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





            H.R. 4343, SECRET BALLOT PROTECTION ACT OF 2004

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

                                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

                               __________

                           September 30, 2004

                               __________

                           Serial No. 108-74

                               __________

  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 September 30, 2004...............................     1

Statement of Members:
    Andrews, Hon. Robert E., Ranking Member, Subcommittee on 
      Employer-Employee Relations, Committee on Education and the 
      Workforce..................................................     4
    Johnson, Hon. Sam, Chairman, Subcommittee on Employer-
      Employee Relations, Committee on Education and the 
      Workforce..................................................     1
        Prepared statement of....................................     2
    Norwood, Hon. Charlie, a Representative in Congress from the 
      State of Georgia...........................................     3

Statement of Witnesses:
    Garren, Brent, Esq., Senior Associate General Counsel, UNITE-
      HERE, New York, NY.........................................    16
        Prepared statement of....................................    17
    Hermanson, Richard, Vice President, United Screeners 
      Association Local 1, San Francisco, CA.....................    13
        Prepared statement of....................................    14
    Raudabaugh, John N., Partner, Butzel Long, Former Member of 
      the National Labor Relations Board (1990-1993), Detroit, MI     6
        Prepared statement of....................................     8
    Riley, Thomas, Service Sales Representative, CINTAS 
      Corporation, Emmaus, PA....................................    26
        Prepared statement of....................................    28

Additional materials supplied:
    Checking the Premises of ``Card Check'', submitted for the 
      record by Hon. Charlie Norwood.............................    47
    Junta Local De Conciliscion, submitted for the record by Hon. 
      Charlie Norwood............................................    46
    National Right to Work Committee, memorandum with fact sheet 
      submitted for the record by Hon. Marilyn N. Musgrave.......    51

 
            H.R. 4343, SECRET BALLOT PROTECTION ACT OF 2004

                              ----------                              


                      Thursday, September 30, 2004

                     U.S. House of Representatives

               Subcommittee on Employee-Employer Relations

                Committee on Education and the Workforce

                             Washington, DC

                              ----------                              

    The Subcommittee met, pursuant to notice, at 10:38 a.m., in 
room 2175, Rayburn House Office Building, Hon. Sam Johnson 
[Chairman of the Subcommittee] presiding.
    Present: Representatives Johnson, McKeon, Kline, Musgrave, 
Andrews, Kildee, Tierney, Holt, McCollum, Grijalva, and 
Norwood.
    Staff present: Kevin Frank, Professional Staff Member; Ed 
Gilroy, Director of Workforce Policy; Richard Hoar, Staff 
Assistant; Jim Paretti, Workforce Policy Counsel; Deborah L. 
Samantar, Committee Clerk/Intern Coordinator; Loren Sweatt, 
Professional Staff Member; Jody Calemine, Minority Counsel, 
Employer-Employee Relations; Margo Hennigan, Minority 
Legislative Assistant/Labor; and Peter Rutledge, Minority 
Senior Legislative Associate/Labor.
    Chairman Johnson. Good morning. A quorum being present, the 
Subcommittee on Employer-Employee Relations of the Committee on 
Education and the Workforce will come to order.
    We are meeting today to hear testimony on H.R. 4343, the 
``Secret Ballot Protection Act of 2004.'' Under Committee Rule 
12(b), opening statements are limited to the Chairman and the 
Ranking Minority Member of the Subcommittee. Therefore, if 
other members have statements, they may be included in the 
record.
    Mr. Norwood, whose bill this is, will be with us shortly, 
and we'll give him some time, with your approval, later.
    With that, I ask unanimous consent for the hearing record 
to remain open for 14 days to allow members' statements and 
other extraneous material referenced during the hearing to be 
submitted in the official hearing record. Without objection, so 
ordered.

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

    Good morning to all of you. Thank you for being here. I'm 
pleased to chair today's hearing on the Secret Ballot 
Protection Act, introduced by my good friend from Georgia, 
Charlie Norwood, the Chairman of the Workforce Protection 
Subcommittee.
    Today's hearing continues our comprehensive review of our 
nation's labor laws, which in many instances have not been 
substantively changed in seven decades. Given that our labor 
market reflects a vastly different and modern era, these 
hearings will determine how our labor laws may be changed to 
better address the 21st century workforce.
    As I noted at our hearing back in April, in the last 10 
years we've seen an increased effort by big labor to circumvent 
current worker protection laws by abusing the secret ballot 
process. Indeed, the use of so-called card check agreements has 
become a critical component of big labor's organizing strategy. 
This can undermine the trust between workers and their 
employers, and it's just wrong that employers are often 
pressured into accepting card checks by unions.
    We also heard expert testimony suggesting that secret 
ballot elections are more accurate indicators than 
authorization cards of whether or not employees actually wish 
to join a union. This bill responds to these concerns and would 
prohibit the use of card checks to ensure that all employees 
are allowed to cast their vote in a fair and secret ballot 
election.
    I look forward to the hearing today and yield the balance 
of my time for an explanation of the bill to the Chairman of 
the Workforce Protection Subcommittee, Congressman Norwood. 
Thank you for being with us.
    [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. I AM PLEASED TO CHAIR TODAY'S HEARING ON THE ``SECRET 
BALLOT PROTECTION ACT OF 2004''--INTRODUCED BY MY GOOD FRIEND FROM 
GEORGIA, CHARLIE NORWOOD, THE CHAIRMAN OF THE WORKFORCE PROTECTIONS 
SUBCOMMITTEE.
    TODAY'S HEARING CONTINUES OUR COMPREHENSIVE REVIEW OF OUR NATION'S 
LABOR LAWS, WHICH, FOR THE MOST PART, HAVE NOT BEEN SUBSTANTIVELY 
CHANGED IN 7 DECADES.
    GIVEN THAT OUR LABOR MARKET REFLECTS A VASTLY DIFFERENT AND MODERN 
ERA, THESE HEARINGS WILL DETERMINE HOW OUR LABOR LAWS MAY BE CHANGED TO 
BETTER ADDRESS A 21ST CENTURY WORKFORCE.
    AS I NOTED AT OUR HEARING BACK IN APRIL, IN THE LAST TEN YEARS WE 
HAVE SEEN AN INCREASED EFFORT BY BIG LABOR TO CIRCUMVENT CURRENT WORKER 
PROTECTION LAWS BY ABUSING THE SECRET-BALLOT PROCESS.
    INDEED, THE USE OF SO-CALLED ``CARD CHECK AGREEMENTS'' HAS BECOME A 
CRITICAL COMPONENT OF BIG LABOR'S ORGANIZING STRATEGY. THIS CAN 
UNDERMINE THE TRUST BETWEEN WORKERS AND THEIR EMPLOYERS.
    IT IS JUST WRONG THAT EMPLOYERS ARE OFTEN PRESSURED INTO ACCEPTING 
``CARD CHECKS'' BY THE UNIONS.
    WE ALSO HEARD EXPERT TESTIMONY SUGGESTING THAT SECRET BALLOT 
ELECTIONS ARE MORE ACCURATE INDICATORS THAN AUTHORIZATION CARDS OF 
WHETHER OR NOT EMPLOYEES ACTUALLY WISH TO JOIN A UNION.
    H.R. 4343 RESPONDS TO THESE CONCERNS, AND WOULD PROHIBIT THE USE OF 
CARD-CHECKS TO ENSURE THAT ALL EMPLOYEES ARE ALLOWED TO CAST THEIR VOTE 
IN A FAIR AND SECRET BALLOT ELECTION.
    I LOOK FORWARD TO HEARING THE TESTIMONY OF OUR WITNESSES TODAY, AND 
YIELD THE BALANCE OF MY TIME FOR AN EXPLANATION OF THE BILL TO THE 
CHAIRMAN OF THE WORKFORCE PROTECTIONS SUBCOMMITTEE, CONGRESSMAN 
NORWOOD.
                                 ______
                                 

STATEMENT OF HON. CHARLIE NORWOOD, A REPRESENTATIVE IN CONGRESS 
                   FROM THE STATE OF GEORGIA

    Mr. Norwood. Thank you very much, Mr. Chairman, and thank 
you for holding this hearing. I commend my colleague from Texas 
on his leadership on these important issues, and I appreciate 
more than you know your convening this hearing today, given the 
significance, in my mind, of the issues before us.
    We have all heard far too many stories about big labor 
bosses mounting aggressive and coercive card check campaigns to 
organize a non-union workplace. Now these aren't just stories. 
These are real people with real problems coming in to talk to 
us about them. It seems that they coerce employees--or 
employers--into agreeing to card check agreements, then 
pressure employees into signing the so-called authorization 
cards, which do little more, frankly, than deny employees the 
right to a fair and secret ballot election where nobody knows 
how you vote, nobody knows what your position is on this, and 
that is the only fair way that this can be done.
    These cards often force employees to declare their support 
for union representation in front of union operatives and 
fellow employees. That's just not right. If you vote on a 
secret ballot, nobody knows how you voted. If you have to sign 
a card, everybody knows how you voted. Workers are not offered 
a chance to vote in private. They are instead subjected to 
pressure tactics that rob them of a free choice. Those pressure 
tactics can come from many places, but they shouldn't come from 
anywhere if you're allowed a secret ballot.
    Mr. Chairman, my legislation, the Secret Ballot Protection 
Act, is simply a matter of common sense. It puts an end to 
these coercive tactics by making clear in the National Labor 
Relations Act that a union must be elected by a majority, 
unhampered majority, in a free and fair secret ballot election.
    Simply put, the Secret Ballot Protection Act does three 
things. First, it preserves the sanctity of workers' free 
choice and the right to a secret ballot election, meaning 
nobody knows how you vote.
    Second, it protects workers from intimidation, threats, 
misinformation or coercion by a union to sign an authorization 
card.
    Third, it eliminates the union's ability to pressure 
employees to agree to a card check recognition.
    H.R. 4343 would amend the National Labor Relations Act to 
provide that the NLRB may only recognize a union selected in a 
board-administered secret ballot election. I fail to understand 
what's so wrong about that.
    So many people in this Congress for years have urged that 
same thing on the rest of the world. Now it's not good enough 
in America. H.R. 4343 would make it an unfair labor practice 
for an employer to recognize a union which has not been 
selected by a majority of the employees in a secret ballot 
election, and would make it an unfair labor practice for a 
union to cause or attempt to cause an employer to bargain if 
the union was not selected in such an election.
    My colleagues, this legislation is supported by all of the 
evidence that we have heard concerning abuse of the card check 
program, and that has been a lot of evidence. Though I'm sure 
we'll hear a lot of political rhetoric today, as we have 
whenever we address these issues, the facts remain the facts.
    But one thing I've never heard is a convincing answer to 
just one simple question: What can be more fair, what can be 
more democratic and more protective of employees' rights, than 
the right to vote in a secret ballot election where nobody 
knows how you vote?
    I urge all of my colleagues to support this legislation. 
Again, I truly thank the Chairman. Mr. Chairman, I yield back 
the balance of my time.
    Chairman Johnson. Thank you for being with us, Mr. Norwood. 
Thank you for your comments. Now I yield to my distinguished 
Ranking Minority Member from New Jersey, Mr. Andrews, for 
whatever comments you wish to make.

     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. Good morning to the 
witnesses and our guests. The issue before the Committee this 
morning is how to assure that when a worker is confronted with 
a choice between choosing to join a union or not choosing to 
join a union, that that choice is made in a noncoercive, fair, 
free manner.
    I think there is unanimity on the Committee that every man 
and woman faced with that choice should be able to make the 
choice freely, free of intimidation or coercion by anyone--by 
the union that's trying to organize them, by another union that 
might be competing to organize them, and certainly by the 
employer, as well.
    My friend from Georgia indicated that we would hear a lot 
of political rhetoric today. We've already heard a lot of 
political rhetoric today from him. We hear caricatures of union 
bosses abusing the secret ballot process. We hear caricatures 
of coercion and intimidation. I have no doubt that there have 
been incidents of coercion and intimidation by workers in this 
process by union organizers. I have no doubt that that's true. 
I also have no doubt that it's true that there has been 
intimidation and coercion of employees by employers in captive 
meetings, in notices being put in people's paychecks, in 
promotion and hiring practices, as well. Our job is to look 
beyond the caricatures and look at the evidence, and I'm 
hopeful that this hearing will yield evidence as to several 
questions which I think need to be answered.
    First, I do not think, as my friend, the Chairman, 
indicated, that the card check is an abuse of the secret ballot 
process per se. In fact, the card check process as a duly 
recognized route to employee unionization has been recognized 
by the National Labor Relations Board for a very long time. It 
is potentially the subject of abuse, but the mere existence of 
the card check process, in my view, is not evidence of abuse, 
which undercuts the principal argument for Mr. Norwood's bill.
    The questions we ought to be asking here are how broad is 
the factual record of abuse of employees' free choice in the 
card check process? How often does it happen? How often are 
complaints filed? What is the resolution of those complaints? 
What remedies exist to safeguard against that process under 
present law? Are those remedies being properly enforced?
    Another set of questions we ought to look at is just how 
free and fair is the election process under a set of rules 
where the employer has virtually unfettered access to the 
voters, but where the organizers have virtually no access to 
the voters, particularly in the workplace? How often do people 
change their positions out of reasons of coercion during that 
process?
    I do not bring to this hearing a prejudice with respect to 
the answer to those questions. As I said earlier, I am certain, 
and I'm sure we'll hear from some of the witnesses this 
morning, that there has been misconduct by union organizers in 
the process of pursuing card check registration. I'm also 
certain that there has been misconduct by employers in the 
process of trying to intimidate and influence the votes of 
employees in elections.
    We should make law in this Congress based upon evidence, 
not instinct. We should look at the record that exists. We 
should not exaggerate anecdotal evidence. We should give it due 
weight. We should certainly understand, as Mr. Norwood said, 
that there are human beings attached to these problems. But the 
answer to every problem is not a new law. Very often, the 
answer to a problem is the proper enforcement of an existing 
law. And most certainly, the answer to a problem is not to 
overreact to a problem and extinguish a valid method of 
determining employee choice in the context of card check 
registration.
    Mr. Norwood is my friend, and I'm particularly respectful 
of the incredible effort he is making to serve his constituents 
in the face of some very serious health issues. A lot of people 
here, Charlie, would not do what you're doing right now, and we 
admire you for it. But I disagree with my friend on this issue. 
I think that when he asks the simple question, what could be 
more fair than a secret ballot choice for an employee, I have 
an answer to his question. What could be more fair is an 
election that is conducted in a non-coercive environment where 
neither side has the ability to unduly influence the vote of 
the employee before it is taken.
    That's the goal of the present law. I think that goal is 
contradicted by Mr. Norwood's proposal.
    We look forward to hearing the testimony of the witnesses 
this morning and thank them for their participation.
    Chairman Johnson. Thank you, Mr. Andrews. A profound 
statement, I think. You're getting better with age.
    We'll begin with our panel of distinguished witnesses. Our 
first witness today is Mr. John Raudabaugh. Mr. Raudabaugh is a 
partner in the law firm of Butzel Long in Detroit, Michigan. 
From 1990 to 1993, he served as a member of the National Labor 
Relations Board. Mr. Raudabaugh is a nationally recognized 
expert in the fields of labor law and labor relations.
    The next witness is Mr. Richard Hermanson. Mr. Hermanson is 
Vice President of the United Screeners Association Local Number 
1 in San Francisco, California. Mr. Hermanson is an employee of 
Covenant Aviation Services at the San Francisco Airport. Thank 
you for being here.
    Next on the panel is Mr. Brent Garren. Mr. Garren is a 
Senior Associate General Counsel with the international union, 
UNITE-HERE, in New York, editor-in-chief of ``How to Take a 
Case Before the NLRB,'' and is a former union co-chair of the 
ABA's Labor and Employment Section Committee on Practice and 
Procedure under the NLRA. Mr. Garren is testifying on behalf of 
UNITE-HERE.
    Finally, we'll hear from Mr. Thomas Riley. Mr. Riley is a 
service sales representative with Cintas Corporation in 
Allentown, Pennsylvania.
    Before our witnesses begin their testimony, I would like to 
remind the members, we will ask questions after the entire 
panel has testified. In addition, Committee Rule 2 imposes a 5-
minute limit on all questions. And we also would ask that you 
adhere to a 5-minute rule, as well. And I don't know if you 
watched the lights when we were talking, but they're down there 
in front of you, and the green gives you four, and the yellow 
comes on when you've got a minute left, and the red, we'd like 
for you to tie it down if you would.
    With that, I want to recognize Mr. Raudabaugh for an 
opening statement. Go ahead, sir.

 STATEMENT OF JOHN N. RAUDABAUGH, ESQ., PARTNER, BUTZEL LONG, 
   FORMER MEMBER OF THE NATIONAL LABOR RELATIONS BOARD (1990-
                       1993), DETROIT, MI

    Mr. Raudabaugh. Good morning. Chairman Johnson and members 
of the Subcommittee, I'm honored to be here today, and I thank 
you for your kind invitation.
    The only right extended by the National Labor Relations Act 
is conferred on employees--the Section 7 right to choose an 
exclusive bargaining representative or to refrain from such 
activity. The Act protects this right to choose by prohibiting 
any employer and/or union encroachment on employee free choice. 
To be sure, the Act encourages the resolution of disputes and 
indeed values industrial stability. However, third party 
exclusive representation may not be achieved at the expense of 
employee rights.
    So how is employee choice registered and majority status 
validated? Under current law, employee designation or selection 
may be by a Board supervised secret ballot election or by 
voluntary recognition based on polls, petitions, or union 
authorization cards. Of these various methods, the United 
States Supreme Court and the Board have long recognized what a 
Board-conducted secret ballot election is the most 
satisfactory, indeed preferred method of ascertaining employee 
support for a union.
    As the Board announced in General Shoe Corporation: In 
election proceedings, it is the Board's function to provide a 
laboratory in which an experiment may be conducted under 
conditions as nearly ideal as possible to determine the 
uninhibited desires of the employees. An election can serve its 
true purpose only if the surrounding conditions enable 
employees to register a free and untrammeled choice for or 
against a bargaining representative.
    Over many years, the Board has developed specific rules and 
multi-factored tests to evaluate and rule on election 
objections. In contrast, recognition based on methods other 
than a Board-conducted secret ballot election, is without these 
laboratory conditions protections, and unless the interfering 
conduct rises to the level of an unfair labor practice, there 
is no remedy for compromising employee free choice.
    Today, organized labor embraces organizing tactics 
bypassing Board-conducted secret ballot elections. The AFL-CIO 
reports that more than 80 percent of newly organized employee 
in 2002 were organized through corporate campaigns and 
bargained-for neutrality and card check agreements. Indeed, 
organized labor finds the Board election procedures broken.
    The issues of protecting free choice and validating 
employee majority preference has received periodic 
Congressional attention over the Act's 69-year history. During 
the first few years following the Act's passage, the Board 
determined majority choice by union cards and even strike 
votes. But as early as 1939, the Board became convinced by its 
experience that it is best to determine majority status by 
secret ballot.
    The Taft-Hartley debates considered but rejected an 
amendment to require an employer to bargain only with a union 
certified following an election or already recognized. But with 
little debate, Congress did amend Section 9(c) limiting 
certification to the secret ballot election process.
    In 1977, Congress again considered labor law reform, and in 
the early '90's witnessed renewed efforts for labor law 
modernization. Of concern is organized labor's latest effort to 
convince some legislators to deny employees access to 
information and to discard the secret ballot. Election systems 
are blamed for lower certification success rates because 
management has notice of the campaign period and can voice 
opposing views, whereas card check is viewed as successful 
because union organizers may be able to inflate the level of 
support through peer pressure for pro-union colleagues.
    Well, yes, it is true that the Board's secret ballot 
election is highly regulated to ensure laboratory conditions. 
And it is also true that solicitation of authorization cards is 
virtually unregulated. Justice Douglas writing for the Supreme 
Court was clearly aware of the distinctions, and he said, ``If 
we respect, as we must, the statutory right of employees to 
resist efforts to unionize a plant, we cannot assume that 
unions exercising powers are wholly benign toward their 
antagonists, whether they be non-union protagonists or the 
employer. The failure to sign a recognition slip may well seem 
ominous to non-unionists who fear that if they do not sign them 
they will face a wrathful union regime should the union win.''
    Interestingly, while organized labor and certain 
legislators advance card check and eschew the secret ballot 
election process for certifying union representation, they 
embrace the secret ballot process as a check on the employer's 
withdrawal of recognition. Apparently, organized labor wants 
the deliberative secret ballot election and attendant 
laboratory conditions on the back end when loss of majority 
status is at issue, but they reject it on the front end when 
soliciting signatures to demand recognition.
    This Secret Ballot Protection Act of 2004 should be 
enacted. The manual election is the Board's crown jewel. To 
realize the sole right extended by the Act to choose whether to 
be represented for purposes of collective bargaining, the 
employee/voter should not be denied information or informed 
choice, a secret ballot to enhance selection integrity and the 
validation of the exercise through maximum participation by the 
electorate.
    In the final analysis, organized labor's push to abandon 
the secret ballot and necessarily compromise the employee's 
right to choose is nothing new. It is high time for Congress to 
bring congruity to its 1947 effort where it amended 9(c) by now 
amending Section 9(a) to make certain that choice will be free 
because it is secret.
    Congressman Norwood and Senator Graham's bills seek a 
limited but critical repair to our nation's labor law. The long 
awaited chance to Section 9(a) will eliminate needless 
litigation. Representation rights will be determined by a 
single method, the secret ballot. These bills are not radically 
streamlining the Act by borrowing controversial interest 
arbitration from the public sector to force first contracts or 
devaluing the secret ballot and end running informed choice.
    If Board procedures result in delay or Board administration 
is not consistent or Board unit determinations are outdated, or 
if Board laboratory conditions are too antiseptic, or if Board 
remedies for violations are----
    Chairman Johnson. Sir, can you tie it down a little bit?
    Mr. Raudabaugh. I'm sorry.
    Chairman Johnson. That's all right. We've given you about 7 
minutes already.
    Mr. Raudabaugh. I will finish it immediately. Then gather 
these facts to address these others problems, and with my 
colleague from Cornell, where we disagree on this issue, those 
matters can be addressed separately, but the secret ballot is 
the essence of our democracy, and we extend that throughout the 
world.
    Thank you.
    [The prepared statement of Mr. Raudabaugh follows:]

  Statement of John N. Raudabaugh, Esq., Partner, Butzel Long, Former 
 Member of the National Labor Relations Board (1990-1993), Detroit, MI

    Chairman Johnson and Members of the Subcommittee, I am honored to 
be here today and I thank you for your kind invitation.
    I testify today in support of H.R. 4343/S.2637, The ``Secret Ballot 
Protection Act of 2004.'' The Secret Ballot election is the foundation 
of America's industrial democracy established by the National Labor 
Relations Act of 1935. As President Reagan observed in November 1985 on 
the occasion of the National Labor Relations Board's 50th Anniversary: 
``Our system of peaceful industrial relations and the National Labor 
Policy that has evolved from the Act rests on this principle of free 
choice.''
    By way of introduction, I was nominated by President George H.W. 
Bush, confirmed by the Senate and served as a Member of the National 
Labor Relations Board (``Board'' or ``NLRB'') from August 27, 1990 
through November 26, 1993. Prior to my confirmation, I practiced labor 
relations law representing management from 1977 to 1990. Before 
entering law school, I served four years as a U.S. Navy Supply Corps 
officer and earned a graduate degree in labor economics. Since leaving 
the Board, I returned to private practice. I am a Shareholder in the 
law firm of Butzel Long now celebrating 150 years of client service. On 
July 15, 2004, I, along with former Board Members J. Robert Brame III 
and Dennis M. Devaney, authored and filed a brief on behalf of 21 
Members of the U.S. House of Representatives led by Education and 
Workforce Committee Chairman Boehner and Employer-Employee Relations 
Subcommittee Chairman Johnson and Workforce Protections Subcommittee 
Chairman Norwood in the Dana/Metaldyne cases pending before the Board 
concerning union card-check voluntary recognition. The brief is 
available at www.nlrb.gov for your convenience.

            ``The free choice of the worker is the only thing I am 
            interested in.''
            Senator Robert F. Wagner, 1 Leg. History 440 (1935)

    The only right extended by the National Labor Relations Act 
(``Act'' or ``NLRA'') is conferred on employees--the Section 7 right to 
choose an exclusive bargaining representative or to refrain from such 
activity. 29 U.S.C. Sec. 157 (2004); Lechmere, Inc. v. NLRB, 502 U.S. 
527 (1992) The Act protects this right to choose by prohibiting any 
employer and/or union encroachment on employee free choice. 29 U.S.C. 
Sec. Sec. 158(a), (b) (2004) To be sure, the Act encourages the 
resolution of disputes and values ``industrial stability.'' 29 U.S.C. 
Sec. 151 (2004) However, third party exclusive representation may not 
be achieved at the expense of employee rights--``[i]ndividual and 
collective employee rights may not be trampled upon merely because it 
is inconvenient to avoid doing so.'' International Ladies' Garment 
Workers v. NLRB, 366 U.S. 731 (1961); see also Allentown Mack Sales & 
Serv. v. NLRB, 522 U.S. 359 (1998); Brooks v. NLRB, 348 U.S. 96 (1954).
    So how is employee choice registered and majority status validated? 
Under current law, employee designation or selection may be by a Board 
supervised secret-ballot election or by voluntary recognition based on 
polls, petitions, or union authorization cards. 29 U.S.C. Sec. Sec. 159 
(a), (c) (2004). Of these various methods, the United States Supreme 
Court and the Board have long recognized that a Board conducted secret-
ballot election is the most satisfactory, indeed preferred method of 
ascertaining employee support for a union. NLRB v. Gissel Packing Co., 
395 U.S. 575, 602 (1969) As the Board announced in General Shoe Corp., 
77 NLRB 124 (1948):
        In election proceedings, it is the Board's function to provide 
        a laboratory in which an experiment may be conducted, under 
        conditions as nearly ideal as possible, to determine the 
        uninhibited desires of the employees...Conduct that creates an 
        atmosphere which renders improbable a free choice will 
        sometimes warrant invalidating an election, even though that 
        conduct may not constitute an unfair labor practice. An 
        election can serve its true purpose only if the surrounding 
        conditions enable employees to register a free and untrammeled 
        choice for or against a bargaining representative.
    The Board's ``laboratory conditions'' doctrine sets a considerably 
more restrictive standard for monitoring election related misconduct 
impairing free choice than the unfair labor practice prohibitions of 
interference, restraint and/or coercion. Dal-Tex Optical, 137 NLRB 1782 
(1962) Over many years, the Board has developed specific rules and 
multi-factored tests to evaluate and rule on election objections. 
Harsco Corp., 336 NLRB 157 (2001) In contrast, recognition based on 
methods other than a Board conducted secret-ballot election is without 
these ``laboratory conditions'' protections and unless the interfering 
conduct amounts to an unfair labor practice, there is no remedy for 
compromising employee free choice.
    Notably, recognition of a majority representative affords certain 
privileges. Board certification of a bargaining representative elected 
by a majority precludes a challenge for one year, despite any interim 
loss of majority, to facilitate bargaining for an initial contract. 
Brooks v. NLRB, 348 U.S. 96 (1954) The Board created voluntary 
recognition bar attempts to do the same thing nurture the nascent 
bargaining relationship for a ``reasonable period of time.'' But what 
is reasonable has grown from three weeks to just two days short of a 
year essentially the same as that obtainable only by a Board conducted 
secret ballot election and ``laboratory conditions.'' MGM-Grand Hotel, 
329 NLRB 464 (1999) Should a collective bargaining agreement be 
reached, the contract bar attaches effectively precluding employee 
choice for up to four years. General Cable Corp., 139 NLRB 1123 (1962)
    Today, organized labor embraces organizing tactics bypassing Board 
conducted secret ballot elections. The AFL-CIO reports that more than 
80 percent of newly organized employees in 2002 were organized through 
corporate campaigns and bargained-for neutrality and card-check 
agreements. Remarks of AFL-CIO President John T. Sweeney, Executive 
Council Meeting, March 20, 2004. Organized labor finds the Board 
election procedures broken. Id.
    Apparently what's old is new again. The issues of protecting free 
choice and validating employee majority preference has received 
periodic Congressional attention over the Act's 69 year history. During 
the first few years following the Act's passage, the Board entertained 
many different means to record employee choice--authorization cards, 
union membership cards, strike votes, strike participation, and the 
acceptance of strike benefits. Sheila Murphy, ``A Comparison of the 
Selection of Bargaining Representatives in the United States and 
Canada: Linden Lumber, Gissel and the Right to Challenge Majority 
Status,'' 10 Lab. L.J. 65, 69 (1988) (citing McFarland & Bishop, Union 
Authorization Cards and the NLRB: A Study of Congressional Intent, 
Industrial Research Unit Univ. of Pa. Press (1969)). As early as 1939, 
the Board commented:
        Although in the past we have certified representatives without 
        an election . . . we are persuaded by our experience that, 
        under the circumstances of this case, any negotiations entered 
        into pursuant to determination of representatives by the Board 
        will be more satisfactory if all disagreements between the 
        parties regarding the wishes of the employees have been, as far 
        as possible, eliminated. We shall therefore direct that an 
        election by secret ballot be held. Armour & Co., 13 NLRB 567 
        (1939)
    The Taft-Hartley debates considered, but rejected, an amendment to 
require an employer to bargain only with a union certified following an 
election or already recognized. But with little debate, Congress did 
amend Section 9(c) limiting certification to the secret ballot election 
process. In 1977 Congress again considered labor law reform and in the 
early nineties witnessed renewed efforts for labor law modernization. 
And, throughout the Act's history, academicians have contributed to the 
debate. E.g., Craig Becker, ``Democracy in the Workplace: Union 
Representation Elections and Federal Labor Law,'' 77 Minn. L. Rev. 495 
(1993)
    Putting the philosophical debate aside--representative democracy as 
distinguished from industrial democracy--organized labor's complaints 
are several: election timing/delay, constituencies/unit gerrymandering, 
regulation of campaign tactics/laboratory conditions, remedies/
penalties, and defining the employer's role, if any. Id.; Adrienne E. 
Eaton and Jill Kriesky, ``Union Organizing Under Neutrality and Card 
Check Agreements,'' 55 ILR Rev. 42 (2001); Human Rights Watch, ``Unfair 
Advantage: Workers'' Freedom of Association in the United States under 
International Human Rights Standards,'' (2002); Brent Garren, ``The 
High Road to Section 7 Rights: The Law of Voluntary Recognition 
Agreements,'' 54 Labor L.J. No. 4 (2003); Nancy Schiffer, Testimony 
before U.S. Senate Labor--HHS Subcommittee Hearing, (September 23, 
2004) To be sure, labor's complaints, as well as critique from all 
affected constituencies, deserve hearing. But begin by considering 
Senator Wagner's observation:
        [A]s to . . . representation of the workers you cannot have 
        anymore genuine democracy than this. We say under Government 
        supervision let the workers themselves . . . go into a booth 
        and secretly vote, as they do for the political representatives 
        in a secret ballot, to select their choice. 1 Leg. Hist. 642 
        (1935)
    And related to the secret ballot is the necessity of information to 
enable a choice. In Thomas v. Collins, 323 U.S. 516 (1945), Justice 
Jackson observed:
        Free speech on both sides and for every faction on any side of 
        the labor relation is . . . useful . . . Labor is free to turn 
        its publicity on any labor oppression, substandard wages, 
        employer unfairness, or objectionable working conditions. The 
        employer, too, should be free to answer, and to turn publicity 
        on the records of the leaders or the unions which seek the 
        confidence of his men.
    Of concern is organized labor's latest effort to convince some 
legislators to deny employees access to information and to discard the 
secret ballot. Schiffer, Testimony, supra.; Chris Riddell, ``Union 
Certification Success Under Voting Versus Card-Check Procedures: 
Evidence from British Columbia,'' 57 ILR Rev. 493 (2004); H.R. 3078, S. 
1513 Election systems are blamed for lower certification success rates 
because management has notice of the campaign period and can voice 
opposing views, whereas card check is viewed as successful since union 
organizers may be able to inflate the level of support through peer 
pressure from pro-union colleagues. Id.
    Yes, it is true that the Board's secret ballot election is highly 
regulated--to ensure ``laboratory conditions.'' And, it is also true 
that solicitation of authorization cards is virtually unregulated. 
``Union Authorization Cards,'' 75 Yale L.J. 305 (1966). Justice 
Douglas, writing for the Court, was clearly aware of the distinctions:
        If we respect, as we must, the statutory right of employees to 
        resist efforts to unionize a plant, we cannot assume that 
        unions exercising powers are wholly benign towards their 
        antagonists whether they be nonunion protagonists or the 
        employer. The failure to sign a recognition slip may well seem 
        ominous to nonunionists who fear that if they do not sign they 
        will face a wrathful union regime, should the union win. NLRB 
        v. Savair Mfg. Co., 414 U.S. 270, 280 (1973)
    And the comments of the Fourth Circuit Court of Appeals cannot be 
ignored:
        The unsupervised solicitation of authorization cards by unions 
        is subject to all of the criticisms of open employer polls. It 
        is well known that many people, solicited alone and in private, 
        will sign a petition and, later, solicited alone and in 
        private, will sign an opposing petition, in each instance, out 
        of concern for the feelings of the solicitors and the 
        difficulty of saying ``No.'' This inclination to be agreeable 
        is greatly aggravated in the context of a union organizational 
        campaign when the opinion of fellow-employees and of 
        potentially powerful union organizers weighs heavily in the 
        balance. . . . Though the card be [sic] an unequivocal 
        authorization of representation, its unsupervised solicitation 
        may be accompanied by all sorts of representations. . . . 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. NLRB v. S.S. Logan Packaging Co., 386 F.2d 562, 565 
        (1967) See also, HR Policy Assoc. Memoranda 02-88 (2002), 04-10 
        (2004); National Right to Work Legal Defense Foundation, Inc. 
        News Releases 9/27/04, 9/8/04.
    Interestingly, while organized labor and certain legislators 
advance card check and eschew the secret ballot election process for 
certifying union representation, they embrace the secret ballot process 
as a check on an employer's withdrawal of recognition. Levitz Furniture 
Co. of the Pacific, 333 NLRB 717 (2001) Organized labor wants the 
deliberative secret ballot election and attendant ``laboratory 
conditions'' on the ``back end'' when loss of majority status is at 
issue but rejects it on the ``front end'' when soliciting signatures to 
demand recognition.
    Organized labor's objections with Board elections are directed at 
the procedural process, not the act of voting by secret ballot. 
Election delay, whether in time between petition filing and scheduled 
election or between vote tally and certification, has to do with Board 
procedures, not the act of voting by secret ballot. The issue of unit 
determination is a Board analytical procedure, not the act of voting by 
secret ballot. Ensuring ``laboratory conditions'' in the critical 
period and on election day has nothing to do with the act of voting by 
secret ballot. Whether the employer can or may speak has nothing to do 
with the act of voting by secret ballot (but much to do with informed 
choice).
    H.R. 4343/S.2637, the ``Secret Ballot Protection Act of 2004'' 
should be enacted. The manual election is the Board's ``crown jewel.'' 
San Diego Gas & Electric, 325 NLRB 1143, 1150 (1998) (Hurtgen, Brame 
dissenting). To realize the sole right extended by the Act--to choose 
whether to be represented for purposes of collective bargaining, the 
employee/voter should not be denied information for informed choice, a 
secret ballot to enhance selection integrity, and the validation of the 
exercise through maximum participation by the electorate.
        Nothing emphasizes the importance of the voter's choice more 
        than the symbolism and the drama which accompanies a manual 
        ballot. . . . The drama begins with the preelection hearing and 
        formal announcement by conspicuously posted election notices. 
        The next day the Board agent appears, surveys the facility, 
        marks off the no-campaign areas, and instructs the observers. 
        Usually with great solemnity and visibility, the agent seals 
        the ballot box, opens the polls and superintends the campaign 
        free area. Everything points to the solemnity and importance of 
        the employee's choice, and more than any words, this process 
        says to the employee, ``This is important--so important that 
        the United States Government has sent its agent to protect your 
        right to vote is a free and unfiltered election.'' Id.
    In the final analysis, organized labor's push to abandon the secret 
ballot and necessarily compromise the employee's right to choose is 
nothing new. It is time for Congress to bring congruity to its 1947 
effort amending Section 9(c) by now amending Section 9(a) to make 
certain that choice will be free because it will be secret.
    Congressman Norwood's and Senator Graham's bills seek a limited, 
but critical, repair to our nation's private sector labor relations 
law. The long awaited change to Section 9(a) will eliminate needless 
litigation--representation rights will be determined by a single 
method, the secret ballot. H.R. 4343 and S. 2637 are not radically 
``streamlining'' the Act by borrowing interest arbitration from the 
public sector to force first contract settlements or devaluing the 
secret ballot and end-running informed choice while enshrining card-
check recognition. If Board procedures result in ``delay'' or Board 
administration is not consistent or the lack of Board funds is the 
excuse for mail ballots or Board unit determinations are outdated or 
inappropriately rigid or Board ``laboratory conditions'' are too 
antiseptic or remedies for violations are too weak or non-existent or 
employers must be muzzled, then gather the facts, hold the hearings and 
let the debate air. But none of this has anything to do with the 
preservation and enabling of the right to vote, to choose 
intelligently, and in secret.
    As to the neutrality component of this new-age organizing, again, 
what is old is new again. In 1981, neutrality agreements were reviewed 
as the ``new frontier:
        Although it can be argued that neutrality agreements contain an 
        element of protected expression and that such agreements 
        reinforce the goal of reducing labor strife through peaceful 
        cooperation, these considerations must be weighed against the 
        interest of employees and, indeed, the interest of the public 
        at large in ``free, fair and informed representation 
        elections.'' When these competing interests are considered, it 
        seems that the interest of the individual employees in making 
        an informed decision in a ``free and fair election'' and the 
        interest of the public in maintaining the integrity of the 
        electoral process should prevail. It follows from this that 
        neutrality agreements violate the ``laboratory conditions'' 
        required for holding representation elections pursuant to the 
        National Labor Relations Act. Labor elections are not conducted 
        under ``laboratory conditions'' when employees are legally 
        restricted from receiving information from their employer--the 
        only interested party who realistically is able to provide a 
        point of view that differs from that of the union seeking to 
        organize the employees. Neutrality agreements therefore 
        impermissibly impair the right of employees to receive 
        information during organizing campaigns and should be held to 
        violate section 7 of the NLRA.
        Employers may agree to go along with such agreements to buy 
        labor peace, particularly if they have only a limited number of 
        unorganized facilities and do not foresee opening any new ones 
        in the immediate future. However, the group that loses the most 
        when neutrality agreements are entered into are the individual 
        employees. They are the least powerful of the relevant groups 
        and have no say in the decision to enter into such agreements. 
        Neutrality agreements prevent such employees from getting the 
        full story during an election campaign. Ultimately, under 
        neutrality agreements, the choice to be represented by a union 
        is not really a free and informed one as envisioned by the 
        drafters of the NLRA.
        An employer is and should be completely free to decide to 
        remain neutral in any given campaign. It is one thing, however, 
        for an employer to decide to remain neutral in a given 
        campaign, but it is entirely different matter to agree to 
        remain neutral in all future campaigns involving a certain 
        union. . . . [I]t would seem that neutrality agreements 
        threaten the very assumption upon which the selection of a 
        representative under NLRA depend.
        Even an employer who has a constructive working relationship 
        with a union could be expected to balk at entering into an 
        agreement which will cast doubt on the integrity of the 
        electoral process and which will jeopardize individual employee 
        rights. However, regardless of an individual employer's 
        willingness to enter into a neutrality agreement, the NLRB and 
        the courts have the ultimate responsibility for insuring the 
        rights of individual employees to a free and fair 
        representation election under the National Labor Relations Act. 
        In keeping with the responsibility, the National Labor 
        Relations Board and the courts should hold that neutrality 
        agreements fall outside the proper bounds of the National Labor 
        Relations Act. Andrew M. Kramer, Lee E. Miller, Leonard 
        Bierman, ``Neutrality Agreements: The New Frontier in Labor 
        Relations,'' 23 Boston College L. Rev. 39 (1981)
    The card check--neutrality-``bargaining to organize''-union 
corporate campaign debate is critical. Organized labor's objections to 
the procedures for Board representation casehandling deserve airing. 
But to reverse declining membership by circumventing the secret ballot 
is unacceptable. Yellow-dog contracts were considered despicable by the 
unions in the 1920's. Inducing employees into de-facto pre-hire 
agreements is much the same. Bargaining for employer silence and its 
impact on informed choice gives new meaning to the old adage--``Silence 
is Golden.''
Conclusion
    This concludes my prepared oral testimony. I look forward to 
further discussion during the question/answer period. I thank each of 
you for your service to our country, to considering the ever important 
evolution of U.S. labor relations law, and for inviting me here today.
                                 ______
                                 
    Chairman Johnson. Thank you, sir.
    Mr. Hermanson. Did you have any trouble getting out of the 
airport this morning?
    Mr. Hermanson. Pardon me?
    Chairman Johnson. Did you have any trouble getting out of 
the airport?
    Mr. Hermanson. No problem whatsoever.
    Chairman Johnson. Thank you. Go ahead.

    STATEMENT OF RICHARD HERMANSON, VICE PRESIDENT, UNITED 
        SCREENERS ASSOCIATION LOCAL 1, SAN FRANCISCO, CA

    Mr. Hermanson. My name is Richard Hermanson. I am employed 
as a transportation security screener at San Francisco 
International Airport. It is a privilege to speak before the 
Subcommittee today.
    When Covenant Aviation Security hired me in November 2002, 
I attended a new hire orientation where company officials 
introduced themselves and gave an overview of company goals as 
a contractor to the Transportation Security Administration. 
Midway in the orientation, a union representative from Service 
Employees International Local 790 was also given a turn at the 
podium. He spoke briefly, explained what a union security 
clause is, and that we had 30 days to comply with the security 
clause. To this day, I do not know why the company recognized 
the union, but it did for a time until a charge was filed with 
the NLRB Region 20 and the company and union agreed to no 
longer enforce the existing collective bargaining agreement.
    United Screeners Association Local 1 was then started by a 
number of my co-workers, who, like myself, were extremely 
displeased with SEIU representation. A petition was passed, and 
once it was signed by 30 percent of the workforce, we met to 
discuss filing the petition. 790 was also passing 
representation cards at this time. As we discussed filing the 
petition, we were stuck on one critical issue--a proper filing 
would exclude SEIU 790 from the ballot. We did what we felt was 
the right thing. We fled the petition as a ``guard'' unit, and 
Region 20 ultimately approved the filing.
    Undeterred, SEIU 790 immediately switched gears, telling 
screeners that an NLRB election was not the only way to achieve 
union recognition. They said that they could use signature 
cards for recognition if a majority of the workforce voted no 
and signed a petition for SEIU 790. They said that they could 
use political pressure to gain recognition. They also said that 
they could use the San Francisco Airport Labor Peace Card Check 
Ordinance to force recognition that is meant to be voluntary 
under the NLRA. Although SEIU 790 was initially successful in 
their attempt to divide the loyalties of the screeners by 
suggesting that a federally supervised secret ballot election 
was merely a prerequisite to their card count demand for 
recognition, the ultimate resolution of the campaign is still 
in doubt.
    SEIU 790 has been giving away a lot of food during the 
campaign--pizza, chocolate, chicken, and burritos are among the 
items given out. Our organizers on more than one occasion 
observed screeners ask SEIU organizers for a bite to eat and 
saw them directed to a representation petition as a 
prerequisite to receiving the good. On one occasion, an 
organizing dangling a lunch cooler in front of me to capture my 
attention approached me. I looked at him. He then asked me if 
I've signed the petition. I was on the clock, but I lost my 
cool anyway. It was an insult to have merchandise used as an 
enticement for a representation petition.
    One co-worker of mine has relayed the SEIU organizers 
showed up at his house unannounced and that he had difficulty 
getting them to leave after he let them in the house. The 
organizers finally left after he threatened to call the police. 
Organizers have been known to call the same person four times 
late in one evening in the hope that they would give in and 
commit to support SEIU. Sometimes these tactics work. We've had 
co-workers tell us that they just signed to get the organizer 
or co-worker off their back, that they were made uncomfortable 
by the peer pressure to sign a card, that they signed a fake 
name to get a free lunch cooler, or even that they believed 
signing was for the meal.
    The decision on whether to be represented by a labor 
organization is to me the most important decision an employee 
can make in the workplace. This decision should be determined 
by a secret ballot election. The campaign has a scheduled 
election date, and the campaign has the privacy of a secret 
ballot. Employees are not faced with the pressure of fielding 
the same questions over and over, questions such as are you 
ready to sign the card? and the myriad of other coercive 
tactics that I've seen employed over the past year at San 
Francisco International.
    My experience over this period suggests to me that card 
count campaigns carry the risk of a union being granted 
recognition while it does not carry true majority support; that 
there is a big difference between a majority of signatures and 
majority support.
    As an officer of United Screeners Association Local 1, I am 
not interested in our union being extended recognition where 
privacy is compromised and support is inherently tainted. These 
concerns led me to advocate for a secret ballot election at the 
workplace well before the introduction of H.R. 4343. I'm very 
fortunate to have fellow officers that are also committed to a 
secret ballot, and it follows that I support the passage of 
H.R. 4343.
    I look forward to the day where we will no longer be 
disadvantaged by filing for a secret ballot election because a 
rival, uncertifiable union has an incentive to divide the 
loyalties of the workers merely for the opportunity to conduct 
an inherently coercive card-count campaign.
    Thank you.
    [The prepared statement of Mr. Hermanson follows:]

   Statement of Richard Hermanson, Vice President, United Screeners 
                 Association Local 1, San Francisco, CA

    My name is Richard Hermanson. I am employed as a transportation 
security screener at San Francisco International Airport. It is a 
privilege to speak before the subcommittee today.
    When Covenant Aviation Security hired me in November 2002, I 
attended a new hire orientation where company officials introduced 
themselves and gave an overview of company goals as a contractor to the 
Transportation Security Administration. Midway in the orientation, a 
union representative from Service Employees International Union Local 
790 was also given a turn at the podium. He spoke briefly, explained 
what a union security clause is, and that we had thirty days to comply 
with the security clause. To this day I do not know why the company 
recognized the union, but it did for a time until a charge was filed 
with the National Labor Relations Board Region 20, and the company and 
union agreed to no longer enforce the existing collective bargaining 
agreement.
    United Screeners Association Local 1 was then started by a number 
of my co-workers who, like myself, were extremely displeased with SEIU 
representation. A representation petition was passed, and once it was 
signed by 30% of the workforce, we met to discuss filing the petition. 
SEIU 790 was also passing representation cards at this time. As we 
discussed filing the petition, we were stuck on one critical issue-a 
proper filing would exclude SEIU 790 from the ballot. We did what we 
felt was the right thing-we filed the petition as a ``guard'' unit, and 
Region 20 ultimately approved the filing.
    Undeterred, SEIU 790 immediately switched gears, telling screeners 
that an NLRB election was not the only way to achieve union 
recognition. They said that they could use signature cards for 
recognition if a majority of the workforce voted ``No'' and signed a 
petition for SEIU 790. They said that they could use political pressure 
to gain recognition. They also said that they could use the San 
Francisco Airport Labor Peace Card Check Ordinance to force recognition 
that is meant to be voluntary under the National Labor Relations Act. 
Although SEIU 790 was initially successful in their attempt to divide 
the loyalties of the screeners by suggesting that a federally 
supervised secret-ballot election was merely a prerequisite to their 
card count demand for recognition, the ultimate resolution of the 
campaign is still in doubt.
    SEIU 790 has been giving away a lot of food during the campaign. 
Pizza, chocolate, chicken and burritos are among the items given out. 
Our organizers on more than one occasion observed screeners ask SEIU 
organizers for a bite to eat, and saw them directed to a representation 
petition as a prerequisite to receiving the food. On one occasion, an 
organizer dangling a lunch cooler in front of me to capture my 
attention approached me. I looked at him and he asked me if I've signed 
the petition. I was on the clock but I lost my cool anyway. It was an 
insult to have merchandise used as an enticement for a representation 
petition.
    The SEIU organizers clearly keep a database on who has not signed a 
card. They wait after work for the unsigned to clock out and pressure 
them to ``make a commitment'' and sign cards. This one-on-one targeting 
is not merely attempts to convey information about the benefits of 
unionization-they are attempts to get signatures for recognition 
without the privacy of a secret ballot.
    One coworker of mine has relayed that SEIU organizers showed up at 
his house unannounced, and that he had difficulty getting them to leave 
after he let them in the house. The organizers finally left after he 
threatened to call the police. Organizers have been known to call the 
same person four times late one evening in the hope that they would 
give in and commit to support SEIU.
    Sometimes these tactics work. We've had coworkers tell us that they 
just signed to get the organizer or coworker off their back, that they 
were made uncomfortable by the peer pressure to sign a card, that they 
signed a fake name to get a free lunch cooler, or even that they 
believed signing was for the meal.
    The decision on whether to be represented by a labor organization 
is to me the most important decision an employee can make in the 
workplace. This decision should be determined by a secret ballot 
election. The campaign has a scheduled election date, and the campaign 
has the privacy of a secret ballot. Employees are not faced with the 
pressure of fielding the same questions over and over, questions such 
as ``Are you ready to sign the card?'' and the myriad of other coercive 
tactics that I've seen employed over the past year at San Francisco 
International Airport. My experience over this period suggests to me 
that card count campaigns carry the risk of a union being granted 
recognition while it does not carry true majority support, that there 
is a big difference between a majority of signatures and majority 
support.
    As an officer of United Screeners Association Local 1, I am not 
interested in our union being extended recognition where privacy is 
compromised and support is inherently tainted. These concerns led me to 
advocate for a secret-ballot election at the workplace well before the 
introduction of H.R. 4343. I am very fortunate to have fellow officers 
that are also committed to a secret ballot, and it follows that I 
support the passage of H.R. 4343. I look forward to the day where we 
will no longer be disadvantaged by filing for a secret-ballot election 
because a rival, uncertifiable union has an incentive to divide the 
loyalties of the workers merely for the opportunity to conduct an 
inherently coercive card-count campaign.
    Thank you.
                                 ______
                                 
    Chairman Johnson. Thank you, sir. I appreciate your 
comments.
    Mr. Garren, you may begin your testimony.

   STATEMENT OF BRENT GARREN, ESQ., SENIOR ASSOCIATE GENERAL 
               COUNSEL, UNITE-HERE, NEW YORK, NY

    Mr. Garren. Thank you, Mr. Chairman, and thank you, 
Congresspeople, for giving me this opportunity to speak to you 
on a subject which I think we can all agree is of enormous 
importance to millions of working people in this country and 
enormous importance to our society. And I thank you for holding 
a hearing on the subject of defending employees' freedom of 
choice whether to unionize or not, because you are 100 percent 
right in your sense that that right is under attack.
    Where we disagree is the source of that attack. It is 
employers' fierce, unrelenting, and often unlawful opposition 
to unionization that has been strangling employees' freedom to 
choose whether to organize or not; and H.R. 4343 would make 
this problem far worse, not better.
    The National Labor Relations Board election process that is 
being held up as the instrument through which employees can 
exercise their free choice is extraordinarily flawed and 
ineffective in at least four ways. One, there's enormous delay 
built into the election process, not just delay prior to the 
election, but delay of up to three or 4 years is routine 
between an election and certification if an employer chooses to 
pursue even the most frivolous sort of objections. And there 
are hundreds of such cases. Our courts of appeals and the NLRB 
have hundreds of such cases.
    Delay in obtaining the right to bargain means effectively 
denying that right to bargain. Workers get discouraged, and the 
impulse to unionization is effectively destroyed.
    Second, the current election system allows employers to 
engage in massive, unrelenting Vote No campaigning, the sheer 
volume and intensity of which is extraordinarily coercive, and 
it is even more so in contrast to the extraordinarily limited 
access that union organizers have to employees.
    Employers regularly have multiple captive audience meetings 
where employees are required on paid time to listen to anti-
union message and can be discharged if they either refuse to 
listen to that message or choose to stand up and express their 
viewpoint when they have been instructed to remain silent.
    I don't believe that's democracy. I don't believe that's 
how we run political elections. I don't believe that any of you 
would find it fair when you were running for Congress if your 
opponents could require the voters to attend meetings, and if 
they didn't attend, your opponent could fire them. That does 
not strike me as American elections. Maybe it's the way they 
run elections in some dictatorships around the world, but not 
in America.
    There was recently a case where the NLRB approved the right 
of employers to send ride-alongs with truck drivers so that for 
10 to 12 hours a day, a management official rode with a truck 
driver to tell them why the company opposed the union, and this 
averaged three times for each driver during the election 
campaign.
    What is the access the union gets to voters in an election 
campaign? They have the right to go to their home and try to 
talk to them if the worker has the time and the interest. What 
does this mean for deciding the election, for swing voters, for 
undecided and uninterested voters? It means the company can 
force them to hear their message endlessly, and the union has 
no meaningful opportunity to speak to them. That is not 
American elections as I understand them.
    Third, there are enormous unfair labor practices committed 
by employers. And I remind you of the old saying, data is not 
the plural of anecdote. There are facts that the NLRB has 
compiled in terms of unfair labor practices. The number of 
firings of union supporters in organizing drives has 
skyrocketed. Every single study that has examined NLRB 
statistics has shown an enormous increase in such firings. 
Depending on the timeframe, from the '50's to the '80's, the 
'60's to the '90's, you're looking at increases of 800 or 1,400 
percent.
    Finally, with the NLRB election procedure, once workers 
have run the gauntlet of an NLRB election, they still do not 
have a contract. And approximately half the time that workers 
vote for unionization, they never get a contract. That is a 
massive denial for tens of thousands of workers of their right 
to freedom to choose, and that's what I would urge you to 
consider solving.
    Thank you very much.
    [The prepared statement of Mr. Garren follows:]

  Statement of Brent Garren, Esq., Senior Associate General Counsel, 
                        UNITE-HERE, New York, NY

    Thank you for inviting me to testify before this Sub-committee 
today. My name is Brent Garren, and I am the Senior Associate General 
Counsel of the international labor union, UNITE-HERE, AFL-CIO, CLC, on 
whose behalf I am testifying. The subject of today's hearing is H.R. 
4343, the ``Secret Ballot Protection Act of 2004.'' We oppose H.R. 4343 
because it would inflict great harm on the twin goals of our federal 
labor policy protecting employees'' free choice to organize a union or 
not and promoting industrial stability. In addition, H.R. 4343 would 
displace private agreements among parties with a major expansion of 
government prohibitions and regulations, a serious blow to the uniquely 
American system of industrial relations, which relies so heavily on 
private party agreements to determine terms and conditions of 
employment.
    Voluntary recognition agreements (``VRAs''), also known as 
``neutrality agreements'' or ``card check agreements'' depending on 
their features, are an increasingly widespread and important aspect of 
America's labor relations landscape. Unions are turning to VRAs with 
increasing frequency because of their enormous frustration at the 
weakness of the NLRB machinery to realize the promise of employees' 
right to organize. The great majority of newly-organized members of my 
union, UNITE-HERE, which organizes very aggressively, come in through 
VRAs. Both opponents and proponents of VRAs agree that they produce a 
far higher rate of union success than the NLRB's election process.\1\ 
VRAs are critical to the realization of employees'' right to organize 
in the 21st century.
---------------------------------------------------------------------------
    \1\ One study found that the rates of success across organizing 
campaigns governed by card check recognition and card check recognition 
with so-called ``neutrality'' provisions were 62.5% and 78.2%, 
respectively, as compared with the NLRB election win rate for 1983-98 
of 45.64%. Adrienne E. Eaton and Jill Kriesky, Union Organizing Under 
Neutrality and Card Check Agreements, 55 Ind. & Lab. Rel. Rev. 42, 51-
52. See also David E. Weisblatt, Neutrality Agreements are Neither 
Neutral Nor Very Good for Employers, McDonald Hopkins, at http://
www.mhbh.com/topics/business/neutrality.html (citing percentages of 
union victories in card check recognition campaigns [78%] and secret 
ballot elections [53%]).
---------------------------------------------------------------------------
    As we argue below, VRAs are a good thing, because they further the 
twin goals of our national labor policy: employee freedom of choice and 
industrial stability. Moreover, VRAs further another cornerstone of our 
labor policy: the principle that voluntary agreements developed in the 
give and take between private parties best tailor solutions for their 
specific circumstances. Part I of this discussion looks at the range of 
provisions available in creating VRAs. Part II demonstrates that VRAs 
further federal labor policy and, therefore, should be viewed favorably 
by our national labor policy. Part III examines H.R. 4343 specifically.
              I.What Are Voluntary Recognition Agreements?
    The general term ``VRA'' refers to a broad range of agreements 
between an employer and a union that affect the representation process 
for the employer's employees. We use the term ``VRA'' rather than 
``neutrality/card check agreement'' because VRAs contain a very wide 
range of provisions. Many require neither employer neutrality nor card 
check recognition.
    VRAs can occur when a union represents some of the employees and 
seeks to represent others, or when a union seeks representation for the 
first time with an employer's employees. Most VRAs address some or all 
of the following subjects:
    (1) Recognition procedures. Most agreements call for recognition 
based on a certification of the union's majority status demonstrated by 
a review of signed authorization cards by a third party. However, VRAs 
may instead provide for private, non-Board elections or NLRB-conducted 
elections. Some agreements have a hybrid, in which the nature of the 
recognition process depends on the strength of union support manifested 
by authorization cards.\2\
---------------------------------------------------------------------------
    \2\ Eaton and Kriesky, supra note 2, at 48. In one common 
variation, over 65% cards signed leads to card check recognition, 50-
65% triggers a non-NLRB election, and between 33%-50% leads to a Board 
election.
---------------------------------------------------------------------------
    (2) Definition of the bargaining unit. Most agreements provide for 
a stipulated group of employees for which the VRA will operate and whom 
the union seeks to organize.
    (3) Access provisions. Some VRAs provide for limited union access 
to the employer's facilities and/or the provision of employee rosters.
    (4) Dispute resolution procedures. The vast majority of VRAs 
outline dispute resolution procedures to address violations of the VRA, 
unfair labor practices, or other disputes.
    (5) Limits on campaigning. The variety of campaigning provisions is 
especially great. Some VRAs require that the employer be ``neutral,'' 
by not supporting or opposing the union's organizing efforts. Many 
others limit the employer's campaign by prohibiting the fear-mongering 
attacks on unions and the dire predictions of disaster following 
unionization that have become commonplace in NLRB election campaigns. 
These provisions permit the employer to stress the positives of its 
employment record, or to conduct ``fact-based'' campaigns to present 
the company's position. In one such clause, the employer committed 
itself to ``communicat[ing] with [its] employees, not in an anti-
[union] manner, but in a positive pro-[company] manner.'' \3\ In 
another agreement, the employer pledged ``to communicate fairly and 
factually to employees in the unit sought concerning the terms and 
conditions of their employment with the company and concerning 
legitimate issues in the campaign.'' \4\ Yet another variant is to 
limit the methods in the employer's campaign, rather than its content. 
In one UNITE VRA, we agreed that the employer would address all the 
employees at the onset of a short campaign period (in a debate format 
in which the union also spoke). It was free to argue against 
unionization in any manner it wished. It was, however, thereafter 
prohibited from campaigning, including holding captive-audience 
speeches or conducting one-on-one meetings. Finally, in some such 
clauses the employer merely pledges to ``strive to create a climate 
free of fear, hostility, or coercion.'' \5\
---------------------------------------------------------------------------
    \3\ International Union v. Dana Corp., 278 F.3d 548, 551 (6th Cir. 
2002) (quoting Joint Agreement at 92).
    \4\ Roger C. Hartley, Non-Legislative Labor Law Reform and Pre-
Recognition Labor Neutrality Agreements: The Newest Civil Rights 
Movement, 22 Berkeley J. Emp. & Lab. L. 369, 380 n.59 (2001) (quoting 
Kerri J. Selland, AK Propaganda War Erupts, Am. Mtl. Mkt., May 18, 
1995, at 2, available in 1995 WL 8070195).
    \5\ Eaton and Kriesky, supra note 2, at 47.
---------------------------------------------------------------------------
    Many VRAs also include restrictions on the union's campaigning. 
More than three-quarters of Eaton and Kriesky's sample of agreements 
set limits on the union's behavior.\6\ Unions often commit to notifying 
the employer of the union's intention to initiate a union organizing 
campaign.\7\ Commonly, they also prohibit the union from picketing or 
striking during the recognition process. They may also limit the length 
of the union's campaign period, \8\ ban the union from denigrating or 
disparaging the employer, \9\ or allow the employer special rights to 
respond to misstatements of fact by the union.\10\ As noted above, they 
may require the union to obtain a supermajority of employee support to 
obtain card check recognition.\11\ Finally, if disputes occur, unions 
(as well as employers) are typically committed to participate in 
dispute resolution processes.\12\
---------------------------------------------------------------------------
    \6\ Id. at 48.
    \7\ Id.
    \8\ Id.
    \9\ Id.
    \10\ Id.
    \11\ Id.
    \12\ Id.
---------------------------------------------------------------------------
                    II.The Policy Rationale for VRAs

    The primary goals of national labor policy, as implemented by the 
Act, are twofold: to assure employee free choice to engage in or 
refrain from organizing and collective bargaining, and to maintain 
industrial peace.\13\ In furthering these principles, federal labor 
policy highly values ``freedom to contract'' between employers and 
unions.\14\ All three of these aims are promoted by giving deference to 
VRAs, and each will be examined in turn.
---------------------------------------------------------------------------
    \13\ See Fall River Dyeing & Finishing Corp. v. N.L.R.B., 482 U.S. 
27, 38 (1987); National Labor Relations Board, The NLRB: What It Is, 
What It Does, available at http://www.nlrb.gov/publications/
whatitis.html.
    \14\ See N.L.R.B. v. American National Ins. Co., 343 U.S. 395 
(1952); Stanley D. Henderson, Labor Law: Cases and Comment 90 
(Foundation Press 2001).
---------------------------------------------------------------------------
A. VRAs Promote Employee Free Choice
    The differential in organizing success between VRAs and NLRB 
elections is undisputed. Are NLRB elections distorted by employer 
coercion, or is recognition under VRAs instead distorted by union 
coercion, as the critics of VRAs charge? \15\ In today's labor 
relations landscape, scarred by massive employer interference with 
employee Section 7 rights, the answer is crystal-clear: VRAs are an 
antidote to venomous employer ``vote no'' campaigns which routinely 
poison the NLRB election process.
---------------------------------------------------------------------------
    \15\ ``I wonder why the Unions were unwilling to go to elections to 
avoid this result. Was it because they doubted that the employees who 
signed cards would vote the same way in secret elections?'' Jonathan 
Kane and James P. Thomas, Pall Corp. v. NLRB What About Section 7? 7 
(2003) (unpublished paper presented to ABA Labor and Employment Law 
Section Sub--Committee on Practice and Procedure under the NLRA, Pepper 
Hamilton LLP). (quoting Houston Div. of the Kroger Co. (Kroger II), 219 
N.L.R.B. 388, 391 (1975) (Kennedy, M., dissenting)). See also 
Weisblatt, supra note 2.
---------------------------------------------------------------------------
            1. NLRB Elections Do Not Protect Employee Free Choice

    The current framework of NLRB representation procedures and unfair 
labor practice doctrines, including remedies, was established in the 
decades following the passage of Taft-Hartley. The law developed at a 
time when employer hostility to unions was much less vehement. In the 
1950s and 60s, employers did not routinely engage in the massive legal 
and illegal sabotage of employee Section 7 rights that are commonplace 
today. Despite these changes, the NLRB has taken no serious measures to 
ensure that its representation and unfair labor practice procedures 
effectively protect employee free choice in today's context.
    The representation process is flawed in four fundamental respects. 
First, an employer can delay the representation process so that it can 
either dissipate the union's majority before the election or destroy 
the union's bargaining power before it is required to bargain.\16\ My 
union, for example, endured a delay while an employer litigated a 
single issue whether UNITE (a predecessor union) was a labor 
organization under the Act. Many other hearings have little more merit 
than this. Moreover, even after a union has won an election, no 
enforceable court order will issue requiring bargaining until three or 
four years have passed.\17\ The effects on employees are well-
documented and disastrous. One study found that the unionization rate 
drops by 2.5% for each additional month between petition and election, 
\18\ while another found a drop of 0.29% for each day of delay.\19\
---------------------------------------------------------------------------
    \16\ See Hartley, supra note 6, at 381-82; Andrew Strom, Rethinking 
the NLRB's Approach to Union Recognition Agreements, 15 Berkeley J. 
Emp. & Lab. L. 50, 53-55 n.59 (1994)
    \17\ See Parts Depot, Inc., 332 N.L.R.B. No. 64, slip. op. at 7 
(2000) (citing Garvey Marine, 328 N.L.R.B. No. 147, slip. op. at 7 
(1999)).
    \18\ Paul C. Weiler, Promises to Keep: Securing Workers' Rights to 
Self Organization under the NLRA, 96 Harv. L. Rev. 1769, 1777 (1983) 
(citing Prosten, The Longest Season: Union Organizing in the Last 
Decade, a/k/a How Come One Team Has to Play with its Shoelaces Tied 
Together?, 31 PROC. ANN. MEETING INDUS. REL. RESEARCH A. 240, 243 
(1978)).
    \19\ Id. (citing Roomkin & Juris, Unions in the Traditional 
Sectors: The Mid--Life Passage of the Labor Movement, 31 PROC. ANN. 
MEETING INDUS. REL. RESEARCH A. 212, 217--18 (1978)).
---------------------------------------------------------------------------
    Second, even if the employer limits its campaign to lawful 
activity, the volume and vehemence of the employer's campaign can 
terrorize workers. Employers often drown workers in a tidal wave of 
predictions about the calamities that will befall any workplace so 
unwise as to unionize. The incessant pounding of captive audience 
meetings and one-on-one meetings has nothing to do with a rational 
exchange of opinions in the free marketplace of ideas, but is intended 
to intimidate. The ALJ in Parts Depot, Inc., \20\ which upheld UNITE's 
claim of several employer unfair labor practices, discussed the 
employer's captive audience meetings, which he found completely lawful:
---------------------------------------------------------------------------
    \20\ Parts Depot, Inc., 332 N.L.R.B. No. 64 (2000).
---------------------------------------------------------------------------
        If phrased in terms of war, [the company's] response was 
        equivalent to America's B-52 carpet bombing of the Iraqi front 
        line forces at the 1991 opening of ``Desert Storm'' in the 
        Persian Gulf War. As the Iraqis stumbled from their trenches 
        begging the advancing United States soldiers to accept their 
        surrender, so too, figuratively, the [company's] employees, 
        shell shocked from the long series of verbal ``carpet bombing'' 
        speeches and videos, would have stumbled toward the voting 
        booths, begging for the chance to vote against the Union. . . 
        This is not to say that the speeches and videotapes . . . 
        constitute a threat . . .\21\
---------------------------------------------------------------------------
    \21\ Id., slip op. at 14.
---------------------------------------------------------------------------
    The great disparity in access to the voters makes NLRB elections 
unfair. Employers can and routinely do, require employees to listen to 
multiple anti-union speeches and watch anti-union videos. An employee 
may be disciplined for refusing to attend anti-union meetings or for 
speaking out in favor of the union when instructed to be silent
    In a recent NLRB case, Frito-Lay, Inc., \22\ the employer sent 
``ride-alongs'' to ride 10-12 hours a day with truck driver-voters, 
explaining the employer's opposition to the union. These ride-alongs, 
including high level management officials, accompanied the voters on a 
average of 3 times each during the election campaign. An employee had 
to specifically tell management that he did not want a ride-along to 
avoid them. The Board found this perfectly acceptable. In contrast, the 
union has no access to voters during work time and cannot compel voters 
to hear its message. An undecided or uninterested voter can completely 
avoid the union's message if he prefers, but can be forced to listen to 
the employer's anti-union message virtually without limit.
---------------------------------------------------------------------------
    \22\ 341 NLRB No. 65 (March 31, 2004)
---------------------------------------------------------------------------
    Third, employer unfair labor practices during NLRB election 
campaigns have become routine.\23\ All available statistics tell the 
same story: employer unfair labor practices have soared since the 1950s 
and 1960s, devastating Section 7 rights. One study showed that, in 
1969-1976, the number of workers receiving back pay under Section 
8(a)(3) of the Act totaled approximately 1.2% of voters in 
representation elections. In 1984-1997, that figure increased by almost 
800%, to a level of 9.5%.\24\ LaBlonde and Meltzer, who criticized 
figures in earlier studies as being exaggerated, nevertheless found a 
600% increase in the relative incidence of discriminatory discharges 
from the late 1960s to late 1980s, \25\ while another study revealed a 
14-fold increase in employer discrimination against union activists 
during organizing drives between the 1950s and the late 1980s.\26\ Yet 
another report found that 31% of all employers illegally fire at least 
one worker for union activity during organizing campaigns.\27\ The 
former president of the National Academy of Arbitrators, the nation's 
leading organization of labor--management neutrals, stated in 1996 that 
``[t]he intensity of opposition to unionization which is exhibited by 
American employers has no parallel in the western industrial world.'' 
\28\
---------------------------------------------------------------------------
    \23\ See Brent Garren, When the Solution is the Problem: NLRB 
Remedies and Organizing Drives, 51 Lab. L.J. 76, 76-8 (2000) (surveying 
numerous studies).
    \24\ Id. at 77 (citing Charles J. Morris, A Tale of Two Statutes: 
Discrimination for Union Activity Under the NLRA and RLA, 2 Emp. Rts. 
Emp. Pol. J. 317, 329-30 (1998)).
    \25\ Id. (citing Robert J. LaBlonde & Bernard D. Meltzer, Hard 
Times for Unions: Another Look at the Significance of Employer 
Illegalities, 58 U. Chi. L. Rev. 953 (1991)).
    \26\ Garren, supra note 21, at 77 (citing Commission on the Future 
of Worker-Management Relations, Fact Finding Report, issued by the 
Commission on the Future of Worker-Management Relations, June 2, 1994, 
as reprinted in the Daily Labor Report, June 3, 1994 at WL * 191).
    \27\ Kate Bronfenbrenner, The Effects of Plant Closings or Threats 
of Plant Closing on the Rights of Workers to Organize, Labor 
Secretariat of the North American Commission for Labor Cooperation 
(1996).
    \28\ Human Rights Watch, Unfair Advantage: Workers' Freedom of 
Association in the United States Under International Human Rights 
Standards (2000) (quoting Theodore St. Antoine, Federal Regulation of 
the Workplace in the Next Half Century, 61 Chi.-Kent L. Rev. 631, 639 
(1985).
---------------------------------------------------------------------------
    The rising tide of employer unfair labor practices, and 
particularly discriminatory discharges, against union supporters has 
contributed directly to the erosion of union win rates in 
elections.\29\
---------------------------------------------------------------------------
    \29\ See Garren, supra note 21, at 77-78 (citing Paul C. Weiler, 
Hard Times for Unions: Challenging Time for Scholars, 58 U. Chi. L. 
Rev. 1015, 1029-30 (1991); William Dickens, The Effect of Company 
Campaigns On Certification Elections: Law and Reality Once Again, 36 
Ind. and Lab. R. 560, 574 (1983)); Eaton and Kriesky, supra note 2, at 
43.
---------------------------------------------------------------------------
    The remedies available to workers coerced in exercising their 
Section 7 rights (including postings and reinstatement with back pay) 
are insufficient both to deter such abuses or to erase their 
undermining of employee free choice. Postings are not likely to 
dissipate the effect of employer threats.\30\ Reinstated workers often 
are ``so scarred by the discharge experience that they do not resume 
union activities,'' and studies show most reinstated workers are gone 
within a year, many reporting bad company treatment.\31\ More than two-
thirds of rerun elections produce the same result as the election 
overturned due to objectionable conduct.\32\
---------------------------------------------------------------------------
    \30\ In light of the findings of a 1991 poll (that 59% of workers 
believed they would lose favor with their employer for supporting a 
union and 79 % agreed that workers and ``very'' or ``somewhat'' likely 
to be fired for trying to organize a union), ``the idea that a piece of 
paper on the wall dissipates the effect of employer threats borders on 
the absurd.'' Id. at 78.
    \31\ See id. at 80 (citing Les Aspin, Legal Remedies under the NLRA 
Under 8(a)(3), (1970), as reprinted in Julius G. Getman & Jerry R. 
Andersen, 6 Labor Relations and Social Problems 133, 134 (1972)).
    \32\ Id. at 81 (citing Daniel Pollitt, NLRB Re-run Elections: A 
Study, 41 N.C. L. Rev. 209, 212 (1963)).
---------------------------------------------------------------------------
    Fourth, winning an NLRB election, with all its delay and emotional 
drain on employees, is, by itself, insignificant. If employees cannot 
obtain a collective bargaining agreement, then their freedom to choose 
unionization has been denied. Continuing employer hostility results in 
only a narrow majority of election victories leading to the achievement 
of collective bargaining agreements. From 1975 to 1993, the success 
rate for obtaining first contracts fell from 78% to 55.7%.\33\
---------------------------------------------------------------------------
    \33\ Id. at 78 (citing Benjamin W. Wolkinson, et. al., The Remedial 
Efficacy of Gissel Bargaining Orders, 10 Ind. Rel. L.J. 509-10 n.3 
(1989); Dunlop Commission Report, supra note 24, at WL * 197-98).
---------------------------------------------------------------------------
    The result of these factors is that the usual NLRB election is 
poisoned by employer coercion. A 1991 poll showed that 59% of workers 
believed they would lose favor with their employer for supporting a 
union and 79% agreed that workers are ``very'' or ``somewhat'' likely 
to be fired for trying to organize a union, with 41% of non-union 
workers believing ``it is very likely that I will lose my job if I 
tried to forma union.'' \34\ This widespread and (unfortunately) 
reasonable fear means that in most NLRB elections employer coercion has 
``the tendency to undermine [the union's] majority strength and impede 
the election process.'' \35\ For the same reasons that the Supreme 
Court found that requiring recognition based on a card majority 
appropriate in Gissel, so too is voluntary recognition appropriate and 
necessary to protect employees' right to organize.
---------------------------------------------------------------------------
    \34\ Commission on the Future of Worker-Management Relations, Fact 
Finding Report (Dunlop Commission), p. 40.
    \35\ Gissel at 614.
---------------------------------------------------------------------------
            2. VRAs Further Employee Free Choice
    VRAs protect employee free choice by eliminating crippling delay 
and employer coercion. Typically, representation issues are 
definitively resolved through VRAs in weeks or months rather than 
years. VRAs severely restrict delay prior to determining the union's 
majority support. The parties agree to a definition of the bargaining 
unit, eliminating the lengthy NLRB process of a hearing and appeal to 
Washington. Disagreements are typically resolved through arbitration, 
often with expedited procedures. Because the elimination of delay at 
the ``front end'' of the process is of great important to defending 
employee free choice, VRAs often limit the campaign period to further 
produce a speedy result.\36\
---------------------------------------------------------------------------
    \36\ For example, UNITE has entered into agreements limiting the 
campaign period to 15 days.
---------------------------------------------------------------------------
    For example, one SEIU agreement stated that the parties would 
jointly choose an election officer, who would both direct an election 
within five working days following the union's presentation of cards 
from at least 30% of the employees and oversee the election within 35 
days in accordance with NLRB guidelines for assessing the validity of 
election results.\37\ Other VRAs may provide for NLRB elections, but 
contain commitments by the employer not to cause delay.\38\
---------------------------------------------------------------------------
    \37\ Agreement, [Employer] and Service Emp. Int'l Union (1991) (on 
file with author).
    \38\ Hartley, supra note 6, at 382.
---------------------------------------------------------------------------
    VRAs may also minimize the delay between recognition, if attained, 
and the completion of a first contract. Many VRAs allow for decision by 
an arbitrator or similar neutral in the event that a party to the 
agreement fails in its duty to bargain. As discussed below, unions may 
obtain court orders under Section 301 enforcing arbitration decisions. 
Such a process is far quicker than an unfair labor practice proceeding 
through the Board to the Court of Appeals. An intransigent employer 
may, of course, appeal the district court's enforcement of an 
arbitration award, but this is unlikely to be successful.
    VRAs also can help curb employer intimidation, through the variety 
of campaign limitations discussed above. Not only are coercive employer 
actions less likely in such an environment, but arbitration or other 
dispute resolution processes in VRAs can resolve potential violations 
much more expeditiously, and impose a wider array of remedies, than 
NLRB proceedings.\39\ For example, one UNITE agreement provided for one 
of a panel of arbitrators to hold a hearing on complaints of campaign 
misconduct within 24 hours of the complaint and for a bench decision to 
issue.
---------------------------------------------------------------------------
    \39\ Despite this flexibility, however, ``arbitrators arguably have 
been quite conservative in the remedies they have, in practice, 
ordered.'' Eaton and Kriesky, supra note 2, at 54 (citing Adrienne 
Eaton and Debra Casey, Bargaining to Organize: Disputes and Their 
Resolution, unpublished manuscript, Rutgers University (2001)). But see 
George N. Davies, Neutrality Agreements: Basic Principles of 
Enforcement and Available Remedies, 16 Lab. Law. 215, 220-221 (2000) 
(highlighting the strong remedies awarded by arbitrators and 
subsequently challenged unsuccessfully in United Steelworkers of 
American v. AK Steel Corp., 163 F.3d 403 (6th Cir. 1998) and 
International Union v. Dana Corp., 278 F.3d 548 (6th Cir. 2002)).
---------------------------------------------------------------------------
            3. VRAs Do Not Interfere With Employee Free Choice

    Employer advocates claim that VRAs hamper employee free choice by 
limiting the ability of employees to hear the employer's ``vote no'' 
campaign and because card check recognition as a mechanism for 
assessing employee desires is less reliable than an NLRB secret-ballot 
election.
    However, VRAs must be based on employee free choice. Enforcement of 
VRAs by the federal courts hinges upon the union's demonstration of a 
``fair opportunity'' for employees to freely decide whether to accept 
it as a representative.\40\ The Second Circuit summarized the 
requirement in no uncertain terms: ``[c]ritical to the validity of such 
a private contract is--whether the employees were given an opportunity 
to decide whether to have a labor organization represent them.'' \41\
---------------------------------------------------------------------------
    \40\ See, e.g. Pall Biomedical Products Corp., 331 N.L.R.B. 1674, 
1676 (2000); Hotel Emp., Local 2 v. Marriott Corp., 961 F.2d 1464, 
1468-69 (9th Cir. 1992); Hotel & Restaurant Emp. Union v. J.P. Morgan, 
996 F.2d 561, 566 (2nd Cir. 1993); Local 3-193 Int'l Woodworkers v. 
Ketchikan Pulp Co., 611 F.2d 1295, 1299-1301 (9th Cir. 1980); Strom, 
supra note 18, at 62 (citing Advice Memorandum of the NLRB General 
Counsel, General Motors Corp., Saturn Corp., and UAW, 122 L.R.R.M. 
1187, 1190-91 (1986)). Even if VRAs do not explicitly condition 
recognition on the showing of majority support, the Board will read the 
requirement into such contracts. Houston Div. of the Kroger Co. (Kroger 
II), 219 N.L.R.B. 388, 389 (1975).
    \41\ J.P. Morgan, 996 F.2d at 566.
---------------------------------------------------------------------------
    Employer advocates claim that campaign limitation clauses 
undemocratically limit the ability of employees to hear both sides.\42\ 
The Yale University Office of Public Affairs' statement on the issue is 
typical: ``[E]mployees lose the benefit of a full and open debate that 
would occur prior to a union election.'' \43\ Similarly, the employer 
in Dana \44\ argued that the VRA it signed should not be enforced 
because limits on employer campaigning violate public policy; it 
``effectively silence[d]'' the company, and thereby violated the 
statutory rights of its employees.\45\ Rejecting the employer's 
argument, the court stressed two pertinent themes.
---------------------------------------------------------------------------
    \42\ See Eaton and Kriesky, supra note 2, at 59 n.1 (citing two 
articles arguing that VRAs prevent employees from ``getting the full 
story''); Kane and Thomas, supra note 17, at 6-7.
    \43\ Yale University Office of Public Affairs, Labor Negotiations 
at Yale University: Frequently Asked Questions about Union Neutrality, 
at http://www.yale.edu/opa/labor/faq--neutrality.html.
    \44\ 278 F.3d 548 (6th Cir. 2002).
    \45\ Id. at 558.
---------------------------------------------------------------------------
    First, the court stressed that Section 8(c) \46\ merely limits what 
employer speech may constitute evidence of an unfair labor practice, 
but does not require an employer to express its views.\47\ ``In fact, 
far from recognizing Sec. 8(c) as codifying ``an absolute right'' of an 
employer to convey its view regarding unionization to its employees . . 
. we have stated that an expression of an employer's views or opinion 
under Sec. 8(c) is merely ``permissible.'' \48\ Thus, Dana's 
``voluntary agreement to silence itself during union organizing 
campaigns does not violate federal labor policy.'' \49\
---------------------------------------------------------------------------
    \46\ Section 8(c) of the NLRA states: ``The expression of any 
views, arguments or opinions or the dissemination thereof, whether in 
written, printed, graphic, or visual form, shall not constitute or be 
evidence of an unfair labor practice under any provision of this. . 
.[law], if such expression contains no threat of reprisal or force or 
promise of benefit.'' 29 U.S.C. Sec. 158(c).
    \47\ Dana, 275 F.3d at 558 (citing Hotel Emp., Local 2 v. Marriott 
Corp., 961 F.2d 1464, 1470 (9th Cir. 1992)).
    \48\ Id. at 559-60 (citing N.L.R.B. v. St. Francis Healthcare Ctr., 
212 F.3d 945, 954 (6th Cir. 2002).
    \49\ Id.
---------------------------------------------------------------------------
    Second, the court held that limits on the employer's campaign could 
not interfere with the employees' Section 7 rights. ``As Section 7 
grants employees the right to organize or to refrain from 
organizing...it is unclear how any limitation on Dana's behavior during 
a UAW organizational campaign could affect Dana's employees' Section 7 
rights.'' \50\
---------------------------------------------------------------------------
    \50\ Id. at 559.
---------------------------------------------------------------------------
    This understanding of the limited relevance of Section 8(c) to 
Section 7 rights is consistent with Linn v. United Plant Guard Workers 
of America, Local 114, \51\ in which the Court protected union members' 
speech against state law defamation claims absent actual malice. While 
stating that Section 8(c) reflected an ``intent to encourage free 
debate on issues dividing labor and management, \52\ the Court also 
stated that
---------------------------------------------------------------------------
    \51\ 383 U.S. 53 (1966).
    \52\ Id. at 62.
---------------------------------------------------------------------------
        [i]t is more likely that Congress adopted this section for a 
        narrower purpose, i.e., to prevent the Board from attributing 
        anti-union motive to an employer on the basis of his past 
        statements. . .. Comparison with the express protection given 
        union members to criticize the management of their unions and 
        the conduct of their officers . . . strengthens this 
        interpretation of congressional intent.\53\
---------------------------------------------------------------------------
    \53\ Id. at 62 n.5.
---------------------------------------------------------------------------
    Additionally, most VRAs do not ``silence'' employers, but rather 
limit their campaigning, often with restrictions on the unions' 
campaigns as well. The arbitrator's decision reviewed in the Dana 
decision concluded that ``what the parties appear to have had in mind 
is that Dana argue its case in an objective high-minded fashion without 
resort to the kind of threats and innuendos which have often 
accompanied employer speech in organizing campaigns.'' \54\ In today's 
climate, it is hard to imagine that employees in any case will not get 
an opportunity to hear and fairly evaluate anti-union arguments.
---------------------------------------------------------------------------
    \54\ Dana, 275 F.3d at 552.
---------------------------------------------------------------------------
    Employers also claim that card check recognition is less reliable 
than an NLRB election because they are susceptible to fraud and 
coercion.\55\ These arguments are unavailing for two reasons. VRAs 
provide mechanisms for preventing these problems, and the possibility 
of coercion in obtaining cards is in actuality far less of a threat to 
employee self-determination than employer coercion.
---------------------------------------------------------------------------
    \55\ See Eaton and Kriesky, supra note 2, at n.1; Kane and Thomas, 
supra note 17, at 6-7; Yale University Office of Public Affairs, supra 
note 38.
---------------------------------------------------------------------------
    Card check procedures remain the primary mechanism for recognition 
within VRAs, \56\ and labor law as well as the terms of most VRAs 
themselves--require that any recognition following a VRA be free from 
coercion. If a union is accused of obtaining card support through fraud 
or coercion, an employer could refuse to recognize a union's claim of 
majority support. Such a refusal would trigger arbitration procedures, 
if provided by the VRA, or direct recourse under Section 301 to federal 
court. As noted above, the federal courts will not enforce VRAs if the 
union cannot demonstrate that employees had a ``fair opportunity'' to 
freely decide whether to accept it as a representative. If an 
arbitrator ever failed to require majority support, such failure would 
give the employer recourse at the Board.\57\
---------------------------------------------------------------------------
    \56\ Eaton and Kriesky found that 73% of the sample of 118 
agreements they collected from a wide variety of sources called for 
card check arrangements. Eaton and Kriesky, supra note 2, at 48.
    \57\ Central Parking System, Inc., 335 N.L.R.B. No. 34, slip op. at 
2 n.5 (2001). As Strom notes, adopting a policy of deference to 
arbitration awards resulting from disputes in voluntary recognition 
situations would not preclude the Board from stepping in to curb 
genuine Section 8(a)(2) violations. Strom, supra note 18, at 81.
---------------------------------------------------------------------------
    J.P Morgan, however, demonstrates that arbitration is fully capable 
of taking irregularities into account in determining majority status. 
The employer alleged that the union had coerced employees into signing 
authorization cards. In response, the arbitrator ordered a delay in the 
card count ``until coercion charges were resolved because authorization 
cards obtained through coercion were invalid.'' After the arbitrator 
found no union coercion, the employer continued to fight recognition 
unsuccessfully in the Second Circuit, which upheld the arbitrator's 
decision.
    Thus, the Board's existing case law governing card check 
irregularities will stand as a safeguard whether enforced through 
arbitration, the courts, or the Board against recognition of a union 
who has engaged in unfair labor practices.
            4. VRA's Facilitate First Contracts
    As discussed above, almost half the time employees run the gauntlet 
of an NLRB election, they are still denied the benefits of collective 
bargaining because they cannot obtain a contract. It is in the first 
contract area that VRA's unarguably demonstrate their value. Research 
shows that in 96.5% of the occasions studies, card check recognitions 
led to first contracts.\58\ As discussed below, this is because VRA's 
stem from and help deepen a cooperative labor-management relationship 
which is the bedrock of industrial stability.
---------------------------------------------------------------------------
    \58\ Eaton & Kriesky, supra, note 1, p. 53.
---------------------------------------------------------------------------
B. VRAs Promote Industrial Peace and Stability
    VRAs also curtail the industrial strife common in organizing 
drives. Indeed, one prerequisite for the enforcement of such contracts 
through Section 301 suits is that they ``forward labor peace.'' \59\ 
The receptivity of federal courts to enforcing such agreement indicates 
that those agreement have generally met this test.
---------------------------------------------------------------------------
    \59\ Id. at 566.
---------------------------------------------------------------------------
    That organizing campaigns often produce bitterness and divisiveness 
is uncontested. J.P. Morgan refers to ``those tensions inevitably 
flowing from a union organizing effort.'' \60\ Similarly, ``intensive 
workplace discussions and arguments are common. After several weeks of 
such campaigning, the final days before an election usually reach a 
high level of tension.'' \61\ In a typical campaign, the employer 
bombards employees with the message that, if the facility unionizes, 
the employees ``may'' lose their jobs, suffer reductions in wages and 
benefits due to collective bargaining, or face strikes and violence, 
and the union counters with greater promises in addressing the last 
attack and in anticipation of the next. Not surprisingly, such a 
campaign spirals into enormous division and bitterness among employees. 
The hostility in the workplace generated by a hard-fought and prolonged 
organizing campaign hurts employers, employees, and the general public.
---------------------------------------------------------------------------
    \60\ 996 F.2d at 566 (citing N..L.R.B. v. Drivers, Chauffeurs, 
Helpers, Local Union No. 639, 362 U.S. 274 (1960)).
    \61\ Commission for Labor Cooperation, Union Organizing Systems in 
the Three NAALC Countries, available at http://www.naalc.org/english/
publications/nalmcp--7.htm.
---------------------------------------------------------------------------
    VRAs dramatically ameliorate the strife and tension of organizing 
drives by changing their character. Most VRAs commit the employer (and 
typically also the union) to what the arbitrator in the Dana dispute 
called a ``high-minded'' campaign, in which the parties agree not to 
disparage each other but rather to promote themselves. Most often, 
campaign limitation clauses do not ``silence'' the employer, but rather 
require of the parties ``a civil atmosphere for the discussion of the 
issues surrounding the question of union representation.'' \62\ Indeed, 
the clause to which Dana agreed permitted the corporation to 
``communicate with employees, not in an anti-UAW manner, but in a 
positive pro-Dana manner.'' \63\ In interpreting the clause, the 
parties' arbitrator concluded that ``what the parties appear to have 
had in mind is that Dana argue its case in an objective high-minded 
fashion without resort to the kind of threats and innuendos which have 
often accompanied employer speech in organizing campaigns.'' \64\ The 
agreement reached between AK Steel Corporation and United Steelworkers 
of America provides another example.\65\ Eliminating the fear-mongering 
common in ``vote no'' campaigns is a huge step toward furthering labor 
peace and stability.
---------------------------------------------------------------------------
    \62\ Hartley, supra note 6, at 380. For a discussion of the content 
of various VRAs, see supra Part I.
    \63\ International Union v. Dana Corp., 278 F.3d 548, 551 (6th Cir. 
2002) at 551-52.
    \64\ Id. at 552.
    \65\ ``Neutrality means that the Company shall neither help nor 
hinder the Union's conduct of an organizing campaign, nor shall it 
demean the Union as an organization or its representatives as 
individuals''. [T]he Company reserves the right--[t]o communicate 
fairly and factually to employees--concerning the terms and conditions 
of their employment with the Company and concerning legitimate issues 
in the campaign. For its part, the Union agrees that all facets of its 
organizing campaign will be conducted in a constructive and positive 
manner which does not misrepresent their employment and in a manner 
which neither demeans the Company as an organization nor its 
representatives as individuals.'' AK Steel Corp. v. United Steelworkers 
of America, 163 F.3d 403, 410-11 (6th Cir. 1998) (Appendix A).
---------------------------------------------------------------------------
    SEIU's agreement with one health care employer committed the 
parties ``to a process that resolves issues between [them] in a manner 
that not only reduces conflict, but also fosters a growing appreciation 
for [their] respective missions `` \66\ In a situation involving UNITE, 
the employer and union were locked in a bitter dispute for many months, 
with many NLRB charges and accusations flying back and forth. The 
parties entered into a VRA which provided for an expedited arbitration 
process to resolve complaints of campaign misconduct. Significantly, 
neither side invoked the process. Instead, the level of tension 
decreased dramatically after the VRA, and the communication between the 
parties improved so that disputes were settled without the need for 
arbitration.
---------------------------------------------------------------------------
    \66\ Agreement (on file with author).
---------------------------------------------------------------------------
    Moreover, VRAs provide for expedited campaigns and dispute 
resolution, if and when charges arise. In addition to committing the 
employer not to engage in delaying tactics, many agreements impose time 
limits on the union for organizing.\67\ Shortening the campaign process 
helps minimize tension. Moreover, arbitration provisions \68\ allow for 
quick resolution of charges of coercion, which also minimize tension. 
As noted above, a UNITE agreement permitted arbitration of alleged 
campaign conduct violations within 24 hours with a bench decision. More 
than three-quarters of Eaton and Kriesky's sample of agreements set 
limits on the union's behavior.\69\ Analyzing one such agreement, in 
which the union agreed to refrain from picketing and the employer 
agreed to card-check recognition, the Sixth Circuit concluded that 
``each gave up rights under the Act--in an effort to make the union 
recognition process less burdensome for both.'' \70\ VRAs leave the 
representation process itself far freer from strife and tension than 
the usual NLRB election.
---------------------------------------------------------------------------
    \67\ Eaton and Kriesky, supra note 2, at 48.
    \68\ Id. (reporting that more than 90% of the agreements they 
studied called for dispute resolution, and that the process most 
frequently outlined was arbitration).
    \69\ Supra note 2, at 48.
    \70\ 996 F.2d at 566.
---------------------------------------------------------------------------
C. Promoting VRAs Advances Party Resolution in Labor Relations
    Encouraging private party solutions to labor disputes is a 
cornerstone of federal labor policy. American National Insurance 
Company stated that ``[t]he [NLRA] is designed to promote industrial 
peace by encouraging the making of voluntary agreement governing 
relations between unions and employers.'' \71\ Specifically, 
``voluntary recognition is a favored element of national labor 
policy.'' \72\
---------------------------------------------------------------------------
    \71\ N.L.R.B. v. American National Ins. Co., 343 U.S. 395, 401 
(1952).
    \72\ N.L.R.B. v. Broadmoor Lumber Co., 578 F.2d 238, 241 (9th Cir. 
1978).
---------------------------------------------------------------------------
    Arms-length bargaining will create better, more specifically 
tailored solutions to particular disputes than standard Board 
processes. ``[I]t is incumbent upon the Board,'' the Board held in a 
recent case, ``to recognize and encourage the efforts expended by [the 
parties] in attempting innovative bargaining structures and processes 
and novel contractual provisions.'' \73\
---------------------------------------------------------------------------
    \73\ MGM Grand Hotel, 329 N.L.R.B. 464, 467 (1999).
---------------------------------------------------------------------------
    VRAs can solve problems in ways in which the Board cannot. Clearly, 
constitutional and statutory concerns of free speech and due process 
affect the Board's ability to limit campaigning and to provide 
expedited representation processes. VRAs are not so limited. As 
discussed below, H.R. 4343 would be a major step away from private 
party resolution and towards government regulation depriving parties of 
their freedom to solve specific problems.

             III. H.R. 4343 Is Dangerous and Ill-Conceived

    We oppose H.R. 4343 because voluntary recognition is essential to 
vindicating employee choice in the coming decades, just as it has been 
an essential and favored element of our national labor policy since the 
passage of the Wagner Act. Passage of H.R. 4343 would inflict serious 
harm on the right to organize and should be opposed for that 
overarching reason. In addition, particular consequences of H.R. 4343 
should be examined.
    Voluntary recognition is essential for the Board to process the 
existing level of representation cases. The NLRB's staffing and funding 
levels are already woefully inadequate. The Board does not have the 
resources to conduct secret ballot elections in every organizing 
campaign. As NLRB General Counsel Rosenfeld testified to the Senate 
Subcommittee on Labor, Health and Human Services and Education: ``We 
could not continue day-to-day operations if there weren't voluntary 
recognitions.'' \74\ Prohibiting voluntary recognitions would create 
horrendous backlog at the Board, thereby denying employees' any 
meaningful freedom to choose representation.
---------------------------------------------------------------------------
    \74\ Cited in the Daily Labor Reporter, 9/24/04, p. AA-1.
---------------------------------------------------------------------------
    By prohibiting voluntary recognition, H.R. 4343 displaces the 
private party agreements by government regulation. Our labor relations 
policy relies heavily on private agreements. Unlike other 
industrialized countries, our labor law does not specify holidays, 
vacations, health insurance or virtually any other terms and conditions 
of employment, save minimum wage and overtime. We favor private party 
arbitration of contract disputes rather than judicial resolutions. Even 
within the Board processes, we give great latitude to private party 
agreements. For example, the parties can agree on the definition of a 
bargaining unit, even if the Board would not have ordered such a unit 
following a hearing. In all areas, American labor law is uniquely and 
heavily reliant on private parties devising specific solutions to 
particular problems. Outlawing private agreements in the recognition 
area is out of synch with the structure of our labor law and prevents 
innovative problem-solving.
    H.R. 4343 would ban any recognition if it did not result from a 
Board election, no matter what the circumstances. A consequence of H.R. 
4343, which I hope is unintended, would be to eliminate Gissel \75\ 
bargaining orders. No matter how egregious an employer's unfair labor 
practices and no matter how overwhelming the union's support prior to 
the commission of those illegal practices, an employer would be forever 
immunized against having to recognize the union, so long as it 
successfully tainted the atmosphere preventing a fair election.
---------------------------------------------------------------------------
    \75\ NLRB v. Gissel, 395 U.S. 575 (1969).
---------------------------------------------------------------------------
    As discussed above, some VRA's call for private elections. No 
matter how impeccably run and how free from even allegations of 
coercion, H.R. 4343 would ban them. Other VRA's require a super-
majority of card signers, a demonstration of employee support far 
beyond that required by the NLRA. Yet, this too would be prohibited.
    The impact of H.R. 4343 on wide areas of labor law is unclear, but 
extremely dangerous. Would H.R. 4343 prohibit unit clarification 
petitions, which might add newly created or changed job classifications 
to a bargaining unit? Would it prohibit labor and management from 
reaching an agreement on including groups of employees in a bargaining 
unit? What about an arbitrator's resolution of a dispute over new or 
changed job titles? Even if unit clarifications were permitted, banning 
private resolution of these issues would send the backlog problem at 
the Board to Himalayan heights. Would H.R. 4343 prohibit a judicial or 
Board order requiring an alter ego company that unlawfully ran away 
from its unionized employees to recognize the union? Would it affect 
successorship doctrine, thereby allowing employers to deprive 
employees' of their unions by shuffling corporate forms?
    H.R. 4343's banning any ``attempt to cause'' voluntary recognition 
is particularly pernicious. I am not aware of any other aspect of our 
labor law that outlaws ``attempted'' behavior. For example, while a 
union may not obtain a ``hot cargo'' agreement within the meaning of 
Sec. 8(e) of the Act, it is not unlawful to propose (without insisting 
to impasse) such an agreement. By adding the vague and elusive concept 
of ``attempt'' to our labor law, H.R. 4343 opens a Pandora's Box. If a 
union filed a unit clarification petition which sought to add employees 
to an existing unit and lost the case, would that constitute 
``attempting'' to gain recognition without an election? What if the 
union sought the same result through an arbitration, which it lost? 
What if a union engaged in pure speech, without any promise or threat, 
advocating that employers in general or a specific employer grant 
voluntary recognition? The ``attempt'' provision is unwise and 
unconstitutional. Indeed, the current representation petition form 
requires petitioners to state whether they have asked the employer for 
recognition. Is checking that box to become an unfair labor practice?

                             IV. CONCLUSION

    The sponsors of H.R. 4343 are correct in identifying the assault on 
employees' rights to choose unionization or not as a critically 
important issue, requiring a legislative solution. However, the source 
of the attack is employers' fierce, coercive and often illegal 
opposition to unionization. Increasingly, employers resist providing 
affordable health insurance, pensions or wages that allow working 
families to enjoy the American Dream. Voluntary recognition is a 
keystone of a labor policy that protects the right to organize and 
opens the door to a middle class future for millions of working 
families. We urge you to oppose H.R. 4343.
                                 ______
                                 
    Chairman Johnson. Thank you, sir. I understood you 
perfectly. You talk at my speed.
    Mr. Riley, you may begin your testimony.

STATEMENT OF THOMAS RILEY, SERVICE SALES REPRESENTATIVE, CINTAS 
                    CORPORATION, EMMAUS, PA

    Mr. Riley. Mr. Chairman and Honorable Members of the 
Subcommittee, my name is Tom Riley, and I am an employee of 
Cintas Corporation out of Allentown, Pennsylvania.
    It is my pleasure to share with you my experience in the 
union card check campaign so that you can see this from an 
employee's perspective.
    As background, I have served my country by enlisting for 6 
years in the U.S. Army with tours in Kuwait and Korea. I was 
honorably discharged at the rank of Sergeant E-5 and proud to 
have defended my country, particularly in today's troubled 
times.
    I believe our democratic freedoms are the foundations of 
our great country, which is why I'm personally troubled by the 
recent union tactics against me, my family, and my co-workers.
    I've worked for Cintas for 2 years, starting as a sales 
service representative. My job is to take care of my customers, 
keep them happy and meet their needs. We provide our customers 
with uniforms for their employees and doormats, restroom 
supplies and other products for their business. We visit every 
one of our customers on a weekly basis, and we take great 
personal pride in the work.
    After I started working for Cintas, the union campaign 
started. The union distributed notices to the union, to other 
unions telling them to find ways to quit doing business with 
Cintas. I had one union, one unionized customer who 1 day was 
very happy with our products and my service and the next day 
gone. No more--we weren't in business anymore.
    Mr. Chairman, I was paid on commissions, as are all other 
SSRs. This union campaign hurt me and my family directly by 
taking money out of my paycheck, and it hurts a lot of other 
people, too. And this is the same union on the one hand that 
says that it wants to represent me, and on the other, at the 
other time, he's taking food off my table.
    I draw the line, Mr. Chairman, when the union organizers 
come to my house on a Sunday afternoon telling my wife that 
they're with the company and they need to talk to me. When I 
came to the door, they admitted that they were really with the 
union, and they started trying to tell me all sorts of bad 
things about Cintas. I told them to leave, and they eventually 
did.
    I called a friend of mine from work, and he said that they 
had been to his house already. What is disturbing is that I 
have an unlisted telephone number and address, on purpose. I 
have a wife and two small children. Our privacy is very, very 
important, and I don't like the fact that union organizers are 
now coming to my door, lying to my wife about who they are and 
what they want. My wife is now scared whenever the doorbell 
rings or one knocks on the door, you know, and she shouldn't 
have to be, at least not in America.
    I have since learned that the union had gotten my personal 
information illegally by copying down my license plate number 
and getting the information from the state's vehicle 
registration files, which we understand is a violation of the 
Federal Driver's Privacy Protection Act. In one case, there was 
a co-worker who doesn't live with his parents but his car that 
he drives was still registered at his parents' address. His 
parents got a visit from the union organizer. That's why 
several of my fellow employees and me, along with a number of 
our family members, have filed a lawsuit against the union for 
what we believe they've done in violation of Federal law.
    There have been other situations at our facility that are 
also troubling. One woman who works on late shift was followed 
home one night. She purposely drove past her house and the car 
still followed her. She then pulled into her driveway, and 
before the car drove off, she got the license plate number and 
called the police. They told her that the rental car was rented 
by a union employee using the union's corporate account.
    We have a process supervised by the government so that 
individuals like me can go into a voting booth and check yes or 
no as to whether I want to be in a union. Nobody, either my 
employer or the union, would know how I vote. I would rather--I 
would vote, or I'd be free to vote with my heart, not based on 
whether or not I was concerned about my wife and my family or 
whether union organizers might continue to bother them at home, 
or not concerned about whether anyone might follow me home at 
night or because I felt pressured to signing a union card just 
because I wanted to be left alone.
    Mr. Chairman and Honorable Members of the Subcommittee, I 
enlisted to serve in our military because I believe in the 
democratic freedoms that are the foundation of our company. I 
fought for and was willing to die for these beliefs. And now 
when I get home and into civilian life, I find the unions are 
trying to take away that same democratic freedoms that my 
brothers and sisters in uniform are dying for around the world.
    We have a democratic election process. I say we use it, I 
say we protect it. Mr. Chairman, I and many other employees 
like me are in favor of legislation that protects our 
democratic rights, and we support the Secret Ballot Protection 
Act. Thank you very much for the invitation to talk to you 
today.
    [The prepared statement of Mr. Riley follows:]

     Statement of Tom Riley, Service Sales Representative, CINTAS 
                        Corporation, Emmaus, PA

    Mr. Chairman and honorable members of the Subcommittee, my name is 
Tom Riley and I am an employee of Cintas Corporation in Allentown, 
Pennsylvania. It is my privilege to share with you my experience in a 
union card-check campaign, so that you can see this from an employee's 
perspective.
    As background, I served my country by enlisting for six years in 
the U.S. Army, with tours in Kuwait and Korea. I was honorably 
discharged at the rank of Sergeant E-5 and am proud to have defended my 
country, particularly in today's troubled times. I believe our 
democratic freedoms are the foundation of our great country, which is 
why I am personally troubled by recent union tactics against me, my 
family and my co-workers.
    After serving our country in the military, I went to work for a 
small family-based grocery store chain in Lansdale, Pennsylvania that 
was facing a union organizing campaign. The family owners were very 
clear that the decision of whether or not to be in a union was our 
choice, and I thought they were a very good employer.
    I then got the opportunity to work for Cintas, which has a 
reputation as a great company. After talking with a number of people 
and interviewing with the company, I was attracted by their culture and 
``can-do'' attitude that is very much like family. I love my job and 
the people I work with.
    I've worked for Cintas for two years, starting as a Sales and 
Service Representative. My job is to take care of my customers, keep 
them happy and meet their needs. We provide our customers with uniforms 
for their employees, and door mats, restroom supplies and other 
products for their business. We visit with every one of our customers 
on a weekly basis, and we all take great personal pride in our work. I 
was recently promoted to Service Training Coordinator, which means that 
I help train other SSRs in managing their routes and taking care of 
customers--in addition to filling in and helping SSRs on their routes 
from time to time.
    After I started to work for Cintas, the union campaign started and 
union people began showing up, and there have been all kinds of bad 
things said about my company. The union started sending information to 
my customers, making all kinds of allegations about the company--and 
about the products and services that we provide. Like I said, I take 
great pride in what I do and I was personally offended by what the 
union was saying to my customers.
    The union distributed notices to other unions, telling them to find 
ways to quit doing business with us. I had one unionized customer who 
one day was very happy with our products and my service, and the next 
day stopped doing business with us. Mr. Chairman, I was paid on 
commission--as are all other SSRs. This union campaign hurt me and 
family directly, by taking money out of my paycheck. And it's hurt a 
lot of other people, too. And this is the same union that, on one hand, 
says it wants to represent me, while at the same time is taking food 
off my family's table. We shouldn't overlook the fact that it's the 
workers who are harmed many times by these union campaigns.
    But I draw the line, Mr. Chairman, when union organizers come to my 
house on a Sunday afternoon, telling my wife that they were with the 
company and needed to talk with me. When I came to the door they 
admitted that they were really with the union, and started trying to 
tell me all sorts of bad things about Cintas. I told them to leave and 
they eventually did. I called a friend of mine from work, and he said 
that they had been to his house, too.
    What is disturbing is that I have an unlisted telephone number and 
address--on purpose. I have a wife and two small children, and our 
privacy is very, very important to me. And I don't like the fact that 
union organizers are now coming to my door, lying to my wife about who 
they are and what they want. My wife is now scared whenever anyone 
knocks at the door, and she shouldn't be--at least, not in America.
    I have since learned that the union may have gotten my personal 
information illegally, by copying down my license plate number and 
getting information from the state's vehicle-registration files--which 
we understand is violation of the federal ``Driver's Privacy Protection 
Act.'' In one case, there is a co-worker who doesn't live with his 
parents, but the car he drives was registered at his parents' address--
and his parents got visits by union organizers. That's why several of 
my fellow employees and me, along with a number of our family members, 
have filed a lawsuit against the unions for what we believe they've 
done in violation of federal law.
    And, it appears that the unions have been doing this to other 
employees in other parts of the country, too. So our lawsuit has been 
expanded into a nationwide class-action lawsuit on behalf of all Cintas 
employees so that we can perhaps protect the privacy of other employees 
and their families.
    There have been other situations at our facility that are also 
troubling. One woman, who works on the late shift, was followed home 
one night. She purposefully drove past her house, and the car still 
followed her. She then pulled into her driveway and, before the car 
drove away, she got the license plate number and called the police. 
They told her it was a rental car, rented by a union employee using the 
union's corporate account. It this what union organizing today is all 
about--following women home at night?
    We have a process supervised by the government, so that individuals 
like me can go into a voting booth and check ``yes'' or ``no'' as to 
whether I want to be in a union. Nobody--either my employer or the 
union--would know how I vote. And I would be free to vote my heart, not 
based on whether or not I was concerned about my wife and family, or 
whether union organizers might continue to bother them at home. Or, not 
concerned about whether anyone might follow me home at night. Or, 
because I felt pressured into signing a union card just because I 
wanted to be left alone.
    Mr. Chairman and honorable members of the subcommittee, I enlisted 
and served in our military because I believe in the democratic freedoms 
that are the foundation of our country. I fought for, and was willing 
to die for, these beliefs.
    And now, when I get home and into civilian life, I find that unions 
are trying to take away the same democratic freedoms that my brothers 
and sisters in uniform are dying for around the world. We have a 
democratic election process. I say we use it. And I say we protect it. 
Mr. Chairman, I and many other employees like me, are in favor of 
legislation that protects our democratic rights, and we support the 
``Secret Ballot Protection Act.''
    Thank you for your invitation to talk with you today.
                                 ______
                                 
    Chairman Johnson. Thank you for being here. What branch of 
the service were you in?
    Mr. Riley. I was in the Army, sir.
    Chairman Johnson. Good for you. Thanks for your service. We 
appreciate it. Mr. Raudabaugh, you know, we've heard some 
conflicting testimony this morning already. I'd like to ask you 
kind of point blank, in your experience both in practice and on 
the Board, is it your conclusion that even in this day and age, 
union organization often relies on intimidation of workers, and 
could you cite any examples, or do you know of any?
    Mr. Raudabaugh. To answer that specific question, yes, 
there are examples. I refer to it in my paper. The H.R. Policy 
Association brief that I reference gives a long list of cases. 
Most recently, there are cases pending before the Board that 
raise this question brought by the courtesy of the 
representation of the National Right to Work Foundation, which 
monitors and assists employees in championing their rights to 
be left alone. And there are cases now coming before the Board 
yet again raising issues of overreaching, intimidation, 
threats, coercion.
    Chairman Johnson. Well, you know, some of the others--Mr. 
Garren, I think--indicated that employers are not clean all the 
time, either. Is there something that we need to do to rectify 
those kind of problems that exist on both sides, I guess?
    Mr. Raudabaugh. I think that it's absolutely the case. If 
you look at Board case law, employers violate the law, as do 
unions. The question here in the free choice act is whether or 
not we have a secret ballot process to put a piece of paper in 
a box supervised by a member of the Board regional office.
    Just like the gentleman at the end of the table just said, 
it's not public knowledge how I choose to vote. But your 
question goes to other issues that the unions have raised and 
the labor law reformers looked at. I think that calls into 
question whether the remedies are adequate under the statute. 
It calls into other issues unrelated, though, to the secret 
ballot.
    Chairman Johnson. OK.
    Mr. Garren. May I comment on that, Mr. Chairman?
    Chairman Johnson. Yes, sir. Please do. Any of you who would 
like to make a comment on the questions, please do. Go ahead.
    Mr. Garren. Again, I think some of the answers are there in 
numbers. The number of employer unfair labor practices, 
including discharges during organizing drives, has gone up 
enormously, a thousand percent, 1,400 percent, again, depending 
on the timeframe. There's absolutely nothing comparable, and no 
one has pointed to anything comparable, in terms of union 
unfair labor practices. In fact, the number of union unfair 
labor practices has declined.
    Compared to 10, 20, 30 years ago, any point you wish to 
compare it to, the relative incidence of employer unfair labor 
practices, destroying employees' right to organize, is growing, 
and the incidence of union unfair labor practices is shrinking. 
I think it suggests which problem needs most immediate 
attention.
    Chairman Johnson. Well, that's possible, but, you know, 
those two guys made cases for--against the unions in 
particular, and I'm sure that he's right. We don't want our 
guys protecting the freedoms that we enjoy here in this country 
to have to worry about some union guy coming up and knocking on 
your door at night. That's not right. You would agree on that, 
I think.
    Mr. Garren. Well, I would agree very much, Mr. Chairman, 
and I think it goes directly to the point that unions have no 
right to campaign in the workplace; that under the statute and 
its interpretation as we have it now, unions are only permitted 
to campaign outside the workplace, which means the only real 
choice we have to give employees any message about the union is 
their homes. And that is a very bad situation, I agree with you 
thoroughly that that is bad, and the solution for it is to give 
unions access to workplaces so we can have a fair campaign 
process, which we don't.
    Chairman Johnson. I presume that's been discussed before, 
hasn't it?
    Mr. Raudabaugh. Indeed. Indeed. And of course, my good 
colleague chooses to ignore--we've had the campaign process for 
69 years under the Wagner Act. We have pro-union advocates in 
the workplace. They talk to each other at breaks. They talk 
before and after work. They go to union organizational 
meetings. Mr. Garren's own union has been the subject of the 
Board's case law. I won't go into it, but the fact of the 
matter, this has gone on for a long time.
    The issue before the committee as I understand is, are we 
going to correct what has troubled the Board and the courts 
since the discussion in 1947 where this Congress amended 
Section 9(c) to attach certification to secret ballot election 
and attempted to parallel and correct Section 9(a), and they 
did not. And so the courts have been troubled for years over 
the Section 9(a) reference to selection or designation with the 
Section 9(c) process.
    So what we have right now and what I'm hearing is we have 
this very antiseptic and very careful election process to 
ensure that my fellow citizens at this table do not get 
intimidated and pushed around and everyone else in the 
workplace knows how they voted. That's the secret ballot 
process and laboratory conditions.
    And then we have, because we haven't addressed Section 
9(a), which this bill would do, we allow voluntary recognition, 
we allow people to go to their homes. We allow all of this. 
This bill is focusing on one simple, necessary reform. When I 
and you choose to decide yes or no, why is it your business how 
I'm voting? Why is it my business how you're voting? The secret 
ballot is nothing more than an act of supervision.
    Chairman Johnson. Thank you very much. My time has expired. 
Mr. Andrews?
    Mr. Andrews. Thank you, Mr. Chairman. I'd like to thank the 
witnesses for their preparation and their time this morning.
    I don't think anybody who listens to Mr. Riley's comments 
can't be disturbed about the fact that a knock on the door when 
you're not home and your spouse and children are is disturbing. 
I've been there. It happens to people in public life a lot, 
where some constituent knocks on your door and you don't want 
it.
    I did want to ask a question of my fellow alumnus, Mr. 
Raudabaugh. If a union approached an employer and said ````We 
don't want to do home visits; what we'd like is to be able to 
set up shop in the lunch room and make a presentation in the 
lunch room for the employees, and that's what we're going to 
do,'' does the employer under present law have the right to say 
no, they don't want that?
    Mr. Raudabaugh. The employer has the right to say no, and 
no access to third parties, yes.
    Mr. Andrews. OK. So I think one of the areas of reform we 
ought to look at as a solution to the very real problem Mr. 
Riley talked about is modifying that so there is a reasonable 
right of access to the workplace in a non-coercive way so that 
we can address that problem.
    And you, Mr. Raudabaugh, used the word ``antiseptic'' to 
describe the election process a few minutes ago. I read and 
listened to Mr. Hermanson's testimony very closely, and I took 
a look at a filing that Mr. Hermanson's union made before the 
NLRB about some concerns they had about the conduct of the 
competing union that's trying to organize them, as well as the 
employer. And I wanted to ask Mr. Hermanson about how 
antiseptic the process has been in the election that he's going 
through. And I fully understand that Mr. Hermanson's comments 
are directed at the competing union as well as the employer. 
But I wanted to look at these.
    Mr. Hermanson, is it correct that organizers from your 
union were monitored by the employer during the campaign 
period?
    Mr. Hermanson. I believe we made the charge, but it was 
dismissed.
    Mr. Andrews. But do you believe it happened?
    Mr. Hermanson. Well, yeah, because we were denied access to 
our work area off hours by name.
    Mr. Andrews. Is it correct that during the campaign period 
that all formal discipline was rolled back? And I assume that 
means favoritism, that somebody who's seeing things the way the 
company wants to see it gets preferential treatment?
    Mr. Hermanson. Well, it was across the board. So that they 
changed terms and conditions of employment drastically prior to 
the election.
    Mr. Andrews. Why do you think the company did that?
    Mr. Hermanson. Probably out of fear that we would win the 
election.
    Mr. Andrews. Because they had a desire to see a certain 
outcome. They wanted you to lose and the no votes to win, for 
whatever reason?
    Mr. Hermanson. Correct.
    Mr. Andrews. All right. The filing also says that 
vacations, sick leave and the quality service program were 
consolidated to create a new leave policy. Is that pretty much 
the same problem? Do you think that was done to try to 
influence the outcome of the vote?
    Mr. Hermanson. Right. Certain people are going to react to 
certain incentives different ways, so they, you know, rather 
scientifically, addressed different outlooks, and they 
addressed it in order to influence the votes, yes.
    Mr. Andrews. And the pleading also says that employee 
councils were created that were designated to deal directly 
with the management. Several employees on the company council 
were members of the competing union here. What's the point 
there? Is it that you think that the company tried to show 
there was a better route to getting what you want than voting 
yes on your union?
    Mr. Hermanson. Yes. I mean, in my terminology, I would say 
they tried to create a sham union.
    Mr. Andrews. You see, this--I don't know the facts of your 
specific case and the Board's going to rule on that, but I 
think this at least points out the fact that the antiseptic 
that we hear that's used to describe this process is not quite 
as clean as one would think.
    And the record as I understand it does show that in at 
least 25 percent of all organizing efforts, employers are found 
to have illegally fired employees when those actions are 
grieved. The record shows that in one recent year, 1998, 
approximately 24,000 employees won compensation for being 
unlawfully discriminated against or fired for union activity 
during an election process.
    Now, Mr. Raudabaugh, I don't claim that the case in Mr. 
Hermanson's case is representative of all cases. But how many 
cases do you think it's representative of?
    Mr. Raudabaugh. I'm glad you asked me that question. The 
antisepsis to which I refer goes to the process of the Board 
being extremely concerned with putting a stop to the very kinds 
of things you're talking about, and which an election----
    Mr. Andrews. Which happened during election process, not a 
card check process.
    Mr. Raudabaugh. Yes. But the antisepsis, sir, is allowed by 
filing objections and bringing it before the Board for the 
Board to put a stop to it, whereas in a non-election, a 
nonsupervised election, we go to something much more akin to 
what we see in the citizenship sector, which is interest 
groups, blogs and all of the screaming talk shows that we have 
this season with no regulation of any kind. So in the 
workplace, the Board's process that this institution put into 
place in 1935 through Board case law and the development of the 
conditions for supervising the election, if they want to object 
to those behaviors, the Board will resolve it.
    Mr. Andrews. Well, my time is up, but I would just comment 
that the relevant issue in this bill is the secret ballot. I 
don't think the secret ballot cures any of those ills that we 
just talked about right here.
    Mr. Raudabaugh. No, but it sure protects all of us from 
knowing how you vote.
    Mr. Andrews. But it doesn't cure the ills that we just 
talked about.
    Mr. Raudabaugh. That's a different issue, unrelated to the 
secret ballot.
    Mr. Andrews. It's a very important issue.
    Mr. Raudabaugh. Absolutely. But it's not the secret ballot.
    Mr. Andrews. Mr. Hermanson, I'm sure, thinks it's a very 
important issue.
    Mr. Hermanson. They're not repeat offenders, except for the 
case of the sham union, because they recognized the service 
employees union without an uncoerced majority. So in my 
opinion, they are encroaching upon some very dangerous 
territory, you know, the strongest remedy available, which is a 
10(J) injunction.
    Mr. Andrews. Has an election been scheduled yet, Mr. 
Hermanson, in your case?
    Mr. Hermanson. The second election? Not yet.
    Mr. Andrews. How long have you been waiting?
    Mr. Hermanson. Since February.
    Chairman Johnson. Mr. McKeon, do you care to question?
    Mr. McKeon. Yes, thank you.
    Chairman Johnson. You're recognized for 5 minutes.
    Mr. McKeon. Thank you. Mr. Raudabaugh, we've heard a lot 
about the card check recognition and corporate campaigns to 
pressure an employee or an employer to agree to them. Now 
unlike the traditional bargaining process, corporate campaigns 
center on making the employer look bad in the public eye and 
often include intensively negative media campaigns, frivolous 
litigation and picketing???????
    Now I understand that the National Labor Relations Act 
prohibits a union from engaging in certain secondary activity, 
such as unlawful picketing of employers. But other activities 
are allowed. This is a pretty thorny area of the law. However, 
can you explain to us, perhaps in layman's terms, exactly what 
prohibited secondary activity is and what's permissible? And if 
we pass legislation prohibiting card checks, do you think we'd 
see an end to these sort of corporate campaigns?
    Mr. Raudabaugh. Yes, sir. What we've seen is the 
development of the neutrality agreement that goes along with 
the vehicle of card checks as the method for soliciting 
signatures. If a majority is obtained, then the agreement would 
be that we will now recognize the union as the representative.
    In that neutrality agreement goes along sometimes with 
issues of agreeing to access or agreeing not to say anything 
negative. What also goes along with it is a very subtle issue 
that is only this week going to be now entertained before the 
Board in the beginning of litigation, which is the violation of 
Section 8(e) of the statute and the hot cargo agreement where 
an employer agrees with the union with the wink and the nod 
that in its dealings with other third party suppliers, for 
example, that it will only do business with, wink, wink, good 
corporate citizens. We will only do business with other people 
who are also agreeing to neutrality, to agreeing to card check 
recognition. And this issue, this inherent boycott, is an issue 
that comes up in the secondary process of avoiding doing 
business with anyone that's not going to agree in advance to 
the union being allowed to go through and get cards signed and 
avoid the Board process.
    A secondary corollary to that issue is the issue before--
that should be before agencies soon, as I understand it, which 
is whether or not it's a criminal violation for those parties, 
i.e., the employer and the union, to agree in advance to bypass 
these procedures because it constitutes a thing of value, which 
in Section 302 is specifically carved out as being illegal, 
criminal.
    Now what is it that's of value? Well, it's significantly of 
value if you're going to be able to bypass what apparently is 
being frustrated here, which is why does it take so long to go 
through an election? Why does it take so long for the Board to 
resolve if there's overreaching? If you want to circumvent the 
due process, that saves money and time. If you want to save the 
electioneering process and just go up and push people around 
and get signatures, that saves time. So that's a thing of 
value. That's also criminal.
    Those two issues are very much at the core of the 
neutrality card check effort to save the time and money, avoid 
the opportunity for employers to know that there is a campaign 
going on, circumvent the opportunity of--the most critical 
aspect short of the secret ballot is informed choice. How on 
earth could anyone make a decision to vote Republican or 
Democrat this fall if you didn't hear, like tonight, the views 
of the candidates? How could you possibly select one candidate 
or the other if you didn't hear from them and what their 
positions are? And this is exactly what's at stake, is trying 
to get a one-sided presentation, get a guaranteed first 
contract through the Kennedy-Miller bill of doing something 
that's unheard of in Federal labor law. Even in national 
emergency disputes under the Railway Labor Act involving 
railroads and airlines, we don't cram down third party interest 
negotiated--or third party arbitrated agreements.
    And all of this is going on simply because we have issues 
of the inability to communicate a message, apparently, 
unsuccessful organizing efforts. And I would submit all of 
these issues that Congressman Andrews quite appropriately 
highlighted should be addressed. But the process exists. It's 
taken several years to prosecute Enron. Now are we going to get 
rid of that and just hang them?
    The process is there. The process works. And, surely, the 
United States of America is not going to walk away from the 
secret ballot.
    Mr. Garren. May I comment on that?
    Mr. McKeon. Thank you very much.
    Mr. Garren. May I comment on that?
    Mr. McKeon. It's up to the Chairman. My time is up.
    Chairman Johnson. Please do.
    Mr. Garren. Yes. Just to answer your question very briefly, 
you asked what secondary conduct is and what isn't in terms of 
corporate campaigns. Unions are not permitted, it's unlawful to 
coerce or picket or disrupt the business of a secondary. What 
is permitted is conduct protected by the First Amendment.
    And it is scary to me to hear attacks that there's 
something wrong with unions publicizing what in their opinion 
are bad labor conditions, such as companies that don't pay a 
living wage and violate living wage ordinances, or don't 
provide health insurance, or don't provide pensions. And that's 
what the core of corporate campaigns are is explaining and 
exposing bad labor conditions. And in America, that's protected 
by the First Amendment.
    Mr. McKeon. Would you agree then that in the instance of 
Mr. Riley that it's OK to go to other companies and discourage 
them from doing business with his company and taking food off 
his----
    Mr. Garren. Yes. I think it is absolutely right for UNITE-
HERE to go to customers of Cintas and tell them that Cintas 
does not pay a living wage, even though it's required to by the 
city of Haywood, California and the city of Los Angeles; that 
Cintas violates the National Labor Relations Act----
    Mr. McKeon. We have a real difference of opinion on that. 
Thank you, Mr. Chairman.
    Chairman Johnson. Thank you. Mr. Grijalva, do you care to 
question? And I want to thank you for joining us for a hearing 
down in Texas. Did you have a good time down there?
    Mr. Grijalva. Yes, it was a good time. Thank you, Mr. 
Chairman.
    Chairman Johnson. You bet. You bet. Go ahead.
    Mr. Grijalva. Let me, if I may, just a couple of short 
questions to Mr. Riley, if I may. Just to get more information 
on your testimony. In your complaint about the union organizers 
calling you up and coming to your house, as you described, 
inappropriately and frightening your family, let me ask you 
about your employer, Cintas. Has the company and the management 
guys urged you and other employees not to sign cards? Have they 
called you into meetings to explain to you the pros and cons of 
unionization?
    Mr. Riley. I just want to let you know, it is in the full 
statement, that since I've been out of the military, this is my 
second job. This is my second encounter with union 
organizations. Both employers have educated us that it is our 
choice. Not one time did they tell us do not vote union. If 
anything, I proposed the question, am I allowed to speak out if 
I oppose it? But at no time did they have any meetings 
encouraging us not to vote union. They educated us what the 
union is, what the purpose of a union is, and it's our choice 
whether or not we want to be unionized or not.
    Mr. Grijalva. And that same work site, workplace, were 
union organizers or union representatives had the freedom to 
come and approach you directly and give you literature and talk 
to you about their union?
    Mr. Riley. The only issue I have with them coming up freely 
is, you know, it started out standing in the parking lot as all 
employees of Cintas enters the facility. And then they start 
showing up at my house. Again, I have an unlisted address and 
an unlisted phone number for reasons. How did the union find 
out where I lived? I'm a very approachable person, but if, you 
know----
    Mr. Grijalva. My question was in the workplace.
    Mr. Riley. In the workplace. No, at no time was the union 
granted permission to come talk to any of us freely.
    Mr. Grijalva. Granted that you questioned the process by 
which access to the address, but if a union organizer or a 
person trying to convince you or give you information about the 
union is essentially prohibited from making that contact with 
you at the workplace, a phone call, what other avenue do they 
have, other than to try to approach you away from the 
workplace?
    Mr. Riley. Well, if they accidentally bumped into me at the 
shopping market.
    Mr. Grijalva. Let's talk about that.
    Mr. Riley. Well, the reason why I say that is because I 
have proof that there was an unlawful tactic on how to get my 
address. You know, had they come to my house and I was in the 
phone book, I would have just assumed that they got a list of 
employees, maybe, you know, however they would have done that, 
and then they looked us all up in the phone book and they show 
up at my house.
    Mr. Grijalva. Let me--given that, and it's a valid point, 
given that, let me follow up with another question. Let's say 
that a local candidate or someone running for Congress is out 
campaigning and comes and knocks on your door to ask you for 
you and your wife's vote. Has that happened?
    Mr. Riley. That has happened. That was the intent of them 
showing up to my house.
    Mr. Grijalva. OK. And so they asked you for your support. 
I'm not going to ask you whether you backed them or not, but 
the fact that they came and knocked on your door, did that--
that eliminated your free choice when you went to the ballot 
box?
    Mr. Riley. No.
    Mr. Grijalva. Or the support that you gave one candidate or 
another?
    Mr. Riley. You know, with them showing up to my door, you 
know, really has no effect on my decision on how I would vote.
    Mr. Grijalva. Isn't that equivalent to what the union is 
doing when they came to your door? You've still got the choice 
to make.
    Mr. Riley. Sure.
    Mr. Grijalva. OK. And just one thing about the company, and 
I'm very aware of Cintas. Our caucus is on record dealing with 
this particular corporation, the Hispanic Caucus, but beyond 
that, you're aware that there is a class action suit filed on 
behalf of customer sales representatives such as yourself for 
nonpayment of overtime of nearly $100 million? They've already 
settled one on the same--a similar lawsuit in California for 
$10 million.
    I mention that because sometimes that legal avenue is 
available to the union or to representatives of employees 
because you can't get redress of these kinds of issues through 
the process as it's set up by the company. And I mention that.
    I yield back, sir. I have no further questions.
    Chairman Johnson. Thank you, Mr. Grijalva.
    Mr. Garren. Can I make one brief comment on that, Mr. 
Chairman? It will be very brief.
    Chairman Johnson. Go ahead.
    Mr. Garren. On the question of union organizers being at 
the parking lots, we did a lot of that. There were 26 different 
locations in which the NLRB investigated our charges that 
Cintas illegally interfered with our attempts to communicate 
with employees at those parking lots. They found merit in the 
26 locations, and Cintas had to enter into a settlement 
agreement concerning interfering with our communications with 
employees at their parking lots.
    Chairman Johnson. Were they trying to use card checks in 
those?
    Mr. Garren. Yes. Yes, we were.
    Chairman Johnson. OK. Mr. Norwood?
    Mr. Norwood. Thank you very much, Mr. Chairman. And I'm 
going to try to get us focused back on what this hearing is 
about. And it isn't about whether employers have more time with 
employees than unions do. It is not about who intimidates who. 
It is about one simple all- American thing: Do people have the 
right to join a union and vote secretly so employers and unions 
don't know how they voted, regardless of who coerces who? If 
you don't know how an employee voted, you can't fire them. If 
you don't know how an employee voted, you can't coerce them if 
you're a union. Now what is wrong with this Congress saying 
clearly that in America you have the right to vote privately? 
And it is nobody else's business whether you spend your adult 
employment life as a union member or not.
    My question is for Mr. Garren. In your testimony, we heard 
a lot about how employers allegedly coerce or intimidate 
employees during an election campaign. Perhaps someday we'll 
have a hearing on that subject, or whether employers have 
greater access to employees than the union does. Maybe we can 
have a hearing on that.
    Now I would probably take a lot of exception, Mr. Garren, 
to some of your conclusions, and I suspect you and I could 
probably spend the rest of the day arguing these points. But 
that's not the point of this hearing. Let's set that aside. My 
question to you is very basic. Even if everything you've said 
today is completely true and accurate, why does that mean then 
an employee should have to give up their right to a secret 
ballot vote? Employers have so-called, quote, ``greater 
access'' to employees when there's a secret ballot election. 
But they have the same access to employees with a card check. 
None of that changes. The only difference I see in the card 
check is that the employee is forced to publicly declare how 
they're voting.
    Why in the world would they have to do that? Why would they 
have to do that in front of management? Why would they have to 
do that in front of the union? Why would they have to do that 
with their co-workers rather than privately casting their 
ballot for their intention? A man ought to be able to vote his 
own conscience without interference from me or you. How do you 
respond to that?
    Mr. Garren. Well, in two ways. One, the Supreme Court in 
Gissell Packing explained very, I think, clearly and cogently 
that when the election process, when employer opposition to 
unionization impedes the election process and makes a fair 
election improbable--not impossible, just improbable--then the 
best--and these are the words of the Supreme Court--in those 
cases, the best indicator of majority support of the employees' 
free choice is authorization cards.
    If you look at our industrial landscape today, the 
overwhelming majority of employees----
    Mr. Norwood. Just put a comma there just for a second. Are 
you familiar with that Supreme Court ruling that says that? I'm 
not a lawyer, so maybe somebody else can help me.
    Mr. Raudabaugh. Well, it's interesting. Obviously people 
see things differently. What Gissell said was in those 
instances where you have hallmark violations so serious that a 
rerun election would not bring about a fair result because of 
the intimidation being so toxic and so long- standing, then in 
those very rare circumstances, then we will proceed to order 
bargaining if there has been at some point an indication of 
majority.
    Now my quick answer--I've watched too many talk shows.
    Mr. Norwood. I got the time, baby. You just keep talking.
    Mr. Raudabaugh. My quick answer to Mr. Garren is to raise 
this Gissell issue is--I'm sorry. That's just beside the point. 
If he wants to focus on the very few cases where appellate 
courts approve and endorse a Board Gissell bargaining order, 
then we can. But the overwhelming number of cases have nothing 
to do with that at all, and I would like to come back to your 
very fair point, which I think summarizes it all, because 
it's--it would be--this is what was said in Logan Packing. 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.
    I mean, the fact of the matter is, all we're talking about 
with this bill is we're not talking about overreaching. We're 
not talking about whether employers or unions are evil or worse 
than the other. We're only talking about why is it that 
Congressman Norwood's choice to join a union or not is public 
knowledge to everyone in the room. I can't conceive why that 
should be.
    Mr. Garren. May I answer the question, since it was asked 
of me?
    Mr. Norwood. Mr. Chairman, I ask unanimous consent for one 
last minute if no one objects on the other side.
    Chairman Johnson. You've already gone over, but we'll give 
you another half. Go ahead.
    Mr. Norwood. All I really wanted to end up by saying is 
that I would think that as many Members of this Congress has 
done in the last--well, in 2001, and in particular many of my 
friends on the other side of the aisle--have encouraged foreign 
nations to at least allow their unions to have a secret ballot 
election because it's fair. The very people who are opposing 
this, my good friend Mr. Miller, is the one who led the fight 
to encourage the rest of the world to go to secret ballot 
elections. Now what's going on here? Thank you, Mr. Chairman.
    Mr. Garren. Mr. Chairman, may I have just a moment to 
answer the question? Because Mr. Raudabaugh answered it, not 
me.
    Chairman Johnson. I'd prefer not to, because we're about to 
run out of time. We're about to get a vote on the floor of the 
House, and I'd like to allow some further questioning. Mr. 
Kildee, you're recognized for 5 minutes.
    Mr. Kildee. Thank you very much, Mr. Chairman. This has 
been a good cross-section. An attorney from Detroit, my state. 
Very familiar with Ford Motor Company back in the early days, 
probably before you were born, though. But I was.
    We have a smaller union represented here. We have a large 
union represented here, and we have someone working for a 
nonunion company who served in the military. By the way, I have 
two sons who served in the military. One was an airborne 
ranger. He's still in. I pinned his ranger tag on him when he 
finished ranger school. It's a pretty tough school.
    So this has been a good cross-section, and I think we find 
those who represent all America, including those who have very 
recently defended our country.
    All of us bring into Congress our own background or our own 
perspective. Mr. Norwood, who is a very good friend of mine, 
and he knows that, and I'm a very good friend of his. He brings 
his perspective in. I bring my perspective in.
    When I was growing up, you know, there was certain 
companies that had certain receptivity to unions and certain 
companies that had hostility and intimidation, including the 
Ford Motor Car Company, which now has a great labor record.
    But we all bring that background in. I can recall that back 
in the days my dad was joining the United Auto Workers, albeit 
in Flint, not in Dearborn, but in Flint, that the method of 
intimidation then was generally the blackjack. And, you know, 
Walter Reuther got pretty well beaten up by blackjacks in the 
battle of the overpass. Now it's more sophisticated, we know. 
And I don't mean to--we have generally black briefcases, right? 
Labor consultants. You go through the telephone book and, you 
know, you can find your labor consultants who will help you 
keep a union out, and it's certainly more sophisticated and 
more humane, I guess, to use the black briefcase rather than 
the blackjack.
    But we do know that there are companies out there that work 
assiduously to keep unions out. I was born in 1929. I can 
remember the sit down strike in Flint in 1936, '37. I can 
remember 1940, the battle of the overpass. So we're always 
going to have that, some companies being receptive, some being 
very hostile and using whatever means they can find, fair or 
foul, to keep the union out.
    Having said that, let me address a question here to Mr. 
Garren. As I understand Mr. Norwood's bill, it would take away 
the freedom of contract between a union and an employer--
specifically, the freedom to agree to a process whereby the 
employer might recognize a union that represents a majority of 
its workers. I can understand why unions might want a card 
check procedure. Are there reasons why employers would want a 
card check procedure instead of the NLRB elective process?
    Mr. Garren. Yes. I think there are many reasons. One of the 
things that's very common and virtually inevitable in NLRB 
election campaigns is an enormous amount of hostility and 
tension. The Supreme Court talks about that in Linn v. 
Plantguard, talks about the vituperation and tension that you 
have. It's a very disruptive and divisive event. And many 
employers prefer to avoid that, prefer to have a much more 
amicable and less painful process. There was a decision I 
believe out of the Second Circuit enforcing a card check 
agreement in which both the union and the company had agreed to 
campaign only in a high-minded manner, and the court commented 
that it was enforcing it in the interests--because it was part 
of labor peace, and that both sides had given up things in 
order to make the recognition process less painful.
    So, yes, I think there are plenty of good reasons why 
employers make sound business decisions to enter into card 
check agreements, voluntary recognition agreements.
    Mr. Kildee. All right. Thank you, Mr. Chairman. I'll let 
you move on to the next member.
    Chairman Johnson. Yeah. Did you want to comment? You acted 
like you did.
    Mr. Raudabaugh. Indeed. I appreciate those remarks. I've 
carried this around since undergraduate days at Penn. This is 
the National Labor Relations Act. In 1935 in Section 7 it talks 
about free choice. There's only one right in the statute. It's 
lovely that unions and it's lovely that management would like 
to avoid debate and discord. That's wonderful. The point is, 
the statute only confers a right, and it's not to unions or to 
management. It's to employees, the people who live in the 
houses next to us. You and me. It is our right, not the 
employer's right and not the union's right. And it is the 
employee's right to choose and freely. And what Mr. Norwood's 
bill is attempting to do, thank you very much, is to allow me 
to decide whether I want to vote for this or for that.
    Chairman Johnson. Mr. Kline.
    Mr. Kline. I want to thank you for your testimony and your 
answers. Mr.Riley, you're from Allentown, Pennsylvania, at 
least in some--temporarily. I was born in Allentown. Always 
nice to see somebody from the old home town. And I want to 
thank you also for your military service. It means a lot to all 
of us and to me personally. Like Mr. Kildee, my son is serving 
in the Army today, and I just want to thank you for that 
service.
    We've had some testimony today about what American 
democracy is and voting. We have some experience, those of us 
here at this dais, about American democracy and voting. And it 
seems to me that at the core of that American democracy is the 
secret ballot, and it's the reason I'm a co-sponsor of this 
bill. We've had testimony about coercion and bad tactics and 
terrible stories, Mr. Riley, from you and from Mr. Hermanson. 
And I know that there are instances of coercion by management 
and about unfair practices and ride time for employers and 
managers.
    But I go back to Mr. Norwood's point, and I thank Mr. 
Raudabaugh for emphasizing this himself, is that this bill, and 
I just reread it again during the course of this, only 
addresses how the vote is cast. And it does seem to me that the 
secret ballot is at the core of our democracy, and it's the 
least that we can do for those employees, as pointed out, the 
basic act addresses the rights of employees, and we want to 
guarantee those rights.
    But I'd like to--a question was asked by my colleague, Mr. 
Kildee, of Mr. Garren. He had some reasons why employers would 
want to move to a card check system. I appreciate that answer, 
and Mr. Raudabaugh, I'd like to hear from you of any reasons 
that you might know of that employers would want such a system 
that would move away from the secret ballot.
    Mr. Raudabaugh. I will put my hat on as a management side 
labor lawyer. I'm not sure I'm aware of any. What comes down to 
this issue of neutrality is beguiling to me. We assume that 
debate has to be acrimonious and disruptive and conducted with 
coercion and intimidation. I don't think that is how we should 
view this. I know modern day campaigns and talk shows are 
pretty aggressive, but we can exchange difference of views 
without beating up on each other.
    But what is bothering me here on the whole issue of 
neutrality is going back to the single right in this statute to 
employees is to make a choice freely--which goes to Mr. 
Norwood's secrecy--to make a choice necessarily suggests that I 
have some information to choose either this or that. And I 
don't know how you learn with a one-sided presentation from one 
side or the other. Employees should have the right to hear all 
views.
    Mr. Kline. Thank you. I'm going to run out of time here in 
just a moment. It seems to me, though, just another comment, 
because I can't stop myself, that regardless of whatever 
coercion there might be on the part of union or employer or 
fellow workers, the secret ballot defends the employee from the 
effects of that. Because at the end of the day, neither the 
employer nor the union nor fellow co-workers know how you 
voted.
    Let's just sort of put this in the scale of the--get an 
idea of the scale of this. I've got some figures here that show 
between 1999 and 2003, there were roughly 14,000 elections held 
by the NLRB. And of those, there were objections filed in about 
3 percent, and about half of those came from employers which 
would indicate that less than 2 percent came from the unions. 
Mr. Raudabaugh, can you address that and tell us what you think 
that says about the process?
    Mr. Raudabaugh. Yes. I think it's like all things. Most 
people abide by the law. Most people try to do right. Most 
people don't run into making violations of the law, and your 
statistics--those are similar to the ones I've obtained. I 
presume they come from annual reports from the Board--point out 
that isn't it a wonderful thing that most people can conduct 
themselves, abide by the rules, and that these problems are the 
absolute infinitesimal portion of all cases and all elections, 
and we have procedures to deal with it.
    Mr. Kline. Thank you, sir. I see my time has expired, Mr. 
Chairman.
    Chairman Johnson. Thank you. Mr. Tierney, you're 
recognized.
    Mr. Tierney. Thank you. It's interesting to note that 
Communist Russia used to have secret ballots, too, but they 
didn't always work out so well. You know, I think that 
everybody here would say that they're not opposed to the 
concept of a well-run election with secret ballots, but they 
also favor allowing the option of having a company and having 
employees decide if they want to go with the card check or some 
other way of resolving it voluntarily, and the law absolutely 
allows for that. And there's good reason for that.
    You know, there are good reasons all the way down here. I 
mean, if you just look at Cintas's conduct, it rivals Wal-Mart 
in some of these things here. I mean, a hundred violations of 
labor law in the United States and Canada. People getting $10 
million settlements for back pay that was owed them for 
overtime that they didn't get. Violations of OSHA regulations. 
A hundred times they've been cited by OSHA for violating 
Federal health and safety laws, not paying a living wage in 
violation, being sued by a city for that. We can see why people 
organize and why there's a need for them to get out there.
    But if we look at elections as they're run right now, once 
you petition for an election, you have on average 43 days to 
get to that election, but the problem is, there are many ways 
to continue that period of time, which then opens it up for 
manipulation and delay. If you go to a regional director's 
decision, that can be appealed. Those take up to 265 days. The 
median number of days for representative cases before the Board 
is 473 days. If the employer then contests that, it could be 
years.
    And so I think that there are many reasons why an employer 
and employee would want to have another way to go on this 
situation. Two studies, one in 1998, one in 1999, both said 
that 36 percent of workers who voted against unions said that 
they did that because they were pressured by the employer to 
vote against them.
    So, Mr. Garren, I just want to ask you some questions. Are 
you aware of the 25 percent of employees who have been found to 
have been illegally fired or disciplined, at least one worker 
for union activity during organizing campaigns?
    Mr. Garren. Yes. It's certainly our experience that unfair 
labor practices are the norm. They're the standard.
    Mr. Tierney. And that's usually in that period when you're 
waiting for your election, right?
    Mr. Garren. Yes. When people are organizing either to get 
support to file a petition or after the petition has been 
filed.
    Mr. Tierney. And you're aware that 75 percent of employers 
hired consultants or union busters to help them fight those 
organizing drives?
    Mr. Garren. I would have guessed more, but if it's 75 
percent, I'll accept that figure.
    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?
    Mr. Garren. Yes. Certainly the overwhelming majority, in 
our experience.
    Mr. Tierney. I think the most egregious case I heard is you 
saying they're putting people right in the truck and make them 
drive around with them all day. I think I'd rather have them 
come visit my wife as long as they weren't threatening her, you 
know, than be sitting in the truck with them all day and 
badgering them.
    Are you aware that 92 percent of the employers force 
employees to attend mandatory closed door meetings against the 
union?
    Mr. Garren. Yes, very well aware of that. And I don't 
believe those statistics were at all true when the basic 
structure of the Act and the remedies and election procedures 
were adopted. And the volume and viciousness of the Vote No 
campaigning that you've just alluded to is exactly what makes 
the norm in NLRB elections today an unfair election.
    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?
    Mr. Garren. Yes.
    Mr. Tierney. I mean, that recalls to me the Wal-Mart case 
where they had the meat packers in their plant decide they 
wanted to unionize, so they just closed down all those 
divisions in their entire chain of stores, right?
    Mr. Garren. That's correct.
    Mr. Tierney. And you're also aware that there's a high 
finding, 52 percent of the employers threaten to call 
immigration officials during organizing drives that include 
undocumented employees?
    Mr. Garren. I have seen many organizing drives smashed to 
smithereens by that threat--people terrified, and that was the 
end of any thought of a union.
    Mr. Tierney. The last figures I have was that 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 any more recent numbers than that?
    Mr. Garren. No, I don't. But, again, every study I've seen 
has shown dramatic increases in these numbers. Even studies 
that set out to show that no, that wasn't the problem, ended up 
concluding that yes, it was.
    Mr. Tierney. All right. And I guess I'm going to close with 
this. In my district the problem is that even after elections 
are supposedly held and we go through all of this delay, you go 
through all of these tactics in that situation, 32 percent of 
the time, elections by workers to have a union still haven't 
had their union 2 years later.
    Mr. Garren. Yes, that's correct.
    Mr. Tierney. Does that figure bear out through the whole 
country?
    Mr. Garren. I believe the figure is more like 50 percent, 
the studies I've seen, do not have a union, do not have a 
contract. And I think it is extremely important to note that in 
card check voluntary recognition arrangements, the studies show 
about 96 percent of the time, unions get contracts, workers get 
contracts. So it is in fact card check that proves to actually 
deliver the benefits of collective bargaining that workers 
sought. And the election system does not deliver that benefit.
    Mr. Tierney. I guess to some of us it's fairly obvious as 
to why both companies and employees might opt to go some route 
other than the elective process. And with respect to the 
elections, I think we have a lot of work to do to make sure 
that in fact the employees are protected, do get both sides of 
the story, have fair access to all the information, and then 
have a fair vote that happens to give them results quickly.
    Chairman Johnson. The gentleman's time has expired. Ms. 
Musgrave.
    Ms. Musgrave. Thank you, Mr. Chairman. I have some written 
material that I'd like to submit for the record, if I may.
    Chairman Johnson. I understand Mr. Norwood has some, also. 
Without objection, they'll all be entered.
    Ms. Musgrave. Mr. Chairman, I'd like to yield Mr. Norwood 
the remainder of my time.
    Chairman Johnson. OK. I'm going to yield you 1 minute, 
because we've got a vote going.
    Mr. Norwood. I'm going to go fast. Everybody's got studies, 
and I have one, too. Are you guys aware that 63 percent of the 
workers agree that stronger laws are needed to protect the 
existing secret ballot election process and to make sure 
workers can make the decision about union membership in private 
without the unions, their employers, or anyone else knowing how 
they vote? That's a study, too.
    I've got another study that says 78 percent of the workers 
believe Congress should keep the existing secret ballot 
election union membership.
    Everybody's got studies. Mine's going in the record just 
along with Mr. Tierney. Mr. Tierney says everybody wants to 
keep the secret ballot election, but my friends, and they are 
over there, are all on a bill that totally eliminates the 
secret ballot election. You can't have it both ways.
    Last, let's make it clear. This bill does not tell 
employers how to think. If they want to be unionized, they can 
say so. They can say so under card check and they can say so 
under secret ballot. It's not their business nor is it the 
union bosses' business. This is about the workers deciding do 
they want to be unionized, Mr. Chairman. That's all this bill 
is about.
    Thank you.
    Chairman Johnson. Thank you. Ms. McCollum, you're 
recognized.
    Ms. McCollum. Thank you, Mr. Chair. When Mr. Riley was 
talking about how he felt intimidated, his right to privacy, I 
respected that. But I also think, Mr. Riley, that you would be 
outraged to know that businesses can photograph employees 
without them knowing it while they're at work while union 
organizations are going on. That businesses hire people to 
photograph employees who come out of union meetings that are 
held in a VFW meeting after hours. And that businesses--and I 
know this from first-hand experience--businesses do intimidate 
and threaten employees in one-on-one meetings, and they do ask 
their supervisors to do that, because I was asked to do that.
    So two wrongs don't make a right. But when you feel that 
your job is threatened, especially with the way the economy is 
right now, I think employers quite often have the upper hand on 
the issue. And that's why we need to find a way in which unions 
in open sunshine can come in and have access without employees 
feeling that their job might be threatened, the hours that they 
work might be threatened.
    I scheduled commission employees. I had people come in and 
tell me ``make sure that they don't work weekends at big 
sales.'' I know exactly what you're talking about from your 
experience and how you were saying. But it also happens in the 
reverse.
    And Mr.--I'm afraid I'm mispronouncing----
    Mr. Raudabaugh. Raudabaugh, yes.
    Ms. McCollum. Have you in your legal practice ever worked 
with an employer and suggested that an employer work with a 
union in an open fashion to have the union come into a business 
and have equal access?
    Mr. Raudabaugh. In very unique settings, in faculty 
situations or something like that. But I go back to the first 
year I was on the National Labor Relations Board, and this 
whole issue of access and so forth had been roundly debated. 
And Clarence Thomas's first authored opinion was in Lechmere, 
and talking about property rights and accommodation of rights. 
And that is what is so interesting about our democracy is the 
balancing and what is fair. It's a very complex, difficult 
question.
    Ms. McCollum. Thank you. I understand. Thank you. So the 
employers' rights--I have a very limited amount of time. So the 
employers' rights come over the employees' rights to have equal 
access to information in the same setting. Because they own the 
property. And that's just the way it is, right?
    Mr. Raudabaugh. But the public sidewalks, the public 
airways, the local media, billboards. This case law has been 
around a very long time in balancing those opportunities.
    Ms. McCollum. Reclaiming my time. I understand that. But I 
also know from talking to employees going through union 
organizations--and some of my employees supported the unions 
and some of them didn't, and I felt very respected that they 
felt I as in management was a person that they could come to 
and get an honest answer--felt extraordinarily intimidated that 
while at work, they knew two things were going on. One, their 
supervisor, the manager could call them into the office and 
speak with them for an hour at a time if they wished. And two, 
that they were being photographed, watched and scrutinized by 
the same employer if they were seen talking to someone who was 
actively trying to get a union organized in the store.
    Thank you very much for the time, Mr. Chair.
    Chairman Johnson. Thank you. I appreciate your patience and 
your shortness. We've got votes on the floor. I want to thank 
the witnesses for their valuable time and testimony and thank 
you for coming here, some of you from a long way.
    If there's no further business, the committee stands 
adjourned.
    [Whereupon, at 12:10 p.m., the Subcommittee was adjourned.]
    [Additional material submitted for the record follows:]

   Letter to Junta De Conciliscion, Submitted for the Record by Hon. 
                            Charlie Norwood

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 Checking the Premises of ``Card Check'', Submitted for the Record by 
                          Hon. Charlie Norwood

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National Right to Work Committee, Memorandum with Fact Sheet, Submitted 
               for the Record by Hon. Marilyn N. Musgrave

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