[House Hearing, 108 Congress]
[From the U.S. Government Publishing 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
Available via the World Wide Web: http://www.access.gpo.gov/congress/
house
or
Committee address: http://edworkforce.house.gov
______
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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
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C O N T E N T S
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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.
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\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%]).
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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\
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\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.
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(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\
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\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.
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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\
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\6\ Id. at 48.
\7\ Id.
\8\ Id.
\9\ Id.
\10\ Id.
\11\ Id.
\12\ Id.
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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.
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\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).
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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.
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\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.
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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)).
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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.
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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\
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\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)).
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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.
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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.
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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.
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\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\
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\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.
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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.
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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\
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\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.
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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.
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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.
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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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