commission's attention to Part A of 
Chapter III which gives the Commission's perspective on ``Experience 
Under the National Labor Relations Act.'' In Section 1, the NLRB 
certification election process is described in great detail. Part A, 
however, contains no description of the NLRB decertification election 
process--the process by which employees represented by a particular 
union disaffiliate themselves from that union--nor is there mention of 
that process anywhere else in the Report, even though about 15 percent 
of all elections conducted by the NLRB are decertification elections. 
In addition to the 100,000 or so employees who annually vote against 
becoming unionized in a certification election, almost 15,000 vote to 
get rid of a union that is already in place. Moreover, while employees 
choose not to be represented in about one out of every two elections, 
in decertification elections, they choose to no longer be represented 
in seven out of ten.
    The lack of discussion of the decertification process raises 
another significant issue. We are surprised that despite the 
Commission's own data that 70 percent of the workforce has a preference 
against union representation, not one of the 354 witnesses brought 
before you was a rank-and-file employee who testified why they had 
voted against the union either in a certification or a decertification 
election. We find it inexplicable that a Federal commission with the 
mandate this one has would choose to ignore completely the views of the 
majority of the American workforce. In contrast, the Commission did 
hear from a number of employees who were brought forth by organized 
labor to portray the so-called ``Human Face of the Confrontational 
Representation Process.'' In doing so, the Commission apparently 
accepted at face value everything it was told by these witnesses 
without seeking testimony from employees in the same workplace that 
might have had a different point a view.
    A close look at the story of one of these witnesses--Judy Ray of 
Peabody, Massachusetts--is telling. Ms. Ray testified that she had been 
fired by Jordan Marsh Stores on the day after Thanksgiving solely 
because she was a union organizer. She labelled the ``harassment'' she 
had suffered from the company a ``disgrace.'' The Report reprints Ms. 
Ray's account as one of the ``facts'' the Commission had found. The day 
before the June 10th election, however, the local paper published a 
letter from 29 Jordan Marsh employees characterizing Ray's actions 
against the company as a ``personal vendetta'' and specifically 
refuting Judy Ray's statement that ``she speaks for us:'' Her attempt 
to divide a staff that works well as a team, despite her recent public 
statements and condemnations, are offensive and ineffective.\7\
---------------------------------------------------------------------------
    \7\ Letter to the Editor, The Peabody Times, June 9, 1994.
---------------------------------------------------------------------------
    Apparently, a solid majority of the employees agreed more with the 
sentiments expressed in the letter than with Ms. Ray. The union was 
rejected by a 4 to 1 margin (155 to 39) on June 10. Employees who voted 
against the union claimed to be ``absolutely thrilled. . . . We did not 
want the union in our store, and everyone stuck together on that.'' \8\
---------------------------------------------------------------------------
    \8\ Andrew D. Russell, ``Jordan Marsh Employees Reject Union,'' The 
Salem Evening News, June 13, 1994, (quoting employee Mary O'Leary).
---------------------------------------------------------------------------
    Later this month, an NLRB administrative law judge will conduct a 
hearing to determine whether Ms. Ray, a commission-paid sales person, 
was fired for union activity or, as the store claims, because she stole 
a sale of a television set from a fellow employee. We would point out 
that an attempt by the NLRB on July 29, 1994, to obtain an injunction 
ordering her reinstatement was thrown out by a Federal district 
court.\9\
---------------------------------------------------------------------------
    \9\ Rosemary Pye and the National Labor Relations Board v. Jordan 
Marsh Stores Corporation, No. 94-11509EFH (D. Mass. July 29, 1994).
---------------------------------------------------------------------------
    If the Commission is truly interested in establishing a set of 
facts on which substantive policy discussions can proceed regarding the 
direction of unions and the workplace, it will need to do far. more 
digging into organizing campaigns such as the one at Jordan Marsh in 
order that all the facts, and not just a select few, are on the table. 
Business groups would have been pleased to provide ``real people--
American employees'',\10\ as the Commission describes them, who would 
have represented the 70 percent of the workforce that public opinion 
polls show prefer to represent themselves in the workplace. Had we done 
so, however, our strong suspicion is that the business community's 
production of such witnesses would have been viewed as self-serving by 
the Commission. Indeed, the surprisingly hostile reception the 
Commission accorded Chester McCammon, a non-union welder from Universal 
Dynamics who addressed the Commission on August 10th as part of the 
management panel, is illustrative.
---------------------------------------------------------------------------
    \10\ Report, 76.
---------------------------------------------------------------------------

                      DISCHARGE OF UNION ACTIVISTS

    With regard to the Commission's conclusions on illegal discharges, 
the Report as well as studies published by certain Commissioners have 
painstakingly attempted to demonstrate that illegal discharges 
occurring in an organizing campaign have increased considerably in 
recent years and that those discharges are a primary cause of union 
decline in America. We do not intend to continue splitting hairs over 
the proper measurement of this activity using the available data. 
Rather, we challenge the underlying premise of the Commission's use of 
the data; i.e., that the alleged increase has been a major cause of 
organized labor's decline. The notion that employers can stifle 
organizing drives by firing union supporters has been pounded into the 
American consciousness so thoroughly and for so long that no one, 
including this Commission, has apparently thought it necessary to 
challenge it.
    Testimony was presented to the Commission by former Solicitor of 
Labor, William Kilberg, that management attorneys invariably advise 
their clients not to terminate any employees during an organizing drive 
who have any identification with the union because, more often than 
not, such discharges can have a galvanizing effect on the employees. We 
couldn't help but notice the skepticism with which this testimony was 
received, by the Commission during the February 24, 1994 hearing, and 
because of that we were not surprised that there was no acknowledgement 
of it in the Report. However, Mr. Kilberg's testimony was recently 
echoed in a July 28, 1994, letter to the editor of the Philadelphia 
Inquirer by John Morris, President of the Pennsylvania Conference of 
Teamsters:

          Employers actually make a mistake when they fire employees 
        during a Teamsters organizing. drive. In effect, they create 
        martyrs that strengthen the solidarity of the employees when 
        they see the support the Teamsters give to the discharged 
        workers.\11\
---------------------------------------------------------------------------
    \11\  John P. Morris, Letter to the Editor, The Philadelphia 
Inquirer, July 28, 1994.

    The AFL-CIO survey described above bears this out. In the section 
headed, ``Discharges,'' the union organizers polled came to the 
following conclusion: ``Interestingly, unions seem to have a higher 
success rate (46 percent) where there is a firing than where there is 
not a firing (41 percent).'' \12\
---------------------------------------------------------------------------
    \12\ ALF-CIO Survey, 53.
---------------------------------------------------------------------------
    This statistic may explain why, notwithstanding any alleged 
increase in discharges, unions file objections in only 6 percent of all 
elections, with 2 percent of all election results being overturned, 
percentages that have remained relatively constant over the years. This 
point was made to the Commission by another witness, former NLRB 
Chairman Edward Miller, but the Commission chose to relegate this 
important piece of information to a footnote.\13\
---------------------------------------------------------------------------
    \13\ Report, 70, footnote 5.
---------------------------------------------------------------------------
    These facts clearly demonstrate that unions are losing elections 
because of employee choice, not employer illegalities. Therefore, 
despite the hyperbole to the contrary that we have heard repeatedly 
throughout these proceedings, it should come as no surprise that very 
few employees list fear of employer reprisals as a factor in their 
decision to remain non-union. According to a 1991 Penn+Schoen poll 
conducted for the Employment Policy Foundation that was submitted to 
the Commission, only 1 percent of all non-union employees who opposed 
having a union did so out of fear of employer reprisal.

           EMPLOYER HOSTILITY AS SOLE CAUSE OF UNION DECLINE

    Turning to the implied finding that employer hostility is the sole 
cause of union decline in America, while the Commission does not speak 
directly to the causes of this decline, it does detail the statistics 
regarding that decline and then devotes the bulk of Chapter III to a 
lengthy discussion of employer violations of the National Labor 
Relations Act, creating the strong implication that those violations 
are the sole cause of diminished representation. We believe that it 
would have been more conducive to serious discussion of possible 
changes in the NLRA if the Commission had tried to look behind these 
statistics to develop a more complete picture of the causes of union 
decline. For example, changes in human resource practices, union 
organizing deficiencies, expansion of statutory employment protections, 
market forces, employee attitudes and labor's confrontational style are 
all factors deserving exploration, as discussed briefly below.
    Changes in Human Resources Practices. As several employer witnesses 
like myself have testified to the Commission, if thirty years ago my 
peers and I had espoused to our managements the kinds of workplace 
practices that we routinely do today, we would have been summarily 
dismissed. Hierarchial work systems are being abandoned as employers 
recognize that employees are an intellectual resource that must be 
tapped if the organization is going to survive in the new economic 
environment. We believe that the best way to attract a competitive 
workforce is to offer an attractive workplace, not just in terms of 
wages and benefits, but also in the extent to which employees become 
integrally involved in the operation of the worksite, problem solving 
and dispute resolution. If, in the process, employees are gaining a 
``voice'' in that workplace, it should not make any difference to the 
Commission that it may lead to a decline in the union win rate.
    Expansion of Statutory Employment Protections. As Chapter IV of the 
Report describes so eloquently, the declining trend in union density 
has been matched by an ascending trend in new workplace laws at the 
Federal, State and local level, not to mention the liberal trend in 
common law developments. Indeed, during the past year Congress has been 
debating whether to legislate one of the most basic components of any 
collective bargaining agreement-a health care plan. As more and more 
components of collective bargaining are superseded by employment 
legislation, the less meaningful a collective bargaining agreement 
becomes, and the less attractive a union is to employees.
    Union Organizing Deficiencies. On this point, the unions, when 
talking amongst themselves, have been their own harshest critics. A 
1991 survey conducted in cooperation with the AFL-CIO Organizing 
Department concluded: ``[T]he results from this study clearly show that 
union tactics, taken as a group, play a greater role in explaining the 
election outcome than any other group of variables in the model, 
including employer tactics, organizer background, and unit 
demographics.\14\
---------------------------------------------------------------------------
    \14\ Bronfenbrenner, Successful Union Strategies for Winning 
Certification Elections and First Contracts: Report to Union 
Participants, Part 1: Organizing Survey Results, (1991).
---------------------------------------------------------------------------
    Market Forces. Finally, there are a panoply of market forces-both 
domestic and international-that have had a dramatic impact on American 
unionism. For example, much of the decline can simply be attributed to 
extensive downsizing by unionized companies, particularly during the 
1980's. The growth in international competition--boosted by 
appreciation of the dollar during the 1980s--has been a major 
contributor. Imports into the United States grew to 13 percent of the 
GNP in 1990, almost three times the percentage in 1960. This outside 
competition has made it more and more difficult for organized labor to 
capture an entire industry and remove labor cost competitioft through 
pattern bargaining. The inability of a number of companies in 
traditionally unionized industries to match the competition resulted in 
a decline in union membership in the manufacturing sector by about 2.3 
million during the 1980s.\15\
---------------------------------------------------------------------------
    \15\ Leo Troy, ``Will a More Interventionist NLRA Revive Organized 
Labor?,'' 13 Harvard Journal of Law & Public Policy (1990), 583, 615.
---------------------------------------------------------------------------
    The impact of deregulation on four of our major industries--
communications, airlines, public utilities and trucking--has had a 
similar impact. Previously, these sectors were wellinsulated against 
cost competition by a regulatory structure that set prices and limited 
participation by newcomers. With the entry of new cost-competitive 
players into these industries; high labor costs can no longer be easily 
passed on to the customer, and new nonunion competitors have captured a 
good share of these markets. The result was a decline of about 625,000 
in union membership in the 1980s in these sectors alone.\16\
---------------------------------------------------------------------------
    \16\ Ibid., 616.
---------------------------------------------------------------------------
    Further, the significant areas of job growth in the United States, 
going back to the 1950s, have occurred in the service sector, which has 
traditionally been less organized than the manufacturing sector. 
Beginning in the 1950s--at the same time union membership was peaking--
the United States shifted from a predominantly manufacturing to a 
predominantly service economy. This shift has occurred with growth in 
advertising, computer software, data processing, temporary personnel, 
management; business consulting, legal, accounting, engineering and 
architectural services. Even within manufacturing, there has been a 
substantial growth in ``in-house'' services, which has contributed to 
the decline in manufacturing union density from 32 percent at the 
beginning of the 1980s to 22 percent at the end.\17\
---------------------------------------------------------------------------
    \17\ Ibid., 615.
---------------------------------------------------------------------------
    Of course, none of these new market realities touched the American 
public sector to any significant degree, where union representation has 
increased in recent years. That sector's insulation from cost 
competition is a much more relevant explanation for union growth than 
the absence of employer opposition cited in the Report.\18\
---------------------------------------------------------------------------
    \18\ Report, 78.
---------------------------------------------------------------------------
    We would also point out that the decline in unionization is far 
from a uniquely American phenomenon. Had this panel been able to hear 
from Professor Leo Troy of Rutgers University, he could have explained 
how the deunionization of America is being mirrored in Canada and the 
countries of Western Europe as they also shift to a service-based 
economy, even though the labor laws of those countries are far more 
favorable to union organization. The shift in Canada, for example, 
produced a 20 percent decline in private sector union density from 1975 
to 1985.\19\
---------------------------------------------------------------------------
    \19\ Leo Troy, ``Is the U.S. Unique in the Decline of Private 
Sector Unionism?,'' 11 Journal of Labor Research, (Spring 1990), 111, 
127.
---------------------------------------------------------------------------
                            FIRST CONTRACTS

    On the subject of the Commission's findings regarding first 
contracts, the Report points to data addressing the difficulty the 
parties have reaching agreement in first contract situations. The 
Commission implies that this is a result of employers flouting their 
duty to bargain under the law by either engaging in surface bargaining 
or refusing to bargain altogether. The Commission then suggests that 
stronger remedies would correct this.
    Although the Commission has reached an unequivocal conclusion 
regarding this trend, the fact of the matter is that there is no 
universal time-series data available to test whether first contract 
failures are any more widespread today than they ever were. As is noted 
by the Commission, it has only been since 1986 that the FMCS has 
received notice and copies of new certifications. Studies conducted 
before 1986 were limited to sample populations with no tracking of 
those populations over any significant period of time. The 1966 study 
by Ross cited in the Report was based on a sample drawn from only six 
of thirty NLRB regional offices.
    Because no one knows with any degree of certainty whether first 
contract failures have increased, let us assume for purposes of 
discussion that they have. As Prof. William Gould IV, a former member 
of this Commission and current Chairman of the NLRB, has written in 
Agenda for Reform: The Future of Employment Relationships and the Law:

          The fact is that employers have been able to convince workers 
        not to join unions by providing them with benefits comparable 
        in most respects (and sometimes superior to them) to those 
        contained in collective bargaining agreements negotiated by 
        unions. Thus . . . a kind of benevolent paternalism has helped 
        to succeed in making workers disinterested in unions.\20\
---------------------------------------------------------------------------
    \20\ William Gould, Agenda for Reform (Cambridge: MIT Press, 1993), 
42.

    We would hardly describe competitive pay and benefits in modern 
companies as ``benevolent paternalism,'' but Chairman Gould is correct 
in saying that companies spend a considerable amount of time ensuring 
both internal and external equity in their compensation programs. They 
do so, however, for reasons that have nothing to do with warding off 
organizing drives and much to do with ensuring fairness and minimizing 
turnover. One byproduct of this attention to equity is that in order to 
win an election a union may find it necessary to promise the employees 
an economic package that the employer is not capable of delivering. We 
would remind the Commission that there has never been a ``duty to 
agree'' under the National Labor Relations Act, only a duty to bargain 
in good faith. Thus, neither the employer who can only go so far in 
stretching labor costs to remain competitive--nor the union--which has 
to bring back an attractive wage/benefit package to justify its 
election victory--is breaking the law by engaging in hard bargaining.
    We would also point out that it has been the experience of many LPA 
members that once union organizers successfully complete a campaign, 
they often move on to the next site. No experienced negotiator may be 
left behind to coach the employees on a day-to-day basis through their 
first negotiation. As a result, a first contract situation often 
involves a group of employees with very high expectations, but with 
little experience working with one another to achieve a contract. Under 
these circumstances, the fact that two out of every three first 
contract negotiations may result in an agreement (assuming that figure 
is correct) should be viewed in a positive light. Further, should the 
employer break the law and fail to bargain in good faith, the union has 
more at its disposal than simply going to the Board to get a bargaining 
order. It can call a strike. This particular strike will have even 
greater potency because, being an unfair labor practice strike, the 
employer is barred from hiring permanent replacements.

                          THE ``DISMAL SIDE''

    In Exhibit III-8, the Commission devotes four full pages to 
depicting ``The Human Face of the Confrontational Representation 
Process,'' describing it as the ``dismal side'' of labor relations. We 
would suggest that it should come as no surprise to the Commission that 
most things in the human experience have a dismal side and that the 
field of labor relations is no exception. We do not deny that there are 
some employers who, no matter how tough the labor laws are written, 
will make every attempt to undermine them using illegal behavior. The 
same is true, however, on the union side. For that reason, we do not 
see how the Commission expects there to be a serious debate regarding 
how worker-management relations are to be improved by turning a blind 
eye to union misconduct.
    It was union corruption and violence that led to enactment of the 
Labor Management Reporting and Disclosure Act of 1959, yet a cursory 
review of recent NLRB decisions indicates such conduct is still very 
much a part of worker-management relations. For example:
     In Swing Staging, Inc. (29-CA-15756, August 5, 1994), an 
election was set aside by an NLRB administrative law judge because of 
union misconduct. During the course of a 1990 organizing drive by 
Teamsters Local 282 of Brooklyn, the Judge found that a hangman's noose 
was placed on the president's car and a nail driven through the 
radiator; the brakes of a company truck were damaged; the line io the 
company's.oil tank was cut; an employee was told he would lose his 
pension from another union if he voted against the Teamsters; employees 
were told that the ``union boys'' would beat up whoever didn't vote for 
the union and break the windows of an employee's car if he made waves 
with the union; and, employees were told that the union was connected 
to John Gotti who would ``take care of the president if he gave the 
union a hard time. The reference to Mr. Gotti apparently was not a 
hollow threat. The ALJ pointed out that Mr. Gotti had been named as an 
unindicted co-conspirator with various officials of Local 282 for 
allegedly participating in a scheme to extort payoffs and kickbacks 
from various construction industry employers\21\
---------------------------------------------------------------------------
    \21\ The procedural history of this case demonstrates the NLRB's 
lack of concern with union violence. The union won the elections at the 
two worksites by votes of 11-5 and 6-3. Despite all this evidence of 
misconduct, the Regional Director, after an investigation, recommended 
that the employer's objections be overruled and the union certified, 
The Board agreed, but the employer, refused to bargain. The Board 
ordered the employer to bargain with the union, but the D.C. Circuit 
refused to enforce the Board's order and remanded the case in order for 
a hearing to be held. Finally, almost 4 years after the election, the 
AU is now ordering that the election be set aside. The company, 
meanwhile, has gone out of business.
---------------------------------------------------------------------------
     In Cedar Grove Manor Convalescent Center, 314 NLRB No. 106 
(July 29, 1994), the employer refused to negotiate with District 1115, 
(H. E. R. E.), which had ousted the incumbent union in an election. The 
employer raised as an affirmative defense the union's conduct, claiming 
that it rendered the election meaningless. The record indicated that 
District 1115 originally offered $1,500,000 in cash under the table to 
the incumbent union to buy the unit. Later, the director of District 
1115 threatened the incumbent union's business agent with bodily harm 
in order to dissuade the business agent from continuing to give 
testimony before the Board. The director and the business agent had the 
following conversation over the phone: ``Why don't you stop this 
nonsense with the Labor Board or else.'' ``Or else what?'' ``You will 
get your legs broken . . . Listen, people like you wind up in wooden 
boxes.'' Although the case revealed that this was not the first time 
Local 1115 agents had engaged in such conduct, a three-member panel of 
the Board (Gould, Devaney and Stephens) voted unanimously to require 
the employer to bargain with District 1115.
    Often, union violence is not easily detected. In A Troublemaker's 
Handbook: How to Fight Back Where You Work and Win!\22\, a publication 
by the Labor Education and Research Project, the authors describe a so-
called ``in-plant strategy'' that uses illegal on-the-job practices to 
apply pressure to an unnamed employer without having to engage in a 
strike. We would call the Conunission's attention to one passage that 
describes the kinds of activities engaged in:
---------------------------------------------------------------------------
    \22\ Daniel LaBotz, A Troublemakers Handbook: How to Fight Back 
Where You Work and Win! (Detroit: Labor Notes Handbook, 1991).
---------------------------------------------------------------------------
    One of the key departments [the ``solidarity committee''] 
identified was the foundry, the heart of the entire production 
operation. At the center of the foundry was a large forging machine 
that turned bar stock into coil springs. If a piece of bar stock 
got.caught sideways in the machine, it would melt and immobilize the 
machine. For one reason or another, that began to happen more and more 
frequently.\23\
---------------------------------------------------------------------------
    \23\ Ibid., 119.
---------------------------------------------------------------------------
    Often, violence occurs when a particular company is on labor's 
``hit list'' as is the case . with BE&K, a non-union construction 
company. The Eighth Circuit Court of Appeals ruled in BE&K Construction 
v. NLRB against a Michigan Ironworkers local in which was implicated in 
a 1989 riot protesting the use of BE&K for a paper mill expansion in 
International Falls, Minnesota.\24\ The riot involved 450 people who 
burned the BE&K workers' campsite and injured a number of people while 
causing $2 million in damages. Fear of a similar outbreak was the cause 
of BE&K losing a contract to perform construction on a pulp and paper 
plant near McGehee, Arkansas, following an illegal boycott by the 
United Brotherhood of Carpenters and the United Paperworkers. This 
boycott wound up costing the unions $20 million as a result of a 
Federal jury award.
---------------------------------------------------------------------------
    \24\BE&K Construction Co. v. NLRB, 23 F.3d 1459, (8th Cir. 1994).
---------------------------------------------------------------------------
    In the last few years alone, the national electronic and print 
media have reported in detail the violent strikes that occurred in the 
Greyhound, New York Daily News, Pittsburgh Press and similar bitter 
controversies. The United Mine Workers was fined $52 million by a 
Virginia State court for the violence that swept through the coal 
fields during the Pittston strike. The ``human face'' of labor 
relations in certain worksites is exemplified by Eddie York who was 
shot to death in November, 1993, for crossing a picket line. Mr. York 
was a backhoe operator, an independent contractor who was cleaning a 
reclamation pond in Logan County, West Virginia. This was work that was 
not performed by the union, but after he had been escorted off the 
property by two security vehicles and was driving along a public road, 
strikers began hurling rocks and then shots were fired from a wooded 
area. Mr. York's truck was hit at least three times, the third shot 
being fatal.\25\
---------------------------------------------------------------------------
    \25\ Congressional Record 103d Cong., 1st sess., 1993. Vol. 139, H 
10066-617 (statement by Rep. Stenholm).
---------------------------------------------------------------------------
    In the 163 pages of the Commission's Report, there is no mention of 
union violence nor its impact on collective bargaining and worker-
management relations. Accordingly, we are submitting to the Commission 
a copy of a comprehensive study of workplace violence, entitled Union 
Violence: The Record and The Response by Courts, Legislatures and the 
NLRB\26\, by Professors Armand J. Thieblot and Thomas R. Haggard, 
published by the University of Pennsylvania in 1984.
---------------------------------------------------------------------------
    \26\ Armand J. Thieblot, Jr. and Thomas R. Haggard, Union Violence: 
The Record and the Response by Courts, Legislatures, and the NLRB 
(Philadelphia: Industrial Research Unit, University of Pennsylvania, 
1984).
---------------------------------------------------------------------------
    By refusing to acknowledge the on-going presence of violence in 
collective bargaining and labor relations in a review of the current 
State of workplace relations, it can be said that the Commission is 
impliedly condoning its continued use to achieve collective bargaining 
objectives. In our opinion, it is incumbent upon the Commission to use 
its ``bully pulpit'' to repudiate the belief that a certain amount of 
violence is acceptable in labor disputes. Acceptance of violence is 
seldom found in public discussions of any other ideological conflicts. 
For example, while there are far more beatings and murders on picket 
lines in labor disputes than those surrounding abortion clinics, 
Congress recently enacted the Freedom of Access to Clinic Entrances Act 
(Public Law 103-259) that makes violence, intimidation or obstruction 
which interferes with persons entering abortion clinics a Federal 
crime. During consideration of that law, attempts were made in both the 
House and Senate to broaden the proscription to cover labor violence. 
Rep. Stenholm (D-TX), for example, argued:

        [I]f it is not appropriate for an abortion protester to 
        intimidate a woman seeking her legal choice to reproductive 
        health services, then I believe it should also be inappropriate 
        for a striking worker to intimidate another worker attempting 
        to cross the picket line to exercise his or her right to 
        work.\27\
---------------------------------------------------------------------------
    \27\ Congressional Record, 103d Cong., 1st sess. . 1993. Vol. 139, 
H10065 (statement by Rep. Stenholm).

    The leadership in the House and Senate, however, prevented a vote 
on these amendments.
    In addition to proposing'enactment of a measure similar to Public 
Law 103-259 applicable to labor dispute violence, the Commission should 
consider other worker protections as well. Currently, violence per se 
is not an unfair labor practice under the National Labor Relations Act. 
We urge the Commission to propose making the use or threat of violence 
by either a union or an employer to accomplish collective bargaining 
goals an unfair labor practice with injunctive relief similar to that 
available against secondary boycott activities. In addition, 
individuals engaged in violence aimed at furthering either the 
employer's or the union's goals could be rebuttably presumed to be 
acting as their agents, thus eliminating the problems inherent in 
establishing the necessary ``chain of command'' to obtain relief. At a 
minimum, individual employees who are victims of union violence should 
be able to obtain ``make whole'' relief from the union in the form of 
back pay for any wage losses caused by the violence. Surprisingly, the 
Board has refused to provide even this remedy.\28\
---------------------------------------------------------------------------
    \28\ Teamsters Local 901 (Lock Joint Pipe & Co.), 202 NLRB 399 
(1973).
---------------------------------------------------------------------------
                          CORPORATE CAMPAIGNS

    In addition to ignoring the dismal side of labor relations caused 
by union violence, the Commission's Report made no mention of the 
growth of the ``corporate campaign'' and the negative impact it has had 
on collective bargaining. Because certain aspects pf corporate 
campaigns raise serious public policy questions, no thorough study of 
collective bargaining in America today would fail to examine this new 
phenomenon in labor relations. Given the Commission's deep concern 
about the tensions involved in and the level of resources devoted to 
organizing campaigns, it is surprising that the Commission chose not to 
focus on this area.
    A definition of the corporate campaign can be found in the AFL-CIO 
guidebook entitled Developing New Tactics: Winning With Coordinated 
Campaigns which describes how a coordinated. campaign applies pressure 
to a target company:

          It means seeking vulnerabilities in all of the company's 
        political and economic relationships--with other unions, 
        shareholders, customers, creditors and government agencies--to 
        achieve union goals.\29\
---------------------------------------------------------------------------
    \29\ Charles R. Perry, Union Corporate Campaigns (Philadelphia: 
Industrial Research Unit, University of Pennsylvania, 1987), 1.

    Unlike traditional labor-management disputes, corporate campaigns 
go outside the company to generate public hostility and antagonisms 
toward the target corporation. In addition, they seek to manipulate 
Federal regulatory agencies such that the target becomes enmeshed in 
---------------------------------------------------------------------------
enforcement actions. According to the AFL-CIO guidebook:

          Businesses are regulated by a virtual alphabet soup of 
        Federal, State and local agencies, which monitor nearly every 
        aspect of corporate behavior. . . . Regulatory agencies exist 
        to protect citizens, and unions can use the regulators to their 
        advantage. An intransigent employer may find that in addition 
        to labor troubles, there are suddenly government problems as 
        well.\30\
---------------------------------------------------------------------------
    \30\ Ibid., 6.

    A Service Employees International Union Manual provides similar 
guidance.
    Moreover, even if the violations are completely unrelated to 
bargaining issues, your [union's] investigations may give management 
added incentive to improve its relationship with you. Management 
officials may find that . . . the employer now is facing . . .
     Extra expense to meet regulatory requirement or qualify 
for necessary permits and licenses.
     Cost delays in operations while those requirements are 
met.
     Fines or other penalties for violating legal obligations.
     Damage to the employer's public image, which could 
jeopardize political or community support, which in turn could mean 
less business or public funding.\31\
---------------------------------------------------------------------------
    \31\ Service Employees International Union, Contract Campaign 
Manual, (1988), 3-21, footnote 38.
---------------------------------------------------------------------------
    It is not an uncommon experience for unionized companies about to 
enter collective bargaining negotiations to have a slew of charges 
filed against them at OSHA, wage-hour, EEOC and other Federal. 
agencies. There are more dramatic examples, however. In a July 26, 
1994, decision by the Ninth Circuit Court of Appeals, USS-Fosco 
Industries v. Contra Costa County Building and Construction Trades 
Council, No. 92-15497, the court found very troublesome the activities 
undertaken by a group of California construction unions to wipe out 
non-union construction in northern California. Again, the unions' 
target was the aforementioned BE&K, which had entered into a contract 
involving 800 jobs to update a steel facility. The company was 
subjected to numerous lawsuits, protests against permits, lobbying at 
the local level for new environmental ordinances requiring more 
permits, and encouragement of subcontractors to protest nonexistent 
safety violations. Despite its concerns over the legitimacy of the 
union's activities, the court found that the union was protected 
against an antitrust action by an exemption for those petitioning the 
government for redress of grievances. Whale the exemption does not 
apply to so-called ``sham petitioning,'' the court noted that fifteen 
of the twenty-nine filings of complaints with the government had proven 
successful. The fact that those complaints never would have been filed 
but for the. unions' desire to harass the company was irrelevant.
    We are also submitting to the Commission a copy of a book published 
in 1987 by the University of Pennsylvania entitled Union Corporate 
Campaigns by Prof. Charles R. Perry that provides several case studies 
of corporate campaigns and their impact on labor-management relations.
    To summarize our concerns with the findings in Chapter 111, the 
Commission states on page 78 of the Report that:

          The Commission has not sought to determine the role of 
        particular campaign tactics, legal or illegal, on the outcome 
        of NLRB elections nor the reasons for the decline in the 
        proportion of workers covered by collective bargaining in the 
        United States.

    That statement notwithstanding, the Commission did in fact reach 
certain conclusions, either explicitly or impliedly, about the role of 
particular tactics and the reasons for the decline. The problem that we 
have with the Report is that only one side of the story is presented, 
the story written by organized labor. Unlike Chapters II and IV, 
Chapter III makes no serious attempt at giving the American public a 
complete picture of the facts involved in contemporary worker 
representation and collective bargaining.

                      ANOTHER VIEW OF THE FINDINGS

    While Chapter III provides mostly a one-dimensional view of 
collective bargaining in the United States, a reader willing to pick 
carefully through its paragraphs and footnotes will eventually be able 
to cobble together a much different set of facts than the ones adopted 
by the Commission, ones that lead to very different conclusions 
regarding where reforms in the National Labor Relations Act are needed. 
These alternative findings are as follows:
    1. Collective bargaining, where it exists, is working very well. 
The Report states: ``In most workplaces with collective bargaining, the 
system of labor-management negotiations works well.'' \32\ We agree 
with this statement, but it is troubling that it was buried in the text 
of the Report and not adopted as one of the principal findings. We 
recognize that commissions tend to (and should) focus on problems that 
need to be corrected, but in view of the apocalyptic statements 
elsewhere in the Report about the State of collective bargaining in 
America, today, we believe this. conclusion should have been elevated 
to the status of a major finding.
---------------------------------------------------------------------------
    \32\ Report, 64.
---------------------------------------------------------------------------
    2. The National Tabor Relations Act is being administered in a 
timely effective manner by the National Labor Relations Board. Despite 
the inclusion in the Report of considerable statistical data to prove 
this point, the Report bends over backwards to avoid drawing this 
conclusion, including relegating to a footnote its own assessment that 
the Board's regional offices settle charges and issue complaints within 
45 days, ``a track record that just about any other labor or employment 
agency would be proud to have. `` \33\ (See Chart I).
---------------------------------------------------------------------------
    \33\Report, 71, footnote 7.
---------------------------------------------------------------------------
    Because approximately 80-85 percent of all meritorious cases are 
settled, this ``track record'' merits more than a footnote. (See Chart 
II).

[GRAPHIC] [TIFF OMITTED] T0443.040

      
    [GRAPHIC] [TIFF OMITTED] T0443.064
    
    The Report's data regarding the Board's conduct of 
representation elections are no less impressive. A constant 
refrain by organized labor for the past two decades has been 
that employers have successfully manipulated NLRB procedures to 
ensure that the representation election occurs long after the 
certification petition is filed--sometimes years later. The 
Report attempts to bolster this complaint by asserting that 20 
percent of elections take more than 60 days.\34\ Of course, 
this also means that 80 percent take less than 60 days, 
compared to 68.9 percent in 1975. (See Chart III). Moreover, 
Exhibit III-2 at page 82 of the Report shows that, in 1993, 
94.7 were conducted within 90 days as contrasted with 89 
percent in 1975, and that only 1.2 percent went beyond 6 months 
while 2.9 percent did so in 1975. In other words, the 
processing of elections by the Board has improved during the 
past 20 years.
---------------------------------------------------------------------------
    \34\ Report, 68.
---------------------------------------------------------------------------
    More significantly, as the Commission, observes (once again 
in a footnote), the data demonstrate that the NLRB is able to 
conduct those elections in a fair manner with 97-98 percent of 
all elections being free of any sustainable objections from 
either party. (See Chart IV).
      
    [GRAPHIC] [TIFF OMITTED] T0443.041
    
      
    [GRAPHIC] [TIFF OMITTED] T0443.042
    
    In addition, the credibility of the Board with the Federal 
courts has soared in recent years, with its success rate 
climbing from 70-80 percent in the 1960s to 80-90 percent in 
the 1970s, 1980s and 1990s. The only notable exception was 
during the Carter Administration when, in 1979 and 1980, the 
rate slipped to 77 percent and 76 percent respectively. (See 
Chart V). We note that in 1968, the AFL-CIO testified to 
Congress that appellate court affirmance of NLRB decisions is 
the ``only measurable and objective test'' of the Board's 
interpretation of the statute.\35\ Using that yardstick, the 
Board's interpretations have steadily improved since the Carter 
Administration.
---------------------------------------------------------------------------
    \35\ Senate Subcommittee on Separation of Powers of the Committee 
on Judiciary, Congressional Oversight of Administrative Agencies 
(National Labor Relations Board), 90th Cong., 2d sess. 1968, 321 
(statement of Thomas E, Harris, Associate General Counsel, AFL-CIO).
[GRAPHIC] [TIFF OMITTED] T0443.065

      
    We would, however, point out one area regarding the 
administration of the NLRB that does deserve the Commission's 
attention. While there has been considerable discussion of NLRB 
delays during the past two decades, the fact is that these 
delays involve about 2 percent of the cases. The case backlog 
has improved in recent years--declining from 1,400 in, 1983 to 
just over 300. However, the median time for a Board decision--
17 months--would indicate a problem lies at the Board member 
level. One of the reasons for this delay is the constant 
turnover in board members and difficulties the White. House has 
in clearing new Board member appointments through the Senate 
confirmation process. In fact, since 1978 the NLRB has been at 
its full, five-member strength only 58 percent of the time. One 
of the principal reasons for this occurrence has been organized 
labor's opposition to certain candidates proposed by Presidents 
Reagan and Bush, and the business community's opposition to 
particular persons nominated by Presidents Carter and Clinton. 
When labor or management become concerned with the balance on 
the Board, their only remedy is to block the confirmation until 
such time as an accommodation can be worked out between the 
parties. The Commission could perform a valuable service in 
suggesting a better method for the selection and confirmation 
of Board members than the system currently in place.
    Rep. Major Owens (D-NY) has offered a proposal worth 
considering H.R. 1466--which would alternate Board memberships 
by allowing organized labor and business to each select a Board 
member in succession. While the Owens bill may not be the 
perfect solution, it suggests a direction that would expedite 
the process considerably while ensuring balance at the Board. 
We strongly recommend that you take a close took at the Owens 
bill or any similar proposal that would achieve the same 
improvements over the current system.

[GRAPHIC] [TIFF OMITTED] T0443.043

      
    3. The efficient administration of the National Labor 
Relations Act would be jeopardized by major changes in 
enforcement, including the remedics available. The Report 
clearly implies that the remedies available under the National 
Labor Relations Act are too weak, comparing them to the 
compensatory and punitive remedies available under other 
employment statutes. However, the likely result of expanding 
those remedies can be seen in Chapter IV, which demonstrates 
the effect of tort remedies on the judicial system. Clearly, 
the efficiency of any enforcement scheme is closely tied to its 
remedies. The success of the current NLRA process which we have 
just, outlined could only be jeopardized by a move toward more 
punitive remedies. As the stakes are raised, the willingness of 
the parties to enter into settlement decreases. That is the 
principal reason disputes at the NLRB where back pay is the 
remedy are settled so much more quickly than disputes before 
the EEOC where up to $300,000 in punitive and compensatory 
damages, over and above any backpay that might be awarded, for 
each claim of discrimination is available. Further, if. 
punitive or compensatory damages were to be authorized under 
the NLRA, it would entail a right to a jury trial, thus 
eliminating the current system of adjudicating matters before 
an administrative law judge.
    4. ``Outsiders'' frequently play an active role in union 
representation elections. The Report attaches great 
significance to the ``fact'' (unsubstantiated) that management 
hires a consultant in 70 percent of all elections.\36\ These 
outsiders (who often are labor law attorneys hired to make sure 
that the employer complies with the highly technical provisions 
of the NLRA) seem to be viewed by the Commission as somehow 
``tainting'' the election process. We would point out that 
``outsiders'' in the form of union organizers are present in 
nearly 100 percent of all campaigns and are usually on the 
scene long before the management consultants are brought in.
---------------------------------------------------------------------------
    \36\ Report, 68. The source for this finding is not provided in the 
Report. Curiously, immediately after citing this statistic, the Report 
states: ``There are no accurate statistics on consultant activity.'' 
Id.
---------------------------------------------------------------------------
             RESPONSE TO QUESTIONS POSED BY THE COMMISSION

    On pages 79 and 80 of Chapter III the Commission poses a 
series of questions for further discussion. Our response to 
these is as follows:
    1. ``How might cooperation in mature bargaining 
relationships be increased?'' Given the Report's conclusion 
that ``the system of labor-management negotiations works well'' 
where collective bargaining is already in place--a conclusion 
with which we wholeheartedly agree--we are not sure how a 
mature relationship can be made more mature. If the question is 
directed at how a cooperative relationship can be instituted in 
an environment which has historically been characterized by an 
adversarial relationship of traditional collective bargaining, 
the experience of LPA members indicates that change in such 
circumstances may be possible only where, both labor and 
management come to the realization that it is in their worst 
interest to continue dealing with one another on a 
confrontational basis. There are numerous examples in which the 
catalyst, for positive change to a cooperative relationship was 
the parties being pushed to the brink, such as by a dire 
economic threat to the organization's business, or a bitter 
strike over an issue that could have been easily resolved had 
the parties been willing to deal with one another on a basis of 
trust at the outset.
    It will be very difficult to increase cooperation, however, 
so long as the leadership and policy departments of 
international unions actively encourage their members in the 
field to resist cooperative workplace ventures. There are, 
dozens of examples within the LPA membership of union locals 
desiring to adopt more collaborative work systems, but the 
international is strongly opposed. The Teamsters, for example, 
teach courses to their field personnel on how to prevent the 
growth of employee involvement programs in the workplace. There 
are a number of union publications laying out strategies and 
tactics for dismembering employee involvement.\37\ As long as 
cooperative programs like employee involvement and employee 
participation are seen as a threat instead of a protection, it 
will be difficult to increase cooperation in traditional union 
work settings.
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    \37\ Chapter 5 of A Troublemaker's Handbook: How to Fight Back 
Where You Work, Inside the Circle: A Union Guide to Quality of Work 
Life, and Choosing Sides: Unions and the Team Concept.
---------------------------------------------------------------------------
    2. ``Should the labor law seek to provide workers who want 
representation but who are a minority at a workplacc a greater 
option for non-exclusive representation?'' We can think of few 
recommendations that could be made by this Commission that 
would be more counterproductive to improving worker-management 
relations. The experience of our companies in other countries 
where minority representation is standard practice has shown 
that it can become very disruptive, with the potential for 
considerable confusion as to who speaks for whom.
    As was noted by the Warren Court in Ladies' Garment Workers 
v. NLRB (Bernhard-Altmann Texas Corp.),\38\ freedom of choice 
and majority rule are the very ``premise of the Act'' as it is 
now written. An employer only has a duty to bargain with a 
union which has been certified by the National Labor Relations 
Board after being elected by a majority of the employees in the 
unit. An employer may also voluntarily recognize and bargain 
with a union, but only if the employer has objective evidence 
that a majority of the employees support that union. Proposals 
to expand employer obligations to include unions which 
represent less than a majority contradict this premise.
---------------------------------------------------------------------------
    \38\ 366 U.S. 731, 738-9 (1961).
---------------------------------------------------------------------------
    In his August 10 testimony, AFL-CIO Labor Law Task Force 
Director David Silberman contended that there was adequate 
precedent for the concept of minority representation, citing 
Executive Order 10988 signed by President Kennedy in January 
1962. This Executive Order provided for ``formal recognition'' 
where a union in the Federal employee workplace represented at 
least 10 percent of the, employees and ``informal recognition'' 
if it represented less. Unfortunately, Mr. Silberman failed to 
mention that those provisions of the Executive Order were 
abandoned in 1969 following a report submitted by Labor 
Secretary George Shultz, among others, which came to the 
following conclusions:

          [Formal recognition] has produced problems which hinder the 
        development of stable and orderly labor relations. It has 
        contributed to excessive fragmentation of units, confusing and 
        overlapping relationships, and difficulties in maintaining an 
        appropriate difference in the rights and obligations under this 
        form of recognition compared with those prescribed for 
        exclusive. For these reasons, the majority of agencies have 
        indicated that formal recognition should be discontinued.\39\
---------------------------------------------------------------------------
    \39\ Study Committee (composed of Department of Labor Secretary 
George P. Shultz, Department of Defense Secretary Melvin R. Laird, 
Civil Service Commission Chairman Robert E. Hampton, and Bureau of the 
Budget Director Robert P. Mayo), Report and Recommendations on Labor-
Management Relations in the Federal Service, (August 1969), 13.

    The report did observe that labor unions favored retention 
of ``formal recognition'' because they regarded it ``as a 
significant form of assistance in further organizing the work 
force, particularly because it makes possible obtaining dues 
withholding privileges.\40\
---------------------------------------------------------------------------
    \40\ Ibid.
---------------------------------------------------------------------------
    If the majority of the employees in a bargaining unit has 
voted against third party representation, it would seem 
important to honor the will of the majority. Honoring that will 
has certainly been the doctrine organized labor adamantly 
pursued when private sector representation percentages were far 
higher earlier this century, and it should still be the case. 
We would note that while expressing support for a new form of 
minority ``rights'' in the area of union representation, labor 
still continues to oppose the right of the minority to decline 
to pay dues to a union which has been elected by the majority, 
but which the minority does not support.
    From the standpoint of human resource practitioners, there 
are a number of practical problems with minority. 
representation as well. First, it is much simpler to administer 
human resource policies when all employees can be treated 
similarly. We are not certain precisely what the AFL-CIO is 
proposing, but it appears to be a sliding scale of third party 
representation obligations depending on the level of interest 
in a particular workplace in such representation. Questions 
then arise as to how the employer is to know which group of 
employees fit into which category. For example, a union may 
claim to be representing 100 employees for purposes of informal 
consultation, but the employer may not know for sure without 
polling each of those employees--an action that may be 
considered an illegal coercive tactic under the labor laws. 
Further, without some clear determination regarding employee 
preference, some employees may vacillate between being 
represented by the union 1 month and not the other, depending 
on how they feel about its actions at the time.
    The situation would be further complicated where more than 
one union was present. What if the employer is receiving 
conflicting signals regarding such important issues as work 
schedules, discipline, methods of payment, transfers, and the 
like from two or more minority unions in what would otherwise 
be a single bargaining unit. For example, one union may 
represent the more senior employees and be pushing for stronger 
seniority rights while another may be pushing for merit-based 
policies. The workplace may start looking more like the 
parliament of a Third World country than the cooperative 
environment which should be our objective.
    3. ``Should unions be given greater access to employees on 
the job during organizational campaign percent, and if so 
how?'' With respect to union organizers being given greater 
statutory rights to enter a workplace for the purpose of 
persuading employees to join a union; we believe that current 
law is already weighted in favor of unions by their legal right 
to contact employees in their homes, a right not accorded 
management. Indeed, the AFL-CIO survey cited above found this 
to be among the most effective organizing techniques available 
to unions. According to the survey:

          In cases where the organizer house called between 60 and 75 
        percent of the unit, the win rate was 78 percent. If the 
        organizer made no home visits, the win rate was 41 percent.\41\
---------------------------------------------------------------------------
    \41\ AFL-CIO Survey, 49.

    In contrast, where the use of mass meetings was the primary 
campaign tactic, the win rate was only 25 percent.\42\
---------------------------------------------------------------------------
    \42\ AFL-CIO Survey, 50.
---------------------------------------------------------------------------
    Thus, there appears to be little justification to warrant 
the disruption of a company's operations that would be created 
by requiring companies to open their doors to organizing 
rallies at the worksite. Moreover, if there is a genuine desire 
for unionization on the part of the workforce, what should be 
the most effective organizers--i.e., the pro-union members of 
the unit--are already working on the site and have all the 
access that is needed.
    4. ``How can the level of conflict and the amount of 
resources devoted to union recognition campaigns be de-
escalated?'' The solution to this will be difficult to achieve 
in a system which is premised on the belief that labor and 
management have fundamentally different interests that can only 
be reconciled through the adversarial process of collective 
bargaining. It will also be difficult to achieve as long as 
labor's approach to an unorganized workplace is to identify the 
areas of disagreement between management and labor and then 
seek to exacerbate those disagreements. Commissioner Kreps may 
have phrased the issue best in her question to the head of the 
AFL-CIO Organizing Institute on August 10th when she said, 
``We're being asked to conclude, then, that most employers are 
bad guys because of the low percentage of unions, right?''
    The Report suggests that one way of resolving these 
tensions is for management and international labor unions to 
agree between themselves that the employees will be represented 
by the international and that the employees covered by that 
agreement should be denied a voice in that decision. While some 
companies have entered into such agreements, as an Association 
we cannot support the elimination of the necessary element of 
democratic choice that forms the critical foundation for 
healthy labor-management relations in this country. Indeed, 
notwithstanding our complaints regarding Electromation, if 
there is anything in section 8(a)(2) that should be retained, 
it should be the prohibition against a company choosing a labor 
union for its employees.
    5. ``What new techniques might produce more effective 
compliance with prohibitions against discriminatory discharges, 
bad faith bargaining, and other illegal actions?'' Since most 
organizing activity is now focused on smaller companies who 
often do not have the resources to obtain quality legal advice, 
and since most of the violations are now occurring in those 
companies; we believe there is a greater need today for 
education, training and counseling of employers of their rights 
and obligations under the law. A small employer who cannot 
afford to be counseled by a labor lawyer regarding the 
intricacies of the National Labor Relations Act is at a 
disadvantage with the union, which has the legal resources of 
the union's lawyers as well as the NLRB General Counsel 
operating at public expense. We do not question this system. 
Indeed, we believe NLRB enforcement data and timetables have 
proven. it to be effective. However, we think it is time to 
eliminate the ``surprise'' factor from this process for the 
small employer and provide early intervention to prevent 
violations, rather than punish them after they have already 
occurred.
    One solution may be to for the NLRA to be amended to 
provide an ``Office of Employer Counsel'' at the NLRB that 
could conduct training programs and offer advice to employers 
regarding their rights, liabilities and obligations under the 
Act. We do not believe that adding expensive penalties to the 
NLRA is the solution because the problems of excessive 
litigation discussed in Chapter IV can be attributed in large 
part to the availability of these remedies. The potential for 
significant monetary damages simply makes litigation more 
attractive to the parties, ultimately triggering more delays in 
the system overall. We note the absence of any discussion in 
Chapter IV of NLRB remedies being inadequate.
    Clearly, the Board has at its disposal severe remedies that 
may be used against a recalcitrant employer. In the classic 
case of J.P. Stevens, the Board was not limited to back pay and 
bargaining orders. The company was also ordered to reimburse 
the union for its bargaining expenses, including clerical costs 
and salary and mileage expenses incurred during the violation 
period. Further, the company was ordered to reimburse the union 
and the Board for litigation costs and, in the case of the 
union, even its organizing expenses. In addition, the Board 
issued company-wide orders that applied to all locations where 
the union was present and not just those involved in the 
immediate litigation.\43\
---------------------------------------------------------------------------
    \43\ J.P. Stevens & Co., 244 NLRB No. 407 (1979).
---------------------------------------------------------------------------
    Finally, where swift measures are necessary, the Board has 
the power to seek an injunction. Although the Report states 
that NLRB section 100) injunctions are ``pursued infrequently 
each year,'' the Board has significantly increased the use of 
these injunctions in recent months. According to Chairman 
Gould, the Board has sought 50 injunctions in the past 5 
months, compared to 42 for all of last year. Moreover, he 
claims a success rate of 87 percent.\44\
---------------------------------------------------------------------------
    \44\ William B. Gould, ``Changes in Labor Law: Here and Now and the 
Future,'' Spokane, August 22, 1994 (speech reprinted in the Daily Labor 
Report, August 25, 1994).
---------------------------------------------------------------------------
    6. ``What, if anything, should be done to increase the 
probability that workers who vote for representation and their 
employers achieve a first contract and on-going bargaining 
relationship?'' Both labor and management have long proclaimed 
the virtues of ``free collective bargaining''--i.e., bargaining 
without governmental involvement--and we consider any efforts 
to abandon this approach unwise. Our system of collective 
bargaining was never set up in a way that would guarantee that 
bargaining would always produce an agreement nor should it be 
amended to do so. If it were, it would no longer be free 
collective bargaining. Sometimes, ``hard bargaining'' by both 
sides results in no agreement as seen in recent years in a 
number of highly visible strikes (e.g., Caterpillar, Massey, 
Phelps Dodge) that have been triggered by the union's 
unyielding demand that the employer sign the same agreement as 
all other employers in the industry. When the union refuses to 
discuss any variations from the pattern, one could reasonably 
argue that, in these cases, it is the union's insistence that 
leads to the impasse. Is this ``hard bargaining'' or is it 
``surface bargaining?''

                               CONCLUSION

    The Commission on the Future of Worker/Management Relations 
provides a unique opportunity for the development of a balanced 
set of recommendations regarding improving Federal policies 
governing relationships among employees, employers and unions. 
In Chapters II and IV of its Fact Finding Report the Commission 
has prepared the necessary factual foundation on which 
substantive discussions of policy changes can be built. Both 
Chapter lI dealing with employee involvement and Chapter IV 
addressing the need for improved dispute resolution systems 
represent a good faith effort to describe the present situation 
in such a manner that all persons with a stake in the outcome 
of the Commission's deliberations can be assured that its final 
recommendations are likely to address their concerns fairly.
    Unfortunately, the same cannot be said of Chapter III. The 
Commission's treatment of union representation and collective 
bargaining lays out a biased set of facts that only represents 
organized labor's point of view. Unless the Commission is 
willing to look at both sides of the worker-management equation 
on these critically important issues, its forthcoming 
recommendations in this area almost certainly will not provide 
the basis for a meaningful dialog on proposed policy changes.

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    The Chairman. Could I just ask, with regard to the card 
checks, the employers have to agree to that, don't they?
    Mr. Yager. Yes.
    The Chairman. Well, I don't know what your problem is then.
    Mr. Yager. It is a corporate campaign----
    The Chairman. But, I mean, all of these kinds of--we will 
move on.
    Mr. Sweeney, can you sort of give us some sense about what 
you hear from the state of workers in terms of these, or what 
is your own sense about the growth of these companies that go 
on out and are available to companies about how to really 
destroy a union or how to block the organizing process? That is 
a relatively new phenomenon that has grown over the period of 
the last 25 years, at least that is my impression. I don't 
remember that being a factor or force. But it certainly is now. 
We hear a lot about, well, the threats from workers and all the 
rest when we have, on the other hand, these companies that are 
going out there, they wear with pride the number of instances 
that they blocked workers from being able to be successful.
    I would be interested if you would comment about it. What 
this hearing is about is trying to see if workers in America 
through their own kinds of efforts can form, by following the 
laws, a union and see if they can have free choice in making 
those judgments and decisions. Now we have these companies that 
are absolutely committed to destroying that process. Your 
comment?
    Mr. Sweeney. Sure. Before that, if I might just respond to 
Mr. Yager, I am really surprised at the example that he cites, 
MGM Grand, which is an organized hotel with a collective 
bargaining agreement in place. There was an attempt at one 
point to decertify the union, and those who supported 
decertification couldn't meet the threshold of 30 percent who 
were interested in doing that. I am not aware of the petitions 
that he cited, but it is a company that is highly organized and 
it is a company that presently has a good collective bargaining 
agreement.
    In response to your question, Senator, the growth of union-
busting consultants is probably one of the fastest-growing 
industries in the country. While it started mostly in the 
health care industry in its earliest stages, it has now spread 
to just about every industry. The examples and the tactics and 
some of what you have heard and will hear on the second panel 
are just indications of what these consultants are advising 
employers to do in an anti-union or in an attempt to defeat a 
union-organizing campaign with all the harassment and all the 
intimidation and all the violations of law as well as extending 
some of the law in directions that it was never intended to 
apply to.
    I am sure after the second panel you will really have a 
more comprehensive view from different industries, from workers 
from different industries who have had these experiences, and 
it is just disgraceful what is happening in this day and age 
with workers trying to have a voice at work.
    When we look at the hearings on the Enron situation and so 
on, these workers whom we have supported since they were all 
terminated from their employment--we have provided them with 
legal help and other assistance--didn't have the benefit of any 
kind of association or any kind of organization to represent 
them and realize today how important it would have been for 
them to have a voice even in the discussions of their options 
on pension coverage and have a seat at the table representing 
the voice of workers.
    The Chairman. The administration spends a good deal of time 
talking about those fire fighters in New York, and all 
Americans will never look at a fire fighter or rescue worker 
the same--never--after their courage and bravery. Have they 
ever explained why they are so strongly opposed to those fire 
fighters being able to bargain collectively? Could you tell us 
what you have heard about the administration's position about 
firing the air traffic controllers that ensure the safety of 
America's skies on that tragic day? It seems that we not only 
have companies that are committed to try to deny the workers 
their free rights, but what is behind that? What is your sense 
about--what do they tell you, or don't they tell you?
    Mr. Sweeney. Well, we saw on September 11th and following 
everybody recognizing the heroism of workers who were involved 
at the World Trade Center, here at the Pentagon, and all of us 
were singing the praises of workers and their contribution. 
These are the same heroes who are doing that work every day of 
the year, who did it long before September 11th, and for them 
to be denied collective bargaining with the fire fighters in 
the Federal sector is a classic example of efforts to prevent 
workers from organizing, from having a voice in their job and 
on their living conditions.
    Firing of the air traffic controllers was the most 
despicable situation I guess that we saw in the 1980s. It was 
really a blatant attempt to break the union and to break the 
lives of those workers. We recognize that the workers made some 
decisions that they probably shouldn't have, but firing them 
and what it caused them and their families and their lives is 
the most horrible situation in terms of how it affected those 
workers.
    There are folks, as you well know who do not want to see 
workers represented by unions, who do not want to see a level 
playing field when it comes to labor-management relations and 
the ability of workers to have a say on the job and to have the 
basic rights that we--we support ILO declarations and we 
support ILO basic freedoms and rights, but we don't carry it 
out in our own country.
    The Chairman. Senator Hutchinson.
    Senator Hutchinson. Thank you, Mr. Chairman.
    Mr. Yager, assuming that the alleged abuses the other 
witnesses have related are accurate--and I assume they are--do 
you believe these represent typical cases that are handled by 
the NLRB?
    Mr. Yager. Absolutely not. I think actually the NLRB and 
the procedures for protecting employee rights are about as 
employee-friendly as can be in terms of enforcement. Typically, 
most people who have a claim under almost any other law have to 
go out and hire a lawyer and get that lawyer to bring their 
case. As we have heard on some of the cases of the NLRB, those 
cases drag out in the courts and it takes several years for 
those individuals to get their remedies.
    Under the NLRB, an employee simply has to go down to the 
regional office, file a charge, and at that point basically the 
general counsel of the National Labor Relations Board becomes 
their lawyer, becomes the union's lawyer, prosecutes that case 
on their behalf.
    The employer, on the other hand, or the union if the union 
is being accused, has to retain their own attorney. In fact, 
according to data provided by the former general counsel at the 
National Labor Relations Board, Fred Feinstein, in fact, about 
90 percent--or, I am sorry, most charges are resolved within 45 
days. Typically, when the general counsel goes to the employer 
and says we think that you have probably committed a violation 
here, more often than not that employer settles that case. It 
is really only a very small percentage of cases that work their 
way up through the processes. Yes, in fact, those cases do take 
a long time to get resolved, and it is unfortunate. I would be 
the first one to say if we could think of a way to make those 
quicker in a judicious, fair manner, let's do it.
    But in that respect, they really are no different than most 
other claims in our legal system.
    Senator Hutchinson. Now, I notice that union membership in 
recent years has been static in our country. In fact, as a 
percentage of the overall workforce, union membership has 
declined. We heard Mr. Sweeney's take on why that is the case. 
What other reasons might there be that union membership is not 
as desirable as it once may have been?
    Mr. Yager. A lot of people will give you a lot of reasons. 
I think the two that I think are probably the strongest are: 
one, just the plethora of laws that have been passed since the 
1940s, a lot of situations where an employee in the 1940s would 
have gone to a union shop steward or an organizer saying I need 
protection, now they will go to a plaintiff's lawyer or a 
government agency and get the protection that is already there 
under the laws.
    I think the other, though, is I think employers' human 
resources practices are very competitive right now. The number 
one problem for our members is recruitment and retention of 
good employees. So they offer them good benefit packages; they 
offer them good compensation packages. They listen to what they 
have to say. They give them more of a voice in the workplace on 
how the business is being run. I think that has taken a lot of 
the arguments away from organized labor.
    Senator Hutchinson. Thank you.
    Mr. Sweeney, I strongly support the right of people to 
organize and to form a union, and I find the cases of 
intimidation, violence, threats, those kinds of things 
outrageous. But I think, some of the so-called organizing 
tactics that are used today are also outrageous.
    In our second panel, we are going to have a witness who 
will testify, Bob MacDaniels, president of the ONCORE 
Corporation, which has been the victim of a law-breaking union-
organizing campaign. The NLRB found this month in this case, 
that there is reasonable cause to believe that the respondent 
has trespassed, improperly demonstrated, assaulted persons, 
blocked ingress and egress, physically disrupted work, 
threatened neutral employers contracting with ONCORE who have 
no dispute with the union, all in violation of secondary 
boycott prohibitions.
    Then they get specific about a string of incidents in April 
2002 at a number of construction sites where ONCORE was the 
subcontractor. In one incident on April 9th on property owned 
by Lincoln where ONCORE was the subcontractor, 50 to 60 hostile 
and angry union members allegedly came on the construction 
site. The facts of the incident were, in fact, admitted by the 
union, trespassed without permission, refused to leave. 
ONCORE's foreman attempted to retreat up a ladder to the second 
floor of the building under construction but was told he wasn't 
going anywhere, was restrained by individuals holding his arms, 
shoulders, and back while another individual wrapped tape 
around his throat and attempted to choke him. Until police 
arrived, the union members disrupted work for approximately 20 
minutes, and as they left they changed, ``We will be back.''
    Over the next few days, similar incidents of trespass and 
threats by the union occurred at construction sites owned by 
the companies where ONCORE was the subcontractor. That from the 
NLRB.
    Do you find that outrageous?
    Mr. Sweeney. With all due respect to the case that you are 
referring to--and I guess we will hear more in the second 
panel--I understand that there is a legal--that there is some 
dispute with the facts, and there is a legal process where 
there has been an injunction and a temporary restraining order, 
I believe. But I would like to get more familiar with the 
facts.
    Senator Hutchinson. Well, I can read you that there is a 
concession to the facts, but apart from whether the facts are 
accurate or not, do you find, if that were the case, that kind 
of behavior outrageous?
    Mr. Sweeney. Well, I have been known to trespass myself 
once in a while.
    [Laughter/applause.]
    The Chairman. Order, please.
    Senator Hutchinson. Thank you, Mr. Chairman----
    Mr. Sweeney. But I do not support any illegal activities. I 
do not support----
    Senator Hutchinson. Trespassing is illegal.
    Mr. Sweeney [continuing]. Any violence, no matter what the 
situation what might, and the labor movement as a whole has 
never supported any violent activities.
    Senator Hutchinson. I have a letter here from the 
International Brotherhood of Electrical Workers. ``Dear 
Brothers and Sisters: I'd like to thank all of you that 
responded to my last letter. Now, for what you can do to assist 
your local union, we're in desperate need for Members to 
volunteer for the following tasks''--and most of these tasks I 
understand, hand billing, picketing, surveillance, volunteer 
organizing, and then it says ``overt salts and covert salts.'' 
Could you define for me what a ``covert salt'' is?
    Mr. Sweeney. I think you will have to ask the IBEW what 
they describe, but that is a part of their organizing 
activities. It has been part of organizing in the building/
construction trades.
    The Chairman. Mr. Yager, can you define what a ``covert 
salt'' is?
    Mr. Yager. A covert salt is--I am not sure, but I would 
guess an overt salt is a salt who applies for a job and says, 
``I am a union organizer, and if you refuse to hire me, I am 
going to say you discriminated against union activity.'' A 
covert would probably be one who applies for a job, does not 
indicate that to the employer, and then once on the job begins 
filing complaints and creating harassment in the workplace. 
That is my guess based on those terms, but I don't know for 
sure.
    Senator Hutchinson. Thank you. My time has expired.
    Thank you, Mr. Chairman.
    Mr. Sweeney. What is your problem with that?
    Senator Hutchinson. Well, it is deceptive and the goal is 
not to organize but to destroy the company, and I think that 
that is a very, very egregious practice.
    Thank you, Mr. Chairman.
    Mr. Sweeney. I disagree.
    The Chairman. The whole issue on salting, we have had 
hearings, the right in terms of salting has been upheld by the 
Supreme Court by 9 to nothing.
    Senator Hutchinson. Overt or covert?
    The Chairman. Well, the Supreme Court. You read the 
opinion. You read the opinion on it. But that is a way of 
organizing, and it has been recognized.
    So I think I would like, I think all of us want to see, if 
people are going to violate the law, whether it is--they 
understand the consequences. They should understand the 
consequences. I wish we were as much concerned about Mr. 
Vizier, what has happened to him, as we are with regards to 
other circumstances.
    Senator Wellstone.
    Senator Wellstone. Thank you, Mr. Chairman. That is a good 
bridge to some of the questions I have which deal with, first 
of all, the National Labor Relations Act. I will first start 
with Mr. President, and I will move right along because I would 
like to get to all of you.
    The NLRA says, ``Employees shall have the right to self-
organization, to form, to join, or assist labor 
organizations,'' and it sounds good. Then I heard you, 
President Sweeney, talk about a variety of different campaign 
tactics: captive-audience meetings, one-on-one meetings, hiring 
outside consultants, threatening to close facilities, bribes or 
special favors, illegally firing workers, surveillance, 
refusals to bargain for first contracts. How prevalent are 
these practices?
    Mr. Sweeney. I would say that probably somewhere around 75 
to 80 percent of all campaigns have seen employers exercising 
those tactics.
    Senator Wellstone. Seventy-five to eighty percent of the 
organizing campaigns. So thinking about the NLRA and, again, 
the right of organizers, the right to self-organization, in 
general terms what do you think needs to be changed, your own 
priorities? What are some of the things that you are thinking 
about as president that would assure that workers have this 
basic, I would argue, democratic right, with a small ``d''?
    Mr. Sweeney. Well, our hope is that coming out of this 
hearing there would be a higher focus on addressing the labor 
law issues. It is a rather extensive and comprehensive agenda, 
but if we look at some of the labor laws in countries like 
Canada and see how they deal with workers' expression of choice 
in terms of joining or forming a union and the expeditious 
process that they have, I disagree with Mr. Yager on the 
pending cases at the NLRB. The numbers are horrendous and have 
been for the past several years.
    But we should certainly be able to enforce a labor law that 
gives workers a level playing field for expressing themselves 
in terms of whether or not they want to join a union or to form 
a union.
    Senator Wellstone. So the whole question----
    Mr. Sweeney. We should have an expeditious process for 
discriminatory discharges and other such penalties. But the 
list is long in terms of what provisions of the labor law must 
be addressed.
    Senator Wellstone. But the general principle is the right 
to organize, the right to bargain collectively.
    Mr. Sweeney. Yes.
    Senator Wellstone. Mr. Roth, the NLRA on its face complies 
with international human rights principles-you say that in your 
testimony--but it falls short in reality. I wanted to ask: Do 
you think the problem is that the law is not being adequately 
enforced or that the enforcement itself is not effective or 
both?
    Mr. Roth. It is a little bit of each. A lot of the tactics 
that are now standard procedure because of these union-busting 
consultants that are so prevalent are actually permitted under 
the NLRA. On things such as captive-audience meetings, on 
forced one-on-one meetings with supervisor, barring union 
access, predictions that are very close to threats but not 
quite threats, interrogations of workers--all of that is legal; 
it is permitted under the NLRA. That creates a legalized 
unlevel playing field which needs to be changed.
    There are other problems which are illegal, such as firing 
workers or dismissing workers because of their union 
activities, and there the problem is more the token sanctions 
rather than the state of the law. But, again, that is an area 
that needs to be fixed.
    Then, of course, there are broad categories of workers who 
are simply excluded from NLRA rights altogether, and a lot of 
this is because the NLRA was drafted, what, 80 years ago and 
the economy has changed.
    If I could, maybe, while I have the floor, just say one 
word in response to Mr. Yager's----
    Senator Wellstone. That would be fine. I do want to get to 
both of them, but, please, if you----
    Mr. Roth. It will just be a moment. In challenging the use 
of card checks over secret ballot elections, Mr. Yager is 
attacking the remedy rather than the problem. Clearly, in an 
ideal world, secret ballot elections would be superior. But in 
an environment in which coercion is the norm, in which workers 
do not really have a free choice, it is quite natural for 
unions to look to card check methods as a way of quickly 
identifying worker preferences before the employer can rev up 
with various coercive mechanisms.
    I think if we want to move toward the ideal world of secret 
ballot elections really being preferable, we need to attack the 
coercion, not the response to the coercion that unions have, of 
necessity, adopted.
    Senator Wellstone. Thank you. That might be a bridge to the 
question for Mr. Vizier. Mr. Yager--and I want to try to get a 
question to you or give you a chance to respond--has 
challenged, you know, the union, ``corporate campaigns card 
check recognition''. But, Mr. Vizier, what you describe in your 
testimony seems like a campaign by the boat owners that you 
were dealing with to stop workers from forming a union no 
matter what. Am I correct? Is that what you were facing?
    Mr. Vizier. Yes, sir, Senator Wellstone. It was a 
compilation of all the companies and the oil and gas industry 
to stop this campaign that was going on in the Gulf of Mexico. 
Like I said before, I am a third-generation marine from the 
gulf. I was brought up into the industry. I was raised into the 
industry. I was once a boat owner myself. I know the industry 
inside and out. These companies tried everything. They 
threatened me with murder. They threatened me with every--they 
chased me off the road, like I said before. The mariners at 
Guidry started organizing themselves. In 3 months we had 68 
percent of the employees that signed the cards. In that third 
month, the company caught on to what was going on, and they 
started an anti-union campaign that was so hellacious it was 
unreal.
    They sent employees how to bust a union, and one of these 
employees was--he refused to take a Federal drug test and 
alcohol test, so they bribed him. Against Federal regulations, 
you have to fire this employee, and they did not fire him. They 
sent him to union bust-up school, showed him how to bust the 
union, made him go around to the whole fleet with a petition 
and said, Sign this petition that you don't want the union, and 
we are going to give it to the NLRB. The mariners who did not 
want to sign, the owners came around and said, You are either 
with us or you are not. The next thing you know, they would be 
terminated if they wouldn't sign, or they were harassed or they 
would quit their job.
    Something needs to be done. The labor laws aren't being 
enforced. We need new labor law reform. Like Mr. Yager says, we 
do have labor laws, but the labor laws are not being enforced 
and something needs to be done about it.
    Senator Wellstone. Thank you.
    Mr. Yager, I apologize. I have run out of time. I will have 
some questions for you that I would love to get your response, 
and I know you want to go on the record.
    Thank you, Mr. Chairman. I just want us to stay within our 
time frame because there are other panelists as well.
    The Chairman. Senator Harkin.
    Senator Harkin. Thank you, Mr. Chairman. I apologize for 
being late. I would just ask that my opening statement be made 
a part of the record.
    The Chairman. It will be a part of the record.
    [The prepared statement of Senator Harkin follows:]

    *******PLEASE SUPPLY STATEMENT******

    Senator Harkin. Listening to all this stuff, those of us 
who have had family members--I understand Mr. Edwards talked 
earlier about some of his family members. I can remember when 
my brother worked for this company for 23 years. It was owned 
by an individual, Mr. Delevin, a manufacturing company, small 
manufacturing company in Iowa. He worked there for 23 years, a 
member of the UAW. They never had one strike. They never had 
one walkout. They never had any labor problems. When the 
contract was up, Mr. Delevin would sit down, negotiate, they 
would have a contract, and they would move ahead. They had good 
employee benefits. They had a good workplace, safe workplaces. 
Mr. Delevin made quite a bit of money, as a matter of fact.
    Then he decided that he was going to sell his company. He 
got to the age he wanted to sell it and get out of the 
business. They employed about 250 people in manufacturing. The 
new people came in. In fact, one of the new owners openly 
bragged how--he said, ``If you want to see how to bust a union, 
come to Delevin's''.
    So for the first time, now it was 24 years, they wouldn't 
negotiate with the bargaining unit. Then they forced them out 
on strike. Then, of course, when they couldn't get a contract, 
they went, the first time ever, on strike. The first time my 
brother ever walked a picket line. Then they brought in the 
replacement workers. Once they brought in the replacement 
workers, that was the end of it.
    Then they got the union decertified, and that was the end 
of it.
    It is just as you said, Mr. Roth. You said in your 
statement, which I read, you said that if you don't have the 
right to strike, then you really don't have the right to 
organize and bargain collectively. It is just ephemeral without 
that right. Workers don't like to strike, but it is the only 
last back tool that they have to do that.
    Well, ever since I saw that happen to my brother--and the 
whole thing has changed over the years, and more and more of 
these people are bringing in these replacement workers, and so 
really they don't really have a right to bargain collectively, 
do they?
    Mr. Roth. That is exactly right, Senator Harkin. In fact, 
if you mention to members of other democracies around the world 
that in the United States an employer is entitled to 
permanently replace a striking worker, they look at you like 
you must be crazy, that that is inconceivable to them to be 
compatible with the right to strike. We are an anomaly in this 
country, and this is a major defect in our law which must be 
changed.
    Senator Harkin. It has to be changed, and we have been 
trying to do it, but we have not been successful in doing it. 
But ever since I saw that happen to my brother, I said this is 
not right what they are doing. It seems to me that whole issue 
of striker replacement has to be addressed in this country. I 
don't know, Mr. Yager, if you have got any views on striker 
replacements or not.
    Mr. Yager. Well, I would be less than honest if I told you 
that I didn't think that striker replacement situations create 
a lot of pain and anguish, such as you saw in your situation. 
But I think the other thing that I can tell you from my own 
experience, sort of watching what has been happening with my 
members over the last 10 years, it has really become a very 
rare occurrence because it is a crapshoot for an employer to do 
that. You have only to look at the Kaiser Aluminum situation 
where they are looking at a potential back-pay liability of 
$180 million.
    Granted, an employer can hire permanent replacements if it 
is an economic strike. But the reality is you never know 
whether or not it might become an unfair labor practice strike. 
Because it takes so long to resolve that issue, sometimes they 
may be looking at 5, 6 years of a back-pay liability, which 
essentially means they have to pay twice what they paid for 
that workforce during that period.
    We teach courses on collective bargaining. We tell our 
companies more often than not this is not a smart thing to do, 
you need to think twice about doing it. But there are 
situations where it is really the only available alternative to 
the employer.
    Senator Harkin. It happens all the time in my State of 
Iowa. It happens all the time where they bring in these 
replacement workers.
    You know, it is examples like what happened at Mercy 
Hospital in Iowa City. December 13, 2001, just last year--and I 
was somewhat involved in this, watching it happen. Mercy 
Hospital wanted everyone who had ever written a medical or 
treatment order to be classified as management and, therefore, 
not eligible to be in the union. Well, of course, every nurse 
at one time or another has written a treatment order.
    They had to go in front of the NLRB. That caused a long 
delay. Mercy held captive-audience meetings to speak against 
the union, transfers out of regular jobs to different shifts. 
What got me is they hired this firm out of Kansas City to run 
an anti-union campaign. What has happened is that, quite 
frankly, when the SEIU tried to organize, they lost.
    Now, interestingly enough, at the University of Iowa 
Hospital--and this is the one that galled me--Government money 
was used to hire a consultant to break the organizing efforts 
at another hospital there.
    The machinists' union in Sioux City, Iowa, organized the 
Omaha Line Hydraulics. The election was held July 13, 2000. The 
NLRB certified the election July 20, 2000. Well, Omaha Line 
Hydraulics has refused to negotiate a contract. They refused to 
talk economics. The biggest sticking point, I understand, is 
that Omaha Line Hydraulics wants the right to assign work, 
transfer employees, et cetera, et cetera. So the local went on 
strike a year later, May 3, 2001; they have been out ever 
since.
    What happens--I think there may be an agreement here that 
we need to really beef up the NLRB. We need to give them the 
resources in which to cut down the length of time.
    I have another example of a young man, a friend of mine 
from Mason City, Iowa, who was discriminated against, and he 
filed an NLRB action. It took him I think about 3 years before 
it finally wound through. But he was a young man, he was 
single, he didn't have a family, and, by gosh, he was 
determined he was going to win.
    What usually happens in these cases is people are married, 
they have kids to take care of, they have families, they have 
mortgages to meet. They can't hang in there. So they go off and 
they find another job, and they move on with their lives. 
Sometimes they move on out of town. That just discourages 
anyone else from ever doing that.
    This young man is the only one I know who ever really won 
one, and he has hung in there. Like he said, ``I don't have any 
mortgages, I don't have any--so I'm going to hang in there.'' 
He won. He got quite a bit of back pay and stuff, but as he 
said, most people can't do this.
    So, hopefully, maybe that is the one thing that--we may 
disagree on a lot of things, but the one thing that we have got 
to be able to agree on is that the NLRB needs more funds. It 
needs more personnel. It needs to shorten its time period, and 
the appeals process ought not to drag on year after year after 
year after year because it is do discouraging. So maybe we can 
get the business community, Mr. Sweeney, to agree with us to 
ask for more money and more resources from this administration 
to put into the NLRB. I happen to chair the Appropriations 
Committee that funds it. Now we are finding that the 
administration downtown wants to cut the funds. As long as it 
takes now, they want to cut the money for it. It seems to me we 
need the business community to step up and say we need more 
funds for the NLRB.
    Mr. Yager. I don't think it is a funding issue. I think it 
is a structural issue, Senator, and we, in fact, recommended a 
few years ago in testimony before this committee, one way you 
can really speed things up is to take, really take the 
interpretation of the law function away from the five-member 
NLRB and take it right to the courts, because that is where the 
delays occur. The vast majority of the cases happen within 
about a 45-day period. It is when you start to get the appeals 
up through the NLRB. Then it takes them a year or a year-and-a-
half to decide your case. Then it goes to the Federal courts. 
Then it takes them 2 or 3 years to decide a case.
    That is only about 1 percent of all cases. But I think you 
have got to figure out a way of expediting that process, and 
part of the problem is just the fluctuation we have seen at the 
Board over the years, just, as you all know, grappling with the 
nominations and having a Board that is a fully confirmed Board 
and not, you know, two or three recess appointments or 
whatever. I mean, those are the problems, and I don't think 
more funding is going to fix them.
    Senator Harkin. Mr. Roth.
    Mr. Roth. I completely disagree. Back in the 1950s, ancient 
history, the NLRB had 3,000 full-time employees. Since then, 
the number of cases filed has tripled. The number of employees 
at the NLRB has been cut to 2,000 from 3,000. We clearly need 
more resources if we are going to have effective enforcement of 
our laws.
    Senator Harkin. Thank you, Mr. Chairman.
    The Chairman. Senator Murray.
    Senator Murray. Mr. Chairman, thank you very much for 
having this hearing today. I really appreciate your efforts in 
this direction, and I appreciate all of our witnesses who are 
here today. There is a lot going on in Congress, but certainly 
this is an important subject that impacts the lives of many, 
many workers.
    Mr. Sweeney, I am especially delighted to see you here 
today. I know you are going to be in my home State this summer. 
The members of our AFL-CIO are very excited about your 
participation in there convention and are really looking 
forward to it. So I appreciate your coming out there.
    I especially want to extend a welcome to the individual 
workers who have risked their personal economic security and 
that of their families' for the sake of organizing workers for 
a safer workplace and a better tomorrow. Many of the benefits 
that American workers across our country enjoy today came 
because of individuals like you who stood up and fought for 
other families, and I just really appreciate your being here 
today and having the courage to come and talk to this 
committee.
    Mr. Chairman, I apologize. I won't be able to hear the 
second panel. We have a number of hearings going on today, but 
I wanted all of you to know how important your testimony is and 
how important it is for you to be here, not just for yourselves 
but for so many people who can't be here today.
    Mr. Sweeney, let me start with you. There was a recent 
survey at Cornell University by a scholar by the name of Kate 
Bronfenbrenner, who found that in workplaces with undocumented 
workers employers threatened to call Immigration and 
Naturalization Service in more than half of all the union-
organizing drives. I wonder if you could comment on that issue 
and the difficulties confronting legal and illegal immigrants 
who seek to organize a union.
    Mr. Sweeney. It is a very common occurrence for employers 
in non-union industries to call in the INS when they hear that 
their workers are attempting to organize. I think that it is a 
clear example of how our laws have to be enforceable for 
immigrant workers as well as all workers in our country. I 
think that we have to address this issue not just with our 
labor laws but also with immigration reform. These immigrant 
workers are being exploited in so many different ways, and it 
is all across the board in all the industries, whether it is 
manufacturing or textiles or service or health care and hotels 
and restaurants.
    I have been working on organizing campaigns myself in 
different cities where I have gone to meet the workers and meet 
them as they get off their shift at work, and the employers 
call the INS, the INS shows up while we are there sometimes in 
some of these cases. The workers, of course, scatter off as 
fast as they can to avoid any confrontation.
    Senator Murray. It is a problem we need to address, Mr. 
Chairman, for sure.
    Mr. Roth, many of the people on this committee have 
supported Senate action on the Convention to Eliminate All 
Forms of Discrimination Against Women, the CEDAW treaty. Could 
you take a moment and comment on CEDAW's relationship to the 
topic we are discussing today? I would just say it is my belief 
that passing the CEDAW treaty would really send a strong 
message abroad that women in the workplace are important, and 
if you could just comment on where you see that in this debate.
    Mr. Roth. I think there is very little excuse for why this 
country has not ratified the women's rights treaty already. 
This is a treaty that is widely recognized around the world as 
being essential for guaranteeing the rights of women. At a 
moment when we have overthrown the Taliban regime, one that is 
notorious for its repression of women, the fact that we are not 
willing to stand up and recognize that women deserve equal 
rights in the workplace and every place else is something that 
most of the rest of the world just doesn't understand. This is 
being portrayed as some kind of radical attack on the family, 
but if you just sit down and read the treaty, it enshrines the 
basic rights about equality of women that all of us believe in, 
that has been a basic part of this society for a long, long 
time. It is shameful that America cannot stand up and join 
virtually the rest of the world in embracing this treaty.
    If I could say also, just with respect to your question 
about immigrants, I think that there are a number of things 
that could be done to improve the ability of immigrants to 
exercise the right to freedom of association. The INS already 
has a discretionary policy of not conducting raids during 
elections themselves. That could be helpfully extended to the 
entire period in which unionization is at issue, including a 
reasonable period afterwards where there would be forbearance 
on the part of the INS.
    I think it would also be helpful in the case of unfair 
labor practices against undocumented migrants if a new visa 
category were established comparable to the S category for 
witnesses of crime or the T category for trafficking victims, 
so that workers would be able to enforce their rights.
    Similarly, the NLRB should adopt a policy of never 
questioning a worker about his or her immigration status since 
that is a very important way of discouraging undocumented 
workers from exercising their rights.
    It would also be helpful if the ban on Legal Services 
representation of undocumented migrants were lifted so that, 
again, they could have the basic representation that they 
needed.
    Senator Murray. Thank you very much for those comments.
    Mr. Chairman, I am out of time, and I know you have got a 
number of witnesses. I just wanted to comment. Mr. Yager 
mentioned Kaiser Aluminum, which is in my home State. It was 
egregious actions on that company's part, and this was a 
company that had a wonderful relationship with the community. 
It was a great union-organized company, a great reputation. 
Those employees stood up to a lot of pressure, and now Kaiser 
is having to pay a fine. I think, you know, we will continue to 
work with the union and with everybody there, but I think that 
is an example of some pretty great employees who stood up for 
the rights of workers across the country. It is a wonderful 
example we should all follow, although it has really torn apart 
our communities.
    Thank you, Mr. Chairman.
    The Chairman. I want to thank all of you very much for your 
very helpful testimony. We are very grateful. You have given us 
a lot of good information and a lot to think about.
    Thank you all very much.
    Senator Wellstone [presiding]. We are now going to turn to 
the next panel with Sherri Buffkin, Nancy Schweikhard, Mr. 
Vidales, and Mr. MacDaniels.
    Thank you. We want to make sure that we are not interrupted 
by votes so we will move forward.
    Sherri Buffkin is from Bradenboro, NC. In 1992 she began 
working at Smithfield Foods in Tar Heel, NC. Smithfield Foods 
is the largest, as Senator Harkin knows, hog slaughter and 
processing plant in the world. Ms. Buffkin began as an hourly 
employee in the plant's box room and received numerous 
commendations and awards for her hard work. Within 2 years Ms. 
Buffkin became supervisor and was then promoted to division 
manager in charge of Smithfield Foods, and it is a very, very 
compelling story. I think I'll introduce each one of you 
individually.
    Ms. Buffkin.

  STATEMENT OF SHERRI BUFFKIN, FORMER SUPERVISOR, SMITHFIELD 
                 PACKING COMPANY, TAR HEEL, NC

    Ms. Buffkin. Thank you. I would like to say that it is a 
pleasure to be here. I am saddened at the moment that Senator 
Hutchinson cannot be here, because I would really appreciate 
that for him to see from a supervisor management viewpoint what 
actually happens, but that is a personal feeling.
    You already went through my background, so I do not need to 
go over that again. I have an 11-year-old daughter who is with 
me today, and the fact that I have an 11-year-old daughter----
    Senator Wellstone. Why do you not introduce your daughter?
    Ms. Buffkin. She just stepped out. I am sorry.
    Senator Wellstone. She might have got a little bored for a 
while. No offense to anybody. [Laughter.]
    Ms. Buffkin. But I have an 11-year-old daughter, and I 
committed some egregious acts against hourly employees during 
my tenure as a management personnel at Smithfield. On several 
occasions I would come home. My daughter was 6, 7 at the time. 
I would come home crying. The first thing my daughter would ask 
me when I walked into the house. She would notice I was upset. 
The first thing she asked me was, ``Mom, who did you have to 
fire today?''
    I am not affiliated with any union. I am here today to 
stand up for workers' rights and for what they believe in, and 
for the fact that they can have a better work environment, but 
they cannot do it by themselves. They need a voice. They do not 
need to leave their self respect and their dignity at the door 
when they walk into the plant, which is what happens to them 
each and every day.
    Smithfield Foods asked me to lie on a affidavit, and I had 
to make a choice between my job and telling the truth. At that 
point, I am sorry to say--but I am human--I chose my job and 
supporting my family, and I did so at that time. Smithfield 
Foods sought out and had management, such as myself--I was in 
the top echelon of the hierarchy at the plant; I was fourth in 
charge--and we would seek out employees that were pro-union.
    As you stated, I received numerous recommendations. I got 
the highest raise in the plant for 3 consecutive years. I had a 
very good working relationship with my employees. I understand 
that family, in my view, comes first. As long as you do not 
abuse that, then if you allow a little bit of leeway for your 
employees, because if they have a family problem or a child is 
sick or something of that nature, they are going to work that 
much harder for you the next day, the next week, the next 
month.
    In 1997 the UFCW started handing out pamphlets and standing 
by the roadside outside the plant talking to workers. The 
company brought in attorneys and we had mandatory meetings in 
which we would sit down in closed-door sessions and meet with 
the attorneys, who told us that their only reason for being 
there was to make sure that the UFCW did not get into the 
Smithfield Packing Tar Heel plant, and they were true to their 
word. They ensured that this did not happen.
    The way they accomplished that was the fact that other 
members of management, we would stress we would have daily 
meetings with our employees. We had mandatory meetings in which 
we would tell them, ``If the union comes in, you can no longer 
come to me. You have to talk to a union rep. I cannot help you 
any more.'' We were told--I personally was told; I cannot speak 
for other members of management except for the meetings that I 
was there, so I will speak for myself and leave the other 
management out of it. I was told that to threaten them with 
strikes. ``The UFCW is known for strikes. What is going to 
happen? You do not have a paycheck. You will lose your job. 
What are you going to do? How are you going to feed your 
family?''
    We also threatened them--and that is the only word you can 
use--we coerced, we manipulated employees to come in to the 
company line. The company employees would take and feed us 
information to tell our employees. ``This is what you do.'' I 
had two employees that worked for me that during the last 
several weeks of the election did not do a lick of work for me, 
nothing. The company paid them to go into the closed-door 
meetings and spy, and find out who were pro-union employees, 
who were pro-company employees. These pro-union employees were 
then picked out, singled out, and found a reason to be 
terminated.
    For example, I had a lady that worked for me in laundry. 
She was from New York. She was a very hard worker, or else I 
would never have put her in a position of crew leader.
    Senator Wellstone. Is that Margot?
    Ms. Buffkin. Margot. I made her a crew leader. She voiced 
her opinion. Laundry is a very populated place. Most of the 
employees, over 3,000, I would say 3,800 of the employees have 
to go through laundry at least 4 times a day, in and out. 
Margot voiced her opinions. I was called downstairs by a 
company attorney and asked if Margot was one of mine. By that I 
assumed he meant my employee. At which point I responded, 
``Yes, she is.'' He then told me that he had come out of a 
meeting in which Margot's name had come up repeatedly, and that 
Margot was pro-union. This company attorney looked me dead in 
the face and told me, ``Fire the bitch. I'll beat anything she 
or they throw at me in court.''
    At this point my response was, ``I cannot do that. She has 
never been disciplined. There is no disciplinary action in her 
files. She has never been written up.'' He said he did not 
care, ``Fire the bitch.''
    She was called downstairs with another member of 
management, the plant manager. She was told that she was 
causing problems among the other employees, other employees did 
not get along with her. That was the line they gave her. So she 
goes back upstairs and she gets a petition. In less than an 
hour she has several hundred names on this petition, telling 
that she is a good employee, that nobody has problems with her. 
This was presented the next afternoon when she came back to 
work. I had offered her a job, trying my best to help this 
lady. I had offered her a job in a label cage. She told me she 
would think about it over the night. Well, she comes back the 
next day, and this plant manager, he tells her, he said, ``I am 
sorry. The job is no longer available.'' She starts crying. She 
becomes hysterical. She said, ``You know, you told me to think 
about it. I went home and I thought about it.'' She excuses 
herself to go to the bathroom.
    At this point the plant superintendent that was in the room 
with me got a jovial manner and started laughing. He thought 
this was hilarious. ``We got another one. We got another one. 
Do not have to worry about her.'' The woman was crying 
hysterically. She has 3 kids. He sits there and looks me in the 
face and laughs, and tells me, ``Well, I could have gotten a 
blow job out of her if I had wanted to, she wanted her job so 
bad.'' Pardon my expression, that is exactly what was said. At 
that point I left work, and he dealt with it, and I went home.
    The union filed charges with the National Labor Relations 
Board about these terminations that I was involved in, and that 
is just one of their many. I do not have the time to go into 
it.
    The attorney write affidavits which were filed. He would 
misconstrue what I said to fit what the company wanted. Yes, I 
had a family to feed. I support my family. I tell them it was 
wrong. When the plant manager, vice president and an attorney 
tells you this is what you do, I am so sorry, I have to live 
with myself, but I also need to support my family. I signed the 
affidavits knowing they were false.
    During the meetings the attorney showed us how to undermine 
pro-union sentiment. We were to keep names of all the employees 
that were pro-union. We were told that if an employee was pro-
union, that we were to ride them. Overtime was only given to 
pro-company employees with the exception of pro-union employees 
that did not want the overtime. At this point I was to make 
them work over. When they tell me no, they were fired for 
insubordination. The general manger, vice president and myself 
pushed the fight that Smithfield Packing Tar Heel Division 
would never get into a union. If a union come in, they would 
close the plant, and they would move, they would relocate. We 
pushed this and we were very good at it.
    We told employees that if a union got in, it would be years 
before they would ever negotiate a contract if then. While the 
union was organizing, the two ladies I told you about earlier 
that worked for me, they were paid to spy on other employees. 
Their names were turned in and they were terminated.
    Smithfield would take and set black workers against 
Hispanic workers because the black workers were pro-union, the 
majority; the Hispanics are easier to manipulate, easier to 
coerce, easier to talk into your way of thinking. ``You want to 
leave? We will make you leave fast.'' They even hired an 
attorney from California in order to help them speak Spanish 
and the company line.
    In 1998 right before, less than a month before the National 
Labor Relations Board trial, the attorneys asked me to testify. 
At this point I told them that I had lied for them for the last 
time, and I would not under any circumstances put my hand on 
the Bible and lie. At this point I was fired.
    I do not justify. I am not sitting here to justify anything 
that I have done. Since then my house has been foreclosed on. I 
have had to file bankruptcy. I have not found another job. But 
I want to personally encourage the Members here to please go to 
Smithfield Packing yourself, go unannounced, walk in. See for 
yourselves--do not take my word for it--what goes on.
    My time is up. I was not through, but my time is up. 
[Applause.]
    [The prepared statement of Ms. Buffkin follows:]

                  Prepared Statement of Sherri Buffkin

    Mr. Chairman and Members of the Committee: I am Sherri Buffkin. I 
live in Bladenboro, North Carolina. I'm here to testify today because I 
want to be able to look my ten-year-old daughter in the eye with a 
clear conscience. I worked as a division manager in charge of 
purchasing for Smithfield Foods in Tar Heel, North Carolina. Too many 
days I'd come home from work crying, and my daughter would ask, 
``Mommy, who did you have to fire today.'' I'm here to tell this 
committee how I terminated employees who didn't deserve to be 
terminated. I'm here to tell you that Smithfield Foods ordered me to 
fire employees who supported the union and that the company told me it 
was either my job or theirs. I'm here because Smithfield Foods asked me 
to lie on an affidavit and made me choose between my job and telling 
the truth. I'm here today to tell you how Smithfield Foods sought out 
and punished employees because they were union supporters, and that the 
company remained true to its word that it would stop at nothing to keep 
the union out.
    I began working at Smithfield Foods, which is the biggest hog 
slaughter and processing plant in the world, on September 12, 1992, as 
an hourly employee in the plant's box room. Within two years, I became 
a supervisor and in less than six months after that, I was promoted to 
division manager. I was in charge of all plant purchasing, except for 
maintenance items and buying the hogs for slaughter and processing. I 
made several million dollars in purchases on behalf of the plant every 
month. At the same time, I also oversaw employees in the plant's 
warehouse and receiving, laundry, sanitation, buildings and grounds, 
and purchasing departments.
    The company recognized my hard work and efficiency with letters of 
commendation and awards. My last three years at Smithfield Foods, from 
1995 to 1998 when I was terminated I received the highest raises of 
anyone in plant.
    I had a very good working relationship with my employees. I always 
gave them the benefit of the doubt and tried to work with them whenever 
a problem arose in their lives. I encouraged people to further their 
education and helped them make arrangements for leaving a bit early or 
coming in a bit late when their children were sick. By the same token, 
it was not uncommon for my employees to come in for weekend shifts when 
others were off.
    In 1997, when the union started handing out pamphlets and standing 
on the road outside the plant talking to workers, the company brought 
in attorneys to tell us what to do and how to react.
    The first thing the company told us was that the attorneys were 
there to make sure that the union did not get in. We had mandatory 
meetings where we were told that the main priority was to keep workers 
from forming a union--to stop the United Food and Commercial Workers 
Union (UFCW) from having an election at the plant, no matter what. 
Every day we were required to report the level of union activity in our 
departments, and the lawyers told us what to say to workers to keep the 
union out. In these meetings, the attorneys told us they would do 
whatever was necessary to keep UFCW out. They did.
    A lady--her name was Margot, who worked for me in laundry as the 
second shift crew leader--was pro-union. She wasn't afraid to voice her 
opinions to her co-workers. I was called downstairs and told that the 
company attorney wanted to speak with me. A plant manager was with him. 
The lawyer said that he had just come out of an anti-union meeting 
where her name came up and asked me if she was one of mine. I told him 
she was, and the attorney said, and I quote, ``fire the bitch, I'll 
beat anything she or they throw at me in court.''
    I gave the lady the opportunity to take another job in the plant 
where she'd have less contact with other employees. She said she'd like 
to think about it. But when she came back the next day, the manager 
told her that another job in the plant was no longer an option. The 
excuse he gave her was that other employees found her difficult to work 
with. That night she began to circulate a petition throughout the plant 
and got about a hundred signatures saying she was someone who got along 
well with other employees. When she showed the petition to the plant 
manager the next day, he told her it was irrelevant and fired her. She 
was very upset and stared crying, practically begging for her job. The 
manager came out of the meeting with her, laughing. He told me, while 
she was leaving, that she was so desperate for her job that he could 
have gotten sex from her if he'd wanted. That made me sick.
    Another employee, a lady know as granny, who worked in laundry, had 
made a statement in the local newspaper that the union was going to 
win. I was called to the superintendent's office. The paper was on his 
desk, and he was visibly upset by it. The employee was called 
downstairs and terminated. I was told that the laundry was a hotbed of 
union activity and that other people would also have to be fired. They 
were.
    The union filed charges with the National Labor Relations Board 
about these terminations. The attorney wrote false affidavits for me to 
sign and gave those affidavits to the Labor Board. The attorney wrote 
things that came out of his own mouth, and I told him they weren't 
true. I felt I had no choice but to sign the affidavits, because I had 
a family to feed.
    The attorneys showed us how to undermine pro-union sentiment and 
undermine pro-union employees. We were told to keep a record of the 
names of anti-union employees in our departments and the shifts they 
worked. We were given anti-union materials and papers and told to speak 
to each of our employees and ask if they supported the union.
    If an employee was pro-union, we were to tell them how bad it would 
be if the union got in. We were told to push the idea that the union 
would mean a threat of strikes, that strikes would mean loss of their 
job, and that without a job they wouldn't be able to support their 
families. We were to remind employees that if they were out of work 
because of a strike they would lose their homes and their cars because 
they wouldn't be able to make their loan payments. We were also 
instructed to push the idea of violence, that the UFCW was known for 
violence.
    I was instructed to tell employees that they couldn't come to me 
any more with their problems, because if a union came in then they'd 
have to talk to the union about any problems they might have. But I was 
told that I should also warn employees that if the union got in it 
would take years for employees to get a union contract, if they got one 
at all.
    One of the attorneys told us to give overtime to anti-union 
employees who wanted it and to force overtime on any pro-union 
employees who didn't want more hours. If any pro-union employee refused 
the overtime, we were to fire them for insubordination. I fired Wayne, 
who worked in the warehouse, because he wouldn't take overtime.
    While the union was trying to organize the plant, I had two 
employees in sanitation who, for the weeks just before the election, 
were relieved of their regular work. The company was paying them to go 
to all the union meetings and inform on what was taking place and who 
was pro-union. They were to talk with people in the cafeteria and 
bathrooms to find out if they were anti- or pro-union. I had to pull 
people off their shifts or have others come in early to cover for these 
two individuals.
    Smithfield keeps Black and Latino employees virtually separated in 
the plant with the Black workers on the kill floor and the Latinos in 
the cut and conversion departments. Management hired a special outside 
consultant from California to run the anti-union campaign in Spanish 
for the Latinos who were seen as easy targets of manipulation because 
they could be threatened with immigration issues. The word was that 
black workers were going to be replaced with Latino workers because 
blacks were more favorable toward unions.
    On the day of the union election, all salaried personnel were 
ordered to be in the election room when the votes were being counted. 
It looked like there was going to be a riot or something on that day. 
Deputy sheriffs were all over the place. As the votes were being 
counted, the crowd got really rowdy and started to chant, and I quote, 
``Niggers get out'' and ``union scum go home.'' The plant manager was 
giving the directions. I became frightened and jumped up on table to 
get out of the way. Danny Priest, the chief of security, who was also a 
sheriff, and the deputies ended up arresting one of the union 
representatives and a worker who everyone knew supported the union.
    In 1998, right before the National Labor Relations Board trial 
started, the attorneys told me I would have to testify. I told them I 
wasn't going to lie. I was fired shortly after that.
    I'm not justifying anything I've done. Since I lost my job, I had 
to declare bankruptcy, and avoided foreclosure on my house by just one 
day. I haven't been able to find another decent job. I couldn't even 
get a job as a shipping clerk, even though I'd supervised shipping 
clerks. I don't regret standing up for the truth because now I can look 
my daughter square in the eye.

    Senator Wellstone. It turns out Ms. Buffkin's daughter is 
indeed here, and I know you must have heard that applause for 
your mom. I will tell you, everybody in this room is very proud 
of your mother and what she has had to say, and Senator Harkin 
is, and I am, and Senator Kennedy thank you very, very much for 
it. I would say one other thing to you and Tom--I know you have 
to leave. You may want to say something before you leave, but I 
want to go forward. We have got other powerful testimony. I 
think that you have just showed tremendous courage in what you 
have done, and I think you are going to light--this testimony 
and what you have done, I think you will light a candle for a 
lot of other people, I really do, and I would like to thank 
you.
    Your mother is special, no question about it. Us Jewish 
people would say ``mensch.''
    Ms. Buffkin. May I say one more thing? For the anti-union 
people that are here, I just want to say if it was your mother, 
your father, your brother, your sister, your child that had to 
live every day going to work in those inhumane conditions, they 
would change your point of view. Thank you. [Applause.]
    Senator Wellstone. That is true.
    Senator Harkin. I have to leave, Ms. Buffkin, but thank you 
very much. That is a real profile in courage.
    Ms. Buffkin. Thank you, sir.
    Senator Harkin. God knows we need more of you out there.
    Senator Wellstone. We need more Harkins out there too. 
[Laughter.]
    Senator Wellstone. Nancy Schweikhard is from Ventura, CA 
and for the past 8 years she has been a registered nurse 
interested Neonatal Intensive Care Unit at St. John's Regional 
Medical Center in Oxnard, CA; a member of SEIU, which I think 
is one of the great, great unions in the country, and I want 
you to know, Ms. Schweikhard, we think here that your 
president, Andy Stern, is just absolutely a true justice labor 
leader, the best.
    Ms. Schweikhard. We think so too, thank you.
    Senator Wellstone. The best.
    Ms. Schweikhard.

   STATEMENT OF NANCY SCHWEIKHARD, R.N., ST. JOHN'S MEDICAL 
                      CENTER, VENTURA, CA

    Ms. Schweikhard. By the way, there was a comment made pro-
company, pro-union. I kind of see them as the same. I am pro-
union because I am pro-company.
    Thank you for having me. It is an honor to be here and to 
say what I have to say.
    Like you said, I have been an R.N. for the last 8 years in 
the Neonatal ICU at St. John's in Oxnard, CA. I would also like 
to mention that I also was fired from a nursing position in the 
early 1980s. We did not have an organizing effort. I was merely 
asking questions. After 3 years at a hospital where I was well 
liked and well respected, within a week I was charged with 
flagrant insubordination. I was fired. I was devastated. I take 
great pride in my position there. Went to the NLRB and they 
could not help me.
    Consequently with this effort that we had, we also filed a 
fair labor practice. It took almost a year for a ruling to be 
made on it, so not 45 days.
    I love being a nurse, and together with the truly great and 
wonderful staff, the nursing staff, the neonatologists at my 
hospital, we take great professional and personal satisfaction 
in taking care of sick babies. It was in that spirit of caring 
and commitment to patients that in 1999 the nurses at St. 
John's and I decided to organize together with the Service 
Employees International Union. In order to raise the standard 
of nursing, nurses know what is going on in the hospitals and 
you all need to be very concerned. You all need to just support 
your nurses and their efforts to unionize.
    We went on to negotiate a contract that has raised 
standards for nurses and patients at our hospital. The decision 
to form a union should be based on facts not fear. I have been 
through 3 separate elections at St. John's, one for the RNs and 
two for the service and technical employees who we felt needed 
it far worse than we did.
    When nurses first formed our union at St. John's 2 years 
ago we faced a great deal of opposition from the hospital. We 
were introduced to union busting. We were subjected to one-on-
one meetings with our supervisors, in which they pressured us 
to oppose the union. Imagine how powerful such a negative 
message is for nurses when it is coming from the person who 
sets your schedule, gives you your assignments, approves your 
time off, has the power to impose disciplinary action and 
whether or not you get a raise. We were pulled away from 
patient care in order to attend mandatory one-on-one meetings. 
The hospital spent patient care dollars on expensive 
consultants who specialize in carefully working around the law 
to pressure and intimidate employees. In 1999 St. John's 
Hospital spent $2.7 million in union busting to the Burke 
Group. We were fed lies and half truths. We had managers around 
the clock watching us. We were told that we would not 
accomplish anything without a union and that the union would 
keep us from talking directly with our own supervisors. 
Managers even led us to believe that having a union would 
endanger our patients because union rules would prevent our 
supervisors from intervening or assisting in emergency care 
situation. This is powerful stuff for nurses, very powerful 
stuff.
    Management distributed literature that said that they would 
not negotiate with us, and that the union could not improve 
staffing or other conditions at the hospital. We were told that 
we would have to pay high dues and initiation fees, and that we 
could lose our wages and our benefits. We were even told that a 
union might force the hospital out of business. That is 
powerful. We want to help our hospital. We have great ideas. We 
want to work with our hospital. We do not want to close it. The 
atmosphere in the hospital was purposely kept very, very tense, 
and the implication was that the negative atmosphere would 
continue indefinitely after we formed our union, so what is the 
point?
    I was called into my manager's office on 3 separate 
occasions. I was questioned one-on-one and again two-on-one, 
two supervisors against me. I was well prepared by my union. I 
knew what the law was. I was specifically asked not to talk 
with nurses or other employees outside my unit about the union, 
and I was questioned about my whereabouts throughout my shift. 
I work in a neonatal ICU. It is all self enclosed. The only 
reason that I should have to leave is to go to high-risk 
deliveries, when a mother or a baby are in trouble, or to the 
restroom. They were installing cameras for infant security 
purposes, but also--funny how a lot of cameras showed up during 
our union drive. They are positioned right outside of my unit. 
They knew when I was leaving my unit. They told me, security 
told me they were watching me. I was advised to take the 
stairway instead of the elevators when I did organizing on my 
break time and not in patient care areas. Every time I went to 
use the restroom, I waved to the camera, and then I would make 
sure that I waved back so that they knew that it only took me 3 
minutes, and that I was not outside entering other units, 
talking to other nurses.
    We did file a ULP. My evaluation was downgraded. I was 
specifically told by my supervisor it was because of my union 
activity. It was on dignity, the core value of dignity. It was 
not true. It took the NLRB a year to find a ruling on it, and 
they did again make me whole. I got one of those blue and white 
things that you described.
    Despite all this, nurses at St. John's hung together 
because our goal was to make our hospital a better place to 
give and receive good patient care. Our goal was to improve 
patient care and work with our hospital collaboratively in 
decisions that affect our patients. With perseverance we 
managed to form our union, and now we have a real voice in the 
hospital on key staffing and patient care issues. None of the 
horrible things management told us would happen have occurred. 
They did stall for 9 months before they would bargain on 
anything except just cause. But on the contrary, things have 
turned out very much very well.
    My second experience with a union election at St. John's 
was helping our service and tech workers. This includes 
radiology, respiratory, dietary and housekeeping. The same 
thing, the atmosphere was very hostile, even more so. Our 
workers whose first language is not English were told if they 
signed a union card they would be deported. Whether or not they 
could do it is one matter, but these were people who were very, 
very afraid to get involved because they were not sure that 
they could or could not do this. There was an overwhelming 
sense of fear and hostility. Ultimately management's tactics 
worked and my co-workers lost their election.
    Since then they have won, but a little over a year ago 
there was a dramatic change. On April 4, 2001 our hospital 
system, Catholic Healthcare West, signed an agreement with SEIU 
that among other important issues, sets reasonable ground rules 
for union elections. It said employees at CHW hospitals would 
be allowed to make up our own minds about forming a union in an 
atmosphere of mutual respect, and that communication with 
employees would be factual and free of personal attacks. It 
said that CHW and SEIU would work to find position solutions to 
problems and would not engage in derogatory comments concerning 
the basic mission of either organization. It prohibited 
hospital management from holding one-on-one meetings to 
intimidate employees, and banned mandatory anti-union meetings 
called by hospital management on work time.
    Finally, it prohibited the hospital from hiring outside 
consultants, saving us millions of dollars.
    I believe that instead of being the exception these rules 
should be standard operating procedure in all union elections 
to ensure that employees can freely choose whether to join a 
union. After the agreement was signed between SEIU and CHW, 
union staff were able to enter our hospital and talk with 
workers without the threat of being escorted out or having the 
police called. We were able to hang literature in designated 
areas without having it torn down.
    The new contract and organizing agreement have brought us 
new far more cooperative relationship with our hospital and the 
CHW system. Things are better at the hospital for our patients, 
for our workers. The patients benefit by the new staffing 
language in our contract which allows us to work with our 
managers in resolving patient care issues. I do not believe 
that workers should have to climb mountains to choose a union. 
We should not have to fear for our jobs and our families. We 
should not be systemically intimidated, threatened or 
frightened for exercising our democratic right to have our own 
organization at work.
    Thank you for inviting me to speak today.
    [The prepared statement of Ms. Schweikhard follows:]
   Prepared Statement of Nancy Schweikhard, R.N., St. John's Medical 
                           Center, Oxnard, CA
    Chairman Kennedy, Members of the committee, thank you for inviting 
me to today's hearing. It's an honor for me to be here.
    My name is Nancy Schweikhard and for the past 8 years I've been an 
RN in the Neonatal Intensive Care Unit at St. John's Regional Medical 
Center in Oxnard, CA.
    I love being a nurse, and I take great professional and personal 
satisfaction helping sick and premature babies get well and have a 
chance for a full and normal life.
    It was in that spirit of caring and commitment to patients that in 
1999 my colleagues and I decided to organize with the Service Employees 
International Union, and went on to negotiate a contract that has 
raised standards for nurses and patient care for patients at St. 
John's.
    The decision to form a union should be based on facts not fear. 
I've been through three separate elections at St. John's--one for the 
Registered Nurses and two for the service and technical employees.
    When nurses first formed our union at St. John's about 2 years ago, 
we faced steep opposition from the hospital.
    We were subjected to one-on-one meetings with our supervisors in 
which they pressured us to oppose the union. Imagine how powerful such 
a negative message is for nurses when it is coming from the person who 
sets your schedule and assignments, approves your time off, has the 
power to impose disciplinary action, and has a say in whether you get a 
raise.
    We were pulled away from our patient care duties to attend 
mandatory anti-union meetings with hospital administrators.
    The hospital spent precious patient-care dollars on expensive 
consultants who specialize in carefully working around the law to 
pressure and intimidate employees into not forming a union. In 1999, 
CHW spent 2.7 million to a union-busting firm.
    We were fed lies and half-truths. We were told that we wouldn't 
accomplish anything with a union and that the union would keep us from 
talking directly with our own supervisors. Managers even led us to 
believe that having a union would endanger patients because ``union 
rules'' would prevent our supervisors from intervening or assisting in 
an emergency care situation.
    Management distributed literature that said they would not 
negotiate with us and that the union couldn't improve staffing or other 
conditions at the hospital. We were told that we would have to pay high 
dues and initiation fees and that we could lose wages and benefits. We 
were even told that a union might force the hospital out of business.
    The atmosphere in the hospital was purposely kept tense, and the 
implication was that the negative atmosphere would continue 
indefinitely after we formed our union.
    I was called into my manager's office three separate times and 
questioned 1:1 and 2:1 by my nursing manager. I was specifically asked 
not to talk with nurses or other employees outside my unit about the 
union, and I was questioned about my whereabouts throughout the shift--
even on break time. Each time I left my unit, I was aware the 
surveillance cameras were watching me. In addition, I was told that my 
performance evaluation had been downgraded because of my support for 
the union. In response, we filed a ULP and St. John's corrected the 
evaluation.
    Despite all of this, nurses at St. John's hung together because our 
goal was to make our hospital a better place to give and receive good 
patient care.
    With perserverance we managed to form our union, and now we have a 
real voice in the hospital on key staffing and patient care issues. 
None of the horrible things management told us would happen have 
occurred. On the contrary, things have turned out very much the way the 
union said they would.
    My second experience with a union election at St. John's was 
helping the service and technical workers form their union. This 
included everyone from radiology and respiratory technicians to dietary 
and housekeeping employees.
    During that election, the atmosphere in the hospital was very 
hostile--between supervisors and workers, but even between co-workers. 
Management would pull employees off the floors during patient care 
hours for one-on-one meetings about the union.
    There was an overwhelming sense of fear and hostility in the 
hospital that even the patients could sense. Ultimately, management's 
tactics worked and my co-workers lost their election.
    But a little over a year ago there was a dramatic change. On April 
4, 2001, our hospital system, CHW, signed an agreement with SEIU that 
among other important issues sets reasonable ground rules for union 
elections.
    It said employees at CHW hospitals would be allowed to make up our 
own minds about forming a union in an atmosphere of respect, and that 
communication with employees would be factual and free of personal 
attacks.
    It said that CHW and SEIU would work to find positive solutions to 
problems, and would not engage in derogatory comments concerning the 
basic mission of either organization.
    It prohibited hospital management from holding one-on-one meetings 
to intimidate employees, and banned mandatory anti-union meetings 
called by hospital management on work time.
    Finally, it prohibited the hospital from hiring outside 
consultants.
    I believe that instead of being the exception, these rules should 
be standard operating procedure in all union elections to ensure that 
employees can freely choose whether to join a union.
    After the agreement was signed between SEIU and CHW, union staff 
were able to enter the hospital and meet with employees in public areas 
as long as patient care was not disruptive. Employees were able to post 
literature and other materials in specific locations in the hospital.
    This time, whenever an employee had a question, they could get it 
answered quickly and make a decision based on the facts.
    The new contract and organizing agreement have brought us a new, 
far more cooperative relationship with our hospital and the entire CHW 
system. It is improving our hospitals and making things better for 
patients, who benefit in a number of ways from the new relationship and 
our collective bargaining agreement.
    Patients benefit because there is less conflict in the hospital and 
employees are happier. They benefit by the new staffing language, which 
in our contract allows us to work with our managers in resolving 
staffing issues.
    I do not believe that workers should have to climb mountains to 
choose a union. We should not have to fear for our jobs or our 
families. We should not be systematically intimidated, threatened, or 
frightened for exercising our democratic right to have our own 
organization at work.
    Thank you again for inviting me to speak at today's hearing.

    Senator Wellstone. Thank you very much. Much appreciated.
    I was saying to Marge Baker, who works with me, I want to 
go forward with the testimony, and I am trying not to limit 
people to 5 minutes because you have so much to say. There may 
be fewer questions because I think it is probably more 
important just to get your testimony out, and I would like to 
thank you very much for very powerful testimony. I thought, in 
case I do not get a chance to ask many questions, I thought, 
Ms. Schweikhard, your initial statement about you do not view 
it as union versus company but you think it should be both 
together, was extremely important and particularly in affecting 
the quality of care for people in the health care field. I 
think it is a wonderful connection that you make.
    Mr. Vidales from Zacatecas, Mexico, immigrated in the early 
1980s, eventually went to work as a cook in the Santa Fe 
Casino's coffee shop. Thank you for being here, Mr. Vidales.
    Mr. Vidales. Food server.
    Senator Wellstone. Pardon?
    Mr. Vidales. I was a food server, waiter.
    Senator Wellstone. Oh, sorry.

STATEMENT OF MARIO VIDALES, FORMER FOOD SERVER, SANTA FE HOTEL 
                   AND CASINO, LAS VEGAS, NV

    Mr. Vidales. My name is Mario Vidales. I used to work as a 
waiter at the Santa Fe Hotel in----
    Senator Wellstone. The record will be corrected. I 
apologize for that.
    Mr. Vidales. OK. Many of us felt that we are not getting 
respect at work. When we start working the company promised us 
good benefits and wage increases after 6 months and a year 
later. So we did not get none of those promises delivered, so 
we decide to organize the union. So we contact the Culinary 
Union to help us out. Pretty soon, you know, we signed up more 
than 70 percent of the workers in the union cards, so we asked 
the company to recognize the union and start bargaining with 
us. But of course they refused. The casino owner was the State 
Senator's husband, and they refused to bargain with us. They 
said the best way is to have another re-election. So we knew we 
were the majority and we can win that, so we agree.
    So a year later we have an election which we win also even 
though there was a lot of management around it, you know, the 
election was held at the company. So there were supervisors 
looking at us, you know, step-by-step, when you go and vote, 
which was very scary. A lot of people was nervous. So we still 
win. But everybody was so happy and excited. I was one of them 
jumping. I says, ``Great.'' You know, ``Wonderful. We have 
union representation so we are going to have the same benefits 
as the other people on the strip,'' but I was wrong, because 
the company appealed the decision. It took a long time. It took 
them like 7 years went by, and the company appealed in every 
court including the U.S. District Court, just to delay the 
process of the negotiation.
    Finally the Labor Board forced them to sit down and 
negotiate with us. So they start to negotiate with us, but we 
have, through like 20 sessions of negotiations and nothing was 
happening, so you can tell the company was not serious about 
it. It was just like killing time. So any way it was 7 years of 
harassment and threats and intimidations. Years later the 
company sold the property to another corporation that is called 
Station Casinos. Immediately when they took over, they said 
they were not keeping the employees. They have to reapply 
again, so there was only a few employees from the Santa Fe 
left, so they end up without having the union, and all the 
employees lost their jobs. One of the occasions when I was 
working there the company was so upset because we were so 
organized.
    Since I was first server, I was going earlier to work so I 
can see the workers before my shift, and I used to stay over so 
I can talk to all three shifts. Company was so furious because 
we were so organized there and they could not do nothing about 
it. So what they did is they split us up. They changed 
everybody's shift so nobody will see each other again and 
destroy the organization.
    I was conducting meetings at that time, trying to figure 
out how we are going to get our shifts back so we still can be 
organized, and one night when I was leaving from work, I came 
out. You know, I was going to get in my car, and as I was 
leaving there was two cars right outside. They were full of 
people. I was a little suspicious when I saw them, but you 
know, I thought no big deal. There was no reason for me to be 
afraid. So I kept on walking, going to my car. Then these two 
cars--that I was a little suspicious of--they pulled ahead of 
me and they came out of the cars with tire irons and baseball 
bats. So then I took on two of them, you know, I push them and 
throw them on the floor, but the others, they are going after 
me with the baseball bats and they start beating me and left me 
for dead. They thought I was dead because I was not screaming. 
I was on the floor bleeding, and so they said, ``We killed him. 
He is gone.'' They were surprised. I am here. I am still 
fighting and I am not going to give up for our rights.
    [The prepared statement of Mr. Vidales follows:]
Prepared Statement of Mario Vidales, Former Food Server, Santa Fe Hotel 
                        and Casino Las Vegas, NV
    My name is Mario Vidales and I used to work as a waiter at the 
Santa Fe Hotel and Casino in Las Vegas. At the hotel, many of us felt 
like we were not getting any respect as employees or as human beings: 
we worked for minimum wages and had no paid health or pension benefits. 
In May 1992, we talked to the Culinary Union because we knew that union 
workers received fair pay and benefits. We were tired of the lies of 
the hotel owners, the Lowden family, who kept promising improvements 
but never came through.
    More than seventy percent of us signed for the union and we asked 
the Lowden family to recognize our union and negotiate. They refused, 
saying that the only fair way to determine what people wanted was 
through an election supervised by the NLRB. We knew we could win, so we 
agreed.
    In October 1993, more thaw a year after we had signed for the 
union, we finally had the election. We had to vote at work and people 
were nervous because our bosses kept an eye on us the whole time, but 
we won anyway. At the time I thought: ``Great! We did it! Now we have 
some rights.''
    But I was wrong. One week after the election, the company protested 
and filed an appeal. Eighteen months later, the NLRB finally dismissed 
Santa Fe's case. But the company appealed again on June 5, 1995. Again, 
the NLRB turned them down and certified the union.
    Still, the company refused to accept our decision to unionize and 
refused to bargain. The NLRB ordered Santa Fe to sit down and negotiate 
on November 30, 1995. But, the company filed one more appeal, this time 
with the U.S. Court of Appeals for the District of Columbia.
    Ten more months passed. In October 1996, the Federal Court affirmed 
the bargaining order. Three years after winning the election the 
company finally stopped playing legal games and moved on to bargaining. 
But between March 1997 and April 2000, after more than 20 negotiating 
sessions, it was clear the company was not serious about reaching an 
agreement.
    During all this legal process, a lot more was going on. From way 
back in the beginning, the summer of 1992, Santa Fe managers carried 
out a harassment and intimidation campaign against people who were for 
the union. I used to get out of work at 10 p.m. and would stay until 
midnight to talk to the people who were coming in for the next shift. 
Then, management began splitting and switching people's shifts to make 
it more difficult to talk to them, so we decided to set up a meeting 
late one night so everyone could be there. When I got off from work 
that night, I saw two cars full of people parked by the exit. It seemed 
suspicious to me but I saw no reason to be afraid. As I walked through 
the parking lot, the two cars suddenly drove up and 10 men came out 
wielding baseball bats. I took on two of them and tried running back to 
the hotel, but the others came up from behind and hit me in my legs. I 
fell to the ground. I could hear the security guard yelling for help on 
his radio, but he did not come to my help. I was beaten and left for 
dead. They split my head open and inflicted serious injuries on my 
entire body and the swelling lasted for weeks. I couldn't work for 2 
months.
    Of course, we filed scores of unfair labor practice charges, hoping 
to deter the company from this brutality. Just like the endless 
election appeals, we found the prosecution of ULPs to be endless. It 
wasn't until September 1998 that the National Labor Relations Board 
approved a settlement of the ULPs. In all, there were forty-two 
separate incidents included in the NLRB's complaint: illegal 
terminations, illegal suspensions, illegal threats to fire, illegal 
refusals to promote, illegal surveillance, illegal changes in benefits, 
and on and on and on.
    In June 2000, the Santa Fe sold its property to Station Casinos. 
The new company quickly announced that they would not be retaining us. 
We could re-apply but would not be given any kind of preference in 
hiring and the applications would be accepted only after the hiring 
process was opened to the general public. In the end, only a few former 
Santa Fe workers were hired to work there. So hundreds of Santa Fe 
workers lost our jobs and our union.
    The Santa Fe's last day of operation (and the workers final day of 
employment) was October 1, 2000--exactly 7 years after we had voted for 
Union representation. At the same time we were going through all of 
this, thousands of Las Vegas casino workers peacefully were unionizing 
through the card check and neutrality process at places like the 
Mirage, MGM, Paris and Mandalay Bay. There were no costly legal 
shenanigans, no firings, no beatings; just a process that respects 
people's right to choose.
    It is very sad that we tried to exercise our rights at work and met 
with threats and harassment. We followed the legal process but the law 
is a joke. Many times the NLRB said we were right and then one remedy 
would be to make the company put up a piece of paper that said: ``We 
will never do it again.''
    If I cross a red light and get a ticket, it costs me a lot of money 
so I know that, if I break the law, I have to pay. Here the company 
simply apologizes and keeps playing games. When the NLRB finally began 
issuing settlement checks for all the unfair labor practices to former 
Santa Fe workers in the summer of 2001, 8 years after the election, 
many people were long gone and unable to be contacted. In the end, 
there was no justice. The employer essentially laughed at the Federal 
Government and the Federal Government was powerless to enforce our 
rights. Our rights as workers counted for nothing.

    Senator Wellstone. I tell you, I have to say I have been in 
the Senate for almost 12 years. I do not think I have ever 
heard more powerful testimony. I certainly believe you when you 
say you will continue to fight.
    I also think people, if everybody in the United States of 
America was able to see this, I think they would have a hard 
time believing that in the year 2002 this actually happens to 
people. I think it would shock a lot of people in our country, 
because I think this goes so much against the grain of what the 
vast majority of the people consider to be fairness in the way 
you should treat people. Thank you so much.
    Mr. MacDaniels founded ONCORE in March 1997. It is a 
concrete contractor with over 340 employees and a $35 million 
in annual revenues. We thank you for being here, Mr. 
MacDaniels. Thank you.
    Mr. MacDaniels. Thank you, Senator. Good morning, or I 
should say at this point, good afternoon.
    Senator Wellstone. Good afternoon.

STATEMENT OF ROBERT MacDANIELS, PRESIDENT, ONCORE CONSTRUCTION, 
                        BLADENSBURG, MD

    Mr. MacDaniels. Mr. Chairman, Ranking Member Craig, Senator 
Wellstone and other Members of the committee, for the record, 
my name is Bob MacDaniels. I am the president and co-founder of 
ONCORE Construction from Bladensburg, MD, a company we started 
some 5 years ago, as you said, after hocking everything that we 
owned, including our homes, to create our American dream. Today 
we have over 340 employees and do approximately 35 million a 
year in concrete construction in the metropolitan area as you 
mentioned.
    We enjoy a reputation for providing a safe work place and 
quality workmanship. We offer competitive salaries, benefits 
and employee training. We are very proud of our excellent 
minority hiring record and compensation. In fact, we have been 
honored by a national organization by receiving the Accredited 
Quality Contractor Recognition, a national award that only 470 
companies have received since 1993. This recognition 
demonstrates our commitment to employee safety, employee 
benefits, employee training and community service. We are 
pleased to have received this award in only 5 years.
    However, Senator, in a very short period of time, our 
American dream has become the American nightmare, and it is not 
just ONCORE. We are facing some challenges that many companies 
in your State are facing. For the past 6 months the Laborers 
International Union has perpetrated some of the most outrageous 
acts against my employees, my customers and our reputation, all 
in the name of a labor dispute with ONCORE. The only dispute is 
that neither my employees nor I want to be in the union. Some 4 
months ago, two representatives from the Laborers International 
Union came to my office. During our conversation, they 
admitted, through ``salting efforts'' that they have learned 
that my employees do not want to be in the union, but that did 
not matter to the union. Senator, they gave me an ultimatum. 
Either I was to sign a collective bargaining agreement, 
regardless of my employees' wishes, or they would work to put 
me out of business.
    Since that meeting the union's efforts to deny ONCORE work 
really stepped up. Led by a group of paid agents from New York 
and New England, the union has engaged in mass trespassing of 
our job sites. They abused and assaulted my employees. They 
prevented deliveries to my job sites and overall disruption to 
my jobs. Last week some of my construction equipment caught 
fire and exploded under mysterious circumstances.
    The union has created and passed out countless handbills 
that are false and defamatory of my company. In one union 
falsely quoted an employee saying something negative about 
salaries. Senator, you should know that that employee later 
denied, in a sworn statement, that he ever said anything 
negative about ONCORE. They also have quoted individuals on 
handbills who claim to have worked for ONCORE, but do not show 
up on my employee records, apparently dissatisfied that our 
employees and most of our customers remain loyal despite the 
union's vicious attacks on our company. They have risen to a 
new level of lawlessness through a campaign of systematically 
threatening my neutral customers. Their unions have repeatedly 
threatened economic terrorism against my general contractors, 
developers and property owners in the Metropolitan Washington 
area if they even considered giving business to my company. 
Union agents even went to the homes of some of my customers and 
threatened their projects with economic harm if I was not 
removed from the job.
    Finally, enough is enough. We filed charges against the 
union with the National Labor Relations Board in April of this 
year. We supported those charges with videotapes of the union's 
illegal invasion of our job sites, and from employees' 
affidavits and customers who came forward to present evidence 
against the union's unlawful and misconduct. On May 24th of 
this year, the NLRB issued a 15-count indictment against the 
unions for unlawful secondary boycott activity. The complaint 
will be heard on July 15th of this year. Just last week at the 
request of the NLRB a Federal Judge has issued a temporary 
restraining order and set a hearing for further injunctive 
relief against the Laborers Union. I am providing the Committee 
with a copy of the Judge's opinion and order, which confirms 
everything that I have testified today. Naturally, I am 
grateful that the NLRB and the Courts have taken steps to stop 
the Laborers' Union from continuing its illegal activities. But 
I am told that the NLRB action is unlikely to cover the money 
that we have spent on added security, legal fees, disruption to 
my job, not to mention the injury to our reputation from union 
lies and threats to our customers and the general public.
    It continues to amaze me that through all that has taken 
place in our company, not once has any of my employees ever 
come to me and said, ``We want to be in the union.''
    Senator starting my own business has made me appreciate 
what great a country we live in. America is truly the land of 
opportunity. But writing laws that allow certain groups to 
basically extort unwanted agreements, that seems un-American to 
me.
    Finally, I think in a democratic society, we should hold 
both businesses and unions accountable and to the same 
standards, and I am here today to ask you to do just that. I 
thank you for allowing me to testify before you this afternoon, 
and I would welcome the opportunity to answer any of your 
questions.
    [The prepared statement of Mr. MacDaniels follows:]

Prepared Statement of Bob MacDaniels, ONCORE Construction, Bladensburg, 
                                   MD
    Good morning Chairman Kennedy, Ranking Member Gregg, and Members of 
the committee. My name is Bob MacDaniels and I am the President and Co-
Founder of ONCORE Construction, Bladensburg, Maryland. ONCORE was 
founded 5 years ago after hocking everything we owned, including our 
homes, to start our American Dream. Today we have over 300 employees 
and do approximately $35 million per year in concrete construction work 
in the Washington Metro area.
    We enjoy a reputation for providing a safe workplace and quality 
workmanship. We offer competitive salaries, benefits and employee 
training. We are very proud of our excellent record of minority hiring 
and compensation. In fact, we have been honored by a national 
organization by receiving the Accredited Quality Contractor 
recognition, an award that only 470 companies have received, since 
1993. This recognition demonstrates our commitment to employee safety, 
employee benefits, training and community involvement. We are pleased 
to have received this recognition in only 5 years.
    However, in a very short period of time, our American Dream has 
turned into an American Nightmare. And it's not just ONCORE. We are 
facing the same challenges that many companies in your States are. For 
the past 6 months, the Laborers' International Union has perpetrated 
some of the most outrageous acts against my employees and customers in 
the name of a so-called ``Labor Dispute'' with ONCORE. The only dispute 
is that my employees clearly have demonstrated they do not want to be a 
part of a Union.
    Some 4 months ago, two representatives from the Laborers' Union 
came to my office. During our conversation, they admitted through their 
``Salting Efforts'' they have learned that my employees don't want to 
be in the Union. But that did not matter. They gave me a choice--either 
sign a Collective Bargaining Agreement, regardless of my employees 
wishes, or the Union would do everything it could to put me out of 
business.
    Since that meeting, the Union's efforts to deny work to ONCORE 
really stepped up. Led by a group of paid agents sent here from New 
York and New England, the Union engaged in mass trespass on my 
jobsites, abused and assaulted my employees, disrupted jobsite work and 
prevented deliveries. Last week, some of our jobsite equipment was set 
on fire and exploded. The Union has created and passed out countless 
handbills about ONCORE that are false and defamatory. In one case the 
Union falsely quoted a former employee saying something negative about 
salaries. The employee later denied, in a sworn statement, that he made 
any negative comments about ONCORE at all. They have also quoted 
individuals in handbills who claim to have worked for ONCORE, but do 
not show up on our employee records.
    Apparently dissatisfied that our employees and most of our 
customers remained loyal to us despite all of the Union's vicious 
attacks, the Union escalated their campaign to a new level of 
illegality by systematically threatening our neutral customers. The 
Union repeatedly threatened economic terrorism against neutral general 
contractors, developers and owners throughout the Washington 
Metropolitan area if they even considered using ONCORE for their 
concrete construction work. Union agents even went to the homes of some 
of our customers to threaten their projects with economic harm if we 
are not replaced on their projects.
    Finally, enough is enough. We filed charges against the Union with 
the National Labor Relations Board in April of this year. We supported 
our charges with videotapes of the Union's illegal invasion of our 
jobsites and with affidavits from our employees and customers who came 
forward to provide evidence of the Union's unlawful threats and other 
misconduct. On May 24, 2002 the NRLB issued a 15-count indictment 
against the Union for engaging in unlawful secondary boycott activity. 
The complaint will be heard on July 15, 2002. And just last week, at 
the NLRB's request, a Federal Judge issued a TRO and set a hearing for 
further injunctive relief against the Laborers Union. I am providing 
the Committee with a copy of the Judge's Opinion and Order, which 
confirms everything I have just testified to about this Union's 
campaign of lawlessness.
    Naturally, I am grateful that the NLRB and the Court have taken 
steps to stop the Laborers Union from continuing its illegal 
activities. But I am told that the NLRB action is unlikely to recover 
for us the money we have spent on increased security, lawyers and 
jobsite delays, not to mention' the injury to our reputation from all 
the Union's lies and threats to our customers and the general public. 
And it continues to amaze me that all of this has taken place without 
any of my employees saying to me that they want anything to do with 
this Union.
    Starting my own business has really made me appreciate how great a 
county we live in. America is truly the land of opportunity, but 
existing laws that allow certain groups to basically ``extort'' 
unwanted agreements seem very un-American! In a democratic society, 
businesses and unions alike should be held to the same standard. It is 
my hope that Congress will enact laws that prevent such abuses while at 
the same time protecting the rights of workers.
    Thank you for allowing me to testify before you today. I would like 
to take this opportunity to answer any questions you may have.

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    Senator Wellstone. I thank you for your very important 
testimony. I think that holding all to the same standards is--I 
do not think you will get any quarrel and I do not think 
anybody will write any legislation. I will be the one that will 
probably be taking the lead on this legislation, and certainly 
there will be no legislation that would tell employees that 
they have to join a union. The question is people should have 
the fair elections and people should be able to decide, and 
people should be able to make the decision and have the right 
of association and to decide themselves. Probably we hopefully 
would not disagree on that.
    Mr. MacDaniels. We do not, except at the point when it is 
decided that either you are or are not going to be in the 
union, or either your employees want to be or do not want to 
be, it should be over.
    Senator Wellstone. Well, let me make an observation and go 
to some questions, and this is not to take away from your 
testimony, but it is interesting to have you follow Mr. Vidales 
because all together, and as you said you are thankful for 
this, your company, you were able to get some action in 6 
months as I think about it, and Mr. Vidales and his co-workers 
worked on this for 7 years and got nothing. So in some ways you 
should have a considerable amount of sympathy for Mr. Vidales 
as well. It worked for you, and I am glad for you, without 
knowing all the merits, but for Mr. Vidales, the worker, it did 
not work at all for him.
    Let me ask Ms. Buffkin, one thing--and I am going to do 
this, I am going to apologize to everyone; we will just do 5 
minutes of questions; I want to try and get to everybody. An 
observation first that I think is real interesting. I do not 
think people generally speak and focus on how hard that 
sometimes it can be managers--and this is in the case not of a 
good company, but what you were dealing with, it can actually 
be the managers or the supervisors who are put under the 
pressure and can be victimized and put in a horrible position. 
Where it is your family, supporting your family, or doing 
something you do not think is right, and boy, I do not know 
that anybody has spoken to that more clearly than you have.
    Now, in February 2002 several of the workers at Smithfield 
won their civil rights lawsuit against company. Do you think 
this means that the workers at Smithfield will have attained 
justice? Does this mean now that we can count on fair 
elections? My second question for you is, what makes you think 
the workers at Smithfield really want a union?
    Ms. Buffkin. Let me start with the first question. That was 
one employee who won, and he has been gone since 1998. In 2002 
he was rewarded for the injustice that happened to him. What 
about the 5,000 people, the employees that are left there, that 
do not know where to turn, that do not know who to call, that 
do not know their rights. This is one individual. You have 
5,000 left. No, sir, it has no changed.
    No, there are no fair labor practices going on as if this 
moment. My husband still works there. He goes through it every 
day. I have friends and family members that work through it, 
that work there that go through it every day. In the past month 
and a half, 276 cards have been signed out of 310 maintenance 
employees that want a union in. No, sir, this is not even 
close.
    Senator Wellstone. Your comments speak for themselves.
    Ms. Schweikhard, why do you think the hospital initially 
had such resistance to your organizing efforts?
    Ms. Schweikhard. Hospitals have a vested interest in 
maintaining the nursing shortage. This is a conflict of 
interest. RNs comprise, if I am not mistaken, 25 percent of 
their payroll. We are their largest single working force in the 
hospital. When they keep conditions on the floor as bad as they 
are, when they assign 10 patients to one nurse, when they make 
it so that you cannot get your breaks and your meal breaks and 
you have to work it out to go to the restroom, when you do not 
get the right supplies that you know that you need, they are 
saving money. So we are losing nurses on a daily basis because 
they are leaving the workforce and they are not coming back. 
The hospitals can say, ``Oh, dear, cannot do anything about it. 
You know, there is no nurses. Where do you want us to get them 
from, the woodwork?'' If the hospitals would improve the 
situation, the nurses would come back.
    Through a union we are able to accomplish this. I think it 
is our obligation as health care providers that all hospitals 
and nurses should unionize and try to turn this around. This is 
the only vehicle that we have that we can actually legally be 
recognized and repair the harm that has been done to the 
nursing profession.
    Senator Wellstone. A quick observation on the acute 
shortage. I remember in Minnesota at St. Scholastica College up 
in Duluth, that a nurse testified--we were talking about the 
shortage--and she said, ``If the choice is between my 
livelihood and my life, I am going the choose my life.'' Her 
point was I have now worked 23 straight days and I have got 
small children and I cannot keep doing this. So, obviously the 
more civilized the working conditions, the better the working 
conditions, the more likely we are to not only attract but also 
retain nurses. So it goes together, and again, in terms of 
quality of care for all of us.
    Mr. Vidales, I think a real quick question I have for you 
is, I mean this is just unbelievable, 6 years trying to 
organize and negotiate a contract. After 6 years you did not 
have a contract. The employer sells out and then most of you 
lose your job. Three of those six years you were in first 
contract negotiations. The NLRB and the courts kept ruling in 
your favor, but you still were not able to get the employer to 
negotiate a contract. You were assaulted, brutally assaulted. I 
mean it is fair to say the system did not work for you.
    What do we need to do that you think could make a 
difference?
    Mr. Vidales. Well, first of all, I believe that the law 
needs the take a real close look at it, because in my cases we 
did not see no justice at all, either at the local or State law 
or the NLRB. One of the assaultants was one of the supervisor's 
son, who I recognized. After the first Labor Board trial, him 
and his whole family, their mother, their father, two sons, two 
daughters and a daughter-in-law, the whole family was 
testifying in favor of the company. So that is how I recognized 
one of assaultants. We filed Labor Board charges, of course, 
but nothing was done. We filed charges with the local police 
and they claimed that they could not find him, that he was a 
fugitive, and until the next year when I myself--I went to the 
park and I spotted the guy with other 6 fellows. So I called 
the police and they arrested him and they put him in jail. But 
it was me who did it.
    So I think the law has to be more efficient and the labor 
law, and instead of delaying and giving the opportunity to make 
this long, long, long trials, it should be closer. Just like 
his case, this case is going to be here in 6 months, but ours, 
7 years later we still have not got anything. So I think just 
stop the delay.
    Senator Wellstone. Obviously, if there had been a point in 
the process where you now have won the election and you are 
trying to negotiate, and then they would not sign a contract, 
if there had been a point where they would have to go to 
mediation and arbitration, that would help in terms of just 
stalling forever on the contract too, because that became a big 
issue for you all, correct?
    Mr. Vidales. Correct.
    Senator Wellstone. I think what I want to--I do not really, 
because I think I understand Mr. MacDaniels, and I want to try 
to ask a very fair question. You are here and you have spoken 
with great feeling. I want to say one thing that is rhetorical 
and I do not think it is aimed at you at all, at least in terms 
of the measure I take of you. When you said after the election 
is over, it should be over. I wanted to point out that for Mr. 
Vidales's, it is not over, and for the Smithfield workers, it 
is not over. So it is also the companies that do not 
necessarily stop, especially if we are talking about the 
intimidation.
    But here is what I want to get on the record, because you 
have made the case, and you have said--and I think it is 
important--that we ought to hold everybody accountable to the 
same standards. There should not be--without knowing the merits 
of the specific case you discuss, there should not be 
intimidation on any side.
    Let me try to--it is not a trick question. It is I want to 
see where you come down on the record. In your testimony you 
have expressed great concern of violations of labor law by the 
workers or members of the unions. I mean that is what you have 
talked about.
    Mr. MacDaniels. Yes, sir.
    Senator Wellstone. At the same time today we have heard 
some pretty powerful stories of management unlawful action to 
prevent workers from forming the unions. We have heard about--
and you have heard all of that because you have been here. So 
the question is: do you believe that employees have the right 
to form unions in the work places free from any illegal 
interference and pressure from management? Do you believe that 
they do have that right? It is not meant to be a trick 
question.
    Mr. MacDaniels. It sounds like it. Let me say this. I 
believe that--the stories that I have heard today are 
heartwarming and despicable, to use President Sweeney's words. 
But I just cannot believe that in today's economy businesses 
can run like that and survive, at least not my style and 
certainly not many of my competitors in my industry. I believe 
that employers should have the right to hire, pay and promote, 
based on merit. I believe that employers should be allowed to 
run their businesses in a free enterprise. I do not believe 
that there should be an artificial set of rules that stifle 
competition, stifle productivity.
    Should we have had unions 30 years ago? Perhaps. Today I 
think that the demands of staying competitive in this economy 
we have mandate that an employer treat their employees well 
like we do. I mean our success in our company is because of our 
employees, and we recognized that from the day we went into 
business.
    Senator Wellstone. Mr. MacDaniels, listen, I am not going 
to take advantage of my position up here and badger you. It is 
my nature to like people, but I just want to point out that--I 
mean you are expected to be the next chair-elect of the Metro 
DC-ABC, correct?
    Mr. MacDaniels. I am very proud of----
    Senator Wellstone. Well, you should be. I have no right to 
tell you not to be proud. I was just hoping, given this 
position, you would go on record saying employees have the 
right to form union in the work place, free from illegal 
interference and pressure from management. You do not want to 
go on record saying yes.
    Mr. MacDaniels. Being president----
    Senator Wellstone. I mean it is like--do you want us to go 
back 70 years? I mean, come----
    [Applause.]
    You know what, I am saying to you friend to friend, I think 
you should say yes because that is consistent with who you are, 
I believe.
    Mr. MacDaniels. Senator, let me say this, I now know what 
it feels like to walk into a lion's den with a hamburger 
overcoat on.
    Senator Wellstone. No, you do not, because I am being 
really nice. [Laughter.]
    Mr. MacDaniels. I appreciate that. Senator, I stand on my 
answer.
    Senator Wellstone. Okay, that is fine. That is fine.
    Well, I want to thank all of you, all of you for being here 
today. This hearing is concluded.
    [Whereupon, at 12:30 p.m., the committee was adjourned.]
      


                            A P P E N D I X

     Prepared Statement of Felizardo Enriquez, Residential Roofer, 
                        Metric Roofing, Arizona
    Buenos dias. Mi nombre es Felizardo Enriquez y tengo tres anos 
trabajando por Metric Roofing. Estoy casado y tengo una hija, Cristal, 
que tiene un ano.
    Durante el verano, cuando el calor sube hasta 109 grados y mas, 
trabajamos poniendo techos por developers como Pulte Homes y otros. 
Trabajamos todo el dia duro, sin agua muchas veces porque la compania 
no nos da agua. No tengo plan medico. ?Que pasara si mi hija esta 
enferma? Creo que si yo voy a ganar miliones de dolares para la 
compania Metric, que yo tengo derecho a tener la misma proteccion de un 
plan medico que yo se que el dueno de la compania tiene.
    Hemos tenido muchos problemas con el robo de esquadras. Metric nos 
paga por el tamano del techo y muchas veces el techo es mas grande de 
to que ellos dicen. Eso es un robo de dinero que necesitamos para 
ayudar nuestras familias. Y si reclamamos, nos castigan, reduciendo 
nuestro trabajo.
    De todo eso, abusos diariamente. Tengo orgullo para decir que soy 
parte de un grupo de trabajadores en nuestra compania que estamos 
organizando para formar nuestra union para mejorar la vida de nosotros 
y de nuestras familias. Pero Metric esta luchando muy fuerte contra 
nosotros.
    Algunos trabajadores fueron despididos por ser parte del grupo que 
esta tratando de ganar una voz en nuestro trabajo. Algunos de los 
trabajadores que han vocalizado contra las injusticias de la compania 
fueron castigados. Metric ha amenazado algunos trabajadores con 
demandas por no mas hablar de las condiciones a la prensa .
    !No se cuando vamos a ganar, pero no vamos a parar hasta que 
ganemos la justicia!

                          ENGLISH TRANSLATION

    Good day. My name is Felizardo Enriquez and I have been working at 
Metric Roofing for three years. I am married and have a one-year-old 
daughter named Cristal.
    During the summer when the heat reaches 109 degrees and more, we 
work constructing roofs for developers such as Pulte Homes and others. 
We work hard all day long, without water a lot of the times because the 
company does not provide any water to us. I don't have a medical plan. 
What would happen if my daughter became ill? I feel that if I am going 
to make millions of dollars for this company, that I have a right to 
the same protection of a medical plan that I know the owner has.
    We have had many problems with them underpaying us. Metric pays us 
for the size of the roof and many times the roof is bigger than what 
they say it is. They are taking money away from our families. If we 
complain they punish us by reducing our work.
    With all that, daily abuses. I am proud to say that I am part of a 
group of workers in our company that are trying to organize to form a 
union to improve our lives and the lives of our families. But Metric is 
fighting very hard against us.
    Some workers have been dismissed for supporting the union that is 
trying to give them a voice at work. Some of the workers who have 
spoken up against the abuses in the company have been punished. Metric 
has threatened to sue some of the workers for talking about the 
conditions to the media.
    I don't know when we will win, but we are not going to stop until 
we get justice!
                                 ______
                                 
  Prepared Statement of Edith (Teddy) Lail, Program Analyst, Federal 
                Aviation Administration, Washington, DC

    Hi, my name is Teddy Lail. I have worked for 13 years as a Program 
Analyst at the Federal Aviation Administration's Office of the Chief 
Counsel. Our experience shows that even under the best of conditions--
when you've chosen a union, won collective bargaining rights, 
negotiated and ratified a contract, and the employer is the Federal 
Government--workers can still be treated unfairly.
    In 1999 and 2000, in four separate elections, FAA Headquarters 
employees voted for AFSCME as our union representative. The FAA had 
tried to get Congress to prohibit us from organizing back in 1996, but 
we managed to win that battle.
    But our struggle was far from over. On February 5, 2001, we finally 
reached agreement on a first contract and the Chief Negotiators for FAA 
and AFSCME signed off their approval. Union members overwhelmingly 
ratified the contract 2 weeks later. We expected the FAA to start to 
implement the contract immediately but the FAA refused to implement the 
contract. And they still refuse to implement the contract a year and 
half later. The agency claims that the Office of Management and Budget 
had ordered them to renege on the contract even though OMB does not 
have that authority.
    AFSCME continued to fight the FAA on our behalf. The union filed an 
unfair labor practice charge, and, at a December 5 Federal Labor 
Relations Authority hearing last year, internal management documents 
and testimony clearly showed that OMB had not, in fact, ordered the FAA 
not to implement the contract.
    Congress passed legislation last year directing FAA Administrator 
Jane Garvey to immediately implement the ratified contract. They didn't 
implement. Instead, FAA has thumbed its nose at Congress.
    We have lobbied, litigated, picketed and done everything we could 
to get what we bargained for but a year and a half later, the FAA still 
won't implement the contract in clear violation of labor law and the 
direction from Congress.
    Meanwhile, employee morale has plummeted, just as the FAA is coming 
under intense pressure to help insure the safety and security of our 
air travel system. Many employees are upset about the agency's refusal 
to sign the agreement and attempts to destroy the union.
    As a Federal agency, the FAA should set a good example for 
companies but, sadly, in our case they have set the wrong example.
    To make it worse, our company tries to cover up injuries--I know a 
worker who lost three forgers and the company reported it as finger 
lacerations. A friend and co-worker spent 3 weeks in the Seattle 
hospital burn center and my company said he had a bad case of sunburn. 
I know of injuries never reported at all.
    Seven years ago, we thought if we joined together, we could improve 
pay and working conditions and have a voice that makes Nabors a better 
company.
    We want Nabors to thrive; we just want a fair shake too.
    But instead of respecting our choice, the company held one-on-one 
meetings to try and freeze us with fear. They sent anti-union 
propaganda to our homes. They forced us to watch anti-union movies.
    They tried to humiliate union supporters. And they fired some of 
us, and then blacklisted them from getting other jobs, bankrupting 
families.
    A majority of Nabors workers have voted to join together in a union 
to make things better. But 7 years after we started, the company 
refuses to take us seriously and negotiate a contract that would ensure 
things are better. In fact, they say point blank they'll do anything 
but negotiate seriously with us.
    A lot of people may have heard that Nabors just this month decided 
to create a paper headquarters in Bermuda to avoid paying American 
taxes.
    So now my company doesn't just break laws that are supposed to 
protect workers--or distort the law to get away with unsafe 
conditions--they're evading taxes too. Yet the CEO of Nabors will make 
$128 million in the next 2 years, and Nabors itself is a $2 billion a 
year company.
    This is not right. America can do better. I have friends who have 
been killed--who didn't come home to their families. I won't let Nabors 
take me away from my children.
    I came from the oil fields of Alaska to ask Congress--and President 
Bush too--to enforce laws that are supposed to protect our freedom to 
work together to make life better for our families--and to make new 
laws if the old ones don't work.
                                 ______
                                 
 Prepared Statement of Michael Mason, Forklift Driver, Nabors' Alaska 
                            Drilling, Alaska
    I'm Mike Mason and for 23 years I've worked in the Alaska 
oilfields.
    It's not the most common way to raise a family in America, but it's 
crucial work--we wouldn't have oil products without the thousands of 
workers who do this type of work.
    Since 1988 I've worked for Nabors Industries, the biggest drilling 
company in the world.
    The northern slope of Alaska is a place where coffee freezes before 
it hits the ground; where exposed skin will freeze in 30 seconds flat. 
Fifty to sixty degrees below zero is common.
    We work in remote areas, often 12 hours away from civilization--a 
half a day away from hospitals, doctors or something so simple as a 
grocery store.
    But that's not why I've traveled from Alaska to Washington, D.C. 
Under the best of conditions it's harsh work in the oilfields and I 
knew that before working there.
    I'm here because 7 years ago, me and my co-workers at Nabors 
decided to make things better by joining together with the Laborers' 
Union.
    There hadn't been a pay-raise in two decades; in fact pay has been 
cut.
    Living conditions in the camps are horrible. You awake with your 
hair and scalp frozen to your wall and when the spring melt comes, 
there's mold everywhere.
    Our insurance simply doesn't work--Nabors is self-insured. I myself 
came down with pneumonia on the northern slope last December--and 
Nabors still hasn't paid the medical bills.
    The kind of work we do--high on rigs, or with heavy equipment on 
the ground, or on ships at sea--is dangerous.
    I've seen co-workers crushed. Many people I know have had severe 
frostbite. My friends have cleaned up the blood after co-workers have 
been killed. I've seen workers covered with chemical burns.
    And all this occurs 12 hours away from help, away from the public 
eye.
                                 ______
                                 
    Prepared Statement of Terence M. O'Sullivan, General President, 
             Laboers' International Union of North America
    As General President of the Laborers' International Union of North 
America, I wish to thank the Committee for this opportunity to comment 
on the many difficulties facing tens of thousands of American workers 
today who routinely experience inordinate delays, employer 
interference, intimidation, threats of job loss, harassment and 
coercion to prevent their exercising their free choice to join unions 
and to bargain collectively.
    Our Union has over 800,000 members from many occupations covered by 
the National Labor Relations Act such as construction, health care, 
industrial and many others. On June 20th the Committee heard from a 
broad cross section of workers and the difficulties they face in 
gaining a union and a voice at work. Like them and so many others our 
members at Nabors drilling in Alaska have been thwarted in their 
attempt to gain the fruits of collective bargaining.
    Those members began organizing for our Union to represent them back 
in 1995, when the Company began a prolonged anti-union campaign. 
Nonetheless, these employees voted for Union representation in 2000 but 
even today have still been unable to win a fair first contract from the 
Company.
    These employees work in dangerous conditions on rigs in the Alaskan 
oil fields. Their concerns include fair wages, competitive benefits, 
and safety on the job. The Company's response has been to drag out 
negotiations as long as possible while moving its corporate 
headquarters to Bermuda to avoid U.S. taxes while paying their Chief 
Executive a multi-million dollar salary. Unfortunately, what has 
happened to these workers is all too typical of what goes on every day 
in workplaces throughout America where workers' legal right to organize 
and to bargain collectively is routinely frustrated by unfair employer 
tactics and ineffective legal remedies.
    Unfortunately, after the early federal legislation that first 
recognized the right of employees to organize and to bargain 
collectively in the Wagner Act that was passed in 1935, there has been 
little new legislation to make sure that these fundamental rights of 
workers are being honored and enforced in this country. The American 
workplace and the problems our employees face have changed dramatically 
in the past 67 years. Many companies have grown bigger and more 
powerful than we could ever have imagined and very often operate across 
national borders. Workplace technology has advanced far more quickly 
than at any other time in history and has posed a constant challenge to 
American workers, who have responded by becoming the most productive 
and efficient in the world. And yet, our labor laws have left these 
same workers with few effective remedies when, as often happens, their 
employers bring in high-paid outside consultants to run sophisticated 
anti-union campaigns when these same employees try to organize for 
collective bargaining. By the time the Labor Relations Board acts, 
several years go by where the Union supporters have been fired or 
forced out of their jobs. Even when the Board finally acts, it is often 
impossible for the Union to regain the support it lost as a result of 
the intervening unfair labor practices.
    Even if the Union does somehow win the election notwithstanding 
employer interference, under the current rules the Company can stall 
and drag out negotiations for years with no assurance that the workers 
will ever get a fair contract. And, since the Company can permanently 
replace strikers, who may never get their jobs back, the so-called 
right to strike has become almost meaningless.
    Good, loyal productive American workers like our members at Nabors 
Drilling in Alaska deserve better. I urge this Committee to propose 
meaningful reforms in our labor laws in order to make the right to 
organize and the right to bargain collectively a reality.
                                 ______
                                 
Prepared Statement of Andrea Taylor, Flight Attendant, Delta Air Lines, 
                              New York, NY
    Good Morning. My name is Andrea Taylor and I am a flight attendant 
for Delta Air Lines.
    Last August the Delta flight attendants filed a petition with the 
National Mediation Board requesting an election to join the Association 
of Flight Attendants.
    Our 20,000 flight attendants are the last non-union flight 
attendant workforce at a major U.S. airline, and our election was the 
largest ever in the airline industry, and the single largest private-
sector organizing effort since the 1960's. In response, Delta Air Lines 
ran one of the most expensive and illegal anti-union campaigns in 
history.
    I am here today as a representative of the hundreds of Delta flight 
attendants who filed reports of Delta's illegal interference in our 
union election and on behalf of the hundreds of others who were too 
frightened to come forward and stand up for their rights.
    Our struggle to get union representation proves that it does not 
take a barbaric act of violence or mass firings to create a climate of 
fear and intimidation that paralyzes workers and prevents them from 
exercising their right to have a voice in their workplace.
    Delta Management has conducted massive captive audience meetings, 
pressured and intimidated union activists, and engaged in polling and 
surveillance. Management has formed and assisted in-house committees 
designed by their anti-union consultants to serve as a voice for the 
company's anti-union campaign.
    In October, the National Mediation Board found that flight 
attendants' sworn statements presented a prima facie case of illegal 
conduct by Delta. But rather than take action to charge Delta with 
illegal conduct and provide the flight attendants with an atmosphere 
free from intimidation when voting, the NMB held off further 
investigation of the charges until after the election.
    Little did we know, the worst was yet to come.
    Flight attendants were devastated after the terrorist attacks on 
September 11. Our confidence in our safety and in our industry was 
shaken to the core. Delta played on our uncertainty and fear and 
exploited the tragedy by linking Delta's survival to the defeat of the 
union.
    The company sent letters and videos from senior management to the 
homes of flight attendants implicitly threatening flight attendants 
with job loss if they unionized; supervisors harassed AFA supporters 
asking, ``How can you support a union at a time like this?'' They told 
us that union support was anti-Delta and falsely promoted Delta's lay-
off plans as better than those at unionized carriers.
    Management even went so far as to tell the more than 3,000 flight 
attendants laid off after September 11 that they were not eligible to 
vote in the election, to keep them from returning their ballots. In 
fact, all laid off flight attendants were eligible to vote and an 
unreturned ballot counts as a ``no'' vote.
    Employers like Delta that intimidate, scare, harass, and threaten 
workers who have the legal right to organize must be stopped. Employers 
that are found guilty of labor law violations must be penalized. A slap 
on the wrist after the fact, does not serve as an effective deterrent 
to this abhorrent behavior.
    There is an assault on workers rights in this country and we'd like 
to thank Senator Kennedy for holding these important hearings to 
investigate the hurdles workers must clear to gain the dignity, respect 
and security that comes with having a voice at work.
    Thank you.
                                 ______
                                 
 Flight Attendants Fight Against Delta Air Lines' Illegal Interference 
                         in Organizing Election
    Delta Air Lines flight attendants officially began their historic 
union election campaign on August 29, 2001 when they filed a petition 
with the National Mediation Board requesting that a vote be held to 
join the Association of Flight Attendants, AFL-CIO.
    This election was the largest ever in the airline industry, and the 
single largest private-sector organizing effort since the 1960's. The 
20,000 Delta flight attendants are the last non-union flight attendant 
workforce at a major U.S. airline.
    Delta management has run one of the most expensive and illegal 
anti-union campaigns in history, designed to discourage flight 
attendants from supporting the union. This campaign has proven that it 
does not take an overt act such as violence or multiple firings to 
create a climate of fear and intimidation that prevents workers from 
unionizing.
    Management has conducted massive captive audience meetings, 
pressured and intimidated union activists, and engaged in polling and 
surveillance. Management has formed and assisted in-house committees 
designed by their anti-union consultants to address bargaining subjects 
through company-dominated committees, and to serve as a voice for the 
company's anti-union campaign.
    In September 2001, the Association of Flight Attendants, AFL-CIO, 
filed sworn declarations with the National Mediation Board, on behalf 
of hundreds of Delta flight attendants, charging management with severe 
violations of the Railway Labor Act, the law that governs the airline 
industry.
    A partial list of the illegal tactics Delta is charged with 
includes:
     One-on-one interrogation of union supporters behind closed 
doors in company offices;
     Confrontations with flight attendants exercising their 
right to conduct union activity in non-work areas;
     Phone calls from supervisors to the flight attendants' 
homes challenging their pro-union sympathies;
     Questioning flight attendants about the union during 
annual performance reviews;
     Publicly labeling pro-union flight attendants as `anti-
Delta' in front of their fellow flight attendants;
     Harassment of flight attendants that had the effect of 
discouraging them from exercising their right to organize in non-work 
areas, and which clearly intimidated other flight attendants from 
seeking out information about the union in those areas;
     Questioning flight attendants under oath about the union 
in unrelated civil litigation;
     Disciplining flight attendants for matters arising from 
their union activity;
     Distributing a series of inflammatory videos and an 
overwhelming stream of antiunion literature to the flight attendants' 
homes and to their flight attendant mail boxes;
     In-person surveillance by management staff or consultants 
of union organizing activity, both in non-work areas on company 
property and at outside events;
     Use of the police to harass and intimidate union activists 
in the conduct of legally permissible union organizing activity;
     Conducting paid, system-wide, mandatory captive audience 
meetings.
    In October 2001, the NMB found that the flight attendant claims 
presented a prima facie case of illegal conduct by Delta. But rather 
than take action to charge Delta with illegal conduct and provide the 
flight attendants with an atmosphere free from intimidation when 
voting, the NMB held off further investigation of the charges until 
after the election.
    Even after the NMB found significant evidence of an illegal anti-
union campaign, Delta Air Lines management continued to interfere with 
the flight attendants' right to organize by exploiting the September 11 
tragedy to create a climate of fear and intimidation.
    On Sept. 12, Delta began conducting weekly conference calls that 
were censored so that pro-union flight attendants were not permitted to 
ask questions. Other departments at Delta do not have these conference 
calls, only flight attendants.
    Delta communications with flight attendants during the election 
period inextricably linked Delta's survival to defeating the union 
effort. These communications included:
     Letters and videos from senior management to the homes of 
flight attendants implicitly threatening flight attendants with job 
loss if they unionized;
     Supervisors illegally questioning AFA supporters asking, 
``How can you support a union at a time like this?''
     Management constantly referring to the job losses in the 
industry in the wake of 9-11 and falsely promoting Delta's lay-off 
plans as better than those at unionized carriers;
     One-on-one meetings where supervisors would take aside 
flight attendants they identified as AFA supporters and grill them on 
their support for the union, in many cases saying that support was 
anti-Delta.
    Management even went so far as to tell the more than 3,000 flight 
attendants laid off after September 11 that they were not eligible to 
vote in the election, to keep them from returning their ballots. In 
fact, all laid off flight attendants were eligible to vote.
    The NMB is conducting its investigation into Delta management's 
illegal interference and AFA is asking for a new election with a 
balloting procedure that limits the effects of further illegal conduct 
by Delta management.
                                 ______
                                 
                Prepared Statement of the Gulf Mariners

    The right to choose to be represented by a union is not a right in 
the Gulf of Mexico offshore oil and gas industry primarily based in 
South Louisiana. Mariners who work on the boats that service and 
support the rigs and other petroleum and natural gas-related operations 
in the Gulf are trying to organize a union. Thousands of seafarers 
working on U.S.-flag boats and ships already enjoy the benefits of 
union representation. Those unionized shipping companies enjoy the 
benefits of a collaborative industry/labor partnership that advances 
the interests of U.S.-flag shipping. But in the Gulf, the boat 
companies and every other power structure in the community have 
declared war on the right of mariners to choose a union.
    Here is the bare outline of the Gulf mariners' story. To exercise 
their rights of freedom of association and freedom of speech, mariners 
must take on almost insurmountable opposition. For instance, Captains 
Eric J. Vizier and Mark A. Cheramie worked for Guidry Brothers, a boat 
company based in Lafourche Parish, in South Louisiana. Three days after 
Christmas in 2000, Captain Cheramie was fired for supporting the union, 
the Offshore Mariners United (OMU), a federation of four maritime 
unions--the Seafarers International Union (SIU), the International 
Organization of Masters, Mates & Pilots (MM&P), the Marine Engineers' 
Beneficial Association (MEBA) and the American Maritime Officers (AMO). 
Two days after New Years' 2001, Captain Vizier was fired for his 
efforts to secure OMU representation for Guidry mariners.
    The following are some of the obstacles that Captains Vizier and 
Cheramie and the Guidry mariners, along with the OMU organizers, have 
had to confront. These impediments to organizing are not solely related 
to Guidry. No matter the boat company's size, its management has 
harshly punished union supporters. For instance, at Trico Marine 
Services, a large vessel operating company conducting business in the 
North Sea, Brazil and West Africa, management with its anti-union law 
firm, Jones Walker of New Orleans, managers have fired pro-union 
captains, forced pro-union mates and able-bodied seamen to quit through 
assigning them unsafe work, kept mariners locked behind gates when 
their vessels dock near the corporate office, subject mariners to 
captive audience meetings on almost a weekly basis for more than 18 
months, among other punitive tactics. Ironically, Trico operates its 
North Sea, Brazilian and West African boats with union crews while 
swiftly punishing any hint of support for a union among its Gulf 
mariners. Joining Captains Vizier and Cheramie is a Trico mariner who 
by coming forward publicly on Thursday at the press conference and 
hearing risks being fired and blackballed by the company.
    Thus, the record shows that mariners at every boat company 
operating in the offshore oil and gas industry in the Gulf of Mexico 
face the same vicious anti-union collaborative industry-wide campaign. 
For purposes of this presentation to the U.S. Senate, Guidry only 
serves as an example.

                   ANTI-UNION CAMPAIGN OF THE COMPANY

    Firing pro-union mariners, isolating other pro-union mariners with 
anti-union mariners (usually ones who are related to owners).
    Threatening to shut down the company if majority of employees 
choose union representation.
    Threatening loss of benefits, loss of work and loss of jobs if 
employees choose union representation.
    Engaging in surveillance of union activity among mariners.
    Interrogating mariners about their support for the union.
    Calling the police to break up peaceful conversations between 
mariners and union organizers on non-work time at the docks.
    Tailing union supporters and driving menacingly behind the union 
supporters.
    Breaking a bottle in a restaurant frequented by union 
representatives and holding up the jagged edge claiming that it will be 
used to cut the throats of union organizers.
    Posting ``no solicitation'' signs but only enforcing this in regard 
to union activity.
    Distributing venomous anti-union material filled with 
misrepresentations and lies.
    Identifying union supporters to other boat companies and 
blackballing them from future employment opportunities.
    Refusing to hire qualified pro-union mariners because they are pro-
union.
    Locking down boats and having them leave docks when union 
organizers are present.
    Telling mariners they work for the company 24-hours a day (mariners 
are paid a day rate) and that they are not allowed to talk to union 
organizers on company time.
    Making new deckhand recruits sit through an anti-union 
indoctrination of more than six hours during their training to obtain 
their Standards of Training, Certification and Watchkeeping (STCW 95) 
certification required by the U.S. Coast Guard.
    And more.
  anti-union collaborative efforts of all boat owners through the ccfc
    Forming a front group known as the Concerned Citizens for the 
Community (CCFC) that conducts a vigorous anti-union campaign for all 
boat owners.
    So-called CCFC representatives visit pro-union mariner with brother 
working at another company and offer pro-union mariner the choice: Be 
pro-union and brother will be fired, become anti-union and brother can 
continue to work and job will be found for him as well.
    Post bright yellow anti-union CCFC signs within 20-30 yards of each 
other all the way down Route 1 and Route 308, the highway that all 
mariners use (and their company transport vans) to go to Port Fourchon, 
the largest port of offshore supply vessels in the U.S.
    Post bright yellow anti-union CCFC signs in every business used by 
mariners and their families--from insurance companies to massage 
therapists.
    Post bright yellow anti-union CCFC signs at the gates of the big 
customers--oil and drilling companies.
    Put up security shacks and security fences to keep union organizers 
away from mariners at their worksites--the vessels.
    Have security guards refuse to allow union organizers access to 
mariners.
    Have security guards wear yellow CCFC anti-union buttons.
    Use CCFC anti-union columns run in local newspapers as clips 
purporting to be ``news'' and giving these to mariners to read.
    Regular meetings of boat owners through the CCFC, the Chamber of 
Commerce and their federation, the Offshore Marine Service Association 
(OMSA) to share information on union supporters, union activity and 
anti-union tactics.
    Spy for each other--communicating when union organizers are on the 
docks or reporting to each other when a mariner is seen talking with 
pro-union sympathizers, organizers or ``strangers.''
    Organizing harassing phone calls and visits to union supporters 
wives and mothers at their places of work and at their homes, including 
sexually lude and inappropriate remarks.
    Blackballing union supporters.
  anti-union collaborative efforts of all boat companies through omsa
    In 1999, the maritime unions helped Gulf mariners form the Gulf 
Coast Mariners Association (GCMA), an organization to bring together 
mariners to give the men and women who go to sea in the Gulf for a 
living with a voice in the many legislative and political forums that 
impact their lives. In 2000, the maritime unions formed the OMU, a 
union structure for offshore mariners. Around these events, the 
federation of boat companies that also includes the oil companies and 
drilling companies and others in the industry as associate members, 
went on the warpath against unions coming into the Gulf. This 
federation (or union of boat companies), known as Offshore Marine 
Service Association (OMSA) has--in the most vitriolic and rabid way--
organized and mobilized the offshore energy industry to suppress 
mariners' union aspirations at every turn. OMSA has been:
    Raising funds from the companies for an industry-wide anti-union 
effort.
    Holding seminars for all boat companies on how to keep unions out.
    Whipping up a level of anti-union hysteria.
    Insuring that every player in the offshore oil and gas industry 
understands that unions must be kept out.
    Networking boat companies, their customers--the oil and drilling 
corporations, the other businesses that provide offshore services, in 
an anti-union campaign.
    Promoting certain law firms (anti-union law firms) to assist with 
anti-union activities.
    Allowing boat companies to use OMSA material to counter union 
initiatives.
    Bringing together the personnel directors of boat companies to 
teach them how to avoid unions.
    Telling boat companies to unilaterally make captains 
``supervisors'' so they do not have the (few) protections of the NLRA.
    Ensuring that mariners who identify themselves as pro-union are 
punished (their businesses boycotted by boat owners, losing their jobs 
if representing a pro-union organization in a public forum, etc.)

                    ANTI-UNION EFFORTS OF THE POLICE

    Arresting union organizers for leafleting at the docks (charges 
have been dropped).
    Arresting union organizers for holding ``Gore/Leiberman'' signs on 
Election Day November 2000 (charges have been dropped).
    Arresting union organizers (mariners themselves with upper level 
U.S. Coast Guard licenses) for operating a small boat in a no-wake zone 
(charges have been dropped).
    Arresting union organizer for leafleting at the port, claiming he 
needed a parade permit for this (charges have been dropped).
    Illegally seizing a video tape union organizers took of police 
harassment at the ports.
    Tailing union organizers at the docks and in small dock 
communities.
    Pulling union organizers out of a restaurant to tell them that they 
are not allowed at docks.
    Ensuring that mariners on the boats see that where there is a union 
organizer there will be a law enforcement official.
    Detaining a group of trade unionists who came from the countries of 
Australia, the UK and Norway, forcing them to get out of their vans and 
produce their identification and taking down detailed information from 
their IDs.
    When Captain Vizier reported that his house had been broken into 
and dead fish left on his doorstep, doing a cursory (laughing while 
doing it) investigation and never following up.
      ineffectiveness of the national labor relations board (nlrb)
    Failing in the Guidry case, after investigating the charges of the 
union and mariners and finding facts which resulted in the issuing of a 
complaint that required a bargaining order remedy, to seek such a 
bargaining order remedy in either settlement discussions or before a 
court as is the NLRB's right.
    Attempting to force the fired captains to take a cash settlement 
without first discussing this with the union attorney handling the 
case.
    Attempting to force the fired captains to take a cash settlement 
without first discussing this with the union attorney handling the 
case--a second time and a third time!
    Taking one year and three months to finally issue a settlement 
document approved by the regional director and the NLRB.
    Failing to conform any of the remedies outlined in the settlement 
document to the maritime industry.
    To exercise their freedom of association and freedom of speech 
rights, the mariners working in the oil and gas industry offshore in 
the Gulf of Mexico must go up against the entire power structure of 
their industry and put their livelihoods on the line. They must put the 
privacy of their family life on the line. They must open up their 
wives, husbands, mothers, fathers, children to harassment and other 
tactics of intimidation. They face blackballing and threats to their 
physical safety. They know as they drive around South Louisiana that 
every boat owner is against them. They know that the powerful customers 
that drive the Gulf oilfields--the oil companies and the drilling 
companies--are against them. They know the police are against them. All 
of these powerful forces are lined up against the mariners' right, 
under U.S. law and recognized in the fundamental principles of the 
International Labor Organization, to choose for themselves whether they 
want to belong to a union.
    That mariners' ``crime'' is that they believe they can make their 
lives, the lives of their families, the lives of their fellow mariners 
and their companies and the industry better if the men and women on the 
boats have a voice in the process with a union.
    This is what we bring to the attention of the U.S. Senate.
                                 ______
                                 
                                                       May 23, 2002
Re: Nabors Alaska Drilling--A Brief History of Organizing Events

    In 1994, Jim Taylor retired as President of Nabors Alaska Drilling 
and Jim Denny took over as President of Nabors in Alaska. During the 
winter of 1994-1995, Jim Denny arrived on the North Slope and started 
to conduct meetings with the Rig Hands. The first topic of discussion 
at each meeting was, ``You people in Alaska don't deserve any more 
money than Roughnecks in West Texas.'' After those statements, we all 
looked at each other and could not believe what we were hearing. Up 
until that point in time, it had been almost 8 years since we had any 
raise in pay. In 1986 we took pay cuts of over $3.00 an hour to help 
Nabors during the oil crunch, and our insurance had dropped to almost 
nothing. We now had no co-pay, travel-time, holiday pay, etc., were 
gone. Now this guy, that nobody had ever met, wanted to out us again!! 
We could not believe our ears; he was comparing the North Slope of 
Alaska with Texas. Most of us in the Alaska Oil Industry have been here 
since we first started working and have made this our career. We would 
like to keep it that way. Eventhough it is some of the harshest weather 
on the planet, working with each other year after year has been like 
having an extended family for most of us. After a few meetings with the 
management about our new President, we were told, that is the way it 
is, take it or leave it.
    In another meeting at Milne Point, Jeff Couture informed Mr. Denny 
that we had not had a raise in 10 years. Mr. Denny's response was that 
there would be no raises; it would interfere with his bonuses! That 
really started the guys talking! We had a couple of meetings and found 
that the only way we could keep what we had was to approach the Unions. 
We contacted the Laborers' Unions Local 341 and Local 942. The 
education started when Tim Sharp, the Organizer for Local 942, began 
our long journey to a contract.
    From the start of the Nabors Organizing Campaign, management was 
spying on employees; we were denied access at airport meeting rooms, or 
any common meeting areas on the North Slope. All personnel were kept 
isolated from Union people. Our first attempt to unionize failed due to 
lack of contact with employees, threats by management, management 
spying, and intimidation. The Union was able to file many Unfair Labor 
Practices with the National Labor Relation Board. After over 2 years, 
and having appealed all the way to the 9th District Court of Appeals 
(case #325 N.L.R.B. #104 & #105), the N.L.R.B. sided with the Union on 
every Unfair Labor Practice that was filed against Nabors Alaska 
Drilling. Access to Nabors camps was made available, and employees that 
were fired were re-instated with back pay. We were then granted a 
second election in October 2000, which we won.
    After a month or so, negotiations started with Nabors Drilling and 
the Laborers Union. As of this date, Nabors refuses to agree on a 
contract beyond what is already in place for its Employees. They will 
still meet for negotiations, but we will not move from their last offer 
with us, which is unacceptable to their Employees.
    Thank you for your consideration.

                                                   Michael Pearson.
                                 ______
                                 
   Smithfield Foods' Systematic, Illegal Campaign to Suppress Workers

    Smithfield Foods, based in Smithfield, Virginia, is the world's 
largest hog producer and pork processor. It's plant in Bladen County, 
North Carolina is the largest pork processing plant in the world. 
Nearly 5,000 men and women work at the plant, located in Tar Heel, 
North Carolina. By the company's own estimates, turnover is 100% 
annually; this means that every year, 5,000 people are hired at the 
plant and 5,000 leave. An estimated 60 percent of the workforce is 
Latino, and most of the rest are African American. The plant was 
featured as part of the award-winning New York Times series ``How Race 
is Lived in America,'' where the reporter documented divisions of labor 
according to race.
    Twice, workers at the Smithfield plant have stood up for a voice on 
the job. Both times, Smithfield Foods broke the law to silence their 
voices. The first campaign in 1994 resulted in numerous charges filed 
against Smithfield for illegal surveillance, intimidation, threats, 
coercion and harassment of workers. In 1997, workers again tried to 
join the United Food and Commercial Workers (UFCW) Local 204, and the 
company's campaign violated federal labor and civil rights laws.
    During the union drive, the company held forced meetings to 
intimidate and threaten workers for supporting the union. Smithfield 
held separate meetings for black and Latino workers to pit worker 
against worker based on race. Managers like Sherri Bufkin, were 
instructed to seek out and fire union supporters.
    On the day of the election, deputy sheriffs, dressed in battle 
gear, lined the long driveway leading to the Bladen County plant. The 
sheriff's menacing presence created a violent mood for the workers who 
were merely trying to exercise their right to vote for a voice on the 
job. As workers passed the lines of police in riot gear, they saw 
company management standing with the head of the Bladen County 
Sheriff's department near the entrance to the plant. Deputies--in riot 
gear and heavily armed--stationed themselves at the entrance to the 
plant on days that civil rights leader Reverend Jesse Jackson and other 
religious leaders handed out literature with workers.
    Following the vote count on the final day of balloting, company 
personnel stormed the counting area and, in the resulting 
confrontation, the two union supporters were subject to physical 
violence and arrest. Rayshawn Ward, a Smithfield meatpacking worker 
whose only crime was that he supported the union was handcuffed, maced 
and jailed. John Rene Rodriguez, a union organizer, tried to help Mr. 
Ward as the Company's Chief of Security was assaulting him. For that, 
he found himself in handcuffs, jailed and facing criminal charges. Both 
men were cleared of any wrongdoing.
    Through the use of force, Smithfield's message was clear to 
workers: if you vote for a union, the law and law enforcement will not 
be on your side. Under federal law, workers have an absolute right to 
support and vote for a union in a secret ballot election without fear, 
intimidation or coercion.
    Two independent courts of law have ruled against Smithfield for 
it's illegal anti-worker campaign. In December, 2000, an Administrative 
Law Judge of the National Labor Relations Board issued a monumental 
400-plus page ruling against Smithfield for massive violations of 
federal law. The NLRB judge found that Smithfield conspired with law 
enforcement to instigate the violence at the vote count.
    The NLRB Judge's decision contains some of the strongest language 
in recent labor history against a company's flagrant disregard for the 
law. The Judge found that Smithfield attorneys suborned perjury during 
the NLRB trial. The Judge also ruled that company witnesses ``lied 
under oath'' throughout the decision and that Smithfield managers 
conspired with the local Sheriff Department to physically intimidate 
and assault union supporters.
    The NLRB Judge found Smithfield guilty of illegally firing seven 
workers during the 1994 campaign and four more in 1997.
    The Judge overturned the results from the 1997 union election at 
Smithfield and ordered the company to provide free access to the 
workers in the plant in the cafeteria, parking lot, and break rooms. 
The UFCW will also have the right to be present at any time Smithfield 
addresses its employees about unions and respond to any statements made 
by the company. The eleven illegally fired workers have been granted 
reinstatement or back wages as compensation for their unfair discharge.
    In April 2002, a jury in federal district court in Raleigh, North 
Carolina found Smithfield Packing in violation of the federal civil 
rights law originally known as the Ku Klux Klan Act of 1871. The jury 
verdict directed Smithfield and the company's former security chief, 
Danny Priest, to pay $755,000 in compensation and punitive damages as 
the result of the beating and arrests of two union supporters at the 
1997 union election.
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