[Senate Hearing 107-529]
[From the U.S. Government Publishing Office]
S. Hrg. 107-529
WORKERS' FREEDOM OF ASSOCIATION: OBSTACLES TO FORMING A UNION
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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
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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
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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
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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\
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\1\ Human Rights Watch interview, Chicago, Illinois, July 8, 1999.
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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.
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\2\ 29 U.S.C. Sec. Sec. 151-169, Section 7.
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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.
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\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.
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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.
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\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.
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\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.
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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.
---------------------------------------------------------------------------
\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\
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\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.
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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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