[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]




   DEVELOPMENTS IN LABOR LAW: EXAMINING TRENDS AND TACTICS IN LABOR 
                        ORGANIZATION CAMPAIGNS

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

                                HEARING

                               before the

              SUBCOMMITTEE ON EMPLOYER-EMPLOYEE RELATIONS

                                 of the

                         COMMITTEE ON EDUCATION
                           AND THE WORKFORCE
                     U.S. HOUSE OF REPRESENTATIVES

                      ONE HUNDRED EIGHTH CONGRESS

                             SECOND SESSION

                               __________

                             April 22, 2004

                               __________

                           Serial No. 108-52

                               __________

  Printed for the use of the Committee on Education and the Workforce



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                COMMITTEE ON EDUCATION AND THE WORKFORCE

                    JOHN A. BOEHNER, Ohio, Chairman

Thomas E. Petri, Wisconsin, Vice     George Miller, California
    Chairman                         Dale E. Kildee, Michigan
Cass Ballenger, North Carolina       Major R. Owens, New York
Peter Hoekstra, Michigan             Donald M. Payne, New Jersey
Howard P. ``Buck'' McKeon,           Robert E. Andrews, New Jersey
    California                       Lynn C. Woolsey, California
Michael N. Castle, Delaware          Ruben Hinojosa, Texas
Sam Johnson, Texas                   Carolyn McCarthy, New York
James C. Greenwood, Pennsylvania     John F. Tierney, Massachusetts
Charlie Norwood, Georgia             Ron Kind, Wisconsin
Fred Upton, Michigan                 Dennis J. Kucinich, Ohio
Vernon J. Ehlers, Michigan           David Wu, Oregon
Jim DeMint, South Carolina           Rush D. Holt, New Jersey
Johnny Isakson, Georgia              Susan A. Davis, California
Judy Biggert, Illinois               Betty McCollum, Minnesota
Todd Russell Platts, Pennsylvania    Danny K. Davis, Illinois
Patrick J. Tiberi, Ohio              Ed Case, Hawaii
Ric Keller, Florida                  Raul M. Grijalva, Arizona
Tom Osborne, Nebraska                Denise L. Majette, Georgia
Joe Wilson, South Carolina           Chris Van Hollen, Maryland
Tom Cole, Oklahoma                   Tim Ryan, Ohio
Jon C. Porter, Nevada                Timothy H. Bishop, New York
John Kline, Minnesota
John R. Carter, Texas
Marilyn N. Musgrave, Colorado
Marsha Blackburn, Tennessee
Phil Gingrey, Georgia
Max Burns, Georgia

                    Paula Nowakowski, Staff Director
                 John Lawrence, Minority Staff Director
                                 ------                                

              SUBCOMMITTEE ON EMPLOYER-EMPLOYEE RELATIONS

                      SAM JOHNSON, Texas, Chairman

Jim DeMint, South Carolina, Vice     Robert E. Andrews, New Jersey
    Chairman                         Donald M. Payne, New Jersey
John A. Boehner, Ohio                Carolyn McCarthy, New York
Cass Ballenger, North Carolina       Dale E. Kildee, Michigan
Howard P. ``Buck'' McKeon,           John F. Tierney, Massachusetts
    California                       David Wu, Oregon
Todd Russell Platts, Pennsylvania    Rush D. Holt, New Jersey
Patrick J. Tiberi, Ohio              Betty McCollum, Minnesota
Joe Wilson, South Carolina           Ed Case, Hawaii
Tom Cole, Oklahoma                   Raul M. Grijalva, Arizona
John Kline, Minnesota                George Miller, California, ex 
John R. Carter, Texas                    officio
Marilyn N. Musgrave, Colorado
Marsha Blackburn, Tennessee


                                 ------                                
                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on April 22, 2004...................................     1

Statement of Members:
    Andrews, Hon. Robert E., Ranking Member, Subcommittee on 
      Employer-Employee Relations, Committee on Education and the 
      Workforce..................................................     4
        National Labor Relations Board cases, submitted for the 
          record.................................................    38
    Johnson, Hon. Sam, Chairman, Subcommittee on Employer-
      Employee Relations, Committee on Education and the 
      Workforce..................................................     2
        Prepared statement of....................................     3

Statement of Witnesses:
    Cohen, Charles I., Esq., Partner, Morgan Lewis, Counselors at 
      Law, and Chairman, U.S. Chamber of Commerce, National Labor 
      Relations Board Subcommittee, Washington, DC, on behalf of 
      the U.S. Chamber of Commerce...............................     7
        Prepared statement of....................................     9
        Letter submitted for the record..........................   178
    Jacob III, Clyde H., Esq., Partner (Labor & Employment), 
      Jones Walker, New Orleans, LA..............................    17
        Prepared statement of....................................    19
        Letter submitted for the record..........................   192
    Schiffer, Nancy, Esq., Associate General Counsel, AFL-CIO, 
      Washington, DC.............................................    13
        Prepared statement of....................................    14
        Letter submitted for the record..........................    60

Additional material supplied:
    Taubman, Glenn M., Staff Attorney, National Right to Work 
      Legal Defense Foundation, Inc., Springfield, VA, Statement 
      submitted for the record...................................   138

 
   DEVELOPMENTS IN LABOR LAW: EXAMINING TRENDS AND TACTICS IN LABOR 
                         ORGANIZATION CAMPAIGNS

                              ----------                              


                        Thursday, April 22, 2004

                     U.S. House of Representatives

              Subcommittee on Employer-Employee Relations

                Committee on Education and the Workforce

                             Washington, DC

                              ----------                              

    The Subcommittee met, pursuant to notice, at 10:58 a.m., in 
room 2181, Rayburn House Office Building, Hon. Sam Johnson 
[Chairman of the Subcommittee] presiding.
    Present: Representatives Johnson, Ballenger, Kline, 
Andrews, Payne, McCarthy, Kildee, Tierney, Holt, and McCollum.
    Staff present: Kevin Frank, Professional Staff Member; Ed 
Gilroy, Director of Workforce Policy; Don McIntosh, Staff 
Assistant; Jim Paretti, Professional Staff Member; Molly Salmi, 
Director of Workforce Policy; Deborah Samantar, Committee 
Clerk; Kevin Smith, Senior Communications Counselor; Loren 
Sweatt, Professional Staff Member; Jody Calemine, Minority 
Counsel Employer-Employee Relations; Margo Hennigan, Minority 
Legislative Assistant/Labor; Peter Rutledge, Minority Senior 
Legislative Associate/Labor; and Marsha Renwanz, Minority 
Legislative Associate/Labor.
    Chairman Johnson. A quorum being present, the Subcommittee 
on Employer/Employee Relations of the Committee on the 
Education and the Workforce will come to order.
    We're hearing today testimony on the developments in labor 
law, examining trends and tactics in labor organization 
campaigns. Under Committee rule 12B, opening statements are 
limited to the Chairman and ranking minority member of the 
Subcommittee, Mr. Rob Andrews.
    Therefore, if other members have statements, they will be 
included in the hearing. With that, I ask unanimous consent for 
the hearing record to remain open for 14 days till our member 
statements and other extraneous material referenced during the 
hearing to be submitted in the official hearing record. Hearing 
no objection, so ordered.

   STATEMENT OF HON. SAM JOHNSON, CHAIRMAN, SUBCOMMITTEE ON 
  EMPLOYER-EMPLOYEE RELATIONS, COMMITTEE ON EDUCATION AND THE 
                           WORKFORCE

    Chairman Johnson. Good morning to you all. Thank you for 
being here. It's an honor to chair today's hearing, 
Developments in Labor Law: Examining Trends and Tactics in 
Labor Organization Campaigns. This is the first in a series of 
hearings that this Subcommittee will hold this year, both in 
Washington and in the country, in a comprehensive review of our 
nation's labor laws.
    As we all know, the cornerstone of our nation's labor 
policy, the National Labor Relations Act, dates back to the 
Great Depression. Other laws, such as Labor Management 
Reporting and Disclosure Act, have now passed the half-century 
mark. The substance of most of these laws remains largely 
unchanged. Yet, the labor market reflects a vastly different 
and modern era.
    It's our intent that these hearings examine what is working 
and what is not. Where Federal labor law is played out as 
Congress intended, where it has fallen short, and where and how 
these laws might be changed to better address the 21st Century 
workforce.
    As we examine the trends in labor law, it's fitting that 
this morning's hearing focuses on a relatively new trend. More 
and more employers are being forced to recognize labor unions 
without first holding a secret ballot employee election. The 
election process that is guaranteed in law and administered by 
the National Labor Relations Board.
    Since enactment of the law in 1939, most common means by 
which a union has sought to represent employees is through 
secret-ballot elections administered by the NLRB. If the 
interest is there, the union then petitions for an election, 
the employer and union deliver their arguments, and then the 
employees decide by way of secret ballot whether or not to 
unionize.
    To ensure a free and fair process, the election is 
administered and supervised by the National Labor Relations 
Board. To prevent intimidation or harassment, the law 
establishes that neither the union nor an employer may coerce, 
harass, or restrain employees in exercising their right to 
choose whether or not to support the union.
    Perhaps most important is that the employee's choice is 
made in the privacy of a voting booth with neither the employer 
nor the union knowing how any individual voted. You can call me 
old fashioned if you want to, but that sounds like a pretty 
good fair system to me.
    In the last 10 years, however, we've seen an increased 
effort by labor to seek union recognition outside the secret-
ballot process. Indeed, the use of so-called card-check 
agreements has become a critical component of labor organizing 
strategy. Under a card-check system, a union gathers 
authorization cards signed by workers, which supposedly express 
their desire to unionize.
    Under current law, an employer may voluntarily recognize 
unions based on card checks but it's not required. An employer 
can always insist upon an election administered by NLRB. 
However, employers are often pressured into accepting card 
checks by union picketing, threats, or comprehensive corporate 
campaigns to discredit or smear the employer publicly.
    It's no secret that corporate campaigns have become a key 
weapon in organized labor's arsenal of tactics. Unlike the 
traditional bargaining process, corporate campaigns center on 
making the employer look bad in the public eye. These campaigns 
often include intensely negative media campaigns, frivolous 
litigation, and picketing. Unions have even gone so far as to 
engage in other secondary activity on suppliers, distributors, 
and other businesses wholly unrelated to the election at hand.
    Increased use of these card checks and pressures that 
result from these corporate campaigns raise red flags for a 
number of reasons. First, their very nature card checks leave 
the employers--employees vulnerable to harassment, 
intimidation, and union pressure.
    Secret ballots are more accurate indicators than 
authorization cards. One court noted 18 percent of those who 
sign authorization cards do not want the union. It seems to me 
secret-ballot election taken with protections of law is 
something that works well, and that's what we should attempt to 
make sure occurs in the future.
    With that said, our witnesses are three of the nation's 
finest minds in the area of labor law, who will give us their 
analysis of the legal matters raised in these questions. And I 
welcome my witnesses and their testimony.
    I now yield to the distinguished minority member, Mr. Rob 
Andrews, for any comments he wishes to make.
    [The prepared statement of Chairman Johnson follows:]

   Statement of Hon. Sam Johnson, Chairman, Subcommittee on Employer-
      Employee Relations, Committee on Education and the Workforce

    Good morning: It is an honor to chair today's hearing, 
``Developments in Labor Law: Examining Trends and Tactics in Labor 
Organization Campaigns.''
    This is the first in a series of hearings that this Subcommittee 
will hold this year, both in Washington and throughout the country, in 
a comprehensive review of our nation's labor laws.
    As we all know, the cornerstone of our nation's labor policy, the 
National Labor Relations Act, dates back to The Great Depression.
    Other laws, such as the Labor-Management Reporting and Disclosure 
Act, have now passed the half-century mark.
    The substance of most of these laws remains largely unchanged. Yet, 
the labor market reflects a vastly different and modern era.
    It is our intent that these hearings examine what is working and 
what is not: where federal labor law is played out as congress 
intended, where it has fallen short, and where and how these laws might 
be changed to better address a 21st century workforce.
    As we examine trends in labor law, it is fitting that this 
morning's hearing focuses on a relatively new trend:
    More and more, employers are being forced to recognize labor unions 
without first holding a secret-ballot employee election--the election 
process that is guaranteed in law and administered by the National 
Labor Relations Board.
    Since enactment of the law in 1939, the most common means by which 
a union has sought to represent employees is through secret-ballot 
elections administered by the National Labor Relations Board.
    If the interest is there, the union then petitions for an election, 
the employer and union deliver their arguments, and then the employees 
decide by way of a secret-ballot election whether or not to unionize.
    To ensure a free and fair process, the election is administered and 
supervised by the National Labor Relations Board.
    To prevent intimidation or harassment, the law establishes that 
neither the union nor an employer may coerce, harass or restrain 
employees in exercising their right to choose whether or not to support 
the union.
    Perhaps most important is that the employee's choice is made in the 
privacy of a voting booth, with neither the employer nor the union 
knowing how any individual voted.
    Now call me old-fashioned but that sounds like a good and fair 
system to me.
    In the last ten years, however, we have seen an increased effort by 
labor to seek union recognition outside of the secret-ballot process.
    Indeed, the use of so-called ``card check agreements'' has become a 
critical component of labor's organizing strategy.
    Under a ``card check'' system, a union gathers ``authorization 
cards'' signed by workers which supposedly express their desire to 
unionize.
    Under current law, an employer may voluntarily recognize unions 
based on card checks, but it is not required.
    An employer can always insist upon an election administered by the 
NLRB. However, employers are often pressured into accepting ``card 
checks'' by union picketing, threats, or comprehensive ``corporate 
campaigns'' to discredit or smear the employer publicly.
    It is no secret that corporate campaigns have become a key weapon 
in organized labor's arsenal of tactics. Unlike the traditional 
bargaining process, corporate campaigns center on making the employer 
look bad in the public eye.
    These campaigns often include intensely negative media campaigns, 
frivolous litigation, and picketing.
    Unions have even gone so far as to engage in other secondary 
activity on suppliers, distributors, and other businesses wholly 
unrelated to the election at hand.
    The increased use of these card checks, and the pressures that 
result from these corporate campaigns raise red flags for a number of 
reasons.
    First, by their very nature, card checks leave employees vulnerable 
to harassment, intimidation, and union pressure. Card checks strip 
workers of the right to choose, freely and anonymously.
    Equally important, the evidence suggests that secret ballot 
elections are more accurate indicators than authorization cards of 
whether employees actually wish to be recognized by a union.
    As one court noted, ``18 percent of those who sign authorization 
cards do not want the union.''
    As we embark on these hearings, I am reminded of the old saying 
``if it ain't broke, don't fix it.''
    At least from where I'm sitting, it seems to me that the secret-
ballot election, taken with the protections in law against harassment 
and retaliation, is something that works well.
    It seems to me that a secret-ballot election is the only way, in 
fact, to protect the integrity of a worker's right to vote their 
conscience without fear of harassment, intimidation, retaliation, 
misinformation, or worse.
    With that said, our witnesses today are three of the nation's 
finest minds in the area of labor law, who will give us their analysis 
of the legal issues raised on these important matters.
    I welcome our witnesses and look forward to their testimony today.
                                 ______
                                 

     STATEMENT OF HON. ROBERT E. ANDREWS, RANKING MEMBER, 
   SUBCOMMITTEE ON EMPLOYER-EMPLOYEE RELATIONS, COMMITTEE ON 
                  EDUCATION AND THE WORKFORCE

    Mr. Andrews. Thank you, Mr. Chairman, and good morning. We 
start from a common principle that no person should be coerced 
into making a decision against his or her own will as to 
whether to join a union. I think that's the principle for which 
there is unanimity.
    My concern is that this hearing is going to build an 
inadequate and incomplete record on the question of coercion of 
people when they choose to join or not join a union.
    I fear that this record will be incomplete in three key 
respects. First, is that we heard the Chairman make a number of 
conclusory statements about widespread and rampant coercion by 
unions in the context of card check--card signings by union 
members. I look forward to hearing that record amplified during 
this hearing. I think if we're going to make such statements, 
it's the obligation of those who would support those statements 
to give evidence and factual statements that would back that 
up. It's rather easy to make these conclusory statements. I'll 
be anxious to see the record that supports that conclusion.
    Second, you know, coercion is a two-way street when it 
happens, and the focus should not simply be on the act that is 
the terminal act of deciding whether or not a union comes in, 
whether that's a vote cast or a card signed, but it ought to be 
the entire context of the employer/employee relationship 
leading up to that.
    This record should also include discussions of one-on-one 
meetings, captive-audience meetings, examinations of in-house 
public relations and persuasion campaigns by employers. I do 
not submit that all employers engage in coercive tactics within 
an organizing drive context but some certainly do, and it's 
important that the record bear out those facts, as well as 
facts about alleged coercion on the union's side.
    Finally, there's an important omission from the hearing as 
far as I can tell, and that is the question of what happens 
when there's been a fair election and the employees have opted 
to be collectively bargained represented by a union and the 
employer fails to negotiate in good faith for the first 
contract.
    What remedies exist when an employer has fought and lost 
the election and just chooses not to recognize it, not by 
appealing the result of the election, but by interminably 
dragging out the bargaining process in bad faith.
    What kind of economic sanctions militate against that 
result. It can lead us through a situation where winning an 
election really isn't winning at all, because the time that 
lapses from the victory in the election to the conclusion of 
the first contract is intolerably long and, in fact, costs the 
people in the union--the workers in the union--a significant 
amount, because there's no raise or no increase in benefits 
while that is going on.
    So I do accept the notion that it's our responsibility to 
look at coercion from any side; from all sides when a worker is 
about to choose whether to join a union or not.
    But any examination of coercion bears with it the 
responsibility of laying out on the record facts of coercive 
practices, carries with the responsibility of examining 
coercive practices by employers in the work place leading up to 
the decision, and I believe carries with it the responsibility 
of understanding what I believe is the course of practice of 
ignoring the result of a freely chosen union election in 
refusing to bargain in good faith with the duly elected 
representatives of the workers.
    I don't see anything suggesting we're going to raise those 
questions. We certainly will take an opportunity to do so 
during the discussion with the panel. So I do look forward to 
hearing from the witnesses and thank the Chairman for his 
courtesies.
    Chairman Johnson. Thank you, Mr. Andrews. I appreciate your 
confidence and, you know, I think you and I both look for open 
discussion in trying to find out the real facts. Despite the 
fact that you're a lawyer, you're a good guy.
    Mr. Andrews. Flattery will get you everywhere.
    Chairman Johnson. We have a very distinguished panel of 
witnesses before us today, and I thank you all for coming, and 
I'm going to introduce you each. I'm quite impressed by the 
backgrounds of all three of you.
    Mr. Charles Cohen is a partner in the labor and employment 
practice of Morgan Lewis, one of the country's leading labor 
law firms. Mr. Cohen's practice focuses on representing senior 
management in complex labor and employment law matters in the 
private sector.
    From '94 to '96, Mr. Cohen served as a member of the 
National Labor Relations Board. Prior to that, Presidential 
appointment. He had in-depth executive and staff labor law 
experience with the NLRB, as well as private practice.
    He has a comprehensive background in collective bargaining 
issues and all facets of labor and employee relations. Mr. 
Cohen also serves as chair of the United States Chamber of 
Commerce, NLRB Subcommittee, and is a fellow of the College of 
Labor and Employment Lawyers.
    Mr. Cohen is testifying today on behalf of the U.S. Chamber 
of Commerce.
    Our second witness, Ms. Nancy Schiffer, has been an 
associate general counsel with the American Federation of Labor 
Congress of Industrial Organization since 2000. Her areas of 
responsibility involve NLRB and organizing-related projects.
    Prior to coming to the AFL-CIO, Ms. Schiffer was deputy 
general counsel of the United Auto Workers in Detroit, 
Michigan. In addition to her administrative responsibilities 
there, her practice areas included NLRB, organizing, collective 
bargaining, and contract enforcement, arbitration, strikes, and 
lock outs, plant closings, relocations, and retiree health 
insurance litigation.
    She practiced with a union-side labor firm from '79 till 
'82, and prior to that, with the National Labor Relations 
Board, Detroit Regional Offices, a field attorney. Ms. Schiffer 
is a member of the ABA Labor and Employment Law Section and its 
committee on practice and procedures under the NLRB.
    Our third witness, Mr. Clyde Jacob, is a partner in the 
labor and employment section of Jones Walker, the leading 
national law firm. Mr. Jacob's experience spans over 25 years, 
exclusively in the field of labor and employment relations, 
representing management.
    He has represented employers in responding to union 
organizing, boycotts, National Labor Relations Board, 
representation cases in corporate campaigns throughout the 
United States, Puerto Rico, Brazil, Norway, the United Kingdom, 
Singapore, and Nigeria.
    Before the witnesses begin their testimony, I would like to 
remind members that we will be asking questions after the 
entire panel has testified. In addition, Committee rule two 
imposes a 5-minute limit on all questions.
    And we also would like to adhere to a 5-minute rule on your 
testimony initially, if you don't mind. The lights down there 
that you saw them function for us they come on green when you 
first start, and then you'll see a yellow light with 1 minute 
remaining, and if you would conclude your remarks when the red 
light comes on.
    I'd like to recognize the first witness now for your 
testimony. You may begin, sir.

  STATEMENT OF CHARLES I. COHEN, ESQ., PARTNER, MORGAN LEWIS, 
  COUNSELORS AT LAW, AND CHAIRMAN, U.S. CHAMBER OF COMMERCE, 
NATIONAL LABOR RELATIONS BOARD SUBCOMMITTEE, WASHINGTON, DC, ON 
             BEHALF OF THE U.S. CHAMBER OF COMMERCE

    Mr. Cohen. Chairman Johnson, Mr. Andrews, and members of 
the Subcommittee, I am pleased and honored to be here today. 
Thank you for your kind invitation.
    At the head of the National Labor Relations Act is the 
secret-ballot election process, administered by the National 
Labor Relations Board. If a group of employees in an 
appropriate collective bargaining unit wishes to select a union 
to represent them, the board will hold a secret-ballot 
election, based on a petition supported by at least 30 percent 
of the employees in the unit.
    The board administers the election by bringing portable 
voting booths, ballots, and a ballot box to the work place. The 
election process occurs outside the presence of any supervisors 
or managerial representatives of the employer.
    No campaigning of any kind may occur in the voting area. 
The only people who are allowed in the voting area are the NLRB 
agent, the employees who are voting, and certain designated 
employee observers.
    As the Supreme Court and numbers of Courts of Appeal have 
stated, a secret-ballot election is the preferred method of 
ascertaining whether a union has majority support. Although 
authorization cards may adequately reflect employee sentiment 
when the election process has been impeded, the Supreme Court 
recognized that cards are admittedly inferior to the election 
process.
    Yet, one of the highest priorities of unions today is to 
obtain agreements from employers, which would allow the union 
to become the exclusive bargaining representative of a group of 
employees without ever seeking an NLRB supervised election.
    These agreements, which are often referred to as neutrality 
or chard-check agreements, come in a variety of forms. In some 
cases the agreement calls for the employer to recognize the 
union if it produces signed authorization cards from a majority 
of employees. In many cases the agreement includes other 
provisions, which are designed to facilitate the union's 
organizing campaign, such as limitations or a gag order on 
employer communications to employees about the union.
    An agreement to provide the union with a list of names and 
home addresses of employees in the unit. An agreement to allow 
the union access to the employer's facility to distribute 
literature and meet with employees. And an agreement to extend 
recognition based on card checks rather than a secret-ballot 
election.
    Whatever form the agreement may take the basic goal is the 
same. To establish a procedure which allows the union to be 
recognized without the involvement or sanction of the NLRB. 
Neutrality agreements and card-check agreements, therefore, 
present a direct threat to the jurisdiction of the NLRB and its 
crown jewel the secret-ballot election process. There are many 
explanations for the precipitous decline of union density. The 
globalization of U.S. corporations, the increasing regulation 
of the work place through Federal legislation, rather than 
collective bargaining, and the changing culture of the American 
work place.
    While unions may not disagree with these explanations to 
varying degrees, they claim that the NLRB's election process 
and the current law is to blame. They argue that the election 
process is slow and ineffective, and that this alternate 
procedure is needed.
    I believe there are two basic problems with this argument. 
First, it is not supported by the facts. The NLRB's election 
process is efficient and fair, as demonstrated by hard 
statistics cited in my statement. Second, neutrality card-check 
agreements limit employee free choice, and are generally the 
product of damaging leverage exerted by the union against the 
employer.
    To be sure, there are horror stories of employers who abuse 
the system and commit egregious unfair labor practices in order 
to prevail in an election. In such cases the law provides 
remedies for the employers' unlawful behavior, including even 
bargaining orders based on authorization card majorities. But 
these situations are the exception rather than the norm. In the 
overwhelming majority of cases where employees choose not to be 
represented by a union, they do so based on the information 
that is presented by both sides during the campaign process.
    An important problem with neutrality card-check agreements 
is the method by which they are negotiated. They are typically 
a function of leverage rather than a groundswell from the 
employees to have the system determined by that.
    There is no cause, I submit, for abandoning secret-ballot 
election process, which the board has administered for seven 
decades. The Act's system of industrial democracy has withstood 
the test of time, because its focus is on the true 
beneficiaries of the Act, the employees.
    In my view the Miller-Kennedy Bill is not sound public 
policy, because it would deprive employees of the fundamental 
right to determine the important question of union 
representation by casting their vote in a board-supervised 
secret-ballot election. Indeed, it would be unwise public 
policy to abandon government-supervised secret-ballot elections 
in favor of mandatory card check. I would think that that 
would, in fact, be a self-evident proposition that a secret-
ballot government election would be preferable.
    I'm aware that the Committee has previously considered 
quite opposite legislation, which would require the union 
representation for currently unrepresented groups of employees 
be determined by a secret-ballot election. Without the 
increasing use of corporate campaigns and neutrality/card check 
agreements over the last decade--a trend which has eroded 
employee free choice and which reflects a shift in focus from 
organizing employees to organizing employers often as a result 
of corporate campaigns--such legislation would not be needed.
    But in light of this trend, such legislation in my view is 
necessary to protect the interests of employees the Act is 
intended to benefit by ensuring that the right to vote is not 
compromised by agreements which are the product of external 
pressure on their employer.
    This concludes my oral presentation.
    [The prepared statement of Mr. Cohen follows:]

Statement of Charles I. Cohen, Esq., Partner, Morgan Lewis, Counselors 
    at Law, and Chairman, U.S. Chamber of Commerce, National Labor 
              Relations Board Subcommittee, Washington, DC

    Chairman Johnson and Members of the Subcommittee, I am pleased and 
honored to be here today. Thank you for your kind invitation.
    By way of introduction, I was appointed by President Clinton, 
confirmed by the Senate, and served as a Member of the National Labor 
Relations Board from March 1994 until my term expired in August 1996. 
Before becoming a Member of the Board, I worked for the NLRB in various 
capacities from 1971 to 1979 and as a labor lawyer representing 
management in private practice from 1979 to 1994. Since leaving the 
Board in 1996, I have returned to private practice and am a Senior 
Partner in the law firm of Morgan, Lewis & Bockius LLP. I am a member 
of the Labor Relations Committee of the U.S. Chamber of Commerce, and 
Chair of its NLRB subcommittee, and am testifying today on behalf of 
the U.S. Chamber of Commerce.
    The National Labor Relations Act was enacted in 1935 and has been 
substantially amended only twice--once in 1947 and once in 1959. The 
Act establishes a system of industrial democracy which is similar in 
many respects to our system of political democracy. At the heart of the 
Act is the secret ballot election process administered by the National 
Labor Relations Board. In order to understand how recent trends in 
organizing are diluting this central feature of the Act, some 
background is necessary.
The NLRB's Secret Ballot Election Process
    If a group of employees in an appropriate collective bargaining 
unit wishes to select a union to represent itself, the Board will hold 
a secret ballot election based on a petition supported by at least 30% 
of employees in the unit. The Board administers the election by 
bringing portable voting booths, ballots, and a ballot box to the 
workplace. The election process occurs outside the presence of any 
supervisors or managerial representatives of the employer. No 
campaigning of any kind may occur in the voting area. The only people 
who are allowed in the voting area are the NLRB agent, the employees 
who are voting, and certain designated employee observers.
    The ultimate question of union representation is determined by 
majority rule, based on the number of valid votes cast rather than the 
number of employees in the unit. If a majority of votes are cast in 
favor of the union, the Board will certify the union as the exclusive 
bargaining representative of all employees in the collective bargaining 
unit. Once a union is certified by the Board, it becomes the exclusive 
representative of all of the unit employees, whether or not they voted 
for the union. The employer is obligated to bargain with the union in 
good faith with respect to all matters relating to wages, hours, and 
working conditions of the bargaining unit employees.
    The Board is empowered to prosecute employers who engage in conduct 
that interferes with employee free choice in the election process, and 
may order a new election if such employer interference with the 
election process has occurred. The Board will also order the employer 
to remedy such unfair labor practices, for example by ordering the 
employer to reinstate and compensate an employee who was unlawfully 
discharged during the election campaign. In extreme cases, the Board 
may even order an employer to bargain with the union without a new 
election, if the Board finds that its traditional remedies would not be 
sufficient to ensure a fair rerun election and if there is a showing 
that a majority of employees at one point desired union representation. 
The Supreme Court affirmed the Board's power to issue this 
extraordinary remedy in NLRB v. Gissel Packing Co., 395 U.S. 575 
(1969). When issuing a Gissel bargaining order, the Board will 
determine whether majority support for the union existed by checking 
authorization cards signed by employees during the organizing process.
    As the Board and the Supreme Court have acknowledged, the use of 
authorization cards to determine majority support is the method of last 
resort. A secret ballot election is the ``most satisfactory--indeed the 
preferred--method of ascertaining whether a union has majority 
support.'' Gissel Packing, 395 U.S. at 602. Although authorization 
cards may adequately reflect employee sentiment when the election 
process has been impeded, the Board and the Court in Gissel recognized 
that cards are ``admittedly inferior to the election process.'' Id. 
Other federal courts of appeal have expressed the same view:
      ``[I]t is beyond dispute that secret election is a more 
accurate reflection of the employees' true desires than a check of 
authorization cards collected at the behest of a union organizer.'' 
NLRB v. Flomatic Corp., 347 F.2d 74, 78 (2d Cir. 1965).
      ``It would be difficult to imagine a more unreliable 
method of ascertaining the real wishes of employees than a ``card 
check,'' unless it were an employer's request for an open show of 
hands. The one is no more reliable than the other...Overwhelming 
majorities of cards may indicate the probable outcome of an election, 
but it is no more than an indication, and close card majorities prove 
nothing.'' NLRB v. S. S. Logan Packing Co., 386 F.2d 562, 565 (4th Cir. 
1967).
      ``The conflicting testimony in this case demonstrates 
that authorization cards are often a hazardous basis upon which to 
ground a union majority.'' J. P. Stevens & Co. v. NLRB, 441 F.2d 514, 
522 (5th Cir. 1971).
      ``An election is the preferred method of determining the 
choice by employees of a collective bargaining representative.'' United 
Services for the Handicapped v. NLRB, 678 F.2d 661, 664 (6th Cir. 
1982).
      ``Although the union in this case had a card majority, by 
itself this has little significance. Workers sometimes sign union 
authorization cards not because they intend to vote for the union in 
the election but to avoid offending the person who asks them to sign, 
often a fellow worker, or simply to get the person off their back, 
since signing commits the worker to nothing (except that if enough 
workers sign, the employer may decide to recognize the union without an 
election).'' NLRB v. Village IX, Inc., 723 F.2d 1360, 1371 (7th Cir. 
1983).
      ``Freedom of choice is ``a matter at the very center of 
our national labor relations policy,''...and a secret election is the 
preferred method of gauging choice.'' Avecor, Inc. v. NLRB, 931 F.2d 
924, 934 (D.C. Cir. 1991) (citations omitted).
    Having recognized in Gissel that a secret ballot election is the 
superior method for determining whether a union has majority support, 
the Supreme Court in Linden Lumber v. NLRB, 419 U.S. 301 (1974), held 
that an employer may lawfully refuse to recognize a union based on 
authorization cards and insist on a Board-supervised secret ballot 
election. The only exceptions to an employer's right to insist on an 
election are when the employer, as in the Gissel situation, has engaged 
in unfair labor practices that impair the electoral process or when the 
employer has agreed to recognize the union based on a check of 
authorization cards. Thus, an employer can agree to forgo a secret 
ballot election and abide by the less reliable card check method of 
determining union representation.
The Increasing Use of Neutrality/Card Check Agreements in Organizing 
        Campaigns
    One of the highest priorities of unions today is to obtain 
agreements from employers which would allow the union to become the 
exclusive bargaining representative of a group of employees without 
ever seeking an NLRB-supervised election. These agreements, which are 
often referred to as ``neutrality'' or ``card check'' agreements, come 
in a variety of forms. In so me cases, the agreement simply calls for 
the employer to recognize the union if it produces signed authorization 
cards from a majority of employees. In many cases, the agreement 
includes other provisions which are designed to facilitate the union's 
organizing campaign, such as:
      An agreement to provide the union with a list of the 
names and addresses of employees in the agreed-upon unit;
      An agreement to allow the union access to the employer's 
facilities to distribute literature and meet with employees;
      Limitations or a ``gag order'' on employer communications 
to employees about the union;
      An agreement to start contract negotiations for the 
newly-organized unit within a specified (and short) time frame, and to 
submit open issues to binding interest arbitration if no agreement is 
reached within that time frame; and
      An agreement to extend coverage of the neutrality/card 
check agreement to companies affiliated with the employer.
    Whatever form the agreement may take, the basic goal is the same: 
to establish a procedure which allows the union to be recognized 
without the involvement or sanction of the National Labor Relations 
Board. Neutrality and card check agreements therefore present a direct 
threat to the jurisdiction of the Board and its crown jewel, the secret 
ballot election process. I have written two law review articles 
discussing this trend. See Charles I. Cohen, Neutrality Agreements: 
Will the NLRB Sanction Its Own Obsolescence?, The Labor Lawyer (Fall, 
2000); Charles I. Cohen and Jonathan C. Fritts, The Developing Law of 
Neutrality Agreements, Labor Law Journal (Winter, 2003).
    The motivating force behind neutrality/card check agreements is the 
steady decline in union membership among the private sector workforce 
in the United States. Unions today represent only about eight percent 
of the private sector workforce, about half of the rate twenty years 
ago. See U.S. Department of Labor, Bureau of Labor Statistics, Union 
Members in 2003 (Jan. 21, 2004), available at http://www.bls.gov/
news.release/pdf/union2.pdf. There are many explanations for this 
precipitous decline: the globalization of U.S. corporations, the 
increasing regulation of the workplace through federal legislation 
rather than collective bargaining, and the changing culture of the 
American workplace. While unions may not disagree with these 
explanations to varying degrees, they claim that the NLRB's election 
process is also to blame. Unions argue that the NLRB's election process 
is slow and ineffective, and therefore an alternative process is 
needed--namely, neutrality/card check agreements.
    I believe there are two basic problems with this argument. First, 
it is not supported by the facts. The NLRB's election process is 
efficient and fair, as demonstrated by hard statistics. Second, 
neutrality/card check agreements limit employee free choice and are 
generally the product of damaging leverage exerted by the union against 
the employer.
The NLRB's Election Process Is Efficient and Fair
    The standard union criticisms of the NLRB's election process are 
more rhetorical than factual. Unions argue that the NLRB's election 
process is slow and allows employers to exert undue influence over 
employees during the pre-election period. Both of these arguments are 
not supported by the facts.
    The NLRB's election process is not slow. In fiscal year 2003, 92.5% 
of all initial representation elections were conducted within 56 days 
of the filing of the petition. Memorandum GC-04-01, Summary of 
Operations (Fiscal Year 2003), at p. 5 (December 5, 2003), available at 
http://www.nlrb.gov/nlrb/shared_files/gcmemo/gcmemo/gc04- 
01.pdf?useShared=/nlrb/about/reports/gcmemo/default.asp. During that 
same time period, the median time to proceed to an election from the 
filing of a petition was 40 days. Id. Based on my experience over the 
past 30 years, these statistics demonstrate that the Board's election 
process has become even more efficient over time.
    Unions are currently winning over 50% of NLRB secret ballot 
elections involving new organizing. This is the category of elections 
that unions are seeking to replace with neutrality/card check 
agreements, and it is also the same category of elections that would be 
replaced by the Miller-Kennedy bill. If anything, unions' win rate in 
representation elections is on the rise. The NLRB's most recent 
election report shows that unions won 58.9% of all elections involving 
new organizing. See NLRB Election Report; 6-Months Summary--April 2003 
through September 2003 and Cases Closed September 2003, at p. 19 (March 
26, 2004).
    This figure is about the same as it was 40 years ago. In 1965, 
unions won 61.8% of elections in RC cases (cases which typically 
involve initial organizing efforts, as opposed to decertification 
elections or employer petitions). See Thirtieth Annual Report of the 
National Labor Relations Board, at p. 198 (1965). After 1965, unions' 
election win rate declined before rising back to the level where it is 
today:
      In 1975, unions won 50.4% of elections in RC cases. See 
Fortieth Annual Report of the National Labor Relations Board, at p. 233 
(1975).
      In 1985, unions won 48% of elections in RC cases. See 
Fiftieth Annual Report of the National Labor Relations Board, at p. 176 
(1985).
      In 1995, unions won 50.9% of elections in RC cases. See 
Sixtieth Annual Report of the National Labor Relations Board, at p. 153 
(1995).
    These statistics undermine any argument that the NLRB's election 
process unduly favors employers, or that the recent decline in union 
membership among the private sector workforce is attributable to 
inherent flaws in the NLRB's election process. Unions are winning NLRB 
elections at the same or higher rate now than they have in almost forty 
years. To be sure, there are ``horror stories'' of employers who abuse 
the system and commit egregious unfair labor practices in order to 
prevail in an election. In such cases, the law provides remedies for 
the employer's unlawful behavior, including Gissel bargaining orders. 
But these situations are the exception rather than the norm. In the 
overwhelming majority of cases where employees choose not to be 
represented by a union, they do so based on the information that is 
presented by both sides during the campaign process.
Problems with Neutrality/Card Check Agreements
    The fundamental right protected by the National Labor Relations Act 
is the right of employees to choose freely whether to be represented by 
a union. 29 U.S.C. Sec. 157. Neutrality/card check agreements limit 
employee free choice by restraining employer free speech. Section 8(c) 
of the Act protects the right of employers to engage in free speech 
concerning union representation, as long as the employer's speech does 
not contain a threat of reprisal or a promise of benefit. 29 U.S.C. 
Sec. 158(c). Unions, through neutrality/card check agreements, seek to 
restrain lawful employer speech by prohibiting the employer from 
providing employees with any information that is unfavorable to the 
union during the organizing campaign. Such restrictions or ``gag 
orders'' on lawful employer speech limit employee free choice by 
limiting the information upon which employees make their decision.
    A second problem with neutrality/card check agreements is the 
method by which they are negotiated. In my experience, neutrality/card 
check agreements are almost always the product of external leverage by 
unions, rather than an internal groundswell from unrepresented 
employees. The leverage applied by the union can come from a variety of 
sources. In many cases, the union has leverage because it represents 
employees at some of the employer's locations. The union may be able to 
use leverage it has in negotiations for employees in an existing 
bargaining unit, in order to win a neutrality/card check agreement that 
will facilitate organizing at other locations. Bargaining over a 
neutrality/card check agreement, however, has little or nothing to do 
with the employees in the existing bargaining unit, and it detracts 
from the negotiation of the core issues at hand--wages, hours, and 
working conditions for the employees the union already represents.
    In other cases, the union exerts pressure on the employer through 
political or regulatory channels. For example, if the employer needs 
regulatory approval in order to begin operating at a certain location, 
the union may use its political influence to force the employer to 
enter into a neutrality/card check agreement for employees who will be 
working at that location. Political or regulatory pressure may be 
coupled with other forms of public relations pressure in order to exert 
additional leverage on the employer. In general, this combination of 
political, regulatory, public relations and other forms of non-
conventional pressure has become known as a ``corporate campaign,'' and 
it is this type of conduct--rather than employee free choice--that has 
produced these agreements.
    Thus, when a union succeeds in obtaining a neutrality/card check 
agreement, it generally does so by exerting pressure on the company 
through forces beyond the group of employees sought to be organized. 
The pressure comes from employees at other locations, and/or it comes 
from politicians, regulators, customers, investors, and the public at 
large. It is a strategy of ``bargaining to organize,'' meaning that the 
target of the campaign is the employer rather than the employees the 
union is seeking to organize.
    The strategy of ``bargaining to organize'' stands in stark contrast 
to the model of organizing under the National Labor Relations Act. 
Under the Act, the pressure to organize comes from within--it starts 
with the employees themselves. If a sufficient number of employees 
(30%) desire union representation, they may petition the NLRB to hold a 
secret ballot election. If a majority votes in favor of union 
representation, the NLRB certifies the union as the employees' 
exclusive representative and the collective bargaining process begins 
at that point.
    At all times, the focus is on the employees, rather than on the 
employer or the union. There is no cause for abandoning the secret 
ballot election process that the Board has administered for seven 
decades. The Act's system of industrial democracy has withstood the 
test of time because its focus is on the true beneficiaries of the 
Act--the employees. In my view, the Miller-Kennedy bill is not sound 
public policy because it would deprive employees of the fundamental 
right to determine the important question of union representation by 
casting their vote in a Board-supervised secret ballot election. 
Indeed, that it would be unwise public policy to abandon government-
supervised secret ballot elections in favor of mandatory card check 
appears to me to be a self-evident proposition.
    I am aware that this Committee has previously considered quite 
opposite legislation which would require that union representation for 
currently unrepresented groups of employees be determined by a secret 
ballot election. Without the increasing use of corporate campaigns and 
neutrality/card check agreements over the last decade--a trend which 
has eroded employee free choice and which reflects a shift in focus 
from organizing employees to organizing employers--such legislation 
would not be needed. But, in light of this trend, such legislation, in 
my view, is necessary to protect the interests of the employees the Act 
is intended to benefit, by ensuring that their right to vote is not 
compromised by agreements which are the product of external pressure on 
their employer.
    This concludes my prepared testimony. I look forward to discussing 
my comments in more detail during the question and answer period, but 
before that, I would again like to thank the Subcommittee for inviting 
me here today, and for its attention to these very important 
developments regarding labor law in the 21st century.
                                 ______
                                 
    Chairman Johnson. Thank you, sir. We appreciate that. Ms. 
Schiffer, you may begin.

STATEMENT OF NANCY SCHIFFER, ASSOCIATE GENERAL COUNSEL, AFL-CIO

    Ms. Schiffer. Thank you. Chairman Johnson, Mr. Andrews, 
members of the Subcommittee, thank you for inviting me here 
today, and good morning.
    My name is Nancy Schiffer. I am associate general counsel 
at the AFL-CIO, but I'm also a union member. I'm a member of 
the National Writers Union, which is Local 1981 of the United 
Auto Workers. I've submitted written testimony. I will not 
recite that now.
    What I'd like to do is give some context to this discussion 
by describing for you what an NLRB election representation 
process is like for workers. And I've selected a particular 
case that I was very much involved with, and I've--and, 
coincidentally, it involves a case that Mr. Clyde Jacob cited 
in his written testimony. And so it will be illustrative in 
that regard, as well.
    This employer was a retail store called Hudsons. It was to 
Detroit what Macy's has been to New York City. It was the store 
with everything, including the real Santa. But it was sold and 
things changed, and the workers contacted the UAW about forming 
a union.
    At the first meeting, which was advertised by word of 
mouth, there were over a hundred workers. An NLRB petition was 
filed, and the employer apparently, assuming that they would 
win handily, agreed to have an election. An election was held 
fairly promptly, and they were quite surprised when in May 1990 
the workers chose to unionize by a vote margin of 95 votes out 
of 453.
    This is where I'd like you now to recall Mr. Charles 
Cohen's statistics about how quickly elections are conducted 
and how unions are successful about 50 percent of the time, 
because, in fact, both are true in this scenario. There was a 
quick election and the union won, and, yet, this case, as you 
will see, remains a poster child for labor law reform.
    The employer challenged the election, and while that case 
was pending about a year after the election, the employer 
claimed that it had evidence from one of the union's two 
initial supporters that the authorization cards used to support 
the NLRB petition had been forged. These cards had not been 
used to obtain recognition but only to initiate the NLRB 
representation process.
    The board denied the employer hearing on this issue, but 
the 6th Circuit Court of Appeals was more receptive. It 
remanded the issue of possible forged cards back to the Board 
for a hearing. After the hearing, the judge said, ``The whole 
basis of the company's motion to reopen the record, that is, 
that the union used forged authorization cards to portray a 
false picture of majority support is grounded on fabricated 
evidence.''
    There were no forged cards, and in the other two cases that 
Mr. Clyde Jacob cites in his written testimony, there were also 
no forged cards. The company appealed this decision to the 
board. They lost. They went back to the 6th Circuit Court of 
Appeals. They lost. They filed a petition for--with the Supreme 
Court of the United States. It was denied.
    Now, we're in October 1996, and six and a half years after 
workers voted by an almost 100-vote margin to organize they 
finally get to the bargaining table. And what do you suppose 
happens to workers' support for their union during six and a 
half years while the employer gains the NLRB process to deny 
them the benefits of why they voted for a union. They're denied 
their right to bargain. They become disillusioned. They give up 
on their supposedly federally protected right to form a union 
and engage in collective bargaining.
    And in this particular case the woman who had been elected 
to serve as bargaining chair, died of a massive heart attack 2 
weeks before we got to the bargaining table for the first 
meeting.
    Meanwhile back on the campaign, a union election held at a 
nearby mall store was set aside because of employer misconduct 
in the election campaign. The remedy; the employer had to post 
a notice to employees that listed these violations and 
contained a promise not to commit the violations again. That 
was the remedy; the posted piece of paper on the bulletin 
board. While that notice was posted during the 60-day notice 
period, the employer violated almost every single provision of 
the notice that it had agreed it wouldn't violate again.
    So how effective is this as a remedy for workers? How does 
this protect the worker's free choice? Do workers have a free 
choice when their employer has threatened to relocate the store 
if the union wins? This is what happened. The cook in the 
restaurant was told by her manager--called in to the office and 
said, ``If the union gets in here, you could lose your job. 
People could be bumped off their jobs and the store can 
close.''
    Do workers have free choice when they see that the NLRB 
process just doesn't work. A sales employee in the deli 
department was told by her manager that look at what happened 
at the Hudsons' West Land store. They voted for a union years 
ago and nothing has happened there at all.
    Do workers have free choice when they see that union 
supporters are being followed, spied on, harassed, and 
videotaped, and that's what happened in these stores. 
Employees' supporters were followed into the bathrooms, in and 
out of the stores, in and out of the parking lot. They were 
videotaped, sometimes in the store, sometimes in front of the 
store in the mall. Not all the employers' wrongdoing came to 
light.
    I talked to workers in that campaign that were afraid to 
testify. They were afraid that they would lose their health 
insurance benefit for their children. So does the election 
process--the so-called secret-ballot process provide these 
workers with a free choice? No, it does not. And does it keep 
the focus on the workers? No, it doesn't. The only way it keeps 
the focus on workers is with video cameras and threats and 
promises and harassment, and this, to me, doesn't seem like the 
kind of focus the Act intended. Thank you.
    [The prepared statement of Ms. Schiffer follows:]

Statement of Nancy Schiffer, Esq., Associate General Counsel, AFL-CIO, 
                             Washington, DC

    Thank you for inviting me to testify before the Subcommittee today, 
my name is Nancy Schiffer, I am the AFL-CIO Associate General Counsel.
    Although the notices of today's hearing do not specify a pending 
legislative initiative, it gives me an opportunity to speak to pending 
labor law reform legislation introduced in the 108th Congress by 
Representative George Miller and Senator Edward Kennedy, the Employee 
Free Choice Act H.R. 3619 and S. 1925, these members have been joined 
by over 200 of their colleagues as co-sponsors, 180 Representatives and 
30 Senators.
    The National Labor Relations Act's (NLRA) stated purpose and intent 
was not simply to permit, but explicitly to encourage worker self-
organization for representation in collective bargaining with their 
employers. Even with the changes to the law that were effected by the 
Taft Hartley Amendment in 1947, this continued to be our nation's 
official, primary goal of its labor-relations policy, as reflected in 
the preamble of the Act. Unfortunately, in recent times the Act has 
been too often hijacked by employers and their agents who espouse a 
``union-free environment'', to the detriment of working families.
    Today U.S. workers have effectively lost their internationally 
recognized right to form a union for the purpose of self-organization 
to advance their common interests in the workplace. Yet, just as much 
as when the NLRA was passed, workers today need and try to form unions 
to gain an independent voice in the workplace, and to ensure they are 
rewarded and fairly compensated for their labor, that the gains of 
their productivity are shared equitably. Indeed, as U.S. workers today 
face wage depression, they need unions and collective bargaining more 
than every, as an ever-increasing number of them are uninsured and must 
rely on publicly financed health care services because they lack 
employer provided health care. Similarly, fewer and fewer workers have 
guaranteed pensions.
    Meanwhile, union workers earn 27% more than non-union workers. 
Union workers are 53% more likely to have medical insurance through 
their job. Union workers are nearly four times as likely to have a 
guaranteed pension, according to the U.S. Department of Labor, Bureau 
of Labor Statistics. And recent surveys show that some 42 million non-
union workers would like to have a union.
    The bitter reality, however, is that U.S. workers typically face 
insurmountable employer opposition today when they seek to form a 
union. According to NLRB statistics, in 1969, the number of workers who 
suffered retaliation for union activities was just over 6,000. By the 
1990s, more than 20,000 workers each year were victims of 
discrimination when they tried to organize a union. Sadly, it has too 
often become an acceptable business practice to threaten, intimidate 
and discharge workers who seek to join with their fellow workers for 
self-representation. And as employers and their union busting 
consultants know full well, the discharge of one worker has a chilling 
effect on an entire organizing campaign, when workers have no job 
protection or recourse.
    Furthermore, even without firing workers who try to organize, the 
well-advised employer knows how to manipulate the NLRB election process 
in such a way as to turn the concept of democratic free choice on its 
head. To appreciate how easy this is to do, consider the differences 
between an NLRB election and an American civic election. First, imagine 
a regular civic election for political office where only the incumbent 
has the voter file, and with it, unfettered, unregulated access to the 
voters. The challenger, meanwhile, must rely on personal introductions 
outside the boundaries of the state or district involved, or must stand 
by the border to that district as voters drive by and try to flag them 
down. Imagine further the election being held the incumbent candidate's 
party offices, with voters escorted to the polls by the incumbent's 
staff. Imagine finally that during the entire course of the campaign, 
the incumbent has sole authority to electioneer among voters during at 
their place of employment and during their work time, and further has 
the right to have these voters deported (or fired) if they refuse to 
listen to this one-sided electioneering.
    Needless to say, NLRB elections are conducted in an inherently 
coercive environment--the workplace. The employer, not the union, has 
ultimate power over employees. Only the employer has the ability to 
withhold wages or grant increases in salary, assign work and shifts, 
and ultimately discharge workers--the capital punishment of the 
workplace.
    In the end, even when conducted by NLRB staff as professionally as 
possible, elections under the NLRA are not democratic, because the 
workplace is not democratic.
    The Employee Free Choice Act is intended to remove these obstacles 
and at the same time improve cooperation between employees and 
employers by eliminating the requirement of mandatory voting when the 
majority of workers has already expressed its decision to self-
organize. Under current laws, it is perfectly legal for a majority of 
employees to choose union representation without the need for an 
election; however, as it now stands, their employee has the right to 
veto their decision, absent an NLRB election. In civil society we 
regularly encourage participation and membership in other 
organizations: book and sporting clubs, religious organizations, and 
advocacy groups which further our collective and individual interests. 
In keeping with one long-declared federal policy of encouraging workers 
to organize and bargain collectively, we should make it no more 
difficult for them to form labor unions.
    The Employee Free Choice Act would restore the original intent of 
our nation's public policy under the National Labor Relations Act by 
doing three things.
    First, the legislation would provide for majority verification of a 
union when employees express their desire by signing authorizations. 
When the NLRB finds that a majority of employees have signed 
authorizations, their employer would be required to recognize and 
bargain with the employees' union. This procedure, commonly known as 
``card check'' has always been legal under the NLRA. However under 
current law, private sector employers can insist on an NLRB-supervised 
election process, even after a majority of workers have demonstrated 
their desire by signing authorizations. Majority verification through 
authorizations is more democratic than NLRB elections, because it 
requires a true majority of the eligible voters. In NLRB elections, 
like political elections, there is no guarantee that all who are 
eligible to vote will vote. Under majority verification the workers 
must show that a majority of workers have signed authorizations.
    In an NLRB election, which can often take several months or more, 
the employer is free to wage a campaign where employees are 
intimidated, threatened, spied upon, harassed, and--in a quarter of all 
cases--fired, in order to suppress the formation of a union. No less an 
authority than Human Rights Watch finds that the fundamental human 
right of America's workers to form unions is seriously infringed upon 
as a result. The Employee Free Choice Act will enable workers to form 
unions without going through the meat-grinder of an NLRB election 
campaign, once a majority of workers sign authorizations demonstrating 
their desire to form a union.
    Second, the Employee Free Choice Act would provide for first 
contract mediation and arbitration conducted by the Federal Mediation 
and Conciliation Service (FMCS). Employers who never wanted a union in 
the first instance too often deny workers the benefits of collective 
bargaining by refusing to bargain a contract, and current law provides 
no meaningful remedy. The legislation will give both parties access to 
mediation and after that, binding arbitration, if a first contract has 
not been negotiated voluntarily within a reasonable period.
    Finally, the legislation would create meaningful penalties for 
violations of the Act. The bill would not restrict employer free 
speech, but would ensure the employer speech is not coercive or 
threatening, or intended to deter employee free choice. Under current 
law discipline or discharge of workers for union activity, threats to 
close or move the workplace, harassment and intimidation of workers at 
``captive audience'' or one-on-one meetings with supervisors on work 
time, interrogation and surveillance of workers suspected of wanting to 
form a union are all technically illegal under the NLRA. However, there 
are no real penalties for these and other forms of illegal employer 
conduct to serve as a deterrent.
    For example, the number of instances of illegal discipline or 
discharge of workers for union activity documented by the NLRB 
skyrocketed from 1,000 per year in the early 1950s to 15,000-25,000 
annually in recent years. In the case of an employer who has been found 
to have discharged a worker in violation of the Act, the only penalty 
is back pay--less mitigation for earnings received while the case was 
pending. On average, for the employer, this means merely a $3,000 
penalty and a cease-and-desist posting. Since employers know they face 
such an insignificant cost, if they are found to have violated workers 
rights, violations to thwart organizing campaigns have increasingly 
become seen as an acceptable cost of doing business.
    The Employee Free Choice Act would provide for triple back pay 
awards to workers found to have been illegally fired. The legislation 
changes the penalty for threats and other illegal employer conduct from 
posting a cease-and-desist order in the workplace to fines of up to 
$20,000 per infraction. The bill provides for the same kind of timely 
injunctive relief against egregious illegal employer conduct that 
employers have enjoyed since 1947 against illegal union conduct.
    The Employee Free Choice Act is needed to address a severe 
violation of human rights: the pervasive denial of America's workers' 
freedom to form unions and bargain collectively. The harm caused by 
this denial of fundamental rights is serious, not only for workers and 
their families but for the entire nation. It suppresses wages, health 
care and pension coverage, as well as justice and dignity on the job, 
for union and non-union workers alike. It widens race and gender pay 
gaps, worsens economic inequality, harms political participation, 
erodes the safety net, and coarsens our society.
    Individual U.S. workers, now more than ever, should have the 
freedom to join with their fellow workers for self-representation to 
achieve better wages, pensions and benefits. Employers interference in 
their employees' decision whether to seek union representation should 
not be tolerated. In the past decade we have seen significant wage and 
earning erosion, job loss, and corporate scandals that have devastated 
worker pensions and job security. It is time to restore the rights of 
workers to choose to self-organize and join a union for the purposes of 
collective bargaining.
    The Employee Free Choice Act would reform the NLRA so that when a 
majority of workers demonstrate their choice to form a union their 
representative can be certified by the NLRB without the need for the 
NLRB election process. The legislation would also guarantee effective 
and efficient collective bargaining, and create real penalties as a 
determent to unlawful employer conduct. We urge your support of the 
Employee Free Choice Act, S. 1925/H.R. 3619. Thank you for this 
opportunity to address the committee.
                                 ______
                                 
    Chairman Johnson. Thank you, ma'am. I appreciate your 
testimony.
    Mr. Jacob, you may proceed. Thank you.

 STATEMENT OF CLYDE H. JACOB, III, PARTNER, JONES WALKER, NEW 
                       ORLEANS, LOUISIANA

    Mr. Jacob. Chairman Johnson and members of the 
Subcommittee, I am pleased and honored to be here today. Thank 
you for your kind invitation.
    As you've heard this morning, union authorization cards 
begin the legal process under section nine of the National 
Labor Relations Act for a labor union to represent an 
appropriate unit of employees at an employer. While cards are 
an integral part of the legal representation process, they 
should not be final arbiter of employee representation. The 
circumstances surrounding the solicitation of cards does not 
insure a creditable process, free of pressure and intimidation, 
as do government-conducted secret-ballot elections.
    Let me relate to you a case example that I believe shows 
why legislation to require secret-ballot elections is necessary 
to ensure a private, uncoerced, and creditable legal process 
for employees to choose whether or not they genuinely want to 
be represented by a particular labor union.
    In May of 2000, a new union federation was formed and 
headquartered in Houma, Louisiana, and it was called the 
Offshore Mariners United or OMU. The OMU planned to organize 
the vessel personnel who work on the boats, which service the 
offshore oil and gas industry in the Gulf of Mexico and beyond.
    The campaign lasted for over 3 years, ending this past 
summer when the OMU closed its offices. Union cards were 
solicited from the employees of various boat companies, and one 
company, Trico Marine Services, Inc., became the principle 
target of the organizing campaign.
    Let me share with you some of the voluntary reports, which 
employees made about their experiences in the card solicitation 
process. Some employees when solicited at their homes by union 
representatives said no to signing a card. Yet, they reported 
repeated, frequent home visits by union representatives 
continuing to try to secure their signatures. After eight 
visits, one vessel officer had an arrest warrant issued against 
a union organizer.
    Another employee reported that union representatives exited 
their vehicle, approached his home with a video camera, 
recorded him, which he believed made him a marked man. A vessel 
captain reported that while he was stationed in Brazil union 
representatives visited his home, knocked on his door, and when 
his wife, who was at home did not answer, proceeded to circle 
the home for an extended time, looking into and knocking on the 
windows.
    In an unfortunate incident, a fight broke out between a 
vessel officer and a union organizer at the officer's home. In 
another unusual event, union organizers in a recreation boat 
trolled next to company vessels with a six-foot blonde female 
passenger in a bikini who beckoned the mariners like a siren to 
invite her boat over, at which point union cards were 
solicited. Employees volunteered that they signed cards just to 
stop the pressure and harassment.
    One has to ask whether cards solicited under such 
conditions can, with confidence, be considered reliable 
indicators of employees' sentiment on which to base union 
representation.
    Misrepresentations were made by the union representatives 
to persuade Trico employees to sign cards. In an ironic twist, 
a representation was made to employees to go ahead and sign 
cards, and if they later changed their minds, they could vote 
differently in the election. Of course, the OMU had no 
intention of gaining representation through an election. 
Instead its plan was to gain representation through obtaining 
union cards from a majority of the employees and forcing the 
company with public pressure and harassment to recognize the 
OMU.
    This plan came to light when the OMU offered the company a 
neutrality agreement, an agreement under which the company 
would facilitate the union's organizing effort and which 
insisted upon representation based solely on a card check. 
Trico Marine would not sign that agreement, and it faced all 
manner of attacks on the corporation, including disruption of 
its annual meeting, the meetings of its customers, veiled 
threats to customers and suppliers, attempts to hurt the 
company with the investment community, the disruption of trade 
shows and conventions at which the company attended or was 
featured, and threatened secondary boycotts of the company's 
subsidiaries in other parts of the world, including Norway, 
Nigeria, Brazil, and Southeast Asia.
    If the National Labor Relations Act would have permitted 
Trico to file its own petition for a secret-ballot election to 
resolve the matter and end this protracted harassment, it would 
have. Unfortunately, the law provides very limited 
circumstances.
    There are also problems with forgery with cards, and I've 
also given some case examples of that. Another factor that 
contributes to the high risk to employer rights of relying 
exclusively upon union cards is the refusal of labor unions to 
return the cards when employees want their cards. This problem 
is further compounded by the law, which does not require a 
union to return a requested authorization.
    Attached as an exhibit to my testimony is a letter from the 
NLRB's 15th regional office to an offshore vessel employee, 
whose name has been redacted, acknowledging that it has no 
authority to require the return of his signed union card, or to 
rectify the misrepresentations that were made to him.
    In my experience the risk of harassment, intimidation, and 
forgery in the card solicitation process is too substantial to 
permit union cards to be a method under the Act by which a 
union can establish legal representation. The quiet, sober, and 
private atmosphere of the voting booth should be the preferred 
method in all cases.
    Union authorization cards play an integral role in our 
nation's labor laws on union organizing. They begin the 
representation process, but they should never be the end of 
that process. That should always belong to the democratic 
secret ballot. Legislation is definitely needed to insure this.
    Thank you for the opportunity to address the Subcommittee.
    [The prepared statement of Mr. Jacob follows:]

  Statement of Clyde H. Jacob III, Esq., Partner (Labor & Employment) 
                     Jones Walker, New Orleans, LA

    Mr. Chairman, members of the Subcommittee on Employer-Employee 
Relations, I am pleased and honored to be here today. Thank you for 
your kind invitation. My name is Clyde Jacob, and I am a partner with 
the Jones Walker law firm in New Orleans, Louisiana. For almost 25 
years, my practice has been devoted to labor and employment law. My 
clients have included Fortune 500 companies and small, local 
businesses, and my work in the labor law field has taken me around the 
country as well as overseas.
    Union authorization cards begin the legal process under section 9 
of the National Labor Relations Act for a labor union to represent an 
appropriate unit of employees at an employer. Union representatives or 
employees of a company solicit employees to sign cards, and once 30% of 
the employees in an appropriate unit sign cards, a labor union has the 
right to invoke the legal machinery of the Act, petitioning for a 
secret ballot election conducted by the National Labor Relations Board 
(NLRB), usually within 50 days or less. While the cards are an integral 
part of the legal representation process, they should not be the final 
arbiter of employee representation. The circumstances surrounding the 
solicitation of cards does not ensure a credible process, free of 
pressure and intimidation, as do government conducted secret ballot 
elections.
    Let me relate to you a case example that I believe shows why 
legislation to require secret ballot elections is necessary to ensure a 
private, uncoerced, and credible legal process for employees to choose 
whether or not they genuinely want to be represented by a particular 
labor union.
    In May of 2000, a new union federation was formed and headquartered 
in Houma, Louisiana, and it was called Offshore Mariners United or OMU. 
With the help of the AFL-CIO's Department of Corporate Affairs, Center 
for Strategic Research, the OMU planned to organize the vessel 
personnel who work on the boats which service the offshore oil and gas 
industry in the Gulf of Mexico and beyond. The campaign lasted for over 
three years, ending this past summer when OMU closed its offices. Union 
cards were solicited from the employees of the various boat companies, 
and one company, Trico Marine Services, Inc., became the principal 
target of the organizing campaign. Employees of Trico Marine reported 
to the company of abusive, coercive, and intimidating tactics in the 
card solicitation process. Let me share with you some of the voluntary 
reports which employees made about their experience in the card 
solicitation process which occurred throughout the Gulf South in small 
towns and rural communities.
    Some employees, when solicited at their homes by union 
representatives, said, ``No,'' to signing a card; yet, they reported 
repeated, frequent home visits by union representatives continuing to 
try to secure their signatures, and they complained to the company of 
this harassment. After 8 visits, one vessel officer in southern 
Louisiana had an arrest warrant issued against a union organizer. One 
employee reported that the union representatives exited their vehicle 
and approached his home with a video camera recording him, which he 
believed made him a marked man. A vessel captain reported that while he 
was stationed in Brazil, union representatives visited his home, 
knocked on his door, and when his wife, who was home, did not answer, 
proceeded to circle the home for an extended time looking into and 
knocking on the windows. In an unfortunate incident, a fight broke out 
between a vessel officer and a union organizer at the officer's home. 
In another unusual event, union organizers in a recreation boat trolled 
next to company vessels with a 6 foot blonde female passenger in a 
bikini, beckoning mariners like a siren to invite her boat over, at 
which point union authorization cards were solicited. Employees 
volunteered that they signed cards just to stop the pressure and 
harassment. One has to ask whether cards solicited under such 
conditions can, with confidence, be considered reliable indicators of 
employee sentiment on which to base union representation.
    Untrue statements were made by union representatives to persuade 
Trico employees to sign authorization cards. In an ironic twist, a 
representation was made to employees to go ahead and sign cards, and if 
they later changed their minds, they could vote differently in the 
election. Of course, the OMU had no intention of gaining representation 
through a NLRB conducted secret ballot election. Instead, its plan was 
to gain representation through obtaining union cards from a majority of 
the employees and forcing the company through public pressure and 
harassment to recognize the OMU. This plan came to light when the OMU 
offered the company a neutrality agreement, an agreement under which 
the company would facilitate the union's organizing effort. It was 
entitled, ``Constructive Resolution Agreement,'' and it insisted upon 
representation based solely on union authorization cards from a 
majority of the employees.
    Trico Marine would not sign the neutrality agreement, which relied 
only on authorization cards for legal recognition. As a consequence, it 
faced all manner of attacks on the corporation, including the 
disruption of its annual meetings and the meetings of its customers, 
veiled threats to customers and suppliers, attempts to hurt the company 
within the investment community, the disruption of trade shows and 
conventions at which the company attended or was featured, and 
threatened secondary boycotts of the company's subsidiaries in other 
parts of the world, including Norway, Nigeria, Brazil, and Southeast 
Asia. If the NLRA would have permitted, Trico would have filed its own 
petition for a secret ballot election to resolve the matter and end the 
protracted harassment. Unfortunately, the law provides a very limited 
circumstance for this to occur.
    A serious problem with reliance upon union authorization cards as a 
method of gaining legal representation under the NLRA is the 
possibility of forged employee signatures on the cards. There was never 
any confirmation that this occurred during the OMU's campaign in the 
Gulf South; however, this has been an issue in other cases, and I have 
referenced reported decisions on this. Dayton Hudson v. NLRB et al., 79 
F.3d 546; Krispy Kreme Doughnut Corp. v. NLRB, et al., 732 F.2d 1288, 
1293 (6th Cir. 1984); Perdue Farms, Inc. v. NLRB, et al., 927 F. Supp. 
897 (E.D. N.C. 1996), rev'd on other grounds, 108 F.3d 519 (4th cir. 
1997).
    While I have discussed the pressure, intimidation, and distortions 
that can accompany the card signing process, there is another factor 
that contributes to the high risk to employee rights of relying upon 
union cards as a method for determining legal representation--it is the 
refusal of labor unions to return cards when employees have sought 
their return. This problem is further compounded by the law under the 
Act which does not require a union to return a requested authorization 
card. Attached as Exhibit No. 1 to my testimony is a letter from the 
NLRB's 15th Regional Office to an offshore vessel employee, whose name 
has been redacted, acknowledging that it has no authority to require 
the return of his signed union card, nor to rectify misrepresentations.
    In my experience, the risk of harassment, intimidation, and forgery 
in the card solicitation process is too substantial to permit union 
cards to be a method under the Act by which a union can establish legal 
representation. The quiet, sober, and private atmosphere of the voting 
booth should be the preferred method in all cases.
    Union authorization cards play an integral role in our nation's 
labor laws on union organizing. They begin the representation process--
but they should never be the end of that process--that should always 
belong to the democratic secret ballot. Legislation is definitely 
needed to ensure this.
    Thank you for the opportunity to address the subcommittee. I would 
respectfully request that my written testimony be included in the 
record, and I would be glad to answer any questions.
    [An attachment to Mr. Jacob's statement has been retained in the 
Committee's official files.]
                                 ______
                                 
    Chairman Johnson. Thank you, sir. We appreciate you all's 
testimony. It sounds like there's some disagreement out there. 
My judge over here even shook his head.
    Mr. Cohen, I have a question about the treatment of card 
checks under the law. I understand that under current law an 
employer may agree to recognize a union based on a card check, 
but it may also refuse to do so and insist on an election. I 
understand further that the Board holds that recognition of a 
union pursuant to a card-check system is lawful, and that a 
union, which is recognized in such a way is a bona fide 
collective bargaining agent for the employees.
    My question is this is the validity of unions recognized by 
a card check system a function of the NLRA? That is does the 
Act compel such recognition, or is it subject to differing 
interpretation by case law?
    Mr. Cohen. Mr. Chairman, the Supreme Court called Lyndon-
Lumber established that voluntary recognition based on 
authorization cards is a permissible, lawful means for the 
employer in the union to establish that agreement. So I think 
we find the law in that posture as we speak, and one would not 
expect the prosecutor of the National Labor Relations Board, 
the general counsel, to be attacking a principle such as that.
    If there were to be a change, that would be the kind of 
change that one would expect would need to come from Congress; 
the change the law because of a disagreement with the Supreme 
Court law and as that law has been interpreted by the NLRB.
    There are areas, however, where coercion, of course, is not 
permissible on either side. Under the law, today, an employer 
cannot coerce, a union cannot coerce, and if there are facts of 
coercion, one would expect those cases to be prosecuted, as 
well. But the basic notion of card check recognition is one 
which is established and embedded in the law as we speak.
    Chairman Johnson. How would you suggest we change the law, 
if we change it?
    Mr. Cohen. If we were to change it, I believe it would be 
based on the changed circumstances, and that is it is one thing 
for an employer to deal with the union and say to the union if 
a majority of the work force desires representation that the 
employer will forego its right to have an election and do it 
based on authorization cards. And that's where we were 
approximately 10 years ago.
    The problem as I see it is that over the last 10 years 
there has been a vast increase in this kind of activity, but it 
hasn't just been that activity. It's been that activity coupled 
with corporate campaigns, neutrality agreements, access, et 
cetera, so that there is in my opinion an element of the union 
not getting these kinds of agreements, because it's something 
the employer wishes to do. But, rather, it's because there's 
been a corporate campaign. There's been a leveraging of the 
union's existing bargaining relationships, such that the 
employer knows it won't get the next collective bargaining 
agreement, something of important value to it, unless it gives 
this for an unrelated group of employees. It comes from a 
variety of sources, and I think if the legislation were to be 
enacted by Congress, it would be as a result of these changed 
facts over the last decade.
    Chairman Johnson. Ms. Schiffer, you talked about a delay in 
getting an employer contract after the election or after the 
fact, and how do you think we can resolve that delay problem, 
because you know and I know that both sides are going to drag 
their feet if they can.
    Ms. Schiffer. I think there's a good solution to that in 
the Employee Free Choice Act that's been introduced in both 
Houses, which provides for first contract arbitration. And that 
that would be a way to ensure that workers really get the 
benefit of what they've--when they select employee--a union to 
represent them.
    I'd like to, if I could, go back to one thing that Mr. 
Cohen just said in his response. Is that--
    Chairman Johnson. Go ahead.
    Ms. Schiffer. There has been research done on what we call 
card check neutrality agreements by two professors, one from 
Rutgers, one from West Virginia University, which I can provide 
you with the research. But they--their research shows that 
corporate campaigns are ``not a frequently used strategy to 
secure these agreements.''
    They say that they're often secured the good old-fashioned 
way through a work stoppage, which, I think, is for the most 
part still lawful; parts of it. And that at least a third of 
such agreements are reached within the context of a broader 
labor management partnership, in which employers agree to an 
organizing process that will be less disruptive than the NLRA 
representation process.
    And when these are agreed to, they are sometime card 
checked. They are sometimes neutrality. Some of them don't 
involve card checks. Some of them involve a privately conducted 
election. Some of them don't involve neutrality. Some of them 
involve a code of conduct where both parties agree as to how 
they will be bound, and they agree to an arbitration process 
that will immediately resolve any disputes. So they don't have 
to wait six and a half years to get to the bargaining table.
    Chairman Johnson. Mr. Jacob, did you want to comment? You 
looked fidgety down there.
    Mr. Jacob. Thank you for your observation.
    Chairman Johnson. Punch the button again. Turn the 
microphone on.
    Mr. Jacob. Thank you for your observation. I would say that 
when you find this delay after a union has been elected quite 
often there is a reason for it. It's because the union has made 
very over-the-top type of promises to the employees to get them 
to vote. And so quite often you will have a longer period.
    And it's hard to have a one size fits all for contract 
negotiations. Look at this past summer with the very tough 
negotiations that went on out in California with the 
supermarkets that were out there. I mean, if you try to squeeze 
negotiations into a tight little pen, you're really going to 
upset the economic system that we have in play that is a very 
fair economic system.
    Mr. Cohen. Mr. Chairman, could I make one--
    Chairman Johnson. Go ahead, yes.
    Mr. Cohen. Thank you. It has to do to the notion that Ms. 
Schiffer raised concerning first contract arbitration. We've 
had a principle in this country and it's been embedded in our 
labor laws since 1947. That doesn't require the employer to 
agree to a particular substantive term. The notion is it's the 
employer that has to meet payroll. It's the employer that has 
to compete with the competition and must ultimately have the 
say as to what the contract term that it will agree to.
    To be sure, it can be as a result of economic warfare; the 
strike, the work stoppage. That's fine. The notion of turning 
that over to an arbitrator to have the arbitrator either split 
the baby or decide in some fashion what the agreement would be. 
Just imagine if in the West Coast supermarket situation the 
arbitrator were to decide that these employees ought to be 
given full benefits for whatever. The employer, of course, has 
to compete with non-union competition up and down line.
    So while it may sound nice and equitable to have an 
arbitrator--a neutral third person--decide a dispute, when 
you're talking about the terms of a labor contract it is truly 
an unacceptable kind of resolution in my judgment.
    Chairman Johnson. Thank you. Mr. Andrews, do you care to 
question?
    Mr. Andrews. Thank you. Mr. Jacob, in your testimony 
regarding the Trico organizing campaign, your testimony is 
limited to that campaign, correct?
    Mr. Jacob. Yes, it is.
    Mr. Andrews. You didn't study any other organizing 
campaigns or research any other ones in your testimony today?
    Mr. Jacob. I have been involved in many, many campaigns in 
my career, but that focus was the Trico, yes.
    Mr. Andrews. Your testimony is about Trico. On page--
they're not numbered--where you tell the incident about eight 
visits from a union organizer to a vessel officer in Southern 
Louisiana, do you know if that organizer had access to the work 
place to visit the vessel officer in the work place?
    Mr. Jacob. The work place for boats that are quite often 
out at sea, and so the union was able to get the home addresses 
and phone numbers.
    Mr. Andrews. So was the union organizer permitted to board 
the ship when it was in port if the officer was working on the 
ship there?
    Mr. Jacob. No, he was not.
    Mr. Andrews. So where was the union organizer supposed to 
visit the vessel officer to make his pitch?
    Mr. Jacob. At the vessel officers' homes. At meetings that 
were held in the community--
    Mr. Andrews. So there were eight visits. And you indicate 
that an arrest warrant was issued against the organizer. What 
was the disposition of that case? Was the union organizer 
arrested?
    Mr. Jacob. It just went away.
    Mr. Andrews. Did it go away, because the complainant 
dropped charges? What happened?
    Mr. Jacob. The complainant just eventually dropped charges, 
and the whole issue just dissolved.
    Mr. Andrews. So there was a warrant issued but there was 
never a prosecution?
    Mr. Jacob. That's correct.
    Mr. Andrews. The other stories that are reported here about 
people visiting homes of vessel officers when they're in Brazil 
and so on and so forth were there any criminal charges filed as 
a result of any of those incidents?
    Mr. Jacob. No.
    Mr. Andrews. Were there any civil charges filed as a result 
of those incidents?
    Mr. Jacob. No.
    Mr. Andrews. Were there any charges filed with the National 
Labor Relations Board or any administrative agency as a result 
of these incidents?
    Mr. Jacob. No.
    Mr. Andrews. OK. Let me ask you a question about the 
exhibit that you've attached, the letter from Mr. Wells. And as 
I understand the facts, which I can imply from reading Mr. 
Wells' letter, an individual who is a part of the group that 
they're trying to organize signs a card and then decides that 
he doesn't want--he wants to revoke his signature of the card. 
He wants his card back, correct?
    Mr. Jacob. He liked to get his card back.
    Mr. Andrews. Right. So did the employee advise the union 
that he wanted his card back, because he wanted to revoke his 
consent to the union?
    Mr. Jacob. Yes, that was my understanding.
    Mr. Andrews. Now, if this had gone to a count--if we're 
going to count the number of cards, either for the purpose of 
certifying the election or under a voluntary agreement for 
certifying the union, would this individual's card have 
counted?
    Mr. Jacob. I believe it would have.
    Mr. Andrews. You think it would have?
    Mr. Jacob. Yes.
    Mr. Andrews. I would disagree with that conclusion, and I 
would point--I would ask unanimous consent to enter into the 
record three cases.
    Chairman Johnson. Without objection.
    Mr. Andrews. One is involving Emerald Industries. It is 
case number 9-CA-37493, in which the general counsel of the 
NLRB found that the employer lawfully refused to recognize a 
union in a card check when it was shown that the union had lost 
its majority because of revocation letters signed by employees. 
So whether it was revocation by the employees, the card didn't 
count, irrespective of who physically had the possession of the 
card.
    Second, there's a case called King Supers, Inc., case 
27CA12362, going back to 1993, where the general counsel found 
that six employee card rescissions negated the union's majority 
status before the card check occurred. Again, irrespective of 
the physical custody of the card.
    And then, finally, a case from just last September under 
the heading of Le Marquis Hotel, 340 NLRB number 64, in which 
case there were two--as I understand it, two competing unions. 
Employees signed cards for both unions, and it was held that 
the card for the first union was invalid, because the act of 
signing the second one indicated revocation.
    Now, I guess, my point to you is that it seems to me that 
irrespective of who had physical custody of the card that the 
fact that the employee had made evidence of his desire to 
revoke his consent to the card means his vote doesn't count or 
the card doesn't count. Isn't that right?
    Mr. Jacob. I guess my experience has been is that employees 
do seek to get their cards back. The unions don't give it to 
them, and then election moves forward quite often when 
employees have cards that have not been given back.
    Mr. Andrews. But if the employer contests the certification 
of the election on grounds that the card was revoked, these 
cases say the card was revoked, right? That means you fall 
below the threshold the statute requires there's no election or 
there's no certification?
    Mr. Jacob. My experience is that elections have gone 
forward. That the Board regional offices will not accept an 
employer argument that we've got a number of employees who 
would like to get their cards back, and the Board tells us it's 
a showing of--
    Mr. Andrews. Mr. Jacob, I would ask if you would supplement 
the record by giving us cases that cite that instance.
    Mr. Jacob. I would be happy to supplement the record.
    Mr. Andrews. Thank you, Mr. Chairman.
    Chairman Johnson. Thank you, Mr. Andrews. Mr. Kline, do you 
wish to comment?
    Mr. Kline. Yes, thank you, Mr. Chairman, and thank you, 
lady and gentlemen, for being here today. It is clear, as the 
Chairman said, there is some disagreement. It seems to me that 
we are looking for a way to allow workers to decide to unionize 
in a fair way; fair to both employers and employees. And, 
clearly, there is disagreement as to what that would be.
    Mr. Cohen, data from the National Labor Relations Board 
indicates that during a period spanning 1999 to 2003 of the 
roughly 14,000 elections held by the Board objections were only 
filed in 3 percent of them. And half of those objections came 
from the employer. What does that indicate to you the fact that 
unions filed objections in less than 2 percent of the 
elections?
    Mr. Cohen. Mr. Kline, it would indicate to me that the 
system is working indeed.
    Mr. Kline. It would seem so. Thank you. Mr. Jacob, a 
question for you, and, of course, I welcome, Mr. Cohen, any 
comments that you would have on this.
    In her testimony today Ms. Schiffer--and I thank her for 
her testimony. It was, in fact, quite enlightening -- Ms. 
Schiffer stated that 20,000 employees, I think is the number, 
allege that they were the victims of discrimination every year. 
And, Mr. Jacob, I'm curious in your experience how many of 
these allegations generally contain any real merit, and how 
many times are they filed simply to get back at an employer?
    Mr. Jacob. My experience is that many are filed. Many are 
dismissed. Many are withdrawn by charging parties, and some 
moved forward. So I don't think that you can say that all 
20,000 are valid, you know, legitimate charges.
    Mr. Kline. And do you have some case study that you could 
submit to the record--
    Mr. Jacob. Really I'm basing it just on my experience. Of 
the number of charges that I handle, I see every type of result 
coming from it, including some that go to trial, some that get 
dismissed, some that are withdrawn.
    Mr. Kline. I see. And, Mr. Cohen, do you have anything to 
add to that?
    Mr. Cohen. Yes. I would mention that historically--and I 
did start working for the NLRB myself back in 1971, so I've 
been there on two different stints; one time for 8 years, one 
time for two and a half years.
    There's something known as the merit factor, which has 
remained relatively constant over the decades, and that is of 
all the unfair labor practice charges, which are filed, 2/3 of 
them are typically either dismissed or withdrawn, and the 
remaining 1/3 are deemed to have merit. And of that 1/3, 
significantly 90 percent of the so-called meritorious cases 
settle before an NLRB hearing on the matter. So they're then 
resolved.
    To be sure, certain ones are litigated. To be sure, certain 
ones go through the court system. And, obviously, to go through 
the court system, takes time. But that would be the basic 
yardstick, which, again, hasn't changed over the decades.
    Ms. Schiffer. Mr. Kline, if I could.
    Mr. Kline. Yes, certainly.
    Ms. Schiffer. In my testimony I believe that these figures 
are not charges filed but adjudicated cases. So that this merit 
factor in terms of going forward with the charge or the merit 
factor in terms of whether the case is won or lost is not in 
play. And I would be happy to supplement the record to make 
that more clear.
    Mr. Kline. Yes, I'd like to see that. It's 20,000 
adjudicated cases you're talking about?
    Ms. Schiffer. Not cases. Workers.
    Mr. Kline. Workers. I see. OK, thank you very much.
    Ms. Schiffer. And I would like to go back, if I could, to 
one issue you raised with Mr. Cohen. These numbers in terms of 
number of objections filed. I'd like to go back to one thing I 
mentioned but very briefly in my testimony, and it's really 
illustrative and it's something that I've had to do over and 
over and over again in my practice, representing workers and 
unions. And that is talking to workers who say I know what 
happened to me was wrong. I want to testify about it, because I 
know the employer gets away with it if I don't but I can't.
    And I will always have this memory vividly where I was 
standing in my house when I had this phone call with a woman 
who said I have a 10 year old son. He's asthmatic. If I lose my 
job, I can't afford his medications. I cannot testify. And this 
is a point the needs to be kept in mind when we say, oh, well, 
unions don't file anything so it must be OK. We can't file 
unless we have witnesses, and workers are out witnesses, and 
they have to be willing to put, not only their careers, but 
their families' welfare on the line.
    Mr. Kline. Thank you. And my guess--I have just one moment 
left. And my guess would be that there are some similar heart-
wrenching stories of union workers who were asked to sign a 
card and had no choice, and I'd be interested in any comment 
from Mr. Jacob or Mr. Cohen to that effect.
    Mr. Jacob. Well, I believe ultimately we all have--excuse 
me--we all have choices, but I do know that often times people 
sign cards who do not wish to sign cards. And that's why a 
secret ballot election is really the ultimate crown jewel, as 
Chuck Cohen has said, for resolving questions of 
representation.
    Mr. Kline. Thank you. Mr. Chairman, I yield back.
    Chairman Johnson. The gentleman's time has expired. Mr. 
Kildee, do you care to question?
    Mr. Kildee. Yes, thank you, Mr. Chairman. First of all, 
according to such scholars as Kate Ruffenbrenner and John 
Logan, the National Labor Relations Board election process very 
often exposes workers to weeks and very often months of 
employer threats, surveillance, coercion, firings, and 
intimidation. As a matter of fact, when my dad sought to join 
the union back in 1935 in Flint, Michigan, the site of the sit-
down strike, he had to face goon squads with blackjacks, and 
we've become more sophisticated in those years since then.
    Now, it's lawyers and labor consultants with briefcases 
that generally stand in the way of organizing. And I 
certainly--I prefer that, the briefcases to the blackjack, but 
it can be very effectively also in blocking the right of 
workers to join a union.
    The situation is so bad that the human rights watch finds 
the United States to be in serious violation of international 
human rights with respect to the protection of workers' freedom 
of association. And that should concern us, because the human 
rights watch is a very respected group.
    But I do think that from the time of 1936 to now human 
nature being what it is very often employers want to run their 
business without any input from the workers or even input as to 
the wages and hours, and that they've changed maybe tactics and 
become a little more sophisticated, but their just as effective 
as they were back in 1936.
    I can recall my good friend Walter Reuther being half 
beaten to death in the battle of the overpass with the goon 
squads and the blackjacks back in that time. So I think we have 
to be concerned to make sure that workers are not intimidated 
in seeking collective bargaining. Collective bargaining has 
changed. It's certainly changed the quality of life in Flint, 
Michigan, and changed the quality of life in the Kildee 
household.
    Let me ask a question. I'll ask Ms. Schiffer. Mr. Cohen has 
characterized card check agreements on page six, arising from 
corporate campaigns, including a number of elements. And that 
employers are essentially forced into signing these agreements. 
Would you care to comment on that?
    Ms. Schiffer. Yes. We use the term card check to cover a 
whole wide variety of agreements between--agreements about 
alternatives to the NLRB representation process. And they may 
include card check. They may not. They may include a private 
election. Some of them actually include an NLRB election but 
only that part. Some of them do include card check.
    Typically, there are bilateral restrictions on both the 
union and the employer on conduct and speech, and the point is 
that the parties have a code of conduct. They know that they 
can this way avoid the divisive and the really confrontational 
process that is inherent--that's encouraged by the NLRB 
representation process.
    And so these alternatives accord a workforce an alternative 
to that kind of polarization that the NLRB process encourages. 
It also, as a matter of fact, saves employers millions of 
dollars in anti-union consultant fees; a whole cottage industry 
blown up to take advantage of the NLRB process.
    And with a much shortened process, the parties can get on 
to issues that they're both interested in. Work place issues, 
quality issues, productivity issues, business success issues, 
instead of going through one of these years' long fight.
    Mr. Kildee. Let me ask you another part of this hearing 
today is corporate campaigns. How often are corporate campaigns 
used? Is this a frequent strategy to secure neutrality?
    Ms. Schiffer. Research has been done by professors Adrienne 
Eaton, who is at Rutgers University, and Jill Kriesky, who's at 
West Virginia University. And they studied these types of 
agreements. And their research indicated that, in fact, 
corporate campaigns are not frequently used as a strategy to 
secure. That often it's traditional worker leverage in the form 
of a strike; a work stoppage. And that for many such agreements 
the part of an overall labor/management partnership where the 
parties can agree on a code of conduct to regulate the 
organizing process.
    Mr. Kildee. Thank you very much, Ms. Schiffer.
    Chairman Johnson. Thank you, Mr. Kildee. Mr. Tierney, do 
you care to question?
    Mr. Tierney. I do. Thank you, Mr. Chairman.
    Chairman Johnson. You're recognized for five.
    Mr. Tierney. I thank you. Ms. Schiffer, maybe you can help 
clarify something for me. We're all talking--at least all three 
of the witnesses have talked about their great concern for 
participation of the employee. On a card check process it's a 
majority of employees that have to sign the cards in order for 
the union to be acknowledged; am I correct?
    Ms. Schiffer. That's right.
    Mr. Tierney. But in an election it's just a majority of 
those voting?
    Ms. Schiffer. That's correct. It doesn't have to be a 
majority of the workforce.
    Mr. Tierney. Do we have any statistics as to--on elections 
generally how many times an actual majority of the employees 
vote or participate in the election?
    Ms. Schiffer. I don't have those statistics.
    Mr. Tierney. Let me go over some other statistics and ask 
you if you're familiar with those in terms of the elections 
versus the card. Are you aware that 25 percent of employers are 
found to have illegally fired or disciplined at least one 
worker for union activity during organizing campaigns?
    Ms. Schiffer. Yeah, I've had a lot of experience with that, 
unfortunately.
    Mr. Tierney. Are you aware that 75 percent of employers 
hired consultants or union busters to help them fight union 
organizing drives?
    Ms. Schiffer. Employers spend millions of dollars on anti-
union consultants.
    Mr. Tierney. Are you aware that 78 percent of employers 
force employees to attend one-on-one meetings with their own 
supervisors against the union?
    Ms. Schiffer. That's one of the most common techniques, 
because the employer has literally full-time access to workers.
    Mr. Tierney. And are you aware that 92 percent of employers 
force employees to attend mandatory closed-door meetings 
against the union?
    Ms. Schiffer. Right. Another extremely frequently used 
tactics where employees have to be there. They can be told that 
they cannot speak, they cannot ask questions, and they can, in 
fact, be fired if the employer says that and they still try to 
ask a question just trying to get information.
    Mr. Tierney. Are you aware of the finding that 52 percent 
of employers threaten to call immigration officials during 
organizing drives that include undocumented employees?
    Ms. Schiffer. When we have workforces trying to organize, 
who include undocumented workers, it's a threat over them that 
is just unequaled.
    Mr. Tierney. And are you aware that there's findings that 
51 percent of the companies threaten to close the plant if the 
union wins the election?
    Ms. Schiffer. Yes. And, in fact, the percentage of plants 
that actually close when they're organized is almost 
negligible, and, yet, this many employers threaten that they 
will.
    Mr. Tierney. In 1998, there were 24,000 cases won by 
workers who had illegally been discriminated against for 
engaging in legally protected union activities. Do you have 
anymore recent figures--knowledge of more recent figures than 
those from 1998?
    Ms. Schiffer. I don't believe that I do, but if I do, we'll 
supplement the record.
    Mr. Tierney. Now, one of the concerns in my district at 
least and in Massachusetts generally is the concern that even 
after unions have won an election they have an awful difficult 
time getting to their first contract, and I think the 
statistics show that in 32 percent of the times elections by 
workers to have a union occur but 2 years later they still 
don't have any contract.
    Now, Mr. Cohen, you had discussed earlier the employee Free 
Choice Act. To get to the first contract, is what we're talking 
about and that provision of the law that indicates that after 
90 days if no agreement can be reached either party may 
petition for a mediation or conciliation. Am I right? All 
right. And if that doesn't work or come to a resolve, then 30 
days after that 90-day period it can go to arbitration for the 
first 2-year contract?
    Ms. Schiffer. Yes, for the first contract.
    Mr. Tierney. And then after that they're back on track, but 
I think it addresses the issue that seems to be almost too 
prevalent here. A third of the contracts still aren't done 
after 2 years when people elect to have a union. And I think 
that speaks volumes to the fact that, you know, this is a 
process that's not working right now. That the NLRB is not 
living up to its requirements on elections, and that in a 
country that has freedom of association we should encourage 
people to work agreements, freedom to contract. But if an 
employer wants to reach an agreement, then certainly should be 
able to reach an agreement and come to a peaceful resolution of 
this to move forward.
    And, last, I think that what these companies are concerned 
about, you know, corporate activities or unions getting 
involved in their corporate board meetings and things of that 
nature. Most of these unions or many of them have investments 
in those companies, and they have a great interest that that 
company provide in a lawful way and avoid corporate scandals or 
whatever, and, hopefully, that's why they would get involved 
and try to make this thing work out under the law. And so I 
thank you for your testimony today and I yield back the balance 
of my time.
    Chairman Johnson. Thank you. Mr. Cohen, did you want to 
make a comment? You acted like it.
    Mr. Cohen. Just two brief things.
    Mr. Tierney. Am I yielding my time to the chair or are you 
just giving me more time, Mr. Chair? Exercising a prerogative.
    Chairman Johnson. I'll usurp a little. Is that OK?
    Mr. Tierney. As long as it's reciprocal. We'd love the same 
opportunity.
    Chairman Johnson. Thank you.
    Mr. Tierney. Thank you.
    Mr. Cohen. I believe the record ought to reflect that, 
again, one of the very strong points about the NLRB election 
process is that voter turnout is typically exceedingly high, 
and I am going to have to somewhat speculate here, but I 
believe it's up in the 80-percent range. And, obviously, when 
we compare that to the statistics for the political situation, 
it's a very healthy--
    Chairman Johnson. Yeah. Can you get us some statistics on 
that, because I think his question was a good one.
    Mr. Cohen. Would be happy to. And the NLRB in their annual 
reports would have those statistics I feel very confident.
    Chairman Johnson. Please forward them to the Committee and 
both sides.
    Mr. Tierney. Thank you. Then I'll just follow up with one 
on that. Do you at all have any information that would call 
into the question the statistic that 32 percent of the 
elections in which voters--workers vote and a union still has 
no contract after 2 years?
    Mr. Cohen. I don't have anything specific, but I would 
mention--and I don't have the study in front of me, but I 
believe one of the studies that you were referring to was the 
Bronfenbrenner study, and it's my recollection that that study 
was done by interviewing union organizers alone. In other 
words, at the conclusion of an organizing campaign, the 
academic study goes and talks to union organizers to come up 
with these kinds of statistics. And I believe the unreliability 
of that type of a method speaks for itself.
    Mr. Tierney. Well, I'm not sure it does. So why don't you 
tell me how--do you thing all those people are lying?
    Mr. Cohen. Not necessarily lying. But there are 
perceptions. I think--
    Mr. Tierney. A perception of whether or not you have a 
contract? That seems to be something you can determine without 
perception.
    Mr. Cohen. Perception about employees who have been 
discriminated against.
    Mr. Tierney. But my question here was whether or not a 
third of those contracts remain uncompleted after a 2-year 
period. That's no perception. It's either it has been done or 
it hasn't been done.
    Mr. Cohen. I don't have an answer to that, Mr. Tierney.
    Mr. Tierney. Thank you.
    Chairman Johnson. Can you find that out for us too?
    Mr. Cohen. I can attempt to, yes.
    Chairman Johnson. OK, thank you. Thank you.
    Ms. Schiffer. It may be helpful to Committee to have Dr. 
Bronfenbrenner testify here.
    Chairman Johnson. Ms. McCollum, do you care to question?
    Ms. McCollum. Thank you, Mr. Chair. Have any of the 
witnesses ever attempted to deliver union cards at the 30-
percent level, which requests an election? Have any of you ever 
participated in doing that, or either not accepting the cards 
or taking the cards?
    Mr. Cohen. It's my experience that unions don't petition 
with just 30 percent. They have typically greater than 50 
percent. Often 60, 70 percent before they go to the NLRB to 
file.
    Mr. Jacob. Likewise it's been my experience too.
    Ms. McCollum. Well, Mr. Chair, I'm going to--I've been in 
Congress just a short while, and I haven't done this in a 
Committee before, but rather than ask a question now, I'm just 
going to--not state opinion--but state first-hand witnessing.
    I have been with unions when they have tried to deliver 
cards and management has been present to receive them and 
management has refused to come out and meet with the unions to 
receive the cards. Then I have been present over an hour when 
there is someone that says that they will meet with the union 
organizers. They are not management from the store. When I ask 
them where they're from, they've been flown in from another 
area, and they use intimidation. They use intimidation so that 
the cards are not delivered, and as we heard the gentleman 
speak, well over 30 percent of the employees have asked.
    Now, about these cards. Employees know that the employer is 
going to know who signs a union card. It takes a tremendous 
amount of courage in many instances to put your name on a card. 
And then the meetings start. And I'm not speaking from anything 
by personal experience in management. Then the meetings start 
one on one.
    Well, do you know if we do this we're going to have to lay 
people off or your hours are going to have be cut. Are you sure 
you want to do this? Is this in your best interest? You know, 
we were thinking of maybe having you go into a more supervisory 
position. Maybe you want to think about this, and you need to 
decide if it's in your family's best interest.
    Managers are brought in. Your expectation here is not to be 
neutral. Your expectation in management is to support the 
company and the company does not want a union. And that's what 
you're to do. You're to speak against unions.
    Then there are the union organizers who come in. I sold 
film to them, thousand-speed film. Why do you need thousand-
speed film, I said. Well, we're going to photograph the workers 
while they're working to find out who's saying what to who. I 
was in meetings when people spoke very openly about filming 
people when they came out to the VFWs after the union meetings, 
because we want to find out who the agitators are.
    Then there's election day. Yeah. Everybody shows up. Thank 
heavens it's a secret ballot, because the employer knows 
whether or not you've shown up, as well as the union organizer. 
And the people do show up to vote. And that's a good thing. 
First contract. Took the union quite a while. Cards were 
contested. Peoples' job classifications were even changed so 
that they could throw out cards.
    Then first contract came and it was the last management 
meeting I attended, because, quite frankly, we had had enough 
of each other. The attorneys came in. Here is how it works. If 
we don't get a first contract, the union loses confidence with 
its members and it's all over. And other people won't be 
tempted to look at organizing, so we're going to make this 
difficult, and we have the resources, the time, and the energy 
and the money to do it.
    I just think we need to be straight here. There are some 
employers out here who follow the letter in the spirit of the 
law. And many times people choose not to organize. There are 
employers that follow the letter in the spirit of the law and 
they work with their unions, not always in harmony. Not always 
it's a wonderful life, but they work together. And then there 
are employers that use fear and intimidation time and time and 
time again.
    And that's why when employees show up to vote their vote 
counts, but that's why also we have to use a secret ballot, 
because people are afraid at times to put their name on the 
line on a card, because the employer is going to be calling 
them into their office.
    Chairman Johnson. Thank you, Ms. McCollum. Mr. Ballenger, 
do you care to question?
    Mr. Ballenger. Yes, sir. And I'd like to apologize to the 
panel. I happen to be Chairman of the Western Hemisphere, and I 
had to meet with the OAS for just a second.
    I am, as some people know, a manufacturer myself, and I'd 
like to ask Mr. Cohen if he'd like to comment on Ms. McCollum--
what are the reasons an employer--and I understand most of 
them--would not accept cards. Would you explain that.
    Mr. Cohen. Sure. I believe that as a general rule employers 
would be well advised to refuse to look at cards, and the 
reason for that is there is a process--the employer has a right 
that's guaranteed under the law to have a secret-ballot 
election. But the employer can agree to look at the cards and 
then be bound by the determination if, in fact, there's a 
majority.
    So if I were an employer, I would personally say I don't 
want to see the cards. You've got a process. I don't want to 
compromise anybody's integrity. I want to protect their 
secrecy. Let it be. So, therefore, just file your petition, if 
that's what you want. You will have a secret-ballot election, 
and I believe we're in agreement on that if I might presume 
that. The importance of that secret-ballot election to the 
employee. I don't think the employee is entitled to anything 
less than that.
    Mr. Ballenger. Just following up on--Ms. Schiffer, if I 
may, what is the AFL-CIO's position with respect to the 
decertification proceedings? Put another way when employees are 
trying to vote out the union does the AFL-CIO maintain that a 
secret ballot is and I quote, ``not comparable to the privacy 
and independence of the voting booth and that the secret-ballot 
election system provides the surest means of avoiding 
decisions, which are the result of group pressures and not 
individual decisions.'' And I'm quoting from a brief of the 
AFL-CIO filed in 1998. And I think Ms. McCollum kind of made a 
similar statement. Can I throw that at you.
    Ms. Schiffer. I'm familiar with the brief, even though it 
was filed a couple of years before I was associated with the 
AFL-CIO. In that particular case the AFL-CIO and other unions 
were trying to make the point that if as is now the law an 
employer can require the NLRB representation process in order 
for workers to become organized then it ought to be the same 
procedure when workers want to no longer be part of a union.
    And so what they AFL-CIO was urging in that case was that 
there be a similar process for the--if you will--for the 
marriage as for the divorce. And that was the point.
    I would like to go back to one thing that Mr. Cohen said in 
response to your question. And point out that the process as it 
is now when workers want to form a union is that the employer 
chooses whether to force the NLRB representation process. The 
employer has that right to refuse to recognize a union, even if 
100 percent of the workforce--there's not even a union there--a 
100 percent of the workforce go into the office and say we want 
to have a union. The employer can say I don't care. We have to 
go through this other process.
    Mr. Ballenger. Well, then, obviously, the employer has no 
idea whether that's 100 percent is there or not there. You can 
give me a stack of cards this high or this high and say, well, 
we need it and the first thing I would say--and I agree with 
Mr. Cohen--the first thing I would say is I don't look at the 
cards. Why should I commit myself by law by accepting the cards 
when all of a sudden there is no contest after that.
    Ms. Schiffer. Even if all of the workers say that they want 
to be represented--and I would just like to make the point, and 
I think I did in my oral testimony. That the NLRB's election 
process is a--it's just that, a process. And in order to get to 
that secret-ballot election, the employees have to go through 
this--and very confrontational, very difficult process.
    And so the point of my testimony really was to suggest that 
is there really a free choice that's exercised in that ballot 
box. Is it really inherently valid that after employees have 
been threatened, spied on, harassed, that their choice in the 
poling booth is going to be more legitimate than when they sign 
a card.
    Mr. Ballenger. Let me just say having seen occurrences many 
times where the brutalization of management by unions in the 
news media it's not a one-way street you're speaking about. 
Unions are not milk toast in a situation like this. It's not--
I'd just like to say that you can get beat up pretty badly by 
dragging your feet a little bit on an election.
    Ms. Schiffer. But we're talking here about workers and 
their employer holds that sort of life or death, you have a job 
or you don't have a job.
    Mr. Ballenger. No, I agree with you. Anybody that's--people 
deserve a union if they--I mean, management deserves a union if 
they don't treat their employees properly.
    Ms. Schiffer. What I'm saying is that they're inherently, 
because of the employer's power over its workers, a difference 
in the kind of coercion that can be exercised the employer to 
employee.
    Mr. Ballenger. Well, is there something like a critical 
period involved in this timing of the cards being presented and 
so forth and so on? Is there not--I mean, there are--the law 
regulates--Mr. Cohen, you are leaning forward like you had an 
answer to what I was going to ask.
    Mr. Cohen. Well, if I'm anticipating it correctly. The NLRB 
once a petition is filed approximately 90 percent of the cases 
go to an election by agreement.
    Mr. Ballenger. Right.
    Mr. Cohen. In other words, without legal--further legal 
proceedings. And in those cases I believe the median time is 
either 40 or 42 days to the conduct of an election, which I 
submit is a quite short period of time, particularly, for the 
employees to have an opportunity to come to realize what the 
benefits might well be of unionization and what the downside of 
it might be, as well.
    As to those cases that go to hearing, I believe if one were 
to lump it all together, that the--90 percent of the cases 
still go to an election within 60 days from the filing of a 
petition. So I think it's a situation where the NLRB very much 
holds employers' feet to the fire and performs very admirably.
    Mr. Ballenger. I think the NLRB--the appointment to the 
NLRB is a very vital thing to the strength of the unions in 
this country and they pretty well call the shots. I don't know 
whether--maybe I come from a conservative area of the United 
States that sees that. But your 42 days I think we're debating 
on the floor the idea of if Congress were to lose 100 members 
in some disaster that to have 45 days to have a nationwide 
election. I think 42 days is pretty sharp. Excuse me, Sam. I 
didn't mean to go so long.
    Ms. McCollum. Mr. Chair, my name has been mentioned twice, 
and people are deciding what I've said. So if I could clarify 
something, Mr. Chair.
    Chairman Johnson. What did you really say?
    Ms. McCollum. I really said what I meant. And that is when 
unions do try to deliver cards they are met with the first 
taste of what the intimidation is going to be like forward--in 
going forward with the union organizing campaign. And that by 
changing the rules to accept cards will give employees another 
option in which to have their voices heard and to have 
management know that they want to go forward with having a 
union.
    And that if the coercion and the intimidation continues, 
yes. Then let's have a secret ballot. Thank you, Mr. Chairman.
    Chairman Johnson. Thank you, Ms. McCollum. Mr. Payne, do 
you care to question?
    Mr. Payne. Well, I'm sorry that I missed most of the 
testimony, but I just want to maybe ask Mr. Cohen a question. A 
lot of times when we hear about organizing of labor unions it 
tends to be characterized that the organizers are the ones that 
have the strongest hand, intimidation, the strong arming, the 
power over the employee. And I wonder if in your opinion is 
that what you also contend? That the union organizers have a 
stronger hand, because I've heard sort of just the reverse, and 
maybe Ms. Schiffer might want to just mention that it's just 
the reverse.
    I usually hear these horror stories about how intimidating 
the organizers are and hear very little about the power of the 
employer who can tell you you got a job, don't have a job, 
don't want you to do the wrong thing, we might have to lay off 
if the union comes in. So what is the general perception that 
you have as to, say, a normal organizing campaign.
    Mr. Cohen. Mr. Payne, I would say that there can certainly 
and have been horror stories on both sides of this, but in my 
experience the decision as to whether employees choose to 
unionize or not does not turn on characterizations of power, 
intimidation, things of that. We are operating today in a 
global economy. What the employer is trying to do is produce 
its product, deal with the competition, make a profit to be 
sure, and that's where job security in my experience comes 
from.
    I think there was a time when it would have been much more 
frequent to characterize the union organizers as intimidators, 
et cetera. It's been my experience over the last couple of 
decades that that argument doesn't resonant particularly well.
    Mr. Payne. Well, that's good. Another reason I raise the 
question because there is still some of the, you know, 
policymakers like us that still have that Draconian 1920 image. 
And I wish more of them were here to hear you. But thank you 
very much. I have no other question.
    Chairman Johnson. Thank you, Mr. Payne. I appreciate that. 
Mr. Holt, do you care to question?
    Mr. Holt. Yes, thank you, Mr. Chairman. Mr. Cohen, I 
believe you said that bargaining over a neutrality card check 
agreement has--I believe your words were--little or nothing to 
do with employees in the bargaining unit, and that it would 
detract from core issues like wages and working conditions. 
That strikes me as missing the point. It seems to me it has 
everything to do with the bargaining--with the employees in the 
bargaining unit.
    Wouldn't--were you saying that it makes little or not 
difference to the employees in the bargaining unit whether they 
have the power to represent 10 percent of the workforce or 100 
percent of the workforce? Doesn't that have everything to do 
with whether they are in a position to bargain?
    Mr. Cohen. Mr. Holt, it can be an important piece of it, 
but our laws are structured on the basis of bargaining in a 
collective bargaining unit of the recognized or certified 
bargaining unit. The employer is under an obligation to 
recognize and bargain with the union as the representative as 
to all the wages, hours, and terms and conditions of employment 
of that precise group.
    If the union is trying to establish a separate collective 
bargaining unit and wants to use its leverage in unit ``A'' in 
order to get unit ``B'' easier to it, I would submit--and the 
law is not perfectly clear in this area--that that ought to be 
a so-called non-mandatory subjective bargaining and something 
about which the union should not be permitted to bargain to 
impasse or to strike over.
    And, in fact, Ms. Schiffer I believe twice mentioned a 
study that unions go about getting these agreements by good old 
fashioned work stoppages. Frankly, that troubles me a good 
deal, because we are typically dealing with out-of-unit 
personnel. But in an aggregate sense, of course, if a union has 
a 100 percent representation it will have--
    Mr. Holt. So you are really asking for a fundamental change 
in the NLRB. And so I guess that leads to the question what has 
changed? A couple of you have mentioned that we now live in a 
global economy. Does that mean the workers have the employer 
over a barrel as opposed to the other way around? I'm not sure 
that the fundamental relationship between employers and workers 
has changed since 1938.
    Yes, we have a world economy, but the reason for the NLRB 
was to protect those workers' rights. Am I right that you're 
looking for a fundamental change, and if so, why? And I suppose 
maybe the other witnesses have a comment on this.
    Mr. Cohen. I don't believe that I am advocating a 
fundamental change. What we have right now is a system where 
the norm has historically been secret-ballot elections. I 
believe it is most imperative to preserve and to not overturn 
it to instead have card-check recognition be mandated as the 
Miller-Kennedy would do. I think that would be very bad public 
policy.
    In terms of the increased use of neutrality agreement card 
check recognition, I believe that there has been a change in 
the way voluntary--so-called voluntary recognition has been--
had this increased use of it. And that's where the legislative 
change might well be called for.
    I believe that the Miller-Kennedy Bill would be radical 
legislative change.
    Mr. Holt. Ms. Schiffer or Mr. Jacob, in the few seconds 
remaining, would either of you care to comment?
    Ms. Schiffer. I think that the change has been that the 
NLRB representation process has become really a confrontational 
mechanism that forces workers through this sort of endurance 
process in order to be able to form union. And unless the 
employer chooses--it's the employer's choice to enter into an 
alternative process. That this is the only way workers can form 
a union, and the process has become so gamed by employers as to 
create delay. It has such weak remedies that it does not 
anymore protect the right of workers to organize. And that's 
what has changed.
    Mr. Jacob. The one observation I would make with respect to 
secret-ballot elections is that if you go to the numbers you 
will find that the labor unions in the U.S. win on average 50 
percent or more per year going back many, many years. Batting 
.500 would be remarkable in the major leagues.
    Mr. Holt. That's in those situations where the union has 
chosen to try to organize?
    Mr. Jacob. That's in those situations where the union has 
chosen to go to secret-ballot elections conducted by the 
National Labor Relations Board they prevailed--I think 
currently it's over 50 percent of the time.
    Chairman Johnson. Thank you, Mr. Holt.
    Mr. Holt. OK, thank you, Mr. Chairman.
    Chairman Johnson. Thank you. You know today is bring your 
children to work day across the country, and there are a few of 
them in the audience. Would all of the children who are here as 
part of their parents' bring your children to work day please 
stand up. Mr. Andrews, do you care to comment?
    Mr. Andrews. I do. I want to welcome all of the 
participants and introduce two of my friends from Marlton, New 
Jersey, Ms. Nicole Gerbreen. Nicole, can you raise your hand. 
And her sister Amira Gerbreen and my daughter Jacqueline 
Andrews and my daughter Josie Andrews. And maybe this young man 
can introduce himself too. It's nice to have you with us today. 
Thank you very much.
    Chairman Johnson. We're glad to have you all here. I want 
to thank the witnesses for your time and testimony and for the 
members' participation. And I want to tell you you've been a 
good panel and the discussion and cross talk has been good for 
all of us. If there's no further business, the Subcommittee 
stands adjourned.
    [Whereupon, at 12:28 p.m., the Subcommittee was adjourned.]
    [Additional material submitted for the record follows:]

   National Labor Relations Board Cases, Submitted for the Record by 
   Ranking Member Robert Andrews: (1) #9-CA-37493 (2) #27CA12362 (3) 
                              #340NLRB64 

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 Letter from Nancy Schiffer with Attachments, Submitted for the Record

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 Statement of Glenn M. Taubman, Staff Attorney, National Right to Work 
  Legal Defense Foundation, Inc., Springfield, VA, Submitted for the 
                                 Record

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Letter from Charles I. Cohen, Morgan, Lewis & Bockius, LLP, Washington, 
                     DC, Submitted for the Record 

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  Letter from Clyde H. Jacob III, Jones, Walker, Waechter, Poitevent, 
   Carrere & Degnegre LLP, New Orleans, LA, Submitted for the Record

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