[Senate Hearing 108-596]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 108-596

             EMPLOYEE FREE CHOICE ACT--UNION CERTIFICATION

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

                                HEARING

                                before a

                          SUBCOMMITTEE OF THE

            COMMITTEE ON APPROPRIATIONS UNITED STATES SENATE

                      ONE HUNDRED EIGHTH CONGRESS

                             SECOND SESSION

                               __________

                            SPECIAL HEARING

                     JULY 16, 2004--HARRISBURG, PA

                               __________

         Printed for the use of the Committee on Appropriations


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                                 senate


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                      COMMITTEE ON APPROPRIATIONS

                     TED STEVENS, Alaska, Chairman
THAD COCHRAN, Mississippi            ROBERT C. BYRD, West Virginia
ARLEN SPECTER, Pennsylvania          DANIEL K. INOUYE, Hawaii
PETE V. DOMENICI, New Mexico         ERNEST F. HOLLINGS, South Carolina
CHRISTOPHER S. BOND, Missouri        PATRICK J. LEAHY, Vermont
MITCH McCONNELL, Kentucky            TOM HARKIN, Iowa
CONRAD BURNS, Montana                BARBARA A. MIKULSKI, Maryland
RICHARD C. SHELBY, Alabama           HARRY REID, Nevada
JUDD GREGG, New Hampshire            HERB KOHL, Wisconsin
ROBERT F. BENNETT, Utah              PATTY MURRAY, Washington
BEN NIGHTHORSE CAMPBELL, Colorado    BYRON L. DORGAN, North Dakota
LARRY CRAIG, Idaho                   DIANNE FEINSTEIN, California
KAY BAILEY HUTCHISON, Texas          RICHARD J. DURBIN, Illinois
MIKE DeWINE, Ohio                    TIM JOHNSON, South Dakota
SAM BROWNBACK, Kansas                MARY L. LANDRIEU, Louisiana
                    James W. Morhard, Staff Director
                 Lisa Sutherland, Deputy Staff Director
              Terrence E. Sauvain, Minority Staff Director
                                 ------                                

 Subcommittee on Departments of Labor, Health and Human Services, and 
                    Education, and Related Agencies

                 ARLEN SPECTER, Pennsylvania, Chairman
THAD COCHRAN, Mississippi            TOM HARKIN, Iowa
JUDD GREGG, New Hampshire            ERNEST F. HOLLINGS, South Carolina
LARRY CRAIG, Idaho                   DANIEL K. INOUYE, Hawaii
KAY BAILEY HUTCHISON, Texas          HARRY REID, Nevada
TED STEVENS, Alaska                  HERB KOHL, Wisconsin
MIKE DeWINE, Ohio                    PATTY MURRAY, Washington
RICHARD C. SHELBY, Alabama           MARY L. LANDRIEU, Louisiana
                                     ROBERT C. BYRD, West Virginia (Ex 
                                         officio)
                           Professional Staff
                            Bettilou Taylor
                              Jim Sourwine
                              Mark Laisch
                         Sudip Shrikant Parikh
                             Candice Rogers
                        Ellen Murray (Minority)
                         Erik Fatemi (Minority)
                      Adrienne Hallett (Minority)

                         Administrative Support
                             Carole Geagley


                            C O N T E N T S

                              ----------                              
                                                                   Page

Opening statement of Senator Arlen Specter.......................     1
Statement of John E. Higgins, Jr., Deputy General Counsel, 
  National Labor Relations Board.................................     2
    Prepared statement...........................................     3
Statement of Charles I. Cohen, esquire, partner, Morgan Lewis, 
  testifying on behalf of the U.S. Chamber of Commerce...........     9
    Prepared statement...........................................    10
Statement of Eileen Connelly, executive director, Service 
  Employees International Union, and vice president, Pennsylvania 
  AFL-CIO........................................................    15
    Prepared statement...........................................    18
Statement of Sarah Fox, esquire, Bredhoff and Kaiser, testifying 
  on behalf of AFL-CIO...........................................    22
Statement of Glenn M. Taubman, staff attorney, National Right to 
  Work Legal Defense Foundation..................................    24
    Prepared statement...........................................    26
Statement of Clarice Atherholt, employee, Dana Corporation.......    32
    Prepared statement...........................................    34
Statement of Arlene Brockel, former employee, B. Braun, on behalf 
  of the United Steelworkers of America, AFL-CIO.................    35
    Prepared statement...........................................    37
Statement of Josephine Ruckinger, certified nursing assistant at 
  Presbyterian Home of Hollidaysburg, PA, on behalf of the 1199P 
  Service Employees International Union, AFL-CIO.................    38
    Prepared statement...........................................    39
Prepared statement of the United Food and Commercial Workers 
  Local
  1776...........................................................    54

 
             EMPLOYEE FREE CHOICE ACT--UNION CERTIFICATION

                              ----------                              


                         FRIDAY, JULY 16, 2004

                           U.S. Senate,    
    Subcommittee on Labor, Health and Human
     Services, and Education, and Related Agencies,
                               Committee on Appropriations,
                                                    Harrisburg, PA.
    The subcommittee met at 2 p.m., in room 140, Pennsylvania 
State Capitol Building, Hon. Arlen Specter (chairman) 
presiding.
    Present: Senator Arlen Specter.

               OPENING STATEMENT OF SENATOR ARLEN SPECTER

    Senator Specter. Good afternoon, ladies and gentlemen. The 
Appropriations Subcommittee on Labor, Health and Human Services 
and Education will now proceed. The purpose of this field 
hearing is to explore the provisions of S. 1925, which would 
establish a procedure for union certification where a majority 
of the employees of a firm have signed an authorization card.
    This would make a change in the existing practice where 
there is a requirement for some 30 percent to have stated an 
interest in forming a union and after an investigation by the 
National Labor Relations Board there is a determination made as 
to whether that 30 percent is accurate and then there is a 
secret ballot to determine if there will be union 
representation.
    There have been allegations and counterallegations that 
pressure is exerted on both sides, which impedes a democratic 
vote, with some saying that the employees are pressured by the 
employer not to go forward with the election and others saying 
that the employees are pressured by the unions to go forward.
    This is a very fact-sensitive matter and it seemed that we 
ought to have a hearing on it to consider both sides. We have a 
very well balanced hearing this afternoon.
    We're going to have the Deputy General Counsel of the 
National Labor Relations Board, Mr. John Higgins, who will be 
the first witness. The NLRB takes no position on legislation, 
as I understand from the preliminary statement of Mr. Higgins' 
proposed testimony, and he nods in the affirmative, because 
they feel it might impact on some of their decisions.
    We're going to hear from Mr. Charles Cohen, who is a 
partner of Morgan, Lewis and Bockius law firm, representing the 
Chamber of Commerce, in opposition.
    We're going to hear from Ms. Eileen Connelly, the executive 
director of the Pennsylvania State Council of Service Employees 
International Union and vice-president of the Pennsylvania AFL-
CIO, speaking in favor of the proposed legislation.
    We're going to hear from Ms. Sarah Fox, attorney from 
Bredhoff and Kaiser law firm, representing the AFL-CIO, in 
favor of the bill.
    Then we're going to hear from Mr. James Taubman, Staff 
Attorney for the National Right to Work Legal Defense 
Foundation, in opposition to the bill.
    Then we're going to hear from three employees, Clarice 
Atherholt, Arlene Brockel, and Josephine Ruckinger, who will 
express their views as to what they have found.
    In accordance with the Senate procedures, each witness is 
allotted 5 minutes. There is a clock on the witness table. It's 
green for four minutes, it turns to amber for a minute and then 
it turns to red. In light of the substantial number of 
witnesses, the subcommittee would appreciate if you observe the 
time limits, and there will be an opportunity to amplify views 
during the question-and-answer session which will follow.
    So, with that, Mr. Higgins, we welcome you here and look 
forward to your testimony.

STATEMENT OF JOHN E. HIGGINS, JR., DEPUTY GENERAL 
            COUNSEL, NATIONAL LABOR RELATIONS BOARD

    Mr. Higgins. Thank you, Senator, and thank you for the 
invitation to appear before you today. First I'd ask that my 
written remarks be admitted into the record.
    Senator Specter. Your full statement will be made a part of 
the record and without objection.
    Mr. Higgins. Thank you. I appear before you today for the 
purpose of providing technical assistance or information about 
the National Labor Relations Act and its enforcement by the 
Office of General Counsel. As you indicated, the Board and the 
Office of General Counsel have a longstanding policy of not 
commenting on proposed amendments to the Act and my remarks 
will be consistent with that tradition.
    I have been with the Board 40 years next month and it is 
because of this experience that, in response to your 
invitation, General Counsel Arthur Rosenfeld asked me to 
represent him here today to discuss the current state of the 
law.
    Senator Specter. Sir, can you pull the microphone just a 
little closer. Senator Thurmond always used to say, pull the 
machine closer.
    Mr. Higgins. Is that better? All right.
    Senator Specter. You have a very deep South Carolina 
accent, so we can hardly understand you.
    Mr. Higgins. Mine is a Boston accent.
    Senator Specter. You got the machine closer. Senator 
Thurmond can hear you now.
    Mr. Higgins. In General Counsel's role as a neutral 
prosecutor, he is statutorily separate and independent of the 
Board itself. So the views that I express today are not those 
of the Board. I am Mr. Rosenfeld's deputy and I've served in 
this position for three other General Counsels and for two 
acting General Counsels.
    I can't really be exhaustive about this subject because we 
don't see every neutrality agreement. By their nature, they 
don't come before the Agency unless someone files a petition 
for an election or files an unfair labor practice charge.
    The legislation you are considering proposes to supplement 
the procedures for Board certification of bargaining 
representatives by providing for card checks on a footing equal 
to those currently enjoyed by Board conducted secret ballot 
elections.
    To say whether or not that's a good idea is not my purpose 
here today. That's a decision for Congress and certainly not 
for the NLRB. But I can say that with respect to the current 
certification procedures, they work quite well.

                      NLRB ELECTION IS CROWN JEWEL

    The Board's election process has sometimes been called its 
crown jewel, and that I think is certainly well-deserved 
praise. Over the years we have run a lot of elections and we 
generally run them quickly, efficiently and fairly. The 
appellate procedures available to a party who is dissatisfied 
with an election can sometimes result in undue delay of the 
final resolution of the question concerning representation, but 
those delays are occasioned by the appeals process and not by 
Agency inaction.
    To be sure, there are some cases that the Agency takes too 
long with, but that doesn't eclipse the outstanding record of 
our regional office staffs in seeing to it that our elections 
are run, for example, last year, in a median time of 40 days 
from the filing of the petition. And the statistics for the 
cases on the high side of that median are equally good, if not 
better. 92.5 percent of the elections run by the Board last 
year were run in 56 days or less.
    As my written testimony indicates, we've had a number of 
cases involving neutrality agreements. As recently as 
yesterday, the General Counsel decided an unfair labor practice 
case that presented the issue of employee disaffection from the 
union contemporaneously with the union and the employer 
agreeing on recognition.

                           PREPARED STATEMENT

    In many respects, this case is the unfair labor practice 
counterpart of the representation case now pending before the 
Board involving recognition bar, a case that's described more 
fully in my written remarks. The parties have not been notified 
of the General Counsel's decision, so I don't want to advise 
you of the results of that case or the case name, but I mention 
it only to emphasize the frequency with which we see these 
cases and the varying contexts in which they are presented.
    So now I'll be willing to answer any questions you may 
have.
    [The statement follows:]

               Prepared Statement of John E. Higgins, Jr.

    I am pleased to appear before the Subcommittee today as it 
considers the issue of voluntary recognition of labor organizations by 
employers under the National Labor Relations Act. I am a 40-year career 
employee of the NLRB, currently serving for the second time as Deputy 
General Counsel. I had the honor of serving as a Member of the National 
Labor Relations Board under recess appointments by President Reagan and 
the first President Bush. I appreciate the opportunity, on behalf of 
NLRB General Counsel Arthur Rosenfeld, to explain the current status of 
the law and to identify some of the legal issues that have arisen out 
of voluntary recognition pursuant to neutrality agreements.
    At the outset I want to make clear, consistent with long standing 
policy at the NLRB, that the General Counsel, who is appointed by the 
president and confirmed by the Senate to be a neutral prosecutor under 
the National Labor Relations Act, does not comment on the merits of 
pending legislative proposals. We will, of course, do our best to 
enforce the law firmly and evenhandedly, if Congress sees fit to amend 
it. We have done so for 69 years and have enforced major as well as 
minor changes to the Act during that time.
    The issue presented by the proposed legislation is voluntary 
recognition under the NLRA; a practice by which an employer accords to 
a labor organization the status of exclusive representative of 
employees in a bargaining unit on the basis of some verification that 
the labor organization has the support of a majority of the unit 
employees. Such verification can be by an independent neutral third 
party such as an arbitrator or a member of the clergy, or by the 
employer itself. Voluntary recognition--an alternative to the 
statutorily sanctioned process of Board-conducted, secret ballot 
elections--has been a common practice in labor-management relations for 
many years. Indeed, the Board has held that an employer that agrees to 
recognize a union upon a showing of majority support is bound by that 
commitment.\1\
---------------------------------------------------------------------------
    \1\ See, e.g., Snow & Sons, 134 NLRB 709 (1961), enfd. 308 F.2d 687 
(9th Cir. 1962).
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    The important thing about such voluntary recognitions under current 
labor law is that they are indeed voluntary. That is, as the law has 
stood for many years, the National Labor Relations Board cannot legally 
compel an employer, in the absence of an agreement otherwise, to 
recognize a labor organization, except under the representation 
provisions of the National Labor Relations Act. Those provisions, set 
out in Section 9 of the Act, require a secret ballot election, 
conducted by agents of the Board.
    That right--to insist on a secret ballot election--is safeguarded 
to all employers under the Act. The Supreme Court made this clear in 
its Linden Lumber decision.\2\ It is forfeited only if an employer 
commits such egregious unfair labor practices as to render the holding 
of a fair election impossible.\3\
---------------------------------------------------------------------------
    \2\ Linden Lumber Div., Summer & Co., 419 U.S. 304 (1974).
    \3\ NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
---------------------------------------------------------------------------
    An employer that receives a union demand for recognition has a 
choice as to whether to accede to the request based on a showing of 
majority, to tell the union to file a petition or to file the petition 
itself. In those situations in which a petition is filed, it is 
processed under the Act's representation procedures. Most of these 
cases, indeed over 85 percent of them, go to an election by means of a 
Stipulated Election Agreement. These agreements obviate the need for 
hearing and provide the most expeditious way of getting to an election. 
But, whether or not we have a hearing or a stipulated agreement, we run 
all elections within a 42 median day from the filing of the petition. 
Last year, for example, we ran 2,659 elections in a median time of 40 
days. And, 92.5 percent of these elections were run within 56 days. 
This is quite a remarkable record and we are very proud of it. Our 
Regional Offices work very hard to get to Stipulated Election 
Agreements and they strongly encourage early election dates. Of course 
there are always cases where the process takes longer--in some cases, 
too long. These cases are however, as the statistics I just cited 
indicate, are the exception and not the rule.
    Over the years employers have seen fit in some circumstances to 
forego their right to insist on a Board election and to simply 
recognize a union that claims and establishes majority support. Little 
controversy has attended this practice until recently. Rather, such 
recognitions have been challenged only occasionally--usually on the 
ground that they were ``sweetheart'' recognitions in which the favored 
union did not enjoy the support of a majority of the bargaining unit. 
Such illegitimate recognitions have routinely been challenged and 
condemned under Section 8(a)(2) of the Act, which outlaws improper 
``assistance'' of a labor organization. The Office of the General 
Counsel has been diligent over the years in investigating and 
prosecuting such claims. Indeed, recognition of a minority union is one 
class of cases that readily lends itself to injunctive relief under 
Section 10(j) of the Act.
    Recently, we have come to see a growing practice of ``neutrality 
agreements'' in which a union and an employer agree to ground rules 
that they will follow in the event that the union attempts organize the 
employer's employees. Under one form of these, a so-called ``card 
check'' agreement, the employer agrees to recognize the union on the 
basis of an independent verification of majority status. Card check 
agreements have become a matter of some controversy. Indeed, there are 
bills now pending in Congress that would effectively outlaw such 
agreements and require an NLRB election to establish a bargaining 
relationship. Similarly, other legislative proposals would sanctify 
``card checks'' and elevate them to the status of a Board-conducted, 
secret ballot election, even in the absence of prior agreement by the 
employer.
    One aspect of the General Counsel's role as prosecutor under the 
Act is to review and evaluate novel legal claims and to determine 
whether they warrant formal presentation to the five-Member Board in 
the form of an adversary legal proceeding. We have recently begun to 
see an uptick in cases that raise a number of novel legal issues 
growing out of voluntary recognition--both ad hoc recognition and 
recognition as a product of a neutrality agreement. In the time 
remaining I will briefly outline some of these.
    One major class of cases we are seeing concerns whether terms 
contained in a neutrality agreement amount to unlawful assistance to 
the union in violation of  8(a)(2) of the Act. In some of these cases, 
recognition has been granted pursuant to an agreement that is alleged 
to improperly favor the union by suggesting employer approval of the 
union and/or by not permitting the employees who oppose the union the 
same access to employees that the employer permits the union. In some 
cases the agreement is said to illegally promise or imply employment 
terms that would be implemented upon the employees' designation of the 
union as their representative. Such an agreement may run afoul of the 
Board's Majestic Weaving doctrine.\4\
---------------------------------------------------------------------------
    \4\ Majestic Weaving Co., 147 NLRB 859, (1964), enf. denied on 
other grounds 355 F.3d 854 (2d Cir. 1966) (employer violates Section 
8(a)(2) when it recognizes and negotiates a contract with a union that 
does not have authorization from a majority of the employer's employees 
to represent the employees in collective bargaining, even when the 
recognition and contract are conditioned upon the Union's future 
demonstration of majority support).
---------------------------------------------------------------------------
    Another significant group of cases concerns agreements between an 
employer and a union that are said to commit the employer to require 
entities that the employer is affiliated with or does business with to 
execute a neutrality agreement. It is alleged that such agreements are 
unlawful secondary agreements under Section 8(e) of the Act. Section 
8(e) is the so-called ``hot cargo'' provision, which outlaws certain 
agreements between employers and labor organizations.
    A third issue is that of the application of the recognition bar 
doctrine to cases in which an employer and union have agreed to 
voluntary recognition. The recognition bar doctrine precludes the 
running of an election for a reasonable time after an employer has 
voluntarily recognized the union on the basis of a showing of majority 
support.\5\ This policy bars election petitions by a group of employees 
seeking to decertify the union as bargaining agent or by a rival union, 
seeking to replace the new incumbent. The Board is now considering the 
viability of the recognition bar doctrine and just how far it should 
extend.\6\ Briefs were solicited from any interested parties last month 
and the General Counsel has filed a brief suggesting that while 
recognition bar serves a valuable statutory purpose, it should not 
preclude giving employees an opportunity for a secret-ballot election 
where within 30 days of a recognition, at least 50 percent of the unit 
employees express opposition to that recognition and file a petition 
for an election with the Board. Briefs were filed yesterday.
---------------------------------------------------------------------------
    \5\ See, e.g., Keller Plastics Eastern, 157 NLRB 583 (1966).
    \6\ Dana Corp., 341 NLRB No. 150 (2004).
---------------------------------------------------------------------------
    These are some of the issues with which the Board and the General 
Counsel are now grappling. They are complex and require careful 
investigation and consideration. Our Regional Offices have recently 
been directed to submit neutrality agreement unfair labor practice 
cases to our Division of Advice in Washington, so that they may receive 
expert legal review before any prosecutorial decisions are made. The 
General Counsel wants to assure that the theories being advanced in 
these cases are consistent and uniform.
    Again thank you for the opportunity to appear before you today. I 
would be happy to answer any questions you may have.

    Senator Specter. Thank you, Mr. Higgins. I note your 
comment that 90 percent of all elections are conducted in 56 
days of filing a petition. What is the longest one that you had 
heard last year?
    Mr. Higgins. I don't know, Senator. I don't know what that 
one was. There are some cases that are pending before the Board 
involving preelection issues that have been pending before the 
Board for more than a year.
    Senator Specter. Well, are some still pending for more than 
a year?
    Mr. Higgins. Yes, sir. But it's a handful compared to the 
4,600 petitions we received last year.
    Senator Specter. And the average time on appeal to the NLRB 
in Washington is 473 days; is that accurate?
    Mr. Higgins. I think that is, but, again, that's a handful 
of cases, that's an average, which is distorted by a 
particularly long case. There are cases pending at the Board 
for a long period of time and one of the goals of the current 
Board is to get rid of this backlog. The Board has been 
plagued, as you know, for a number of years now with a problem 
with turnover among the Board members, recess appointments, 
Board members coming and going.
    Senator Specter. Is that figure accurate, though, if you 
know?
    Mr. Higgins. I'd have to check on that, Senator. I'd be 
more than happy to do that and submit it for the record.
    Senator Specter. Well, 473 days is a little long for an 
appellate process, more than a year, wouldn't you say?
    Mr. Higgins. Yes, sir.
    Senator Specter. There have been efforts made to very 
materially cut back on NLRB funding. When I took over as 
Chairman of this Subcommittee, there was an effort in the House 
of Representatives to cut the funding by some 30 percent and 
that was altered in the Senate. We not only eliminated that cut 
but gave the appropriate inflation relief. Do you consider the 
funding for the NLRB to be adequate today to enable the NLRB to 
do its job?
    Mr. Higgins. Yes. And, of course, we support the 
President's budget request.
    Senator Specter. You are not disagreeing with the 
President?
    Mr. Higgins. No, sir.
    Senator Specter. I'm not surprised.
    Well, that's something which comes up constantly for those 
who are attending the hearing. Some of the Federal agencies 
think that budgets are too sparse. I haven't found one yet in 
my 24 years that said they think they're overfinanced, but even 
when an agency may think they need more money, they don't say 
so. They have a rigorous line of review through the Office of 
Management and Budget and it's expected they're good soldiers. 
When the administration says that's that, they don't say the 
budget is insufficient.
    Every now and then we meet someone in the corridor who 
tells us a different story. I'm not saying NLRB has done that, 
but we watch your budget and when we find that the time is 
long--and I think these time limits are really on the outer 
limit, I think they are too long--then we, as a matter of 
congressional oversight, put in more funding to try to get 
matters expedited.
    We find veterans' appeals, for example, are much, much too 
long. Social security appeals are much, much too long. And it 
is very important to get a very prompt disposition of these 
matters in controversy, because people are waiting. It's like 
the court system, where we just opened up the station in 
Reading where we have a Federal station, two new judges. Judge 
Stengel from Lancaster and Judge Sanchez from Chester County 
are sitting there.
    So we would keep a close eye on it. And if there's any 
suggestion that anybody from the Board wants to bring to this 
subcommittee, we're in charge of the appropriations, we'd be 
very interested to hear it.
    Mr. Higgins. We appreciate it. As you correctly note, this 
Committee has been very supportive of the Board's budget 
requests in the past, particularly in the past 2 or 3 years, 
and we have used that additional money to remove some of the 
backlog, particularly the backlog in the field.
    The problem with the cases that you are speaking of, of 
course, are at the Board, and that's where the problem with 
Board member turnover has plagued the Board with getting some 
of cases out.
    Senator Specter. This subcommittee has been very supportive 
of the Board, because you perform a very important function. 
And when you don't make a decision, a lot of people out there 
are hanging in limbo. And that's our job to see to it that you 
have funding to carry out a very important process.
    Mr. Higgins. Again, we're very appreciative, Senator.
    Senator Specter. Mr. Higgins, is there currently 
consideration by the Board to alter the practice where the 
employees and the employer agree to have a card certification, 
as an alternative to holding an election?
    Mr. Higgins. Well, before the Board now is a case involving 
the viability of the recognition bar doctrine, the question 
being whether or not a recognition extended between an employer 
and a union bars a decertification petition filed by a group of 
employees who don't want the union and whether it will bar a 
petition for more than a reasonable period of time.
    That case is before the Board. As a matter of fact, I 
described that case in my written remarks and also described 
the general counsel's brief on that question that was filed 
yesterday in that case.
    In addition to that, there are a number of unfair labor 
practice cases currently pending before the General Counsel. 
None of them actually go specifically to challenging the 
concept of neutrality agreements qua neutrality agreements.
    There are allegations that some recognitions were extended 
in the context of coercive conduct either by the employer or 
the union. There are allegations that particular neutrality 
agreements may violate section 8(e) of the Act. And those are 
all pending decision by the General Counsel as we speak. In 
fact, in a number of them we've had the parties in, the 
employer, the union, and the charging party, the Right to Work 
people.
    Senator Specter. Mr. Higgins, isn't it correct that under 
current law if employees and the employer agree to have the so-
called card count that that can be done?
    Mr. Higgins. Yes, sir, that is correct. And under current 
law, the Board will require the employer and the union to honor 
the results of that, absent showing that the cards were 
obtained coercively or that the cards don't truly reflect the 
union's majority status.
    Senator Specter. If there is some irregularity, of course, 
you don't have to recognize the result, but if it's a regular 
procedure and a majority of the employees sign the cards, as 
long as there's an agreement between the employees and the 
employer, that is an alternative way under existing law for 
union certification?
    Mr. Higgins. That is correct, sir for recognition. And 
that's what's called the Snow & Sons doctrine, which comes out 
of a case called Snow & Sons.
    Senator Specter. Now, is there any active consideration by 
the NLRB to change that procedure?
    Mr. Higgins. Again, I don't know of any case now in which 
there's an unfair labor practice charge that specifically 
challenges the legality of a card check.
    Senator Specter. Well, if there's an unfair labor practice, 
that could result in setting it aside on factual grounds. My 
question goes to a different point, as to whether there is any 
consideration now by the National Labor Relations Board to 
alter the existing procedure where an employer and employees 
agree to card certification.
    Mr. Higgins. Yes, there is. Well, to the extent that 
recognition bar case that I described a moment ago is an 
attempt to alter the procedure, that is one matter that's 
pending before the Board now that's under consideration.
    What that could do would be to alter the bar status of a 
recognition agreement. And when I say bar, I mean barring a 
decertification petition or decertification election.
    Senator Specter. Are you saying that there's a matter 
pending now which could eliminate this certification by cards 
where there is agreement between the employer and employees----
    Mr. Higgins. No, sir, it wouldn't eliminate it.
    Senator Specter. Let me finish the question. We can't tell 
anything about your answer unless we finish the question.
    Is there anything pending before the NLRB now which would 
alter certification where the employer and employees agree that 
it will be done by the card certification?
    Mr. Higgins. Yes, sir. This would alter it only to the 
extent that it would permit employees who are unhappy with an 
agreement and with a recognition under one of those agreements 
to come in and ask the Board to run an election. Today they 
cannot come in and ask the Board to run such an election, 
because of what is called the recognition bar doctrine.
    There is a case pending before the Board right now in which 
the Board has asked the parties to brief the question of 
whether or not that recognition bar doctrine should continue in 
existence in the face of a recognition agreement of the kind 
you described.
    Senator Specter. Well, so, in effect, you're saying that 
the Board is considering changing the procedure?
    Mr. Higgins. Yes, sir, that is correct. I'm sorry. The 
proposal does not propose to outlaw recognition agreements. It 
would only remove the bar quality, and that's a term, bar 
meaning it would remove the recognition as a bar to a 
decertification election petition filed by unhappy employees.
    Senator Specter. So it would be only in the case of a 
decertification decision?
    Mr. Higgins. Yes, sir.
    Senator Specter. But otherwise, the current rule would stay 
the same?
    Mr. Higgins. Yes, sir.
    Senator Specter. Okay. Thank you very much, Mr. Higgins, we 
appreciate your coming to the field hearing and thank you very 
much for your testimony.
    Mr. Higgins. Thank you.
    Senator Specter. We'll now call our second panel, Mr. 
Charles Cohen, Ms. Eileen Connelly, Ms. Sarah Fox, and Mr. 
Glenn Taubman. Thank you all for joining us.
    Mr. Charles Cohen is a partner with the labor and 
employment practice of Morgan, Lewis and Bockius, testifying 
today on behalf of the United States Chamber of Commerce. From 
1994 to 1996, he served as a member of the NLRB, graduate of 
Tulane University and a law degree from the University of 
Pittsburgh School of Law.
    Thank you for joining us, Mr. Cohen, and my first question 
is, when did Morgan, Lewis and Bockius become Morgan Lewis?
    Mr. Cohen. Well, the name of the firm is still Morgan, 
Lewis and Bockius, but we go by Morgan Lewis for about the last 
4 years.
    Senator Specter. This is an esoteric question which lawyers 
who have practiced in Philadelphia for a long time are 
interested in and they're condensing all their names. Mr. 
Cohen, you have 5 minutes. You may proceed.

STATEMENT OF CHARLES I. COHEN, ESQUIRE, PARTNER, MORGAN 
            LEWIS, TESTIFYING ON BEHALF OF THE U.S. 
            CHAMBER OF COMMERCE

    Mr. Cohen. Thank you, Senator. I am pleased and honored to 
be here today and I also ask that my written remarks be 
admitted into the record.
    Senator Specter. Everybody's written remarks will be made, 
without objection, a part of the record in full and then that 
gives you an opportunity to summarize within the allotted 5 
minutes.
    Mr. Cohen. Thank you, Senator. Before becoming a member of 
the Board, I worked for the NLRB in various capacities from 
1971 to 1979, and then as a labor lawyer representing 
management in private practice until serving on the Board and 
then in private practice for the past 8 years.
    In my 33 years of experience, I've had the opportunity from 
different vantage points to observe and understand the issues 
which go to the heart of the proposed legislation. It is my 
sincere belief that Senator Wagner and the Congress got it 
right in 1935 by providing for government supervised NLRB 
elections and that Congress again got it right in 1947 by 
providing for employer free speech, subject to the restriction 
that that speech not contain promises of benefit or threats of 
reprisal.
    You will hear situations where the system did not work. 
Undoubtedly, that occurs. But, in my view, those situations are 
not as pervasive as portrayed. Indeed, it is not those 
situations which give rise to the decline in union density. 
Rather, that trend transcends NLRA law and has come about 
largely from the pressures of public competitive global 
economy, the wealth of employee protective legislation enacted 
over the past 40 years and societal changes regarding group 
affiliations.
    The heart of the proposed legislation, turning the NLRB 
into a card-counting mechanism rather than the guarantor of 
industrial democracy is a quite radical notion. Rather than 
being a 21st century idea in response to a 21st century 
problem, the idea of card check recognition in lieu of a secret 
ballot election was on the union wish list at the time the so-
called Labor Law Reform Bill was considered under the Carter 
administration.
    The same concerns were expressed about inadequacies of the 
NLRA and rising virulence of employers in their anti-union 
campaigns. But card check recognition was determined to be too 
extreme for passage. Hence, the notion of extremely quick 
secret ballot elections was substituted in that proposed 
legislation.
    I submit that if ever there were a time for card check 
recognition rather than secret ballot elections----
    Senator Specter. There was a change from card check to 
secret ballot in the legislation?
    Mr. Cohen. In proposed legislation under the Carter 
administration, legislation which never got enacted. I submit 
that if ever there were a time for card check recognition 
rather than secret ballot elections, the present is the least 
appropriate time.

                           PREPARED STATEMENT

    With vastly increased use of neutrality agreements 
providing, in effect, a gag order on employers, employees need 
to know not only the potential benefits but the pitfalls of 
unionization. By coupling card check recognition with 
neutrality agreements, employee knowledge is foreclosed.
    In addition, it needs to be recognized that neutrality 
agreements are not, in my experience, the product of employee 
desires. Rather, they come from leverage that unions exert over 
the employer with respect to already recognized employees and/
or from governmental or regulatory pressures.
    I thank you for the opportunity to be here.
    [The statement follows:]

                 Prepared Statement of Charles I. Cohen

    Chairman Specter and Members of the Subcommittee, I am pleased and 
honored to be here today. Thank you for your kind invitation.
    By way of introduction, I was appointed by President Clinton, 
confirmed by the Senate, and served as a Member of the National Labor 
Relations Board from March 1994 until my term expired in August 1996. 
Before becoming a Member of the Board, I worked for the NLRB in various 
capacities from 1971 to 1979 and as a labor lawyer representing 
management in private practice from 1979 to 1994. Since leaving the 
Board in 1996, I have returned to private practice and am a Senior 
Partner in the law firm of Morgan, Lewis & Bockius LLP. I am a member 
of the Labor Relations Committee of the U.S. Chamber of Commerce, and 
Chair of its NLRB subcommittee, and am testifying today on behalf of 
the U.S. Chamber of Commerce.
    The National Labor Relations Act was enacted in 1935 and has been 
substantially amended only twice--once in 1947 and once in 1959. The 
Act establishes a system of industrial democracy which is similar in 
many respects to our system of political democracy. At the heart of the 
Act is the secret ballot election process administered by the National 
Labor Relations Board. In order to understand how recent trends in 
organizing are diluting this central feature of the Act, some 
background is necessary.

               THE NLRB'S SECRET BALLOT ELECTION PROCESS

    If a group of employees in an appropriate collective bargaining 
unit wish to select a union to represent them, the Board will hold a 
secret ballot election based on a petition supported by at least thirty 
percent of employees in the unit. The Board administers the election by 
bringing portable voting booths, ballots, and a ballot box to the 
workplace. The election process occurs outside the presence of any 
supervisors or managerial representatives of the employer. No 
campaigning of any kind may occur in the voting area. The only people 
who are allowed in the voting area are the NLRB agent, the employees 
who are voting, and certain designated employee observers.
    The ultimate question of union representation is determined by 
majority rule, based on the number of valid votes cast rather than the 
number of employees in the unit. If a majority of votes are cast in 
favor of the union, the Board will certify the union as the exclusive 
bargaining representative of all employees in the collective bargaining 
unit. Once a union is certified by the Board, it becomes the exclusive 
representative of all of the unit employees, whether or not they voted 
for the union. The employer is obligated to bargain with the union in 
good faith with respect to all matters relating to wages, hours, and 
working conditions of the bargaining unit employees.
    The Board is empowered to prosecute employers who engage in conduct 
that interferes with employee free choice in the election process, and 
may order a new election if such employer interference with the 
election process has occurred. The Board will also order the employer 
to remedy such unfair labor practices, for example by ordering the 
employer to reinstate and compensate an employee who was unlawfully 
discharged during the election campaign. In extreme cases, the Board 
may even order an employer to bargain with the union without a new 
election, if the Board finds that its traditional remedies would not be 
sufficient to ensure a fair rerun election and if there is a showing 
that a majority of employees at one point desired union representation. 
The Supreme Court affirmed the Board's power to issue this 
extraordinary remedy in NLRB v. Gissel Packing Co., 395 U.S. 575 
(1969). When issuing a Gissel bargaining order, the Board will 
determine whether majority support for the union existed by checking 
authorization cards signed by employees during the organizing process.
    As the Board and the Supreme Court have acknowledged, the use of 
authorization cards to determine majority support is the method of last 
resort. A secret ballot election is the ``most satisfactory--indeed the 
preferred--method of ascertaining whether a union has majority 
support.'' Gissel Packing, 395 U.S. at 602. Unions likewise prefer an 
NLRB secret ballot election, at least when they are faced with a 
potential loss of majority support. In Levitz Furniture Co. of the 
Pacific, 333 NLRB 717 (2001), the United Food and Commercial Workers, 
supported by the AFL-CIO as amicus curiae, took the position that 
``Board elections are the preferred means of establishing whether a 
union has the support of a majority of the employees in a bargaining 
unit.'' Id. at 719 (emphasis added). The Board agreed with the unions' 
position in Levitz. See id. at 725 (``We agree with the General Counsel 
and the unions that Board elections are the preferred means of testing 
employees' support.'').
    Although authorization cards may adequately reflect employee 
sentiment when the election process has been impeded, the Board and the 
Court in Gissel recognized that cards are ``admittedly inferior to the 
election process.'' Gissel Packing, 395 U.S. at 602. Other federal 
courts of appeal have expressed the same view:
  --``[I]t is beyond dispute that secret election is a more accurate 
        reflection of the employees' true desires than a check of 
        authorization cards collected at the behest of a union 
        organizer.'' NLRB v. Flomatic Corp., 347 F.2d 74, 78 (2d Cir. 
        1965).
  --``It would be difficult to imagine a more unreliable method of 
        ascertaining the real wishes of employees than a card check, 
        unless it were an employer's request for an open show of hands. 
        The one is no more reliable than the other. . . . Overwhelming 
        majorities of cards may indicate the probable outcome of an 
        election, but it is no more than an indication, and close card 
        majorities prove nothing.'' NLRB v. S.S. Logan Packing Co., 386 
        F.2d 562, 565 (4th Cir. 1967).
  --``The conflicting testimony in this case demonstrates that 
        authorization cards are often a hazardous basis upon which to 
        ground a union majority.'' J.P. Stevens & Co. v. NLRB, 441 F.2d 
        514, 522 (5th Cir. 1971).
  --``An election is the preferred method of determining the choice by 
        employees of a collective bargaining representative.'' United 
        Services for the Handicapped v. NLRB, 678 F.2d 661, 664 (6th 
        Cir. 1982).
  --``Although the union in this case had a card majority, by itself 
        this has little significance. Workers sometimes sign union 
        authorization cards not because they intend to vote for the 
        union in the election but to avoid offending the person who 
        asks them to sign, often a fellow worker, or simply to get the 
        person off their back, since signing commits the worker to 
        nothing (except that if enough workers sign, the employer may 
        decide to recognize the union without an election).'' NLRB v. 
        Village IX, Inc., 723 F.2d 1360, 1371 (7th Cir. 1983).
  --``Freedom of choice is `a matter at the very center of our national 
        labor relations policy,' . . .  and a secret election is the 
        preferred method of gauging choice.'' Avecor, Inc. v. NLRB, 931 
        F.2d 924, 934 (D.C. Cir. 1991) (citations omitted).
    Having recognized in Gissel that a secret ballot election is the 
superior method for determining whether a union has majority support, 
the Supreme Court in Linden Lumber v. NLRB, 419 U.S. 301 (1974), held 
that an employer may lawfully refuse to recognize a union based on 
authorization cards and insist on a Board-supervised secret ballot 
election. The only exceptions to an employer's right to insist on an 
election are when the employer, as in the Gissel situation, has engaged 
in unfair labor practices which impair the electoral process or when 
the employer has agreed to recognize the union based on a check of 
authorization cards. Thus, an employer can agree to forgo a secret 
ballot election and abide by the less reliable card check method of 
determining union representation.

 THE INCREASING USE OF NEUTRALITY/CARD CHECK AGREEMENTS IN ORGANIZING 
                               CAMPAIGNS

    One of the highest priorities of unions today is to obtain 
agreements from employers which would allow the union to become the 
exclusive bargaining representative of a group of employees without 
ever seeking an NLRB-supervised election. These agreements, which are 
often referred to as ``neutrality'' or ``card check'' agreements, come 
in a variety of forms. In some cases, the agreement simply calls for 
the employer to recognize the union if it produces signed authorization 
cards from a majority of employees. In many cases, the agreement 
includes other provisions which are designed to facilitate the union's 
organizing campaign, such as:
  --An agreement to provide the union with a list of the names and 
        addresses of employees in the agreed-upon unit;
  --An agreement to allow the union access to the employer's facilities 
        to distribute literature and meet with employees;
  --Limitations or a ``gag order'' on employer communications to 
        employees about the union;
  --An agreement to start contract negotiations for the newly-organized 
        unit within a specified (and short) time frame, and to submit 
        open issues to binding interest arbitration if no agreement is 
        reached within that time frame; and
  --An agreement to extend coverage of the neutrality/card check 
        agreement to companies affiliated with the employer.
    Whatever form the agreement may take, the basic goal is the same: 
to establish a procedure that allows the union to be recognized without 
the involvement or sanction of the National Labor Relations Board. 
Neutrality and card check agreements therefore present a direct threat 
to the jurisdiction of the Board and its crown jewel, the secret ballot 
election process. I have written two law review articles discussing 
this trend. See Charles I. Cohen, Neutrality Agreements: Will the NLRB 
Sanction Its Own Obsolescence?, The Labor Lawyer (Fall, 2000); Charles 
I. Cohen and Jonathan C. Fritts, The Developing Law of Neutrality 
Agreements, Labor Law Journal (Winter, 2003).
    The motivating force behind neutrality/card check agreements is the 
steady decline in union membership among the private sector workforce 
in the United States. Unions today represent only about 8 percent of 
the private sector workforce, about half of the rate 20 years ago. See 
U.S. Dep't of Labor, Bureau of Labor Statistics, Union Members in 2003 
(Jan. 21, 2004), available at http://www.bls.gov/news.release/pdf/
union2.pdf. There are many explanations for this precipitous decline: 
the globalization of the economy and the intense competition that comes 
with it, the increasing regulation of the workplace through federal 
legislation rather than collective bargaining, and the changing culture 
of the American workplace. While unions may not disagree with these 
explanations to varying degrees, they claim that the NLRB's election 
process is also to blame. Unions argue that the NLRB's election process 
is slow and ineffective, and therefore an alternative process is 
needed--namely, neutrality/card check agreements.
    I believe there are two basic problems with this argument. First, 
it is not supported by the facts. The NLRB's election process is 
efficient and fair, as demonstrated by hard statistics. Second, 
neutrality/card check agreements limit employee free choice and are 
generally the product of damaging leverage exerted by the union against 
the employer.

           THE NLRB'S ELECTION PROCESS IS EFFICIENT AND FAIR

    The standard union criticisms of the NLRB's election process are 
more rhetorical than factual. Unions argue that the NLRB's election 
process is slow and allows employers to exert undue influence over 
employees during the pre-election period. Both of these arguments are 
not supported by the facts.
    The NLRB's election process is not slow. In fiscal year 2003, 92.5 
percent of all initial representation elections were conducted within 
56 days of the filing of the petition. Memorandum GC-04-01, Summary of 
Operations (fiscal year 2003), at p. 5 (December 5, 2003), available at 
http://www.nlrb.gov/nlrb/shared_files/gcmemo/gcmemo/
gc0401.pdf?useShared=/nlrb/about/reports/gcmemo/default.asp. During 
that same time period, the median time to proceed to an election from 
the filing of a petition was 40 days. Id. Based on my experience over 
the past 30 years, these statistics demonstrate that the Board's 
election process has become even more efficient over time.
    Unions are currently winning over 50 percent of NLRB secret ballot 
elections involving new organizing. This is the category of elections 
that unions are seeking to replace with neutrality/card check 
agreements, and it is also the same category of elections that would be 
replaced by the Miller-Kennedy bill. If anything, unions' win rate in 
representation elections is on the rise. The NLRB's most recent 
election report shows that unions won 58.9 percent of all elections 
involving new organizing. See NLRB Election Report; 6-Months Summary--
April 2003 through September 2003 and Cases Closed September 2003, at 
p. 19 (March 26, 2004). This figure is about the same as it was 40 
years ago. In 1965, unions won 61.8 percent of elections in RC cases 
(cases which typically involve initial organizing efforts, as opposed 
to decertification elections or employer petitions). See Thirtieth 
Annual Report of the National Labor Relations Board, at p. 198 (1965). 
After 1965, unions' election win rate declined before rising back to 
the level where it is today:
  --In 1975, unions won 50.4 percent of elections in RC cases. See 
        Fortieth Annual Report of the National Labor Relations Board, 
        at p. 233 (1975).
  --In 1985, unions won 48 percent of elections in RC cases. See 
        Fiftieth Annual Report of the National Labor Relations Board, 
        at p. 176 (1985).
  --In 1995, unions won 50.9 percent of elections in RC cases. See 
        Sixtieth Annual Report of the National Labor Relations Board, 
        at p. 153 (1995).
    These statistics undermine any argument that the NLRB's election 
process unduly favors employers, or that the recent decline in union 
membership among the private sector workforce is attributable to 
inherent flaws the NLRB's election process. Unions are winning NLRB 
elections at the same or higher rate now than they have in almost 40 
years. To be sure, there are ``horror stories'' of employers who abuse 
the system and commit egregious unfair labor practices in order to 
prevail in an election. In such cases, the law provides remedies for 
the employer's unlawful behavior, including Gissel bargaining orders. 
But these situations are the exception rather than the norm. In the 
overwhelming majority of cases where employees choose not to be 
represented by a union, they do so based on the information that is 
presented by both sides during the campaign process.
    Unions attempt to portray the Board's secret ballot election 
process as fundamentally unfair (except when unions are faced with a 
challenge to their majority status) by making unfavorable comparisons 
between Board elections and a typical political election in the United 
States. In doing so, unions frequently ignore several important facts 
about the NLRB election process:
  --The union controls whether and when an election petition will be 
        filed. Imagine if the challenger in a political election 
        controlled the timing of the election.
  --The union largely controls the definition of the bargaining unit in 
        which the election will occur, because the union need only 
        demonstrate that the petitioned-for unit is an appropriate 
        bargaining unit. Imagine if the challenger in a political 
        election had almost irreversible discretion to gerrymander the 
        voting district to its maximum advantage.
  --The union usually has obtained signed authorization cards from a 
        majority of employees at the time the petition is filed. Thus, 
        the union already knows the voters and has conducted a straw 
        poll before the employer is even aware that an election will be 
        held. Imagine if the challenger in a political election could 
        campaign and poll the electorate without the incumbent's 
        knowledge, wait until the polls show that the challenger has 
        majority support, and then give the incumbent less than 60 
        days' notice of the election.
  --Even though the union already knows the voters well by the time the 
        election petition is filed, the employer must give the union a 
        list of all of the voters' names and home addresses after the 
        petition is filed. The union, but not the employer, is then 
        permitted to visit the employees at home to campaign for their 
        vote.
  --The union, unlike the employer, can make campaign promises to the 
        employees to induce them to vote for the union.
  --The union, like the employer, may designate an observer to be 
        present in the voting area for the duration of the election, in 
        order to check every voter and make sure that no irregularities 
        occur.
    These facts illustrate that, far from being unfair to unions, the 
NLRB's election process offers unions many unique advantages.

             PROBLEMS WITH NEUTRALITY/CARD CHECK AGREEMENTS

    The fundamental right protected by the National Labor Relations Act 
is the right of employees to choose freely whether to be represented by 
a union. 29 U.S.C.  157. Neutrality/card check agreements limit 
employee free choice by restraining employer free speech. Section 8(c) 
of the Act protects the right of employers to engage in free speech 
concerning union representation, as long as the employer's speech does 
not contain a threat of reprisal or a promise of benefit. 29 U.S.C.  
158(c). Unions, through neutrality/card check agreements, seek to 
restrain lawful employer speech by prohibiting the employer from 
providing employees with any information that is unfavorable to the 
union during the organizing campaign. Such restrictions or ``gag 
orders'' on lawful employer speech limit employee free choice by 
limiting the information upon which employees make their decision.
    A second problem with neutrality/card check agreements is the 
method by which they are negotiated. In my experience, neutrality/card 
check agreements are almost always the product of external leverage by 
unions, rather than an internal groundswell from unrepresented 
employees. The leverage applied by the union can come from a variety of 
sources. In many cases, the union has leverage because it represents 
employees at some of the employer's locations. The union may be able to 
use leverage it has in negotiations for employees in an existing 
bargaining unit, in order to win a neutrality/card check agreement that 
will facilitate organizing at other locations. Bargaining over a 
neutrality/card check agreement, however, has little or nothing to do 
with the employees in the existing bargaining unit, and it detracts 
from the negotiation of the core issues at hand--wages, hours, and 
working conditions for the employees the union already represents.
    In other cases, the union exerts pressure on the employer through 
political or regulatory channels. For example, if the employer needs 
regulatory approval in order to begin operating at a certain location, 
the union may use its political influence to force the employer to 
enter into a neutrality/card check agreement for employees who will be 
working at that location. Political or regulatory pressure may be 
coupled with other forms of public relations pressure in order to exert 
additional leverage on the employer. In general, this combination of 
political, regulatory, public relations and other forms of non-
conventional pressure has become known as a ``corporate campaign,'' and 
it is this type of conduct--rather than employee free choice--that has 
produced these agreements.
    Thus, when a union succeeds in obtaining a neutrality/card check 
agreement, it generally does so by exerting pressure on the company 
through forces beyond the group of employees sought to be organized. 
The pressure comes from bargaining units at other locations, and/or it 
comes from politicians, regulators, customers, investors, and the 
public at large. It is a strategy of ``bargaining to organize,'' 
meaning that the target of the campaign is the employer rather than the 
employees the union is seeking to organize.
    The strategy of ``bargaining to organize'' stands in stark contrast 
to the model of organizing under the National Labor Relations Act. 
Under the Act, the pressure to organize comes from within--it starts 
with the employees themselves. If a sufficient number of employees (30 
percent) desire union representation, they may petition the NLRB to 
hold a secret ballot election. If a majority vote in favor of union 
representation, the NLRB certifies the union as the employees' 
exclusive representative and the collective bargaining process begins 
at that point. At all times, the focus is on the employees, rather than 
on the employer or the union.
    There is no cause for abandoning the secret ballot election process 
which the Board has administered for 7 decades. The Act's system of 
industrial democracy has withstood the test of time because its focus 
is on the true beneficiaries of the Act--the employees. In my view, the 
Miller-Kennedy bill is not sound public policy because it would deprive 
employees of the fundamental right to determine the important question 
of union representation by casting their vote in a Board-supervised 
secret ballot election. Indeed, that it would be unwise public policy 
to abandon government-supervised secret ballot elections in favor of 
mandatory card check appears to me to be a self-evident proposition. It 
likewise would eviscerate the proud tradition of industrial democracy 
that has been the hallmark of the NLRB for nearly seven decades.
    I am aware that Senator Lindsey Graham (R-SC) has introduced quite 
opposite legislation, S. 2637, which would require that union 
representation for currently unrepresented groups of employees be 
determined by a secret ballot election. Without the increasing use of 
corporate campaigns and neutrality/card check agreements over the last 
decade--a trend that has eroded employee free choice and reflects a 
shift in focus from organizing employees to organizing employers--such 
legislation would not be needed. But, in light of this trend, such 
legislation, in my view, is necessary to protect the interests of the 
employees the Act is intended to benefit, by ensuring that their right 
to vote is not compromised by agreements that are the product of 
external pressure on their employer.

       THE MILLER-KENNEDY BILL'S INTEREST ARBITRATION PROVISIONS

    In addition to mandating recognition by card check rather than a 
secret ballot election, the Miller-Kennedy bill would eviscerate 
another fundamental tenet of U.S. labor law: voluntary agreement. As 
the Supreme Court held in H.K. Porter v. NLRB, 397 U.S. 99 (1970), the 
Act is founded on the notion that the parties, not the government, 
should determine the applicable terms and conditions of employment:

    ``The object of this Act was not to allow governmental regulation 
of the terms and conditions of employment, but rather to ensure that 
employer and their employees could work together to establish mutually 
satisfactory conditions. The basic theme of the Act was that through 
collective bargaining the passions, arguments, and struggles of prior 
years would be channeled into constructive, open discussions leading, 
it was hoped, to mutual agreement. But it was recognized from the 
beginning that agreement might in some cases be impossible, and it was 
never intended that the Government would in such cases step in, become 
a party to the negotiations and impose its own views of a desirable 
settlement.''----Id. at 103-04 (emphasis added).

The Miller-Kennedy bill would destroy this bedrock principle of the Act 
by mandating that, if the parties are not able to reach agreement on a 
first contract within a 120-day period, the terms of the contract will 
be set by an arbitration panel designated by the Federal Mediation and 
Conciliation Service. As with the abandonment of the secret ballot 
election, I believe this interest arbitration requirement is unwise 
public policy. The employer is the entity which must run the business, 
remain competitive, and pay the employees each week. The union has the 
opportunity to influence the employer's thinking by engaging in 
economic warfare. But, the actual agreement is forged in the crucible 
of what the business can sustain. I firmly believe that our present 
system has it right for employers and employees covered by the NLRA and 
that the employer must retain the power to determine whether the terms 
of the agreement are acceptable to it.

                               CONCLUSION

    This concludes my prepared oral testimony. I look forward to 
discussing my comments in more detail during the question and answer 
period, but before that, I would again like to thank the Subcommittee 
for inviting me here today, and for its attention to these very 
important developments regarding labor law in the 21st century.

    Senator Specter. Thank you very much, Mr. Cohen. I would 
turn now to Ms. Eileen Connelly, the executive director of the 
Pennsylvania State Council of Service Employees International 
Union and vice-president of the Pennsylvania AFL-CIO. Prior to 
her union work, she was a medical laboratory technician at the 
Hazleton-St. Joseph Hospital in Hazleton.
    Thank you very much for joining us, Ms. Connelly, and we 
look forward to your testimony.

STATEMENT OF EILEEN CONNELLY, EXECUTIVE DIRECTOR, 
            SERVICE EMPLOYEES INTERNATIONAL UNION, AND 
            VICE PRESIDENT, PENNSYLVANIA AFL-CIO

    Ms. Connelly. Hi, Senator. First let me extend my 
condolences to you and your staff on the death of Carry 
Lackman. I also want to welcome all the union members in the 
room. There's quite a few here. And I'm proud to be testifying 
on behalf of SEIU and the AFL-CIO here.
    I think that you know that SEIU represents about 60,000 
people in the State of Pennsylvania, and just from the first 
two witnesses I guess only SEIU'S having all the problems, but 
we have seen a lot with regard to organizing.
    My personal experience, doing this over 20 years, I've been 
organizing thousands and thousands of workers into unions in 
the State of Pennsylvania, and I've witnessed way too much 
abuse, way too much intimidation and harassment by employers. 
And all of my organizing has been in health care. I think 
that's important to point out. I have not organized workers in 
other industries.
    I've seen employers manipulate the NLRB process in such a 
way as to turn the concept of democracy on its head. Employers, 
their attorneys, their consultants, they're all experts at 
playing the legal system, and they discourage, they frustrate, 
they stall, they do everything possible to keep workers from 
organizing. They spend hundreds of thousands of dollars, a lot 
of which is health care dollars that should be spent on patient 
care in the health care system.
    I did want to share, and it's in my written remarks, but I 
did want to share a few specific examples, because I think that 
they point out exactly what we go through in organizing, and 
they're not in any way the exception with regard to my 
experience in organizing.
    There's a group of workers in Pittsburgh, and this happened 
very recently, they're very poor workers they work for a for-
profit company. They signed up over 70 percent on union cards. 
They followed the current Board procedure, they filed for an 
election, and instead of voluntarily agreeing to an election 
the employer claimed that all the LPNs and the lead cook were 
supervisors.
    They went through days of hearings, they filed briefs. 
Months later, not 56 days, months later they still didn't have 
an election in sight. But the Labor Board found in favor of the 
union and found that they had to go to an election. But through 
that period, you'd think, well, the employer lost the case. No. 
Through that period, they never expected to win the issue, but 
they just wanted to delay long enough to intimidate, harass and 
scare the workers there.
    The message was simple in this campaign. We're the boss, we 
decide whether or not you have a job and we're totally 
committed to stopping you from organizing, and that's what they 
did. We were not able to maintain that campaign. We just 
recently pulled out of the election, because we lost a majority 
of the support, from 70 percent a few months later to probably 
down to around 30 percent, and we didn't go through with the 
election.
    Even workers who overcome these, they often have their 
decision nullified. One of the employee witnesses here today 
from SEIU will testify specifically to what she experienced at 
the Presbyterian Home in Hollidaysburg, where 2 years later--
they waited a year for the ballots to be counted following 
their election. They waited 1 year to get a first contract, 
still don't have a first contract. And right now the employees 
are waiting to have a decertification election after 2 years 
from the day that they filed for their election.
    Some of what I heard earlier from the Labor Board with 
regard to the exception rather than the rule, I see that as the 
rule in terms of very, very long delays, very, very long 
processes.
    The other thing that employers do very typically is they 
hire what we call outside union busters, they call them 
attorneys, we call them union busters, and they train 
supervisors. We've seen here in Pennsylvania numerous times 
people actually go in and live at the facility day and night 
weeks before an election to have one-on-one meetings, we call 
them captive audience meetings, or one-on-one literally where 
it's the consultant and the employee sitting and the consultant 
is telling the employee things like, well, you don't know if 
you're going to have a job or you don't know if you're going to 
keep what you have.
    These companies oftentimes cost hundreds of thousands of 
dollars. We've seen it in hospitals here in Pennsylvania. A few 
years ago the State auditor general actually found Geisinger up 
in Danville, the hospital in Wilkes-Barre that we organized 
that they illegally used Medicare money to--actually, Medicaid 
money it was--to fight the union in an organizing campaign. 
Nothing happened, absolutely no penalty to the employer for 
that.
    So what happens is that the employer, not the union, has 
control over the employees in the workplace. So when you're 
going through an organizing campaign, the employees are really 
not in a free and democratic position with regard to going 
through that campaign.
    Senator Specter. Who was the employer in that case, Ms. 
Connelly?
    Ms. Connelly. Geisinger Medical Center in Wilkes-Barre. 
Geisinger, the main Geisinger is in Danville, Pennsylvania. 
This hospital was part of the Geisinger System in Wilkes-Barre 
that SEIU was organizing.
    The Employee Free Choice Act is meant to avoid all of this, 
to not allow the employer to be able to go through all this. 
Under current laws, it is legal for a group of workers who have 
a majority of support for the employer to recognize the union. 
It doesn't happen that way.
    We have experience after experience after experience where 
we file for an election, we wait 56 days, we wait months and 
months before we actually get a date for an election, and then 
with legal filings going through what goes on in D.C. where--I 
mean I've seen it over and over and over again where people 
have to wait 1 year from a filing in D.C. until they get a date 
for an election. It is, in my experience, not the exception at 
all. It's absolutely the rule.
    You know, one thing--I'm running out of time, but one thing 
I do think it's important to think about with regard to this 
piece of legislation and within the context of how people vote 
in this country, the workplace, as I said before, is not 
democratic at all. In this country, if we were put in a 
situation like happens with union elections where only one 
candidate had access to the population and another candidate, 
for instance, had to try to talk to the population that was 
going to vote for them from another State, then we would say, 
well, that's not fair that we do that. But, in reality, that's 
what happens in the workplace. The union doesn't have access to 
talk to employees. We are not allowed inside the workplace. The 
employer has them every day, every minute that they're at work. 
So if you think about it within the context of an election for 
Senator, you know, it's like you would have to talk to your 
constituents from New Jersey, because you're not allowed----
    Senator Specter. Be careful, Ms. Connelly. When he is in 
New Jersey, Senator Lautenberg is not here.
    Ms. Connelly. Actually, I'm a Jersey girl born and raised, 
so I can talk about Jersey. And I still have a lot of people 
who vote in Jersey in my family.
    But in all seriousness, I mean it is I think in a lot of 
ways very helpful to look at the same kind of a situation, 
because in the union that's how we feel. We're not allowed to 
have equal access, equal ability to share information, equal 
ability to provide information as the employer in the setting 
of a union. We have to go to employees' homes. We have to stand 
at the bottom of the driveway in the bitter cold, which I've 
done many times, and hopefully people stop and talk to us.

                           PREPARED STATEMENT

    So it's not how democracy was ever meant to be in this 
country. It should be that if you have a majority, the majority 
rules. That's what this country is set up on. So a lot of 
details on different situations I've been through in different 
campaigns are in my written testimony, but I will answer any 
questions you have.
    [The statement follows:]

                 Prepared Statement of Eileen Connelly

    Thank you for inviting me to testify before this committee today, 
my name is Eileen Connelly, I am the Executive Director of the 
Pennsylvania State Council for the Service Employees International 
Union (SEIU), which is the largest and fastest growing labor union in 
the AFL-CIO. SEIU represents 1.6 million workers nationally in 
healthcare, building services and public sector employment and 60,000 
workers in Pennsylvania. I am a Vice President of the Pennsylvania AFL-
CIO and a member of the Executive Committee of the AFL-CIO. Please 
accept my written testimony which I submit for the record of these 
proceedings.
    In 1982 I was working as a Medical Lab Technician at Hazleton-St. 
Joseph Hospital in Hazleton, PA. At that time District 1199P had won an 
election for the technical employees and was negotiating a first 
contract. I was a member of the bargaining team. Since that time I have 
worked as both a member/organizer and beginning in 1984 as a full-time 
union organizer in numerous union organizing campaigns in Pennsylvania, 
primarily helping nursing home workers form a union so that they could 
engage in collective bargaining.
    I take enormous pride in the fact that I have helped thousands of 
workers form unions in their workplaces and assisted workers through 
collective bargaining gain better wages, benefits and most importantly 
a voice for workers in the care of their patients. Today though, I want 
to tell you about the incredible obstacles workers face every day when 
they try to form a union. I have witnessed too much worker abuse, 
intimidation and harassment by employers who are unwilling to respect 
workers' rights to form unions. That is why there is a critical need to 
reform our nation's labor laws by passing the Employee Free Choice Act, 
S. 1925. Let me share with you some specific stories I have witnessed.
    Because I have done the majority of my organizing work helping 
nursing home workers form unions, I ask this committee. Is it right 
that publicly funded or subsidized health care facilities use taxpayer 
dollars to thwart workers' rights and violate our nation's labor laws?
    I have seen employers manipulate the NLRB election process in such 
a way as to turn the concept of democratic free choice on its head. 
Employers and their lawyers and consultants have become experts at 
playing the system, using the NLRB to frustrate, stall, and discourage 
workers from exercising their democratic right to form unions. Often, 
the result is that workers who have chosen to form a union are simply 
defeated in their efforts; sometimes, workers ultimately win, but only 
after tens or hundreds of thousands of dollars have been spent and 
months or even years have been wasted, bringing true meaning to Dr. 
King's axiom that ``Justice delayed is justice denied.''
    Recently, our union got a call from a group of about 35 workers at 
The Residence on Fifth, an assisted living facility in Pittsburgh who 
wanted to form a union. These workers are the definition of the working 
poor, doing some of the most important work in their community, in this 
case for a large for profit company, but earning literally poverty 
level wages. Our organizers met with them, and within a short period of 
time, they had built an organizing committee and signed up over 70 
percent of the employees on union cards. They followed the current NLRB 
procedure and filed for an election. Instead of voluntarily agreeing to 
an election, the Employer responded by claiming that all of the LPNs 
and the lead cook at the facility are supervisors, and therefore have 
no legal right to organize. This triggered several days of hearings, 
followed by the filing of legal briefs, and then the decision by the 
NLRB Regional Office. All of this took months, with no election date in 
sight. The Board found that the Employer's position had no merit and 
that the disputed job classifications must be included in the 
bargaining unit. So you might think that the Employer lost the case. 
Not so--like so many other Employers, they never really expected to 
prevail on the issue, they simply wanted to delay the process so that 
they could use the time to intimidate and confuse the workers into 
backing down from organizing their union. And intimidate and confuse 
they did, with numerous one on one mandatory intimidation sessions with 
supervisors, many letters from the employer, and other tactics. The 
message was simple--we're the boss, we decide whether you have a job or 
not, and we are totally committed to stopping you from organizing a 
union. You could end up losing what you have, you will probably have to 
strike, and you may be permanently replaced. If you want to keep what 
you have, including your job, vote NO. These workers got the message 
loud and clear, and by the time the Board issued its decision in favor 
of the workers, support for the union had eroded to a small minority, 
and the union had no choice but to withdraw from the election. This 
story is repeated time and time again all over Pennsylvania when 
workers try to exercise their freedom to form a union.
    Even when workers overcome these tactics and win an election, they 
often have their decision nullified later by more legal shenanigans. In 
2002, workers at the Presbyterian Home of Hollidaysburg, PA voted to 
form a union. The home had argued that because they were a faith-based 
institution, their employees were excluded from the scope of the 
National Labor Relations Act, an issue that was long ago decided in 
favor of the workers by the Board and the Courts, and the NLRB Regional 
Office rejected the Employer's claim. But in this case, the Employer 
refused to accept the decision of the NLRB Regional Office and filed a 
request for review with the NLRB in Washington, DC. The result was that 
the workers' votes were impounded for about one full year from the time 
of the election, while the case wound its way through the Federal 
bureaucracy. After the votes were counted, revealing that the workers 
had won, the Home proceeded to stall negotiations for another year. By 
this time, workers had been waiting over 2 years for a contract, many 
of the workers who had organized the union had quit in frustration, and 
many of those who remained were convinced that they would never be able 
to succeed against their employer. Predictably, the employer was able 
to convince a group of workers to file for a new election to decertify 
the union, and that election will be happening in the next few weeks.
    In an organizing campaign, the employer typically hires outside 
union busters to take over employee relations during the period of an 
organizing campaign, and apply techniques borrowed from psychology and 
sociology to turn employees against the idea of organizing. The union 
busters teach supervisors how to identify and target union supporters 
and how to use their supervisory authority to pressure the staff to 
refrain from exercising their right to organize. They put together 
letters and leaflets to scare and confuse workers. Often, they meet 
directly with workers in mandatory one on one or group ``captive 
audience'' meetings. They develop slick videos and websites full of 
misinformation and half truths about the labor movement. And they do it 
all for a hefty price. In recent years, Pennsylvania health care 
institutions from Allegheny General Hospital in Pittsburgh, to 
Geisinger Medical Center in Danville, to Wyoming Valley Health Care 
System in Wilkes-Barre, have hired expensive union busting consulting 
firms from, respectively, Ohio, Arizona, and Malibu, California, to 
attempt to defeat workers organizing efforts, in each case paying 
hundreds of thousands of dollars. Now I ask you. Who is paying for this 
employer activity? The patients? Their families? Or the taxpayers, 
through Medicare and Medicaid funding? The answer is, all of the above. 
A few years ago, the office of the Auditor General of PA found that 
Geisinger Health System had illegally used nearly $300,000 in public 
Medicaid dollars on an anti-union consultant firm from Arizona. 
Unfortunately, under current law, Geisinger suffered literally no 
penalty for this illegal diversion of funds--none.
    Needless to say, NLRB elections are conducted in an inherently 
coercive environment--the workplace. The employer--not the union--has 
ultimate power over employees. Only the employer has the ability to 
withhold wages or grant increases in salary, assign work and shifts, 
and ultimately discharge workers--the capital punishment of the 
workplace.
    In the end, even when conducted by NLRB professional staff, 
elections under the NLRA are not democratic, because the workplace is 
not democratic.
    The Employee Free Choice Act is intended to remove these obstacles 
and at the same time improve cooperation between employees and 
employers by eliminating the requirement of mandatory voting when the 
majority of workers has already expressed its decision to self-
organize. Under current laws, it is perfectly legal for a majority of 
employees to choose union representation without the need for an 
election; however, as it now stands, their employer has the right to 
veto their decision, absent an NLRB election. Again, it is not the 
employer's choice to form a union, it is the choice of the employees.
    SEIU is using this legal majority verification procedure (commonly 
known as ``card check'') more and more. Some employers, generally in 
situations where workers have already built a strong union presence in 
their company over many years of conflict and struggle, have agreed to 
a card check procedure like the one envisioned by the Employee Free 
Choice Act. Here in Pennsylvania, the best example is the huge nursing 
home company, Beverly Enterprises. Senator, I know that you are aware 
of the long history of struggle of the Beverly employees in this state 
to exercise their legal right to form unions. At one time, Beverly was 
known as the#1 violator of workers' right to organize in the history of 
the National Labor Relations Act, and as a result this company is the 
subject of an extraordinary national cease and desist order issued by 
the Federal Courts for violations of workers' rights. Unfortunately, it 
took literally 20 years of fighting, including the largest nursing home 
strike in Pennsylvania history, to hold the Company accountable for its 
actions under the current labor laws. The two decades of strife and 
conflict between Beverly and its workers were bad for everyone 
affected, including the taxpayers and certainly the residents of 
Beverly's homes. But earlier this year Beverly and SEIU began a new era 
of collaboration and cooperation that puts quality care and services 
for residents and fairness for workers front and center. We are working 
together to ensure proper funding for nursing homes, and were proud to 
stand with you at a Beverly facility in northeastern PA recently to 
call for release of the funds desperately needed by our long term care 
industry to provide quality care. And we have instituted a new card 
check procedure by which workers at three Beverly homes have recently 
exercised their right to organize the union with none of the conflict, 
acrimony, and wasted resources that have typified Beverly workers' 
organizing efforts in the past. The process is working for everyone, 
and it is working well.
    Another company, Addus Home Care, recently reached a similar 
agreement with SEIU, allowing a group of home care workers in 
Philadelphia to form a union through card check verification earlier 
this year.
    So some employers are recognizing that there is a better way of 
conducting the union recognition process that truly respects workers' 
rights. But too often, employers refuse to grant recognition, even when 
presented with overwhelming proof that a majority of workers have 
signed authorizations. In fact, it has been my experience during 
organizing campaigns, we present proof that 60 percent, 70 percent or 
more worker signed cards. Card check, or majority verification, 
provides workers a means of making a free and fair decision about 
joining a union.
    The NLRB election process is a meat-grinder, and allows the 
employer a free-hand to wage a campaign where employees are 
intimidated, threatened, spied upon, harassed, and--in a quarter of all 
cases--fired,\1\ in order to suppress the formation of a union.
---------------------------------------------------------------------------
    \1\ Kate Bronfenbrenner, Uneasy Terrain: The Impact of Capitol 
Mobility on Workers, Wages and Union Organizing, September 6, 2000.
---------------------------------------------------------------------------
    Our union has seen this on far too many occasions--here's just one 
example. Several years ago, a group of workers at South Fayette Nursing 
Center, a small nursing home in the hills of southwestern PA called us 
to assist them in forming a union. The conditions at this home were 
really abysmal, and the workers' choice to unionize was nearly 
unanimous--over 90 percent of them signed up to join the union in two 
or three days. Now this operator was no Beverly Enterprises, he was a 
small businessman operating on a tight margin. But let me tell you, he 
spared no expense in trying to stop workers from exercising their 
rights. He hired not one but two union-busting consultant firms, one of 
whom sent in a union buster who spent every single day and night in the 
facility for weeks before the election, forcing workers to meet with 
him in small groups and one on one, sowing fear and confusion among 
these workers. He threatened that the company would close the home if 
they voted yes. He told them they would lose what they already had. He 
told them the union was corrupt and would steal their money. He showed 
them carefully edited videos of strikes and tried to associate the 
union with violence and sabotage. Meanwhile, the workers had virtually 
no access to union folks to talk them through any of theses issues. 
Union organizers and union members from nearby facilities had to stand 
at the end of a long driveway in the winter snow at shift change, or 
find workers outside of work at their homes, to have any direct contact 
with them, but they were getting barraged every day at work. By the 
time the union buster got done with them, many of these workers were 
completely intimidated and confused. Nonetheless, the workers voted for 
the union, by one vote. The employer responded by filing objections to 
the election claiming that the union--that's right the union!--had 
threatened and intimidated workers. What's more, within a week of the 
election they fired one of the key leaders of the organizing campaign, 
who they outrageously claimed had threatened workers into voting yes.
    Months and months later, the Labor Board dismissed the objections 
and negotiated a cash settlement for the fired worker, who by then had 
moved on with his life and gotten another job. But the message to the 
workers was clear: stand up for the union and you risk your job. After 
a year of stalling negotiations for the first union contract, the 
employer got a group of anti-union workers to file for a 
decertification election. By then, few workers who had been at the home 
at the time of the original election even remained, and most of those 
who had been there from the beginning were scared to participate in 
union activities. Not surprisingly, the union was decertified. This 
story is not an exception, but too often the rule when workers try to 
organize in America today. Any union like ours that has been actively 
out there trying to help workers organize under the current legal 
framework could give you numerous other examples of this type.
    Until one has been through the meat grinder of trying form a union 
under the current procedure, or at least seen it first hand, it is very 
hard to understand why the process of having elections in the workplace 
isn't really democratic at all. After all, elections are the basic way 
that we make decisions in our democratic society. But Senator, I can 
tell you, that if we ran political elections in this country under the 
rules that apply to union elections, not a single American would 
consider them free and fair exercises in democracy. Imagine a political 
election where one candidate has 100 percent guaranteed access to the 
voters five days a week, while the other has to try to communicate from 
one state over. Where if voters vote or campaign against the incumbent, 
they may very likely be out of a job, and even if they prove they were 
fired for their campaign activities, it can take literally years for 
them to get their job back. The reality is that elections under the 
NLRA bear almost no resemblance to the free and fair elections in which 
we all participate in the political arena.
    Finally, this legislation would create meaningful penalties for 
violations of the Act. The bill would not restrict employer free 
speech, but would ensure the employer speech is not coercive or 
threatening, or intended to deter employee free choice. Under current 
law discipline or discharge of workers for union activity, threats to 
close or move the workplace, harassment and intimidation of workers at 
``captive audience'' or one-on-one meetings with supervisors on work 
time, interrogation and surveillance of workers suspected of wanting to 
form a union are all technically illegal under the NLRA. Under current 
law in most instances, the only sanction an employer faces for its 
conduct is posting a cease-and-desist order in the workplace. Firing 
and disciplining workers, or having to post a notice is an acceptable 
cost of doing business for employers. They know they don't face any 
real economic penalty for violating worker's rights.
    This bill would create fines of up to $20,000 per infraction, and 
provide for triple back pay awards for fired and disciplined workers. I 
know that if the employer at South Fayette Nursing Center had to pay a 
substantial fine and triple back pay to the worker that they illegally 
fired the week after the union election, they would probably have 
thought twice about breaking the law, and those workers would in all 
likelihood have a union today.
    In summary, the Employee Free Choice Act would reform the NLRA so 
that when a majority of workers demonstrate their choice to form a 
union their representative can be certified by the NLRB without the 
need for the NLRB election. The legislation would also guarantee 
effective and efficient collective bargaining, and create real 
penalties as a determent to unlawful employer conduct.
    Thank you for giving me this opportunity to testify before this 
committee I urge your support of the Employee Free Choice Act, S. 1925. 
I am happy to answer any questions you might have regarding my 
testimony.

    Senator Specter. Okay. Thank you very much, Ms. Connelly. 
We'll come back to you on some of the things you've said during 
the question-and-answer session.
    We turn now to Ms. Sarah Fox, a labor lawyer from the firm 
of Bredhoff and Kaiser in Washington. From 1996 to 2000, she 
served as a member of the National Labor Relations Board, has 
also served as Chief Democratic Labor Counsel to the U.S. 
Senate Committee on Labor and Human Resources, graduate of Yale 
University with a law degree from Harvard.
    I might note just parenthetically that Ms. Fox has been 
very heavily engaged, as I have, on the asbestos problem, which 
poses a major concern for both injured workers and for 
corporations which have been driven into bankruptcy. There are 
at the present time thousands of people who suffer very serious 
injuries from life-threatening ailments like mesothelioma whose 
companies have gone bankrupt, and at the same time the jobs 
have been lost, the companies have gone down, some 70 major 
bankruptcies in the United States.
    Last year the Senate passed a bill out of committee to try 
to do something about this. So a trust fund was created in 
excess of $100 billion. The thought was there would be 
schedules like Workers' Compensation so you didn't have to go 
to court to prove fault. You could collect on a showing of 
injuries.
    I enlisted the aid of a Federal judge, retired Judge 
Becker, and for 2 full days last August, we sat in his chambers 
with him in Philadelphia. We've had meetings in my office every 
2 or 3 weeks since. Another meeting is scheduled for next week. 
We've ironed out a lot of problems. It's my view that we will 
come to a consensus here, that is, a consensus between the 
manufacturers and insurers on one side and the AFL-CIO, trial 
lawyers, plaintiffs' lawyers on the other side.
    When you have an issue that intense, what we try to do is 
get people to agree. I don't think you can legislate unless 
there is that kind of agreement. We'd be looking for some 
agreement here, too, and that's one thing, it's useful to see 
if you can find ways that people can come to an agreement.
    But Ms. Fox has done quite a job there and it's a subject 
which hasn't received a lot of attention, so I think it's worth 
a moment or two to tell the millions of people watching on 
Pennsylvania Cable Network, this is being broadcast live, the 
millions of people watching what is going on.
    Ms. Fox, that doesn't take a minute of your 5 minutes. It 
begins now.

STATEMENT OF SARAH FOX, ESQUIRE, BREDHOFF AND KAISER, 
            TESTIFYING ON BEHALF OF AFL-CIO

    Ms. Fox. Thank you very much for your introduction. I 
really appreciate the opportunity to be here today to talk to 
you for once not about asbestos but about S. 1925, the Employee 
Free Choice Act.
    It is particularly a pleasure for me to be here because two 
of the other witnesses are former colleagues of mine on the 
Board. Mr. Cohen and I served together in 1996. And Mr. 
Higgins, although he didn't mention it, he's a career NLRB 
employee, but has also had two stints as a member of the Board, 
including one that overlapped with mine. So we had sort of a 
reunion here today.
    I'd like to focus particularly today on the provisions of 
the Employee Free Choice Act which deal with what is referred 
to sometimes as card check recognition. So I'm happy to answer 
questions about the other provisions, but I wanted also just to 
set the stage for this by talking a little about the history of 
the Act and the history of this procedure under the Act, 
because I view it not as what is being proposed here, not as a 
radical change in the Act, but as really restoring the initial 
premise of the National Labor Relations Act.
    The Act was enacted in 1935 because all over the country 
millions of workers or hundreds of thousands of workers were 
organizing into unions and their employers were refusing to 
bargain with them, to respect their choice to be represented by 
unions in their dealings and to bargain collectively with them.
    The Act for the first time imposed a legal obligation on 
employers to bargain with majority representatives, and the 
language of the statute is ``designated or selected by their 
employees.''
    The Act also had a provision for the Board to certify 
unions as majority representatives, but it specifically 
contemplated that certification was not the only way that a 
union could become the majority representative and that the 
employer would have to bargain with them, that outside of the 
Board process, if the union could demonstrate majority support, 
it was perfectly lawful for the employer to recognize and 
bargain with them.
    For the first several years under the Act, the Board 
certified without secret ballot elections, that is, when a 
union filed a petition the Board would hold a hearing and the 
union could put in evidence that membership rolls, cards that 
were signed, show that a majority of the workers had 
participated in a strike. Any kind of evidence that the Board 
considered sufficient to establish that a majority supported 
the union was enough to achieve a certification.
    Now, the Board did in about 1940 start a practice of not 
certifying unless--automatically just calling for an election 
in those circumstances, and that was codified by Congress in 
1947. Nevertheless, the other procedure of voluntary 
recognition continued and, in fact, to call it voluntary 
recognition is a bit of a misnomer, because until the mid' 60s, 
an employer who was presented with evidence of majority support 
was required to recognize and bargain with the union unless he 
had a good faith doubt.
    The Board for many years was very clear that a good faith 
doubt could not be wanting to buy time to try to persuade the 
employees not to support the union or otherwise trying to 
undermine support for the union.
    It is only since 1966 that employers have had this right, 
when presented with this evidence by their employees, to say 
it's up to us and we've decided that we won't accept the 
evidence, we will make you have an election regardless of 
whether we believe that at this time the union, in fact, 
represents a majority.
    So to say that this is a radical change I think overstates 
how relatively recent in the history of the Board the total 
focus on the election has been.
    People talk a lot about--and I want to emphasize that, 
because people talk a lot about this process of cards as being 
unreliable, but employers do have the right to recognize now on 
the basis of cards and they don't complain in those situations 
that it's unreliable.
    Employers also have the right under the law now when they 
have a union in place and a majority of the employees come with 
a petition that says we don't want the union anymore, the 
employer has the legal right to withdraw recognition from the 
union on the basis of those signatures.
    So we have this anomalous situation under the law that if 
you had a certified union that had won a Board election and a 
majority of employees presented a petition to the employer, the 
employer could say no more union. But if 1 year later the exact 
same employees and the same number of employees presented a 
petition to the employer saying we want the union, the employer 
would have the choice of whether to recognize them or to demand 
an election.
    So I just wanted to put a little of this into perspective 
and I'm happy to answer any questions.
    Senator Specter. Thank you very much, Ms. Fox. We turn now 
to Mr. Glenn Taubman, who for the past 20 years has been a 
Staff Attorney with the National Right to Work Legal Defense 
Foundation. Mr. Taubman has his law degree from Emory 
University School of Law. Thank you for joining us, Mr. 
Taubman, and the floor is yours.

STATEMENT OF GLENN M. TAUBMAN, STAFF ATTORNEY, NATIONAL 
            RIGHT TO WORK LEGAL DEFENSE FOUNDATION

    Mr. Taubman. Thank you, Senator. Thank you for the 
opportunity to comment on the important issues before the 
Committee. I am a Staff Attorney with the National Right to 
Work Foundation and since 1968 the Foundation has provided free 
legal aid to workers who choose to stand apart from a labor 
union to exercise their right to refrain that Congress gave 
them in Section 7 of the National Labor Relations Act. And, 
more importantly, it is their right under the First Amendment 
of the United States Constitution.
    I am pleased to be here among witnesses for organized labor 
and witnesses for various employers, for each of these groups 
have their own agendas and their own self interests. I am here 
to speak on behalf of another group, the group for whom the 
National Labor Relations Act was specifically designed. I'm 
speaking about individual employees, the workers who have First 
Amendment and Section 7 rights to join or an equal right to 
refrain from joining a labor union.
    It is these employees whose rights are sacrificed or 
potentially sacrificed whenever a union is chosen to act as 
their exclusive bargaining representative, because these 
individual workers may not desire such representation and, 
indeed, may strongly oppose it. In such situations, these 
workers' rights to enjoy the fruits of their own labor are 
extinguished or greatly limited by the mere existence of a 
bargaining agent whom they do not desire.
    Thus, what we're really talking about with this bill is the 
extent to which individual employee rights, which are already 
limited under the National Labor Relations Act, are going to be 
further limited through the card check recognition process. 
This euphemistically entitled process strips away any 
possibility that employees will vote in a secret ballot 
election as to whether they wish to have or refrain from having 
a union.
    This process also eliminates or very drastically reduces 
NLRB and Federal Court oversight of the union selection or 
rejection process, leaving employee rights in the hands of 
self-interested unions who are desperate for more dues paying 
members and self-interested employers who may be desperate to 
avoid a union corporate campaign or similar union pressure 
tactics or who may simply want to cut a financially beneficial 
deal with a compliant or favored union of its choosing.
    This is not just pie in the sky rhetoric but part of a 
documented trend. You need to only look at a case like the NLRB 
and the U.S. Court of Appeals 2004 decision in Duane Reade, a 
case regarding the UNITE union, or, for example, an earlier 
case called Windsor Castle Health Care involving the SEIU 
union, to find examples where employers and unions shamelessly 
colluded to force unwanted union representation on 
nonconsenting employees, all based upon supposed card check 
recognition.
    Every card check campaign is inherently coercive and the 
contrast between the rules governing an NLRB supervised secret 
ballot election and the rule of the jungle governing card 
checks could not be more stark.
    When an employee signs or refuses to sign a union 
authorization card, he is likely not to be alone. To the 
contrary, it is likely that he will be asked to sign in the 
presence of one or more union organizers. And by signing that 
card, he is thereby casting, quote, a vote for the union.
    This solicitation could occur during an unwanted home 
visit, in any circumstance, the employee's decision is not 
secret as in an election, because the union clearly knows who 
signed the card and who didn't. Indeed, once an employee has 
made the decision yea or nay in a secret ballot election, the 
process is at an end.
    By contrast, a choice against signing a union authorization 
card does not end the decision-making process for an employee 
in the jaws of a card check drive, but often represents only 
the beginning of harassment and intimidation for that employee.
    As my client Clarice Atherholt's statement indicates, many 
employees signed union cards in her shop just to get the union 
organizers off their back, not because they really wanted the 
union to represent them. Is that fair?

                           PREPARED STATEMENT

    Senator, I do not think that your constituents would want 
to cast their vote for President or Senator or mayor under 
similar circumstances with active poll watchers from one of the 
candidates or political parties looking over their shoulder, 
knowing precisely how they vote, and continually harassing them 
if they vote the wrong way, all in an election, quote, unquote, 
that has no time limits and can stretch on for months or even 
years until such time as the candidate browbeats enough, quote, 
voters to get the votes he needs. Simply stated, this is not 
the American way.
    Thank you for your time. I ask you to not support the 
Kennedy-Miller bill and, in fact, to support Congressman 
Charles Norwood's bill that mandates secret ballot elections. 
Thank you.
    [The statement follows:]

                 Prepared Statement of Glenn M. Taubman

    Chairman Specter and Distinguished Senators: Thank you for the 
opportunity to comment on the issues raised in these important 
hearings.
    My name is Glenn Matthew Taubman. I am a Staff Attorney with the 
National Right to Work Legal Defense Foundation, in Springfield, 
Virginia. Since the Foundation was founded in 1968, it has provided 
free legal aid to workers who choose to stand apart from a labor union, 
to exercise the ``right to refrain'' that Congress granted them under 
Sec. 7 of the National Labor Relations Act, 29 U.S.C. Sec. 157, and 
that, more fundamentally, is guaranteed by the First Amendment's 
freedom of association.
    I have worked as a Foundation staff attorney for more than twenty 
years. In that time, I have provided free legal representation to 
thousands of individual employees nationwide, seeking through 
litigation to vindicate their fundamental constitutional and civil 
rights against compulsory unionism abuses perpetrated by both unions 
and employers. In addition to representing public sector employees in a 
wide variety of federal civil rights cases dealing with the abuses of 
compulsory unionism,\1\ I have spent a large part of my professional 
life litigating cases under the National Labor Relations Act.\2\ In 
recent years, I have been representing individual employees facing a 
new challenge to their right to refrain from compulsory unionism: so-
called ``neutrality and card check'' programs hatched by unions to help 
force union ``representation'' on unwilling employees. I am counsel or 
co-counsel in numerous currently pending cases challenging some form of 
``neutrality and card check'' scheme.\3\
---------------------------------------------------------------------------
    \1\ Tierney v. City of Toledo, 116 LRRM 3475 (N.D. Ohio 1984), 
aff'd., 785 F.2d 310 (6th Cir. 1986), vacated and remanded, 106 S. Ct. 
1628 (1986), reversed on reconsideration, 824 F. 2d 1497 (6th Cir. 
1987), further proceedings, 917 F.2d 927 (1990); Lowary v. Lexington 
Local Board of Education, 124 LRRM 2516 (N.D. Oh. 1986), reversed, 854 
F.2d 131 (6th Cir. 1988); further proceedings, 704 F. Supp. 1430 (N.D. 
Ohio 1987), further proceedings, 704 F. Supp. 1456 (N.D. Ohio 1988), 
further proceedings, 704 F. Supp. 1476 (N. D. Ohio 1988), affirmed in 
part and reversed and remanded in part, 903 F.2d 422 (6th Cir. 1990); 
Jordan v. City of Bucyrus, 739 F. Supp. 1124 (N.D. Ohio 1990), further 
proceedings, 754 F. Supp. 554 (N.D. Ohio 1991).
    \2\ E.g., UFCW Local 951 v. Mulder, 812 F. Supp. 754 (W.D. Mich. 
1993), aff'd, 31 F.3d 365 (6th Cir. 1994); NLRB v. Office and 
Professional Employees Intern. Union, Local 2, AFL-CIO, 292 NLRB No. 22 
(1988), enforced, 902 F.2d 1164 (4th Cir. 1990); California Saw and 
Knife Works, 320 NLRB 224 (1995); Schreier v. Beverly California Corp., 
892 F. Supp. 225 (D. Minn. 1995); Bloom v. NLRB, 153 F.3d 844 (8th Cir. 
1998), vacated, 209 F.3d 1060 (2000); Production Workers of Chicago 
(Mavo Leasing), 161 F.3d 1047 (7th Cir. 1998); Penrod v. NLRB, 203 F.3d 
41 (D.C. Cir 2000).
    \3\ UAW and Freightliner/Daimler-Chrysler, Case Nos. 11-CA-20070-1, 
11-CA-20071-1, 11-CB-3386-1, 11-CB-3387-1; UAW and Dana Corp. 
(Elizabethtown, KY), Case Nos. 9-CA-40444-1 and 9-CB-10981-1, Case Nos. 
9-CA-40521-1 and 9-CB-10996-1; UAW and Dana Corp. (Bristol, Va), Case 
Nos. 11-CB-3397, 11-CB-3398, 11-CB-3399, 11-CA-20134, 11-CA-20135, 11-
CA-20136 (Region 11, Winston-Salem); Heartland Industrial Partners and 
United Steelworkers of America (USWA), Case No. 8-CE-84-1 (Region 8, 
Cleveland Oh.); Patterson v. Heartland Industrial Partners, et. al, No. 
5:03 CV 1596 (U.S. District Court, N.D. Ohio); UAW and Dana Corp. (St. 
Johns, MI), Case Nos. 7-CA-46965-1 and 7-CB-14083-1, 7-CA-47078-1 and 
7-CB-14119, and 7-CA-47079-1 and 7-CB-14120; UAW and Dana Corp. and 
Metaldyne Precision Forming/UAW (St. Marys, PA)., 341 NLRB No. 150 
(June 7, 2004) (granting review in two decertification cases); United 
Steelworkers of America and Cequent Towing Products (Goshen, IN)., NLRB 
Case No. 25-RD-1447.
---------------------------------------------------------------------------
                 WHAT IS ``NEUTRALITY AND CARD CHECK?''

    Frustrated that workers are not voluntarily choosing to join or be 
represented by unions, labor union officials have turned to organizing 
employers and imposing unionization on employees from the top down. The 
National Labor Relations Board reports that unions win less than 50 
percent of secret ballot elections, and that figure does not even 
include the many occasions where unions withdraw election petitions and 
walk away because they lack employee support. Of necessity, union 
officials do not want to publicize these election losses, preferring to 
act secretly. A case in point recently occurred at the Magna Donnelly 
plant in Lowell, Michigan. There, the United Auto Workers union (UAW) 
secured an agreement for strict employer neutrality, but with the 
stipulation that there be a secret-ballot election. Even with strict 
employer neutrality, the UAW lost badly, with one employee publicly 
commenting to the local newspapers, ``Unions are not needed in America 
anymore.'' \4\ Unions obviously would rather operate in secrecy.
---------------------------------------------------------------------------
    \4\  `Neutral' Union Bid Fails First Local Test, Grand Rapids 
Press, September 27, 2003, p. A-1.
---------------------------------------------------------------------------
    Even putting all of this aside, the basic issue under discussion in 
these hearings is simply one of worker free choice, the right of 
employees to freely choose or reject representation by a particular 
union. That is the heart of the NLRA. Proposals like the Kennedy-Miller 
legislation, which virtually outlaw secret-ballot elections under the 
NLRA, do not enhance this right to freely choose or reject a union. 
Instead, they strip workers of their already limited rights against 
unions, and impose an undemocratic system with no checks and balances.
    This is especially true given the growth of so-called ``neutrality 
and card check'' agreements. In these agreements, unions and employers 
take deliberate advantage of the NLRB's rules to delete the Board from 
the process in which employees choose (or reject) union representation. 
Exclusion of the Board from the representational process leaves 
employees' rights in the abusive hands of employers and unions, each of 
which is pursuing its own self-interests under these agreements. Unions 
are desperately seeking additional members and dues revenues. Employers 
are (naturally) pursuing their business interests, such as avoiding 
coercive union corporate campaigns or obtaining a pre-negotiated 
``sweetheart deal'' regarding future-organized employees' terms and 
conditions of employment. Neither entity has any interest in protecting 
employees' rights to freely choose or reject union representation, the 
very rights the NLRA exists to protect.
    Under ``neutrality and card check'' agreements, the employer 
anoints a particular union, and negotiates a secret, pre-arranged 
``partnership agreement'' that obligates the employer to assist its 
``partner'' union with organizing the employees. The employer then 
provides that anointed union with special privileges (e.g., captive 
audience speeches praising the new ``partner'' union, lists of 
employees' home addresses, gerrymandered bargaining units to weed out 
union opponents, and the waiver of secret ballot elections in favor of 
so-called ``card checks''), and turns a blind eye as the union harasses 
and misleads employees into signing union authorization cards. Employee 
free choice should not, and under the text of the NLRA cannot, be 
subject to the vagaries of self-interested unions and employers. See 
MGM Grand Hotel, 329 N.L.R.B. 464, 469-75 (1999) (Member Brame, 
dissenting).\5\ Abolition of ``voluntary recognition,'' or at least 
strong curbs on its abuse, are needed to protect the paramount employee 
right to freely choose or reject union representation.
---------------------------------------------------------------------------
    \5\ The Senate need look no further than the Board's recent 
decision in Duane Reade, Inc., 338 N.L.R.B. No. 140 (2003), enforced, 
Case No. 03-1156, 2004 WL 1238336 (D.C. Cir. June 10, 2004), to see 
this union and employer self-interest at work. There, in blatant 
disregard of employees' Sec. 7 rights to freely choose or reject a 
union, the employer unlawfully assisted its hand-picked union in 
coercing employees to sign union authorization cards so that 
``voluntary recognition'' could be bestowed.
---------------------------------------------------------------------------
    So what exactly is a ``neutrality agreement?'' It is an enforceable 
contract between a union and an employer usually kept secret from the 
very employees it targets \6\--under which the employer agrees to 
support a union's attempt to organize its workforce. Although these 
agreements come in several different forms, common provisions include:
---------------------------------------------------------------------------
    \6\ Attached as Exhibit 1 is the Declaration of Clarice Atherholt, 
the petitioner in UAW and Dana Corp. (Upper Sandusky, OH), Case No. 8-
RD-1976. Ms. Atherholt describes her inability to even see the secret 
agreement that her employer, Dana Corporation, entered into with the 
UAW.
---------------------------------------------------------------------------
  --Gag Rule.--While most neutrality agreements purport merely to 
        require an employer to remain ``neutral,'' in reality they 
        impose a gag order on speech not favorable to the union. A 
        company, including its managers and supervisors, is prohibited 
        from saying anything negative about the union or unionization 
        during an organizing drive. Employees are only permitted to 
        hear one side of the story: the version the union officials 
        want employees to hear. In a recent speech to the ABA, NLRB 
        Chairman Battista criticized the growing use of neutrality 
        agreements and stated that the ``purpose of using neutrality 
        agreements is not to expedite [employee free choice], but to 
        silence one of the parties.'' Daily Labor Reporter, Five 
        Members Discuss Decisionmaking, Wide Variety of Issues at ABA 
        Meeting, August 15, 2003, Page B-1.
    For example, the UAW's model ``neutrality clause'' states that an 
employer may not ``communicate in a negative, derogatory or demeaning 
nature about the other party (including the other party's motives, 
integrity, character or performance), or about labor unions 
generally.'' \7\ In practice this requires employers to refrain from 
providing even truthful information in response to direct employee 
questions. In contrast to this employer silence, the UAW's model 
neutrality agreement requires the signatory employer to affirmatively 
``advise its employees in writing and orally that it is not opposed to 
the UAW being selected as their bargaining agent.'' Such limits on free 
speech, and requirements of forced pro-union speech, are purposefully 
designed to squelch debate and keep employees in the dark about the 
union that covets them.
---------------------------------------------------------------------------
    \7\ See http://www.nrtw.org/d/uawna.pdf
---------------------------------------------------------------------------
    In Chamber of Commerce v. Lockyer, 364 F.3d 1154, 1166 (9th Cir. 
2004) (emphasis added), the Ninth Circuit recently struck down a state 
law mandating ``neutrality'' because it directly interfered with 
employees' right to organize or refrain from doing so. The Ninth 
Circuit reached this conclusion because ``an overriding principle of 
the NLRA is that the collective bargaining process cannot function 
unless both employers and employees have the ability to engage in open 
and robust debate concerning unionization.'' This interest in ``open 
and robust debate'' about the pros and cons of unionization is hardly 
enhanced by employer gag rules favoring one anointed union.
  --No Secret Ballot Election.--Most neutrality agreements include a 
        ``card check'' agreement. Under such an agreement, employees 
        are not permitted to vote on union representation in a secret 
        ballot election monitored by the National Labor Relations 
        Board. Instead, the employer pledges to recognize the union 
        automatically if it can produce a certain number of signed 
        union authorization cards. Experience shows that employees are 
        often coerced or misled into signing these authorization cards. 
        For example, employees report being falsely told that these 
        union authorization cards are merely health insurance 
        enrollment forms, non-binding ``statements of interest,'' 
        requests for an election, or even tax forms.\8\
---------------------------------------------------------------------------
    \8\ Attached as Exhibit 2 is a sworn Declaration of Faith Jetter in 
Support of her Motion to Intervene or, Alternatively, to File a Brief 
Amicus Curiae in the case of Sage Hospitality Resources, LLC v. HERE 
Local 57, 299 F. Supp. 2d 461 (W.D. Pa. 2003), appeal pending, No. 03-
4168 (3d Cir.) (Before any employees were hired, the City of Pittsburgh 
pressured hotel operator to sign a neutrality and card check agreement 
as a condition of approving the public financing necessary to complete 
its project, even directing the hotel operator to contact specific HERE 
officials to negotiate this mandatory arrangement). In her Declaration, 
Ms. Jetter describes her own harassment at the hands of the union 
granted such ``neutrality,'' and in addition states: ``I also saw the 
union representatives try to coerce another employee to sign a card, 
even though they never explained to the employee what this card meant, 
or told her that the union could be able to be automatically recognized 
as the representative of the employees without a secret ballot 
election. It was clear to me that this employee had no idea what this 
card meant when the union tried to get her signature.''
---------------------------------------------------------------------------
    Indeed, the United States Supreme Court has recognized this as 
well: ``We would be closing our eyes to obvious difficulties, of 
course, if we did not recognize that there have been abuses, primarily 
arising out of misrepresentations by union organizers as to whether the 
effect of signing a card was to designate the union to represent the 
employee for collective bargaining purposes or merely to authorize it 
to seek an election to determine that issue.'' \9\
---------------------------------------------------------------------------
    \9\ NLRB v. Gissel Packing Co., 395 U.S. 575, 604 (1969).
---------------------------------------------------------------------------
    Moreover, when an employee signs (or refuses to sign) a union 
authorization card, he or she is not likely to be alone. Indeed, it is 
likely that this decision is made in the presence of one or more union 
organizers pressuring the employee to sign a card. This solicitation 
could occur during or immediately after a union mass meeting or a 
company- paid captive audience speech, or it could occur in the 
employee's own home during an unsolicited union ``home visit.'' In all 
cases the employee's decision is not secret, as in an election, since 
the union clearly has a list of who has signed a card and who has not. 
Thus, a choice against signing a union authorization card does not end 
the decision- making process for an employee in the maw of a ``card 
check drive,'' but often represents only the beginning of harassment 
and intimidation for that employee.
    In sharp contrast, each employee participating in an NLRB-conducted 
election makes his or her choice one time, in private. There is no one 
with the employee at the time of decision. The ultimate choice of the 
employee is secret from both the union and the employer. Once the 
employee has made the decision ``yea or nay'' by casting a ballot, the 
process is at an end. Thus, only with an Orwellian world-view can 
unions claim that ``we save industrial democracy and employee free 
choice by doing away with the secret ballot election.''
  --Access to Premises.--Neutrality agreements commonly give the union 
        permission to come on company property during work hours for 
        the purpose of collecting union authorization cards. This 
        differs from the guidelines set by the NLRB and the courts, 
        under which an employer has no obligation to, and may actually 
        be prohibited from, providing the union with such sweeping 
        access to its employees.
  --Access to Personal Information.--Neutrality agreements frequently 
        require that the company provide personal information about 
        employees to the union, including where employees and their 
        families live. Armed with a company-provided list of the names 
        and addresses of each employee, union officials can conduct 
        ``home visits'' to pressure employees to sign union 
        authorization cards.
    Employee Faith Jetter attested to what happened after her employer 
provided the HERE union with her personal information:

    ``I was called at home and also contacted in person by HERE union 
representatives and urged to sign a union authorization card. These 
union representatives already had my name and home address and 
telephone number. I was asked if the union representatives could come 
to my home and make a presentation about the union. I allowed them to 
come, as I was willing to listen.
    ``Two union representatives came to my home and made a presentation 
about the union. They tried to pressure me into signing the union 
authorization card, and even offered to take me to out dinner. I 
refused to sign this card as I had not yet made a decision at that 
time.
    ``Shortly thereafter, the union representatives called again at my 
home, and also visited my home again to try to get me to sign the union 
authorization card. I finally told them that my decision was that I did 
not want to be represented by this union, and that I would not sign the 
card.
    ``Despite the fact that I had told the union representatives of my 
decision to refrain from signing the card, I felt like there was 
continuing pressure on me to sign. These union representatives and 
others were sometimes in and around the hotel, and would speak to me or 
approach me when I did not want to speak with them. I also heard from 
other employees that the union representatives were making inquiries 
about me, such as asking questions about my work performance. I found 
this to be an invasion of my personal privacy. Once when I was on 
medical leave and went into the hospital, I found that when I returned 
to work the union representatives knew about my hospitalization and my 
illness. I felt like their knowledge about me and my illness was also 
an invasion of my personal privacy.`` \10\
---------------------------------------------------------------------------
    \10\ See Exhibit 2 attached hereto.

  --Captive Audience Speeches.--Employees may be forced to attend 
        company-paid ``captive audience'' speeches pursuant to 
        neutrality agreements. In these mandatory forums, the union and 
        management work together to pressure employees to sign up for 
        the union. Sometimes it is announced that the union and company 
        have already formed a ``strategic partnership,'' making union 
        representation seem a foregone conclusion. In one facility 
        owned by Johnson Controls Inc., it was strongly implied that if 
        workers did not support the union's organizing effort, they 
        risked losing potential job opportunities. Can it be said that 
        employees freely signed cards after such coercion?

              HOW DO UNIONS SECURE NEUTRALITY AGREEMENTS?

    Employers are often pressured into neutrality agreements by union 
picketing, threats, or comprehensive ``corporate campaigns.'' Some 
employers are pressured into neutrality agreements by other companies 
who are acting at the behest of union officials. A neutrality agreement 
itself may require an employer to impose the neutrality agreement on 
other companies with whom it affiliates. But do employees who are 
targets of these agreements approve? Are they ever asked? Many do not 
even know that such a deal covering their unionization exists. As 
employee Faith Jetter noted in her sworn Declaration (Exhibit 2), ``I 
heard that the Hotel and the HERE union signed an agreement covering 
the union's attempt to organize the employees of the Hotel. I also 
learned that this agreement required my employer to give the HERE union 
a list of employees' names and addresses, and access to the employees 
inside of the Hotel. No one asked me if I approved of this, and I do 
not. I am opposed to the Hotel giving the HERE union a list of with my 
name and personal information, and allowing them access to me in the 
workplace.''
    Even more ominous, there is a growing trend in which state and 
local politicians pass laws mandating that employers who wish to do 
business with the state or locality must sign neutrality agreements. In 
one notorious case, the San Francisco Airport Authority mandated that 
any concessionaires who wished to lease space at the airport had to 
first sign a neutrality agreement. That governmental interference in 
private labor relations was held to be federally preempted, and was 
enjoined.\11\ Unfortunately, many state and local politicians are still 
attempting to require neutrality agreements as a condition of 
contracting with the government or of obtaining grants, even though 
most, if not all, such requirements are federally preempted.
---------------------------------------------------------------------------
    \11\ Aeroground, Inc. v. City & County of San Francisco, 170 F. 
Supp. 2d 950 (N.D. Cal. 2001) (municipal ordinance which regulated 
private-sector labor relations and mandated the waiver of rights and 
interests protected by the NLRA is unconstitutional as preempted); see 
also Chamber of Commerce v. Lockyer, 225 F. Supp. 2d 1199 (C.D. Cal. 
2002) (similar state statute preempted), affirmed, 364 F.3d 1154 (9th 
Cir. 2004); Metropolitan Milwaukee Ass'n of Commerce v. Milwaukee 
County, 325 F.3d 879 (7th Cir. 2003) (employer association has standing 
to challenge county ordinance requiring employers to enter into ``labor 
peace agreements'').
---------------------------------------------------------------------------
    The bottom line is this: employees' rights of free choice are 
sacrificed and lost under so-called ``neutrality agreements.'' Instead 
of being able to freely choose for themselves whether they desire union 
representation through a secret ballot election, management and union 
officials work together to impose unionization on workers from the top 
down.

        EXAMPLES OF WORKER ABUSE UNDER ``NEUTRALITY AGREEMENTS''

    There are many pending legal cases challenging neutrality 
agreements and card checks as abuses of workers' rights, some of which 
are cited in footnote 3 above. One that particularly highlights these 
abuses is Dana Corp. and UAW, Case Nos. 7-CA-46965-1 and 7-CB-14083-
1and 7-CA-47078-1 and 7-CB-14119.
    In this case, the UAW has been trying to unionize the Dana 
Corporation plant in St. Johns, Michigan (``Dana St. Johns'') for 
several years, without success. In August, 2003, the UAW reached a 
``partnership'' agreement with Dana that covers the employees of Dana 
St. Johns (and others), even though the UAW does not represent any of 
the targeted employees. The terms of this ``partnership'' agreement 
have been kept secret.
    This ``partnership'' agreement is undisputably a ``labor contract'' 
enforceable under Sec. 301 of the NLRA, 29 U.S.C. Sec. 185. See UAW v. 
Dana Corp., 278 F.3d 548 (6th Cir. 2002). The provisions of this 
enforceable contract: (1) establish a ``card check'' and dispense with 
NLRB-supervised secret ballot elections, (2) establish joint UAW-Dana 
captive audience speeches; (3) gag all supervisors from even truthfully 
answering employees' questions; (4) give union organizers wide access 
to employees in the plant; and (5) give union organizers personal 
information about the employees including home addresses all with the 
joint goal of prodding these employees into accepting the UAW as their 
representative. In practice, the UAW has also used this ``partnership'' 
to limit employees' ability to revoke their authorization cards, by 
informing them that in order to do so, one or more union officials must 
personally come to their homes!
    The UAW and Dana entered into their ``partnership'' agreement out 
of fear that the union would continue to fail in its quest to unionize 
the employees at Dana St. Johns and elsewhere. This ``partnership 
agreement'' is a classic example of a ``bargaining to organize'' 
scheme, wherein union officials commit to act in a manner favorable to 
management interests in exchange for employer assistance with gaining 
and maintaining control over employees.\12\ Despite public fanfare 
about the existence of this ``partnership,'' the specific terms of the 
agreement are secret from the very employees it targets, and whose 
interests it compromises.
---------------------------------------------------------------------------
    \12\ Even the union oriented press has reported that the UAW trades 
employee wages and benefits for ``neutrality,'' see ``UAW Trades Pay 
Cuts for Neutrality'' at http//www.labornotes.org/archives/2003/07/
c.html and http//www.labornotes.org/archives/2003/10/b.html
---------------------------------------------------------------------------
    As noted, the employees of Dana St. Johns have long rejected the 
UAW as their collective bargaining agent. It is for this reason that in 
the fall of 2003, a majority of the Dana St. Johns employees signed a 
petition which stated unequivocally:

                PETITION AGAINST UAW ``REPRESENTATION''

    The undersigned employees of Dana Corporation-St. Johns, MI., do 
NOT want to be ``represented'' by the UAW union, do NOT want to join 
the UAW union, and do NOT wish to support the UAW union in any manner.
    To the extent that any of the undersigned employees have ever 
previously signed a UAW membership card or UAW ``authorization card'', 
the undersigned hereby REVOKES that card. More specifically, that Dana 
Corporation, the UAW union, and all third parties or arbitrators take 
NOTICE that any such card signed by an undersigned employee prior to 
the signing of this petition is NULL AND VOID.
    The undersigned employees of Dana Corporation DO NOT wish to be 
subjected in any way to the ``partnership agreement'' sign by corporate 
Dana officials and corporate UAW officials, and request that Dana 
Corporation and the UAW union CEASE giving any affect to the 
``partnership agreement'' at this Dana plant in St. Johns, MI.
    The undersigned employees of Dana Corporation hereby request that 
Dana Corporation NOT disclose or otherwise reveal to the UAW union, or 
its agents, any personal information about them; including, but not 
limited to: their name, social security number, home address, telephone 
number, job title, or work history.
    The undersigned employees of Dana Corporation hereby request that 
Dana Corporation expressly recognize that the UAW union does NOT 
represent a majority of the employees at this facility, at which we 
work, for an irrevocable period of one-year.
    This petition states in part that the undersigned employees 
recognize the destructive and self-serving behavior of the UAW, and its 
documented role in union violence, union corruption, and plant closures 
caused by featherbedding and other uneconomic union work rules.
    Finally, I DO NOT want any UAW officials, organizers, or agents 
calling or visiting me at my home. I hereby deny access to my property 
to any UAW official, organizer, or agent.
            Respectfully Submitted,
                                          Dana Corporation,
                                               St. Johns employees.

    Copies of this petition--signed by a majority of employees--were 
delivered to both Dana management officials and UAW officers. However, 
the petition was not acted upon by Dana or the UAW. Although the 
petition recites that the signatures are irrevocable for one year, Dana 
and the UAW nevertheless conducted their captive audience speeches, 
Dana gave out lists of employees' names and home addresses, gagged its 
supervisors and the UAW conducted home visits. In response to employee 
inquiries about revoking previously signed authorization cards, UAW 
officials told employees that the only way to revoke their cards was 
for union organizers to personally visit them at their homes. In short, 
these employees have not been respected in their congressionally- 
granted ``right to refrain.'' To the contrary, they have been subject 
to a concerted campaign to force them to sign union cards, whether they 
wish to or not.
    Unfair labor practice charges were filed in these cases on or about 
December 15, 2003. Despite the clear record in these cases, the 
Regional Director dismissed the charges and, on appeal, NLRB's General 
Counsel has to this day failed to take any action. These and several 
related Dana-UAW cases remain pending, while the employees are in limbo 
despite having made their choice against UAW representation.
    Thankfully, however, the full NLRB has begun to take action against 
this sort of abusive conduct. They have done so by granting review in 
three decertification cases, UAW and Dana Corp. and Metaldyne Precision 
Forming/UAW, 341 NLRB No. 150 (June 7, 2004) (cases consolidated for 
purposes of decision), and United Steelworkers of America and Cequent 
Towing Products (Goshen, IN), NLRB Case No. 25-RD-1447.
    In the Dana and Metaldyne cases, the facts are as follows: Dana and 
the UAW became parties to a secret ``neutrality agreement'' in August, 
2003. Even though Dana employees in Upper Sandusky are the targets of 
the agreement, the terms of the agreement were kept secret from them 
prior to Dana's declaration of ``voluntary recognition.'' (See 
Declaration of Clarice K. Atherholt, and Ex. 2 thereto). Local 
management at Dana Upper Sandusky was gagged, and not allowed to inform 
any employees about the details of the neutrality agreement. Employees 
were told only that the UAW union organizers would have wide access to 
employees' personal information and the plant.
    Several months ago, apparently pursuant to the neutrality 
agreement, UAW organizers came in force to the Dana Upper Sandusky 
plant, and have stayed there ever since. Dana management held a series 
of company-paid captive audience meetings at the plant, praising its 
new ``partner.'' At these meetings, officials from Dana Corporation in 
Toledo and UAW officials from Detroit told the employees that the UAW 
and Dana were now ``partners,'' and that this partnership would be 
beneficial in getting new business from the Big Three into the plant. 
With a wink and a nod, the implication was that Dana Upper Sandusky 
would lose work opportunities or jobs if employees did not sign cards 
and bring in the UAW. (Id).
    The UAW's ``card check'' drive that followed was the antithesis of 
an NLRB secret-ballot election. UAW organizers did everything they 
could to harass, coerce and pressure employees into signing union 
cards. The UAW put constant pressure on some employees to sign cards by 
having union organizers bother them at work, and repeatedly call and 
visit them at home. UAW organizers also misled many employees as to the 
purpose and finality of the cards. Overall, many employees signed the 
cards just to get the UAW organizers off their back. (Id). (This is 
hardly conduct that would be allowed if formal objections were raised 
in the context of an NLRB secret-ballot election, which requires 
``laboratory conditions''). This coercive effort culminated on or about 
December 4, 2003, when Dana suddenly announced that the UAW was 
``chosen'' as exclusive representative of the Upper Sandusky employees, 
based upon a count of signed authorization cards. There was no vote and 
no secret ballot election.
    Within days of this ``voluntary recognition,'' over 35 percent of 
Clarice Atherholt's fellow workers signed her decertification petition. 
The Regional Director of the NLRB dismissed that petition, but the full 
NLRB has now granted review. 341 NLRB No. 150 (June 7, 2004).
    The facts in the companion cases, Metaldyne Precision Forming, Case 
Nos. 6-RD- 1518 and 6-RD-1519 are very similar, except that within days 
of the ``voluntary recognition,'' more than 50 percent of the covered 
employees signed decertification petitions. Again, a Regional Director 
of the NLRB dismissed those petitions, but the full NLRB has now 
granted review. 341 NLRB No. 150 (June 7, 2004). In all of these cases, 
employees' fate is now in the hands of the NLRB, where all they seek is 
a secret-ballot election to ensure their right to choose or reject a 
union free from coercion and harassment.

                               CONCLUSION

    None of the abusive situations outlined herein, which are just the 
tip of the iceberg, would be happening if the National Labor Relations 
Act required secret ballot elections, and outlawed union 
``recognition'' via coercive ``card checks.'' Since the touchstone of 
the NLRA is employee free choice, good faith and fairness requires that 
employees be given the right to have a true secret ballot election 
conducted under laboratory conditions.
    I trust these hearings will shed further light on the abuses 
inherent in ``neutrality and card check'' processes.

    Senator Specter. Thank you very much, Mr. Taubman. The 
testimony so far has touched on the issues of coercion and 
intimidation. I think it would be useful before raising 
questions with the panel to hear from the three employees who 
have some specific facts to testify about. Keep your seats. 
We're just going to ask them to join you and we will hear from 
them and they will shed some additional light factually on some 
of the issues raised and we'll proceed from there.
    Our next three witnesses are Ms. Clarice Atherholt, Ms. 
Arlene Brockel, and Ms. Josephine Ruckinger. We'll start first 
with Ms. Atherholt, an employee of the Dana Corporation, a non-
union automotive firm from Toledo, Ohio. She lives in Sandusky, 
is married with two children and five grandchildren.
    Thank you for joining us, Ms. Atherholt. Go forward with 
your testimony.

STATEMENT OF CLARICE ATHERHOLT, EMPLOYEE, DANA 
            CORPORATION

    Ms. Atherholt. Good afternoon, Senator Specter, ladies and 
gentlemen.
    Senator Specter. Pull that machine closer, too. Thank you.
    Ms. Atherholt. Thank you for giving me the opportunity to 
describe the ordeal that my co-workers and I faced immediately 
after my employer, Dana Corporation, cut a deal last year with 
the United Auto Workers that we would be unionized.
    When my marriage ended in 1985, I knew that I needed to get 
back into the workforce to support my two children. During our 
married life, my husband was a truck driver and part of that 
time was spent in a union environment. He didn't want to join a 
union, but in order to drive he had no choice. Other than 
paying monthly union dues, the union never did a thing for him.
    I knew that I did not want to work where there was a union, 
so I purposely did not apply where there were unions. In May 
1985, I was hired by Continental Hydraulic Hose in Upper 
Sandusky, Ohio. We then were sold to Echlin, Inc. and 
approximately 6 years ago we were bought out by Dana 
Corporation.
    Suddenly, in August 2003, we were informed that Dana and 
the UAW had signed something they called a neutrality agreement 
which targeted employees not only in our Upper Sandusky plant 
but many other Dana plants. Despite our complaints, the 
agreement was kept secret from us. Our local management was not 
allowed to inform any of us about the specifics, but we learned 
that a main provision was that we would not be permitted to 
vote in a secret ballot election.
    Once this backroom deal went into effect, UAW organizers 
obtained not only the names of all employees, but also 
addresses and phone numbers. As my views were well known, UAW 
organizers did not come to my home to harass me, but they did 
go to the homes of many of my friends, sometimes not just once, 
but two, three and even four unsolicited home visits. Each time 
they were soliciting signatures on union authorization cards 
and seemed unwilling to take no for an answer.
    In November, we were strongly encouraged for our own 
benefit to attend a captive audience speech. The company said 
it had a new partnership with the UAW and that this partnership 
would be beneficial to us in getting new business from the Big 
Three. The implication was that our plant would lose business 
if we did not sign union cards and bring in the UAW.
    One question that was asked of Mr. King, who is the UAW 
vice-president in charge of organizing, was what can the union 
guarantee us? He had no answer. But someone in the audience 
replied, they'll take 2 hours pay a month.
    The organizers continued to make home visits as well as 
hanging out in three break areas at work. They interrupted 
private conversations among friends and made general nuisances 
of themselves. I believe that the organizers also misled many 
employees as to the purpose and the finality of the cards. 
Overall, many employees did sign the cards just to get the 
organizers off their back, not really because they wanted to be 
represented by the union.
    On December 4, 2003, an announcement was posted on the 
bulletin Board stating the UAW was now bargaining 
representative for our plant. We were never told who the third 
party was that tabulated the cards, but rumor had it that 50 
percent plus five cards had been signed and two or three of 
those cards were supposedly voided.
    Many fellow employees do not want to be represented by the 
UAW or any other labor union. That's why I, on my own time, 
secured 68 signatures out of approximately 182 eligible 
employees on decertification petitions. That is over the 
required 30 percent to trigger an election. I filed these with 
the Cleveland regional office of National Labor Relations Board 
on January 2 of this year.
    Much to our chagrin, the regional office rejected our 
request that would allow us once and for all to vote in a 
secret ballot vote on whether or not to unionize. The National 
Labor Relations Board in Washington, D.C. is reviewing the 
case, along with a similar petition filed by more than a 
majority of employees at Metaldyne in St. Marys, Pennsylvania.
    I am here today because I strongly believe that it is wrong 
to declare the UAW our representative when we haven't had a 
secret ballot vote. And I'm running out of time.

                           PREPARED STATEMENT

    After Mr. Miller, who is sponsoring the HR bill, he and 
several of his colleagues sent a letter to the government of 
Mexico demanding the use of secret ballot elections. Quoting 
from his letter, ``absolutely necessary in order to ensure that 
workers are not intimidated into voting for a union they might 
not otherwise choose.'' And that is attached as Exhibit 1.
    Senator Lindsey Graham has recently introduced a counter-
bill to the S. 1925. It is S. 2637. And I am very grateful for 
that. And thank you for allowing me to be here.
    [The statement follows:]

                Prepared Statement of Clarice Atherholt

    Good Afternoon Senator Specter, Ladies, and Gentlemen. Thank you 
for giving me the opportunity to describe the ordeal that my coworkers 
and I faced immediately after my employer, Dana Corporation, cut a deal 
last year with the United Auto Workers that we would be unionized.
    When my marriage ended in 1985, I knew that I needed to get back 
into the work force to support my two children. During our married 
life, my husband was a truck driver and part of that time was spent in 
a union environment. He didn't want to join a union, but in order to 
drive, he had no choice. Other than paying monthly union dues, the 
union never did a thing for him.
    I knew that I did not want to work where there was a union, so I 
purposely DID NOT APPLY where there are (were) unions. In May 1985, I 
was hired by Continental Hydraulic Hose in Upper Sandusky, Ohio. We 
then were sold to Echlin, Inc. and approximately 6 years ago we were 
bought out by Dana Corporation.
    Suddenly, in August 2003, we were informed that Dana and the UAW 
had signed something they called a ``neutrality agreement'' which 
targeted employees not only at our Upper Sandusky plant, but many other 
Dana plants. Despite our complaints, the agreement was kept secret from 
us. Our local management was not allowed to inform any of us about the 
specifics, but we learned that a main provision was that we would not 
be permitted to vote in a secret ballot election.
    Once this backroom deal went into effect, UAW organizers also 
obtained not only the names of all employees, but also addresses and 
phone numbers. As my views were well known, UAW organizers did not come 
to my home to harass me, but they did go to the homes of many of my 
friends. Sometimes not just once, but 2, 3, and even 4 unsolicited home 
visits per person. Each time they were soliciting signatures on union 
authorization cards and seemed unwilling to take ``no'' for an answer.
    In November, we were strongly encouraged ``for our own benefit'' to 
attend a ``captive audience'' speech. The company said it had a new 
partnership with the UAW and that this partnership would be beneficial 
to us in getting new business from the Big Three. The implication was 
that our plant would lose jobs if we did not sign union cards and bring 
in the UAW.
    One question that was asked of Mr. King, who is the UAW Vice 
President in charge of organizing, was ``what can the union guarantee 
us.'' He had no answer, but someone in the audience replied, ``they'll 
take 2 hours pay a month.''
    The organizers continued to make home visits as well as hanging out 
in 3 break areas at work. They interrupted private conversations among 
friends and made general nuisances of themselves. I believe that the 
organizers also misled many employees as to the purpose and the 
finality of the cards. Overall, many employees signed the cards just to 
get the UAW organizers off their back, not because they really wanted 
the UAW to represent them.
    On December 4, 2003, an announcement was posted on the bulletin 
board stating the UAW was now the bargaining representative for our 
plant. We were never told who the third party was that tabulated the 
cards, but rumor had it that 50 percent plus 5 cards had been signed. 
And 2 or 3 of those were supposedly voided.
    Many fellow-employees do not want to be represented by the UAW or 
any other labor union. That's why I, on my own time, secured 68 
signatures out of approximately 182 eligible employees on 
decertification petitions. That is over the required 30 percent to 
trigger an election. I filed these with the Cleveland regional office 
of National Labor Relations Board on January 2, 2004. Much to our 
chagrin, the regional office rejected our request that would allow us, 
once and for all, to vote in a secret ballot vote on whether or not to 
unionize. The National Labor Relations Board in Washington, D.C. is 
reviewing this case along with a similar petition filed by more than a 
majority of employees at Metaldyne, in St. Marys, Pennsylvania.
    I am here today because I strongly believe that it is wrong for 
Dana management to declare that the UAW was our representative without 
a secret ballot vote. If the UAW really believes that it has the 
support of a majority of employees, then it has nothing to fear by 
giving employees a chance to vote.
    What would happen to our country IF secret ballot elections were 
eliminated for public offices? This would reduce America to the status 
of a petty tyranny. Is this REALLY the direction we want to go in our 
country?
    I think it's an outrage that Senator Ted Kennedy and George Miller 
would introduce legislation that would force all employees in America 
to be unionized through the unfair and coercive card-check process that 
we experienced at Dana. And this is after Mr. Miller and several of his 
congressional colleagues sent a letter to the government of Mexico 
demanding the use of secret ballot elections in all union recognition 
elections in that country because they are, and I quote, ``absolutely 
necessary in order to ensure that workers are not intimidated into 
voting for a union they might not otherwise choose.'' (I've attached 
this letter to my testimony as Exhibit 1.)
    On the other hand, I am very grateful to Congressman Charlie 
Norwood for introducing H.R. 4343, THE SECRET BALLOT PROTECTION ACT, 
into legislation and am pleased that I was a participant at a press 
conference on May 12 of this year when he publicly announced it. And I 
just learned that Senator Lindsey Graham introduced a similar bill in 
the Senate.
    Again, Senator Specter, thank you for allowing me to be here today 
and a special thank you to Glenn Taubman, my attorney at the National 
Right to Work Legal Defense Foundation, who is providing us with free 
legal assistance in reclaiming our freedoms.

    Senator Specter. Thank you very much, Ms. Atherholt. Our 
next witness is Ms. Arlene Brockel, former employee of B. 
Braun, a medical supply manufacturing company. She was involved 
with the U.S. Steel campaign to form a union at the B. Braun 
facility. Thank you for joining us, Ms. Brockel, and we look 
forward to your testimony.

STATEMENT OF ARLENE BROCKEL, FORMER EMPLOYEE, B. BRAUN, 
            ON BEHALF OF THE UNITED STEELWORKERS OF 
            AMERICA, AFL-CIO

    Ms. Brockel. My name is Arlene Brockel and I worked as an 
assembler of B. Braun, Bethlehem, Pennsylvania, a leading 
manufacturer of disposable medical supplies, for almost 20 
years. B. Braun employs more than 900 workers in Bethlehem, 
Allentown and Breinigsville, Pennsylvania. Most of the 
employees at B. Braun are middle-aged women. Currently, I own 
and manage my own chocolate shop in Bethlehem.
    Thank you for inviting me to testify today. Senator 
Specter, I would like to start off by thanking you. I really 
appreciated the fact that you took the time to write a letter 
to the National Labor Relations Board inquiring about the labor 
law violations committed by B. Braun and a letter supportive of 
our campaign that you sent to myself and several co-workers.
    After offering B. Braun many years of service, I was 
extremely frustrated by the way my co-workers and I were being 
treated. The whole way the company operated was to create an 
environment where workers were yelled at publicly when they 
made minor mistakes. Raises and promotions were based on 
favoritism and were very inconsistent. Supervisors used 
favoritism to pit workers against one another and we were 
facing across-the-board pay cuts. That is why in 2001 several 
of my co-workers and I decided to form a union with United 
Steelworkers of America.
    After a strong majority of the workforce of 900 signed 
cards indicating the desire to form a union, we presented these 
signatures to the company, asking for recognition of our union. 
The level of enthusiasm for our union was extremely high. After 
the company refused to recognize our majority, we filed for an 
election with the National Labor Relations Board.
    The company responded by hiring a notorious anti-worker 
firm, the Burke Group, and immediately began an organized 
campaign to intimidate, harass and coerce workers who had 
already indicated their desire to form a union on cards. 
Consultants at the plant representing this firm referred to 
themselves as Board of Labor Relations consultants, 
deliberately leaving the impression among my co-workers that 
they were government officials.
    It began when the company started sending us literature 
from our supervisors to our homes. Before long, the cafeteria 
television began looping anti-union videos all day long, anti-
union signs were hung up everywhere, and they began unannounced 
searchs of our lockers, and the company held picnics and other 
events to try to sway favor.
    The tactics began to escalate dramatically. Before long, we 
were forced to endure repeated threats from our direct 
supervisors, often warning us that the company will move down 
south and close within 5 years if we voted to form a union.
    Supervisors made workers sit in mandatory group meetings 
that would last for hours at a time. They held so many of these 
meetings we wound up working seven days a week just to make up 
the production time that we lost. At the meetings, union 
supporters were singled out for public harassment and 
humiliation. The company would show us anti-union videos of 
violent strikes and tell us the company would go out of 
business with a union. High-profile managers would give lengthy 
one-sided presentations against our efforts.
    I was told that if we successfully formed a union, we would 
lose several vacation days, health care, and other benefits, 
and they would not guarantee any changes in our wages.
    This organized campaign by the employer had a devastating 
effect on worker morale and created such a hostile work 
environment that many workers from each side still do not talk 
to this day. By the election, all energy, effort and momentum 
had been drained and we suffered a crushing defeat, losing by 
several hundred votes.
    We filed charges with the National Labor Relations Board, 
but in the end all the company had to do was put a notice up in 
the workplace.

                           PREPARED STATEMENT

    This was not like any other election I have ever 
participated in in America and no worker at the plant was able 
to make a free and fair decision under that kind of pressure.
    We had already demonstrated our majority on cards and that 
decision must be honored. After the vote, I decided that after 
almost 20 years of service, I could no longer work in this type 
of environment, so I decided to leave and start my own 
business. Thank you for the opportunity to be here.
    [The statement follows:]

                  Prepared Statement of Arlene Brockel

    My name is Arlene Brockel, and I worked as an assembler of B. Braun 
Bethlehem, PA, a leading manufacturer of disposable medical supplies, 
for almost 20 years. B. Braun employs more than 900 workers in 
Bethlehem, Allentown and Breinigsville, PA. Most of the employees at B. 
Braun are middle-aged women. Currently, I own and manage a candy and 
chocolate store in Bethlehem.
    Thank you for inviting me to testify today.
    Senator Specter, I want to start off by thanking you. I really 
appreciated the fact that you took the time to write a letter to the 
National Labor Relations Board inquiring about labor law violations 
committed by B. Braun and a letter supportive of our campaign that you 
sent to myself and several of my co-workers.
    After offering B. Braun many years of service, I was extremely 
frustrated by the way my co-workers and I were being treated. The whole 
way the company operated was to create an environment where workers 
would be yelled at publicly for making minor mistakes; raises and 
promotions were based on favoritism and were inconsistent; supervisors 
used favoritism to pit workers against one another, and we were in the 
process of facing across-the-board cuts in pay. That is why in 2001, 
several of my co-workers and I decided to form a union with the United 
Steelworkers of America.
    After a strong majority of the workforce of 900-signed cards 
indicating the desire to form a union, we presented these signatures to 
the company asking for recognition of our union. The level of 
enthusiasm for our union was extremely high. After the company refused 
to recognize our majority, we filed for an election with the National 
Labor Relations Board.
    The company responded by hiring a notorious anti-worker firm called 
the Burke Group and immediately began an organized campaign to 
intimidate, harass and coerce workers who had already indicated their 
desire to form a union on cards. Consultants at the plant representing 
this firm, referred to themselves as ``Board of Labor Relations 
Consultants,'' deliberately left the impression among my co-workers 
that they were government officials.
    It began when the company started sending us literature from 
supervisors to our homes. Before long, the cafeteria televisions began 
looping anti-union videos all day long, anti-union signs were up 
everywhere, they began unannounced searches of our lockers, and the 
company held picnics and events to try and sway favor.
    The tactics began to escalate dramatically. Before long, we were 
forced to endure repeated threats from our direct supervisors, often 
warning us that the company will move down South and close within five 
years if we voted to form a union.
    Supervisors made workers sit in mandatory group meetings that would 
last for hours at a time. At the meetings, union supporters were 
singled out for public harassment and humiliation. The company would 
show us anti-union videos of violent strikes, and tell us the company 
would go out of business with a union. High-profile managers would give 
lengthy one-sided presentations against our efforts.
    I was told that if we successfully formed a union, we would lose 
several vacation days, health care and other benefits, and they would 
not guarantee any changes in our wages.
    This organized campaign by the employer had a devastating effect on 
worker morale and created such a hostile environment that many workers 
from each side still do not speak to each other to this day. By the 
election, all energy, effort and momentum had been drained, and we 
suffered a crushing defeat, losing by several hundred votes. We filed 
charges with the National Labor Relations Board--but in the end all the 
company had to do was put up a notice in the workplace.
    This was not like any other kind of election I have ever 
participated in America, and no worker at the plant was able to make a 
free and fair decision under this kind of pressure and threat.
    We had already demonstrated our majority on cards, and that 
decision must be honored. After the vote, I decided that after almost 
20 years I could no longer work in this type of environment, and so I 
decided to leave and start my own business.
    Thank you for the opportunity to be here today.

    Senator Specter. Thank you, Ms. Brockel. Thank you very 
much. We now turn to Ms. Josephine Ruckinger, Certified Nursing 
Assistant at the Presbyterian Home, Hollidaysburg, 
Pennsylvania, and a member of the Service Employees 
International Union. Thank you for joining us, Ms. Ruckinger, 
and we look forward to your testimony.

STATEMENT OF JOSEPHINE RUCKINGER, CERTIFIED NURSING 
            ASSISTANT AT PRESBYTERIAN HOME OF 
            HOLLIDAYSBURG, PA, ON BEHALF OF THE 1199P 
            SERVICE EMPLOYEES INTERNATIONAL UNION, AFL-
            CIO

    Ms. Ruckinger. Thank you, Senator. Good afternoon. My name 
is Josephine Ruckinger. I'm a Certified Nurse's Aide with the 
Presbyterian Home of Hollidaysburg, a member of SEIU. I have 
worked for the Presbyterian Home for 7\1/2\ years and as a 
nurse's aide for over 12 years. I'm a registered Republican and 
a licensed gun owner who enjoys activities such as canoeing and 
camping. And I care for my grandmother, who is 77, and she has 
moved in with me and my husband after having a stroke and 
numerous health problems.
    Presbyterian Home provides long-term care for 150 elderly 
residents. And thank you for inviting me today. I work on a 
unit where I am responsible for nine patients who require 
direct care in all daily living activities, eating, dressing, 
bathing and toileting. Many of my patients suffer from dementia 
and Alzheimer's. I work hard and care about my patients, but 
it's hard work. Many of my patients can be combative or require 
lifting and turning, which I often have to do alone.
    When management changed at Presbyterian Home in 2001, the 
new management started making changes to our working 
conditions. Our nursing director of over 20 years left. She was 
fed up and quit because of the new administrator. It was 
because of new management who didn't seem to care about us that 
caused us to form a union.
    During our campaign, management required all staff to 
attend mandatory in-service meetings. These meetings were held 
in the afternoon, so if it was your day off or you weren't 
working until night, you would come in on your own time. We 
have three shifts. The meetings were held in the afternoon and 
all workers were required to attend, even on our days off or 
when you were not yet on shift. We have three shifts, so 
workers had to come in to attend these meetings even if they 
were not due to report until 11 o'clock that night. They made 
us come to work to hear management's viewpoints about our 
union, and the union wasn't allowed to attend these meetings, 
these mandatory meetings.
    At one of those meetings a manager said we should not open 
our doors to SEIU because while we were talking to them at our 
front door someone could come into our back door and rob our 
homes. This was because we were doing home visits of workers, 
which is the only way we can talk to each other without 
management watching. Management told us the union would only 
take our money and dues and couldn't do anything for us.
    Management also held meetings with personal care residents 
to scare the residents. They told the residents their rent 
would go up and the union would protect bad workers. The 
administrator told one of my co-workers she would do anything 
to keep the union out, even if it meant harassment by residents 
toward staff. On one occasion a resident began to yell at one 
of my co-workers that he could not afford to continue to live 
there if his rent went up.
    They told us we would never get a first contract, and if we 
voted for the union we would lose our pension plan and other 
benefits. They told us we would have to start from scratch and 
we would never get the things we have in our first contract.
    My co-workers and I did not like what management was 
saying, but we could not invite the union to attend and give 
their side of the story.
    We were finally able to vote in May 2002, but the Home 
challenged our ballots and the National Labor Board kept the 
ballots for over 1 year before we knew the results of our 
election. We found out that we won the election in 2003. We 
have not been able to get our first contract, just as 
management had said.
    Unfortunately, our LPNs lost their election, and one of my 
LPN co-workers was pulled aside by her supervisor and told her 
to keep her nose clean, you know, to stay out of it, because 
she supported the union.
    I was disciplined and lost 3 days pay. One of my residents 
is very combative. I had asked management repeatedly that I 
needed another worker to help me with this resident. But we all 
have nine to ten residents and we can't always help each other. 
I was trying to brush the resident's teeth and she tried to hit 
me in the face. When I ducked to avoid being hit, she hit her 
hand against the closet door and received a cut to the back of 
her hand.
    I reported this immediately to my nursing supervisor and we 
wrote a report. No one blamed me for the resident's injury at 
the time, because everyone knew this resident could be 
dangerous. I worked for 8 days after the incident taking care 
of this resident and then I was called into my administrator's 
offices and suspended for 3 days without pay. My administrator 
told me there is no policy against staff being abused.

                           PREPARED STATEMENT

    I had to write letters to the administrator complaining 
about being disciplined for something that was not my fault. 
Because I don't have a union, I had to do this myself. If we 
had a union, I would have had someone to help me protect my 
rights and ensure my patients received quality care.
    Thank you. I'm running out of time. But thank you for 
hearing me today and I hope I have a job to go back to tomorrow 
after being here today.
    [The statement follows:]

               Prepared Statement of Josephine Ruckinger

    My name is JOSEPHINE RUCKINGER I am a Certified Nursing Assistant 
(CNA) at the Presbyterian Home of Hollidaysburg, PA and a member of the 
Service Employees International Union 1199P. I have worked at 
Presbyterian for seven and a half years, and have worked as a CNA for 
over 12 years. I am registered Republican and enjoy target practice and 
am a licensed gun owner who enjoys other outdoor activities such as 
canoeing and camping. I care for my grandmother who is 77 years old and 
lives with me after a stroke. Presbyterian Home provides long-term care 
for 150 elderly patients.
    Thank you for inviting me to testify today.
    I work on a unit where I am responsible for nine patients who 
require direct care in all daily living activities, eating, dressing, 
bathing and toileting. Many of my patients suffer from dementia and 
Alzheimer's disease. I work hard and care about my patients, but it is 
very hard work. Many of my patients can be combative or require lifting 
and turning, which I often have to do alone.
    When management changed at Presbyterian around 2001 the new 
management starting making changes to our working conditions. Our 
nursing director of over 20 years got fed-up and quit, because of the 
new administrator. It was because of new management who didn't seem to 
care about us, that caused us to look to join a union.
    During our campaign to join the Service Employees International 
Union 1199P, management required all staff to attend mandatory in-
service meetings. These meetings were held in the afternoon and all 
workers were required to attend, even on our days off or when we were 
not yet on shift. We have three shifts, so workers had to come in to 
attend these meeting even if they were not due to report to work until 
11 p.m. at night. They made us come to work to hear management's view 
about our union. We were not able to ask questions or speak, and the 
union was not allowed to attend.
    At one of these meetings a manager said we should not open our 
doors to SEIU, because while we were talking to them at our front door, 
someone could come in our back door and rob us. This was because we 
were doing home visits of workers, which is the only way we can talk to 
each other, without management watching. Management told us the union 
would only take our money in dues and could not to anything for us.
    Management also held meetings with personal care residents to scare 
residents, they told the residents their rents would go up and the 
union would protect bad workers. The administrator told one of my co-
workers she would do anything to keep the ``union out'' even if it 
meant the residents harassing staff. On one occasion a resident began 
to yell at one of my co-workers that he could not afford to continue to 
live there if his rent went up.
    They told us we would never get a first contract, and if we voted 
for the union we would lose our pension plan and other benefits. They 
told us we would have to start from scratch and we would never get the 
things we have now in a first contract.
    My co-workers and I did not like what management was saying, but we 
could not invite the union to attend to give their side of the story.
    We were able to finally vote for the union in May 2002, but 
Presbyterian challenged our ballots and the Nation Labor Relations 
Board kept the ballots for over a year before we knew the results of 
our election. We finally found out that we won the election in May 
2003. We have not been able to get a first contact, just as management 
threatened us.
    Unfortunately, our licensed practical nurses (LPNs) lost their 
election 7 to 5, and one of my LPN co-workers was pulled aside by her 
supervisor. The supervisor told her she should ``keep her noise clean'' 
because they knew she supported the union.
    I was disciplined and lost three (3) days pay. One of my residents 
is very combative. I had asked management repeatedly that I needed 
another worker to help me with this resident. But we all have 9 to 10 
residents and we can't always help each other. I was trying to brush 
this resident's teeth and she tried to hit me in the face, when I 
ducked to avoid being hit, she hit her hand on a closet door and cut 
the back of her hand. I reported this immediately to my nurse 
supervisor and we wrote a report. No one blamed me for the resident's 
injury at the time because everyone knew this resident could be very 
dangerous.
    I worked for eight (8) days after the incident, and then all of a 
sudden I was suspended for three days without pay. When I was called 
into the administrator's office, she told me I should have let the 
resident hit me, because there is no policy against staff abused. I had 
to write letters to the administrator complaining about being 
disciplined for something that was not my fault. Because I don't have a 
union I had to do this myself. If we had our own union, I would have 
someone to help me protect my rights and ensure my patients received 
quality care. Because we work alone, we are always at risk of a 
resident making a complaint against us. We try to care for our 
residents but, they sometimes do things that are not in their control. 
We can lose our jobs or pay as a result. Workers don't feel secure or 
safe at work in these situations. I was finally reimbursed for two (2) 
days pay, but it is still in my file and I lost one day of pay.
    This has happened before with this resident, and no one has been 
disciplined. But because I supported the union management used me as an 
example. After this incident, this resident was put on a two person 
order, which is what should have happened all along.
    I need and want a union, so I can have a safer work place. We need 
more staff so we don't have to care for the residents alone.
    I pay $108 every two weeks for my health insurance for my husband 
and myself. I make $9.22 per hour, because I work the evening shift and 
get a $.35 cents shift differential. Presbyterian does not provide us 
with uniforms, we have to buy those ourselves.
    Thank you for listening to my story. I wish all my co-workers could 
come here today and tell you their stories. We all have them. We like 
our jobs and our residents, but we need a union to help us. I also hope 
that when I go back I will have a job, because I came here today to 
testify.

    Senator Specter. Thank you, Ms. Ruckinger. If you don't, 
call me.
    Ms. Ruckinger. Thank you.
    Senator Specter. Ms. Connelly, you had referenced a medical 
center in Wilkes-Barre where you had used the term ``union 
busters.'' Factually, what happened in that situation?
    Ms. Connelly. There's actually a few hospitals. The one I 
was referring to was at Geisinger Wyoming Valley Medical 
Center. We'll name the institution. And I think we organized 
them maybe in, this is 2004, it may have been, 2000, 2001. And 
they hired the Burke Group, which is the same group that is 
being discussed by the Steelworkers.
    I would like to, if I may, Senator, submit additional 
testimony on the Burke Group, to give you some further 
background. It just so happens that it's the same company that 
came in and ran these campaigns.
    [The information follows:]

                [From the New Labor Forum, Summer 2004]

                     The Fine Art of Union Busting

                            (By John Logan)

    The firm that is the focus of this article is not a ``Bad'' 
employer in the traditional sense. Its clients are normally extremely 
satisfied with its service. Indeed, it may well be, as it frequently 
claims, the nation's leading company providing this particular service. 
Among its hundreds of satisfied clients over the past two decades are 
General Electric, MCI, K-Mart, Honeywell, Coca-Cola, and several large 
hospital chains, including Catholic Healthcare West, the largest 
private hospital chain in California. According to all available 
information, moreover, the firm treats its employees extremely well--
most are handsomely rewarded for their efforts, earning around $180-
$250 per hour plus expenses in compensation.
    The problem with this firm is the service it provides--
sophisticated and aggressive antiunion campaigns that are custom 
designed to undermine employees' right to choose a union. While it is 
probably unfamiliar to many scholars of labor-management relations, the 
firm is intimately familiar to union organizers throughout the country 
who rank it alongside New York lawyers Jackson-Lewis as one of the most 
notorious union-busting firms in the nation. The firm has orchestrated 
approximately 800 antiunion campaigns since its founding in 1981, 
charging millions of dollars (including state and federal tax dollars 
from employers that receive public money) \1\ for its services, and has 
been involved in dozens of organizing drives tarnished by allegations 
of unfair labor practices (ULPs). The name of the firm is the Burke 
Group.
---------------------------------------------------------------------------
    \1\ In one infamous case involving numerous unfair management 
practices, Catholic Healthcare West paid the Burke Group over $2.6 
million to fight SEIU organizing campaigns in Sacramento and Los 
Angeles in 1998, according to the hospital chain's own financial 
records. That same year, Catholic Healthcare West received over $40 
million in state funds in the form of Medi-Cal reimbursements.
---------------------------------------------------------------------------
    Modern day antiunion consultants have operated since the 1940s. 
However, the consultant industry expanded enormously in response to the 
intensification of employer opposition to unionization during that 
decade.\2\ By the 1990s, one scholar estimated, American employers were 
spending over $200 million per year in direct payments to consultants, 
but that the true value of the antiunion industry rose to over $1 
billion per year when one included the cost of management and 
supervisor time off to fight unionization.\3\ Recent studies have 
demonstrated that antiunion consultants are now part of standard 
operating procedure, with three-quarters of employers engaging their 
services when confronted by an organizing drive, and that unions win 
significantly fewer National Labor Relations Board (NLRB) elections 
when employers engage the services of a consultant.\4\ Over the past 
three decades, consultant activities have transformed the character of 
union representation campaigns, turning them into significantly more 
acrimonious affairs. Prior to the 1970s, tactics such as captive 
speeches, employee interrogations, one-on-one meetings between 
employees and supervisors, ``vote no'' committees, antiunion videos, 
threats of plant closures, and discriminatory discharges were used 
sparingly by employers facing organizing campaigns. In recent decades, 
in contrast, these tactics have become commonplace, in part because of 
their development and promotion by consultants.\5\
---------------------------------------------------------------------------
    \2\ ``Pressures in Today's Workplace. Oversight Hearings Before the 
Subcommittee on Labor-Management Relations of the House of 
Representatives Committee on Education and Labor,'' 96th Congress 
(1980).
    \3\ John Lawler, Unionization and Deunionization (University of 
South Carolina Press, 1990).
    \4\ Kate Bronfenbrenner and Rob Hickey, ``Changing to Organize: A 
National Assessment of Union Organizing Strategies.'' Paper presented 
at the Institute for Labor and Employment Research Conference on Union 
Organizing, UCLA, May 17, 2002.
    \5\ John Logan, ``Consultants, Lawyers, and the Union Free Movement 
in the United States Since the 1970s,'' Industrial Relations Journal 
33:3 (August 2002), 197-214.
---------------------------------------------------------------------------
    Today, the Burke Group, headquartered in Malibu, California, 
perhaps best personifies the modern face of antiunion consulting. With 
over 60 full-time consultants, it is probably the nation's largest firm 
specializing in counterorganizing campaigns.\6\ The Burke Group advises 
employers throughout the country on how to maintain their ``union-free 
advantage'' and operates in most sectors of the economy. The firm's 
consultants live in 23 different states, thus allowing it to dispatch 
consultants ``quickly and efficiently to any trouble spot.'' \7\ In 
recent years, the Burke Group has specialized in healthcare campaigns 
and campaigns involving multicultural and multilingual workforces, both 
areas of significant new organizing activity. It can credibly claim 
significant expertise in healthcare labor relations. Its extensive 
consultant roster includes eight former healthcare industry executives, 
five registered nurses, and one former president of the California 
Nurses Association, Susan Harris, who led the nurses' union for two 
years in the early 1980s.\8\
---------------------------------------------------------------------------
    \6\ Antiunion law firms such as Jackson-Lewis are larger than the 
Burke Group, but these firms provide a range of legal services in 
addition to counter-organizing campaigns, and rarely conduct direct 
persuader activity.
    \7\ Labor Information Services (a.k.a., the Burke Group) web page 
at www.labor informationservices.com/ (March 5, 2003).
    \8\ On organizing in the healthcare sector, see Paul F. Clark, 
``Health Care: A Growing Role for Collective Bargaining,'' in Paul F. 
Clark, et al, eds., Collective Bargaining in the Private Sector 
(Industrial Relations Research Association Series, Champaign-Urbana, 
2002), pp. 91-135.
---------------------------------------------------------------------------
    In the 1970s and 1980s, antiunion consulting was an overwhelmingly 
white, Anglophone business, and few firms employed multilingual or 
minority consultants. Since the 1990s, however, many large consultant 
firms have diversified their workforce, as counter-organizing campaigns 
involving immigrant workers have come to constitute a significant 
portion of their workload.\9\ The Burke Group is just one of a number 
of consultant firms in Southern California that specialize in counter-
organizing campaigns involving immigrant workers. Others include Cruz & 
Associates, Labor Relations Consultants, Inc., and Hector Flores. But 
the Burke Group leads the field in diversity, with consultants fluent 
in Spanish, Portuguese, French, Filipino, Creole and several dialects 
of Chinese. As a result, the firm assures clients that it can now 
``more effectively respond to the challenges of an increasingly diverse 
workforce.\10\
---------------------------------------------------------------------------
    \9\ On organizing among immigrant employees, see Ruth Milkman, ed., 
Organizing Immigrants (Cornell UP, 2000).
    \10\ Labor Information Services web page at 
www.laborinformationservices.com/(March 5, 2003). The Burke Group files 
financial reports under the name, Labor Information Services, Inc.
---------------------------------------------------------------------------
    The Burke Group has sought to internationalize its operations in 
recent years by offering its services in Canada and the UK, both of 
which have union recognition systems broadly similar to that of the 
United States. Unions in Ontario have reported greater consultant 
activity since the introduction of mandatory certification elections in 
1995.\11\ Burke Group clients in the U.K. include General Electric, 
Honeywell, Eaton Corporation, and Amazon.co.uk. Unlike their U.S. 
counterparts, British unionists are largely unfamiliar with antiunion 
consultants, and in several recent campaigns, unions have been unaware 
of the Burke Group's presence, even as they have watched employee 
support for unionization hemorrhage before their eyes. Following a 
five-year campaign to organize employees at General Electric 
Caledonian, Britain's largest private-sector union, Amicus, lost 
decisively a representation ballot in June 2002. One bewildered union 
official remarked after the crushing defeat:
---------------------------------------------------------------------------
    \11\ Charlotte Yates, ``Staying the Decline in Union Membership: 
Union Organizing in Ontario, Union Busting New Labor Forum 89 1985-
99,'' Relations Industrielles/Industrial Relations, 55:4, pp. 640-674.

    ``We have been blown out of the water. . . . The result is a huge 
shock. We can't explain why our arguments for union recognition have 
been rejected. . . . It is quite obvious that those who said they would 
vote for us have changed their mind. God knows why.'' \12\
---------------------------------------------------------------------------
    \12\ Amicus official quoted in ``Aerospace workers vote against 
union recognition,'' The Evening Times (Scotland), June 4, 2002. Amicus 
lost the ballot, conducted by the Central Arbitration Committee 
(Britain's NLRB), by 449-243. In the UK, the Burke Group operates under 
the name, TBG Consulting.

    The GE campaign is not an isolated case. The former General 
Secretary of the Trade Union Congress, John Monks, criticized 
consultants for promoting a ``dubious approach'' to union recognition, 
one ``far more suited to the aggressive nature of U.S. industrial 
relations.'' \13\ However, aggressive consultant activity is still 
relatively uncommon in Britain and it remains to be seen whether it 
will become a standard feature of the union recognition process.\14\
---------------------------------------------------------------------------
    \13\ John Monks, General Secretary Trade Union Congress, letter to 
Keith James, Chairman, Eversheds, July 4, 2000.
    \14\ Trades Union Congress, ``Recognition Deals Fall as U.S. Style 
Union-Busting Hits the UK,'' Press Release, February 16, 2004. In 
contrast with the NLRA, the UK Employment Relations Act encourages 
voluntary agreements between unions and employers and provides for 
certification based on documentary evidence of union membership. Thus, 
there exists significantly less opportunity for lengthy and aggressive 
consultant antiunion campaigns.
---------------------------------------------------------------------------
          THE BURKE GROUP AND THE CHINESE DAILY NEWS CAMPAIGN

    Perhaps the best way to examine the full impact of the Burke 
Group's activities is through a detailed examination of its ongoing 
campaign at the Chinese Daily News (CDN) in Monterey Park, a suburb of 
Los Angeles. This campaign provides a textbook example of the 
strategies that have become standard features of consultant campaigns. 
The campaign offers additional evidence of the abject failure of the 
National Labor Relations Act (NLRA) to protect employees against the 
actions of aggressively antiunion employers. As the events at the CDN 
demonstrate, a firm that is resolutely determined to fight an 
organizing campaign, and possesses sufficient financial resources, can 
frustrate the democratic will of its employees for months or even 
years. Employers adeptly exploit the hearings process before the 
election, the appeals process after the election, and the NLRB's 
lengthy delays (and inadequate penalties) in remedying unfair 
management practices. The CDN and countless other firms like it have 
exploited the weaknesses of the NLRA to considerable success. As a 
result of overt employer opposition that continues after an election 
victory, over one quarter of certified unions fail to secure first 
contracts.\15\ Fred Feinstein, General Counsel of the Clinton NLRB, 
recently warned that employees' ability to develop a successful 
collective bargaining relationship is ``too often undermined by the 
potential of years of litigation that can follow a vote to unionize.'' 
\16\ The CDN campaign provides a perfect illustration of Feinstein's 
comments. More than two years since they voted for unionization, the 
CDN employees are still without independent representation. The 
tribulations of the mostly Taiwanese employees are also symptomatic of 
more widespread problems affecting immigrant workers. Frequently 
isolated by cultural and linguistic barriers, they are especially 
vulnerable to coercion by antiunion employers who would deny their 
legal right to choose a union.\17\
---------------------------------------------------------------------------
    \15\ Several studies have concluded that unions are significantly 
less likely to secure a first contract when a consultant is present. 
Consultants encourage employers to believe that they haven't ``lost'' 
an organizing campaign until they sign a contract with the union. In 
contrast, almost all unions that gain recognition as part of a ``labor 
peace agreement'' (limiting the conduct of both management and union 
during the organizing campaign) are able to negotiate first agreements. 
Richard Hurd, ``Union Free Bargaining Strategies and First Contract 
Failures,'' in P. Voos, ed., Proceedings of the 48th Annual Meeting of 
the Industrial Relations Research Association (Madison, WI, 1996); 
Gordon Pavy, ``Winning NLRB Elections and Establishing Collective 
Bargaining Relationships'' in S. Friedman et al., eds., Restoring the 
Promise of American Labor Law (Cornell UP, 1994); Adrienne Eaton & Jill 
Kriesky, ``Union Organizing Under Neutrality and Card Check 
Agreements,'' Industrial & Labor Relations Review 55 (2001).
    \16\ Fred Feinstein, ``The Limits of Reform at the NLRB,'' Paper 
Delivered at UCLA Institute for Labor and Employment, November 15, 
2002.
    \17\ On the obstacles faced by immigrant workers attempting to 
organize, see Milkman, Organizing Immigrants.
---------------------------------------------------------------------------
    The Chinese Daily News is the largest Chinese language newspaper in 
North America, with over 200 employees at four locations--Los Angeles 
(Monterey Park), San Francisco, New York, and Toronto.\18\ For the past 
quarter century, it has published a daily newspaper in Mandarin, which 
has a circulation of over 100,000. The newspaper's parent company, 
Taiwan's United Daily News, is fully unionized at home.\19\ In October 
2000, the paper's 152 employees at Monterey Park started an organizing 
campaign with The Newspapers Guild Communication Workers of America 
(TNGCWA) after management announced that, as part of a financial 
restructuring program, it would rescind a scheduled pay increase and 
require all employees to sign an ``employment at will'' declaration, 
allowing the paper to terminate their positions at any time. But 
employees' grievances predated the restructuring program. Employees 
complained that, for many years, management had forced them to work 
long hours with no overtime pay,\20\ and had funded bonuses for top 
performers through reductions in pay for other workers. However, most 
employees believed that their noncitizenship status and limited command 
of English would prevent them from obtaining alternative employment. 
Normally reluctant to disobey their managers, 95 percent of the 
employees broke with cultural tradition and signed union authorization 
cards within a month of the start of the campaign. The union then 
requested that the company grant recognition based on the authorization 
cards, but management refused, stating that a secret ballot election 
was the only proper method of disclosing the true wishes of the 
employees. The newspaper's parent company appointed a new manager at 
the Monterey Park facility, and assured employees that he would deal 
with their grievances. Thus, management argued, the union had ``already 
reached its goal.'' \21\ In addition to addressing certain workplace 
problems, however, the new manager recruited the services of Burke 
Group consultant Larry Wong, who specializes in counter-organizing 
campaigns involving predominantly Asian or Pacific Island 
employees.\22\ In a clear indication of who would be running the 
antiunion campaign, the new manager provided Wong with a ``luxury 
suite'' inside the newspaper building.\23\ Although controlling overall 
strategy and conducting limited direct persuader activity (consultant-
employee contact), Wong and other consultants have largely remained in 
the background, running the campaign through local management and 
supervisors.
---------------------------------------------------------------------------
    \18\ In recent years, the Burke Group has developed a subspecialty 
in counter-organizing campaigns in the newspaper industry, which has 
been characterized by acrimonious labor-management relations. In 
addition to the Chinese Daily News, the Burke Group orchestrated 
pressroom campaigns at the LA Times and Orange County Register in 2002.
    \19\ Other companies that are unionized at home, but have hired the 
Burke Group in an effort to remain union free in their U.S. operations 
include the auto companies Daewoo Motors (unionized in Korea) and SAAB 
(unionized in Sweden). On the antiunion practices of foreign employers 
operating in the U.S., see William Cooke, ``Union Avoidance and Foreign 
Direct Investment in the USA,'' Employee Relations, 23:6 (2001), 558-
580.
    \20\ The Chinese Daily News is currently under investigation by the 
California Department of Labor's Division of Labor Standards 
Enforcement for alleged violations of state and federal wage and hour 
laws. CDN employees reported being cheated out of state-mandated 
overtime payments and instructed to falsify documents for inspectors.
    \21\ Chinese Daily News, ``Fair is Fair'' (no date).
    \22\ Larry Wong joined the Burke Group in 1985 after working in 
human resources in the banking and insurance industries. The Burke 
Group's consultant list states that Wong ``has become increasingly 
involved in providing third party persuader services to companies with 
ethnically diverse work forces, particularly when the workforce has a 
large percentage of Asian/Pacific Islanders.'' ``Burke Group Consultant 
Listing'' (no date).
    \23\ Most antiunion campaigns are run entirely by consultants and 
select groups of top management. According to one leading practitioner, 
decisions made by these groups are ``vitally important'' and thus there 
is a ``compelling need for secrecy.'' Russell J. Thomas, ``A Managers 
Guide to Union Avoidance: Executive Summary.'' Available at: 
www.paradine.us/rjtlaborlaw/union.html (last visited September 5, 
2002).
---------------------------------------------------------------------------
    Management immediately initiated an aggressive antiunion campaign. 
In an effort to exploit the cultural sensitivities of the workforce, 
the company publicly humiliated several union activists and 
interrogated employees about their loyalty to the company. The 
newspaper's attorneys delayed the representation proceedings at every 
opportunity, with the bargaining unit hearings alone taking over three 
months to complete.\24\ Among other delaying tactics, management told 
the board that one quarter of the employees were in fact supervisors 
(and therefore excluded from the bargaining unit), thereby forcing 
vulnerable employees to testify about their work. It also argued that 
the Monterey Park workforce should be split into seven separate 
bargaining units. The NLRB rejected management's arguments, and, in 
February 2001, finally set an election date, which would be held one 
month later.
---------------------------------------------------------------------------
    \24\ Delaying the representation process is a standard consultant 
tactic. Consultants tell employers that time is on their side and 
recommend filing frivolous complaints with the NLRB that delay the 
election and prevent the expeditious enforcement of the law. One 
prominent ``union avoidance'' law firm recently advised that an 
employer should view the hearings process as ``an opportunity for the 
heat of the union's message to chill prior to the election.'' Jackson-
Lewis, ``Time is on Your Side,'' union kNOw, Summer 2001.
---------------------------------------------------------------------------
    The company then intensified its antiunion strategy. Management 
told employees that, if the union won, they would lose wage increases 
and that the plant might be forced to relocate to Taiwan. Managers and 
supervisors held captive group and one-on-one meetings with employees 
at all times of day and night, questioning them about their union 
sympathies and warning of dire repercussions, for both individual 
employees and the company as a whole, if the union were to prevail.\25\ 
Management offered pay increases or promotions to employees who agreed 
to campaign against the union, and distributed negatives stories about 
TNG-CWA, while telling employees that it was illegal for them to 
discuss unionization at work. After the employees enlisted the support 
of local, state and national politicians, the paper's attorneys 
threatened to sue for slander lawmakers who had criticized its 
antiunion conduct. State Assemblywoman Jackie Goldberg, commented on 
the management's activities: ``In its editorials, the newspaper says it 
supports America--but you cannot support America while violating its 
laws.'' \26\
---------------------------------------------------------------------------
    \25\ One-on-one meetings between supervisors and employees are 
probably management's most effective method of conveying its antiunion 
message, and because there are no witnesses to these meetings, it is 
difficult for the union to establish violations of the law, such as 
threats of reprisal or promises of benefit.
    \26\ Goldberg quoted in ``Chinese Workers Rally Support,'' The 
Guild Reporter, April 26, 2002. Other politicians who have criticized 
the CDN campaign include Congressman Sherrod Brown, 90 New Labor Forum 
J. Logan Congresswoman Hilda Solis, State Senator Gloria Romero and 
Monterey Park Councilwoman (now State Assemblywoman) Judy Chu. In May 
2002, the California State Assembly's Asian Pacific Islander Caucus and 
Labor Committee held hearings on the violation of immigrant workers' 
rights, including those at the Chinese Daily News.
---------------------------------------------------------------------------
    The company's antiunion literature has stressed issues that have 
become standard features of consultant campaigns. It has accused the 
union of intimidating and lying to employees, injecting unnecessary 
confrontation into the workplace, and threatening the financial well 
being of the company and the job security of employees. In addition to 
these long-established consultant themes, CDN management has used 
culturally specific threats and appeals in its attempt to discourage 
employees from unionizing. Throughout the campaign, management has 
sought to exploit employees' loyalty to the paper and their concern for 
its reputation in a non-Asian community. It has publicly excoriated 
union supporters in company newsletters, and accused them of 
introducing confrontation that threatens to ``destroy what we have 
achieved against insurmountable difficulties and is now proudly 
displayed in front of all other ethnic groups.'' \27\ Management 
compared the union with China under Chairman Mao, and stated that 
visitors from China had commented on the organizing drive: ``We saw 
these happenings so many times during the Cultural Revolution. This is 
just the same!'' It accused organizers of attempting to silence 
procompany employees: ``None of us wants to live under `denouncement' 
as if we were in Mainland China. . . . How sad indeed for one to be in 
the United States, a free society and not dare to speak for oneself.'' 
\28\ At one mandatory meeting, the firm's CEO, Duncan Wang, asked 
rhetorically, why would employees at a Chinese newspaper want to bring 
in American outsiders in the form of the union? \29\
---------------------------------------------------------------------------
    \27\ Chinese Daily News, ``Fair is Fair,'' (no date).
    \28\ Ibid.
    \29\ Chinese Daily News, ``Let Truth Speak,'' April 4, 2002; 
Chinese Daily News, ``Fair is Fair,'' (no date).
---------------------------------------------------------------------------
    But the company's thinly veiled threats did not produce the desired 
result. After a five-month long antiunion campaign orchestrated by 
Burke consultants, CDN employees voted 78-63 in favor of union 
representation, on March 19, 2001.\30\ CWA officials stated that by 
supporting unionization the CDN employees had surmounted tremendous 
cultural and psychological barriers. Prior to the campaign, few 
employees had experience with unionization, and deference to managerial 
authority was deeply ingrained among the workforce. One reporter 
explained: ``Culturally, the employer is perceived as a father who 
takes care of you.'' \31\ The result is also noteworthy because the CDN 
employees are the first Chinese-language media employees in the country 
to vote to unionize.\32\ Since the election, however, the company has 
steadfastly refused to recognize the union. Undaunted by its election 
defeat, management appealed the result to the NLRB, claiming that at 
least one supervisor had made known her support for unionization, while 
management had ``remained neutral'' throughout the campaign. As a 
result, it argued, employees had gained the false impression that the 
company favored unionization.\33\ At the same time that it professed 
neutrality to the NLRB, the company told employees that it was prepared 
to spend $1 million to avoid signing a contract with the CWA. To 
achieve this end, it has used every legal mechanism at its disposal to 
stall bargaining with the union for years, if necessary.
---------------------------------------------------------------------------
    \30\ Although it expected a larger margin of victory, the union 
attributed the narrowness of the vote largely to the intensive 
antiunion campaign and believes that few of the employees are 
ideologically opposed to unionization.
    \31\ Lien-Yi Wang, quoted in ``TNG Gain First Chinese-Speaking 
Unite,'' The Guild Reporter, April 20, 2001.
    \32\ The union has remained committed to the campaign because it 
represents one of its first successes in the ``ethnic media,'' an 
increasingly important sector of U.S. media industry. TNG-CWA already 
represents workers in several Yiddish- and Spanish-language 
publications. The CWA's broadcasting wing (NABET) has won organizing 
victories in outlets of Spanish-language TV giant Univision and at a 
Korean language radio station. The campaign also marks the first time 
that the TNG-CWA has hired a Chinesespeaking organizer--a former CDN 
reporter. Although the ethnic media is as profitable as other sections 
of the media, employees in this rapidly growing sector are often paid 
significantly less and labor under worse conditions than other media 
employees. International Year Book: The Encyclopedia of the Newspaper 
Industry: Part Two--Weeklies (Editor & Publisher, 2000).
    \33\ The union claims that the small number of contested votes 
would not affect the outcome of the election. However, management 
maintains that, given the strong respect for authority in Chinese 
culture, the open support for unionization among supervisory personnel 
made a fair election impossible. Allegations that supervisors voted, or 
otherwise improperly participated, in NLRB elections are standard 
features of consultant campaigns in which unions win the ballot.
---------------------------------------------------------------------------
    In June 2001, the company initiated a campaign of retaliation, 
eliminating the jobs of several prounion employees. In response, TNG-
CWA has filed over 20 unfair labor complaints accusing management of 
coercive conduct. The company also filed objections to the legality of 
the election, and its attorneys ensured that NLRB hearings on its 
objections lasted for as long as possible. In August 2001, the regional 
NLRB upheld the election result, but the newspaper appealed its 
decision to the national labor board. Management accused the union of 
using a coercive corporate campaign to force the paper to cease 
contesting the validity of the outcome,\34\ but warned that it ``does 
not intend to be intimidated into giving up the legal right of its 
employees to a fair election.'' However, its determination to overturn 
the result did not end with the NLRB. The company announced that, if 
the board were to uphold the result, it would ``proceed to the Court of 
Appeals for an ultimate determination on the validity of the 
election,'' thereby prolonging the process for several more months or 
years.\35\ In July 2002, the regional labor board postponed hearings on 
several ULP complaints until after the national NLRB ruled on the 
legality of the election. At the time of writing, the national board 
has yet to announce its decision. Even if the NLRB were to uphold the 
result, however, management will likely continue its campaign of delay, 
intimidation and harassment. After leaving her position at the 
newspaper, CDN reporter Hsiao-tse Chao described the intensity of the 
Burke Group campaign:
---------------------------------------------------------------------------
    \34\ The union has conducted a vigorous international campaign in 
support of the workers' freedom of association. In July 2002, the TNG-
CWA led a delegation of CDN employees and leaders from the Asian-
American labor community to meet with lawmakers and union leaders in 
Taiwan. As a result of these meetings, legislators and labor leaders in 
Taiwan have criticized the United Daily News. The campaign has also 
become a cause celebre for journalists unions around the globe and has 
attracted support from Union Network International and the 
International Confederation of Free Trade Unions. The TNG-CWA has also 
organized a worldwide e-mail campaign to protest the company's refusal 
to recognize the election result.
    \35\ Steven D. Atkinson, Atkinson, Adelson, Loya, Ruud & Romo (CDN 
lawyers), Re: Chinese Daily News (no date). In recent decades, 
employers that lose at the NLRB have demonstrated an increasing 
disinclination to accept NLRB decisions as the ``final word'' on 
election disputes, believing, quite correctly, that they have a greater 
likelihood of success at the federal courts. See James Brudney and 
Deborah J. Merritt, ``The Influence of Appellate Judges' Social 
Backgrounds When Reviewing NLRB Decisions,'' 2 Employee Rights 
Quarterly 13 (Spring 2002).

    ``It was political terror. . . . The majority of the employees 
thought that their phones were tapped. They talked about hidden cameras 
in the corners. I thought this was a democratic country. You [should be 
able] to exercise the right to organize--successful or not.'' \36\
---------------------------------------------------------------------------
    \36\ Quoted in Ji Hyun Lim, ``Chinese American Newspaper Disputes 
Unionization,'' Asian Week, January 10, 2003. Available at www.asian 
week.com/2003_01_10/bay_newspaper.html (last visited May 5, 2003).

    In November 2002, shortly before awarding employees' annual bonus 
(which can account for up to 10 percent of their total salary), 
management circulated a petition stating that employees no longer 
desired unionization. Not surprisingly, having witnessed the 
victimization of union activists, and having lost confidence in the 
ability of the NLRB to protect their freedom of association, three-
quarters of the employees signed the employer petition. CDN management 
then submitted the petition to the board, asking it to dismiss the 
CWA's request for certification.
    The immediate financial costs of the newspaper's antiworker 
campaign have been considerable, especially when one considers the 
small size of the CDN workforce. In 2001, the CDN paid Burke 
consultants at least $221,737, with Larry Wong alone receiving $132,150 
for his services. In 2002, the CDN paid Wong at least a further 
$83,900, according to records filed with the Department of Labor 
(DOL).\37\ However, the true cost of the campaign is likely to be much 
higher if one includes other costs, including management's and 
supervisors' time off to meet with consultants and to conduct captive 
group and one-on-one meetings with employees, employee time off to 
attend captive meetings, and the cost of legal counsel--a vital service 
considering the number ULP complaints in the campaign. Thus, the total 
cost of the antiworker campaign is likely to be several times higher 
than the $305,637 reported to date (the campaign is on-going) to the 
DOL.\38\ At this rate, the CDN is well on its way to spending the $1 
million it promised for its campaign to undermine the democratic choice 
of its employees. The average salary of CDN employees, most of whom are 
Taiwanese immigrants with approximately 10 years service, is $24,000. 
Over two years after they voted to unionize, CDN employees at Monterey 
Park are still without independent representation.
---------------------------------------------------------------------------
    \37\ Consultant reporting forms required under the 1959 Labor-
Management Reporting and Disclosure Act (LM20s and LM21s) are now 
available on-line at the Department of Labor's web pages: www.dol.gov/
esa/regs/compliance/olms/rrlo/lmrda.htm.
    \38\ The Burke Group conducts its direct persuader activity under 
the name Labor Information Services, Inc. (LIS). This allows the firm 
to avoid reporting all other nonpersuader activity conducted under the 
name the Burke Group. The initial filing with the Department of Labor 
by LIS (LM 20, dated March 30, 2001) stated that its campaign at 
Chinese Daily News would commence on November 13, 2000 and that it had 
``no written agreement'' with the company as to a ``maximum billable 
amount.''
---------------------------------------------------------------------------
    The second anniversary of the union ``victory'' brought further bad 
press for the newspaper. On March 19, 2003, Representative Sherrod 
Brown (D-OH) praised the ``American struggle'' of the CDN's immigrant 
employees in the official publication of the U.S. legislature, the 
Congressional Record. He commended their ``tireless efforts as they 
continue to wrestle with the overwhelming resources of a foreign 
employer committed to silencing their voices and thwarting their right 
to organize under U.S. labor law . . .'' Also, on the two-year 
anniversary of the vote, several CDN employees met with officials at 
NLRB Region 21 to insist that the board process their ULP complaints 
without further delay. The employees believed that a face-to-face 
meeting would stir the board to action. So far, however, neither the 
regional labor board nor the national NLRB has shown any signs of 
movement and have instead blamed the continuing delays on inadequate 
staffing levels and high caseloads. Claiming that it was ``sensitive to 
the need to expeditiously resolve representation disputes,'' the NLRB 
recently established a goal of certifying the results of recognition 
elections within 60 days of the union's initial petition for an 
election.\39\ The TNG-CWA petitioned for an election at the Chinese 
Daily News in November 2000--more than 1,000 days ago, as of November 
2003.
---------------------------------------------------------------------------
    \39\ The NLRB claims that its ``actual median time'' from petition 
to certification was 54 days in 2001 and 53 days in 2002. National 
Labor Relations Board, Fiscal Year 2004 Annual Program Performance Plan 
and Fiscal Year 2002 Annual Performance Report, Government Performance 
and Results Act of 1993 (March 2003), pp. 18-19.
---------------------------------------------------------------------------
    The CDN campaign could well serve as a poster child for the 
dysfunctional nature of the contentious NLRB election system, and an 
advertisement for the democratic advantages of card check 
recognition.\40\ It also demonstrates the often poisonous impact of 
anti-union consultants. The campaign at Monterey Park is striking in 
its contrast with simultaneous organizing drives at the newspaper's New 
York and San Francisco offices, where management ran a determined 
``vote no'' campaign and hired a law firm to oppose unionization, but 
did not recruit the services of antiunion consultants. In significantly 
less acrimonious campaigns at New York and San Francisco, employees 
voted for union representation, and the company recognized the outcome. 
And the differences do not end with the election campaigns. Management 
is bargaining hard at both locations, but it is not attempting to 
circumvent employees' democratic choice through delays, retaliatory 
acts, legal maneuvering, and pronouncements that it would never 
recognize the union, let alone negotiate a contract with it.\41\ 
Whatever else distinguished the Monterey Park campaign from those in 
New York and San Francisco, there seems little doubt that the Burke 
Group's activities have played a central role in transforming a 95 
percent display in favor of unionization into a destructive pitched 
battle designed to intimidate employees against exercising their right 
to form a union.
---------------------------------------------------------------------------
    \40\ In 2001, the AFL-CIO estimates, only 18 percent of new union 
members in AFL-CIO affiliated unions joined through NLRB elections. 
Most of the remaining 82 percent joined as a result of card check 
recognition, though some joined as a result of mergers between 
affiliated and nonaffiliated organizations, new affiliations and 
extension of existing collective agreements to newly expanded 
facilities. Jonathan Hiatt, General Counsel, AFL-CIO, comments at AFL-
CIO Lawyers Conference, New Orleans, April 2003.
    \41\ The union has now successfully negotiated its first contract 
at the New York facility, where the paper is known as the World 
Journal. The New York and San Francisco units are substantially smaller 
than that at Monterey Park, and are composed exclusively of 
advertising-sales employees. At Monterey Park, the union represents a 
``wall-to-wall'' unit covering all departments, from editorial to ad 
sales to production.
---------------------------------------------------------------------------
          SUBVERTING WORKPLACE DEMOCRACY IN THE UNITED STATES

    For the past three decades, consultants such as the Burke Group 
have been at the epicenter of a sustained and largely successful 
campaign to undermine workplace democracy in the United States. 
Consultants' antiunion campaigns are now more intensive, sophisticated, 
and expensive than at any time during the past half century. As a 
result, there now exists an enormous and growing democratic deficit in 
the American workplace: over 40 million private-sector employees would 
like union representation but are unlikely to get it under the current 
system of NLRB elections.\42\ Through their web pages, newsletters, 
videos, and face-to-face contacts, consultants have also played an 
important role in the dissemination of extreme antiunion attitudes 
among American management, advising clients to fight organizing 
campaigns to the bitter end and to disregard their employees' desires 
for independent representation. Consultants encourage employers to view 
attempts by their employees to exercise their legal right to choose a 
union as an ``attack on their company,'' and tell them that they have a 
right to operate union free.\43\ They tell their clients to consider 
the representation process as a decision on unionization that is taken 
by them, rather than by their employees, thereby inverting the entire 
objective of federal labor policy.
---------------------------------------------------------------------------
    \42\ Richard Freeman and Joel Rogers, What Workers Want (Cornell 
University Press, 1999).
    \43\ The Burke Group, www.tbglabor.com/press6.htm (May 5, 2003); 
Labor Relations Services, Inc. www.proemployer.net/
about_labor_relations.htm (last visited May 5, 2003).
---------------------------------------------------------------------------
    In 2002, U.S. House member Charlie Norwood (R-GA) introduced a bill 
(H.R. 4636) designed to outlaw card certifications, thereby making NLRB 
elections the exclusive route to union certification.\44\ The antiunion 
Labor Policy Association and other supporters of the Norwood bill claim 
that union organizers coerce and mislead unwitting employees into 
signing authorization cards. But the Chinese Daily News campaign 
provides a stark illustration of the real reason why a growing number 
of unions have turned to card certification: their desire to circumvent 
employers' lengthy, aggressive and illegal antiunion campaigns. Card 
check recognition is a vastly more democratic system than NLRB 
elections. According to one recent poll, the number of nonunion 
employees who desire union representation is currently higher than at 
any time since the early 1980s.\45\ If Congress were serious about 
uphold ing the sanctity of what Representative Norwood called a 
``fundamental American right'' (the free election) it could do worse 
than start by increasing the virtually nonexistent regulation of an 
industry that profits from the destruction of that right.\46\ After 
that, it might turn its attention to the sclerotic and moribund system 
of union certification that has allowed the Chinese Daily News and 
countless other employers to break the law with impunity, thereby 
making a mockery of the democratic choice of their employees. The Bush 
Administration is keen to export democratic institutions throughout the 
globe. But how about a little bit more democracy in the American 
workplace?
---------------------------------------------------------------------------
    \44\ The absurdly mistitled ``Workers' Bill of Rights'' was 
cosponsored by, among others, the Majority Leader in the House, Tom 
DeLay (R-Texas).
    \45\ David Hart Associates poll on union attitudes reported in Kent 
Hoover, ``Labor unions aim to capitalize on public anti-corporate 
attitude,'' Houston Business Journal, September 9, 2002.
    \46\ In its first major policy action in the arena of labor-
management relations, the Bush Department of Labor rescinded new 
financial reporting requirements for antiunion consultants enacted in 
the dying days of the Clinton Administration. Employer groups had 
lobbied vigorously against the Clinton rules, which narrowed the so-
called ``advice exemption'' to the LMRDA, arguing that they would 
discourage employers from engaging the services of consultants and 
supply unions with a powerful organizing tool, i.e., more precise 
information on how much employers spend on antiunion activities.

     APPENDIX: BURKE GROUP CAMPAIGNS COSTING OVER $40,000, 1995-2002
------------------------------------------------------------------------
                                                               Reported
            Employer                  Location        Year     cost \1\
------------------------------------------------------------------------
Circus Circus..................  Robinsonville, MS     1995      $40,086
SAMCO..........................  San Fernando, CA.     1995      126,663
Reno Hilton Hotel..............  Reno, NV.........     1995       61,972
Tomatek, Inc...................  Firebough, CA....     1995      118,594
Weyerhaeuser...................  Yuma, AZ.........     1995       43,053
K-Mart Corporation.............  Troy, MI \2\.....     1996      163,028
Precision Castparts Corp.......  Portland, OR.....     1996       63,436
TAWA Companies.................  Buena Park, CA...     1996       44,928
C.J. Coakley...................  Merrifield, VA...     1997       50,277
Grimmway Farms.................  Bakersfield, CA..     1997      239,970
Precision Castparts Corp.......  Portland, OR.....     1997      395,626
MCI............................  Washington, DC...     1997       56,406
Reno Hilton Hotel..............  Reno, NV.........     1997       88,163
Welcome Market, Inc............  Hayward, CA......     1997       69,981
President Casino...............  St. Louis, MO....     1997       45,237
Relay America..................  Riverbank, CA....     1997       65,052
Catholic Healthcare West.......  Sacramento/LA, CA     1998    2,626,514
C.J. Coakley...................  Merrifield, VA...     1998       64,325
Mercy Healthcare...............  Phoenix, AZ......     1998      196,791
Ready Pac......................  Irwindale, CA....     1998      143,174
Reno Hilton Hotel..............  Reno, NV.........     1998      351,995
Service Corp. International....  Houston, TX......     1998      154,896
Mercy Healthcare...............  Whittier, CA.....     1998       42,521
UCSF Stanford..................  San Francisco/        1998     115, 625
                                  Palo Alto, CA.
K-Mart Corporation.............  Troy, MI \2\.....     1999      416,305
Long Beach Medical Center......  Long Beach, CA...     1999       48,133
Reno Hilton Hotel..............  Reno, NV.........     1999      109,440
Warsaw Healthcare Center.......  Warsaw, VA.......     1999       52,747
PECO Energy....................  Philadelphia, PA.     1999       51,187
CPL Subacute, LLC..............  Middletown, CT...     2000       47,201
Children's Hospital............  San Diego, CA....     2000       43,204
Santa Barbara Cottage Hospital.  Santa Barbara, CA     2000       99,445
Enloe Medical Center...........  Chico, CA........     2000       76,011
Francis Schervier Hospital.....  Bronx, NY........     2000      126,138
Good Samaritan Hospital........  Los Angeles, CA..     2000      131,145
Grove Worldwide................  Shady Grove, PA..     2000       98,604
Long Beach Medical Center......  Long Beach, CA...     2000      235,985
Somers Manor Nursing Home......  Somers, NY.......     2000       50,000
Distribution and Auto Services.  Wilmington, CA...     2001       47,153
Bruce Hardware Floors..........  Addison, TX......     2001       48,836
CHE--Mercy Fitzgerald Hospital.  Darby, PA........     2001       79,911
CHE--Holy Cross Hospital.......  Fort Lauderdale,      2001       65,396
                                  FL.
Chinese Daily News.............  Monterey Park, CA     2001      221,737
Albert Einstein Medical Center.  Philadelphia, PA.     2001      102,142
Arden Hill Hospital............  Goshen, NY.......     2001      74, 401
Constellation Energy (BGE).....  Baltimore, MD....     2001      252,036
BHC--Pacific Gateway...........  Portland, OR.....     2001       42,117
Jefferson Market...............  New York City, NY     2001       45,750
JLG, Inc.......................  Mechanicsburg, PA     2001       58,902
Kmart Corporation--Canton......  Troy, MI.........     2001      167,301
Magee Rehabilitation...........  Philadelphia, PA.     2001       95,906
Mandalay Bay--Luxor............  Las Vegas, NV....     2001       76,860
Robert Wilson, Sr..............  Anaheim, CA......     2001       53,829
Columbia Beverage Co...........  Olympia, WA......     2001       81,629
Excalibur Hotel................  Las Vegas, NV....     2001       69,923
Peak Oil.......................  Anchorage, AK....     2001       50,618
Terra Industries...............  Sergeants Bluff,      2001       57,639
                                  IA.
Universal Molding Extrusion....  Downey, CA.......     2001       74,386
Wilkes-Barre General Hospital..  Wilkes-Barre, PA.     2001       75,101
CHE--Brightside F & C..........  West Springfield,     2001       73,003
                                  MA.
Rockaway Bedding...............  Randolph, NJ.....     2001       49,044
Orange County Register.........  Santa Ana, CA....     2001      176,314
CHE--Lourdes (Rancocas)........  Camden, NJ.......     2002      109,675
CHE--Mercy Fitzgerald..........  Darby, PA........     2002       52,901
Faurecia.......................  Toledo, OH.......     2002      134,306
Magee Rehabilitation...........  Philadelphia, PA.     2002       80,087
Michael Anthony Jewelers.......  Mt. Vernon, NY...     2002       57,693
Milestone Power Station........  Waterford, CT....     2002      728,148
Mission Linen Supply...........  Santa Barbara, CA     2002      117,438
National Refrigeration & Air     Bensalem, PA.....     2002    52,866 88
 Conditioning, Inc..
Chinese Daily News.............  Monterey Park, CA     2002       83,900
Orange County Register.........  Santa Ana, CA....     2002       94,817
Robert Wood University Hospital  New Brunswick, NJ     2002       47,845
St. Mary's Medical Center......  Apple Valley, CA.     2002       62,876
------------------------------------------------------------------------
\1\ Note.--These amoiunts are taken from LM20 and LM21 forms (Receipts
  and Disbursement Reports) filed by Burke Group (under the name, Labor
  Information Services, Inc.) with the Department of Labor, required
  under the 1959 LMRDA. Campaigns that did not involve direct persuader
  activities are not reported and thus not listed. In the case of
  Catholic Healthcare West, the amount reportedly paid to the Burke
  Group ($2,626,514) is taken from Schedule A (Form 990) [Organization
  Exempt Under Section 501(3)] filed by the employer (a financial
  report required by nonprofit healthcare organizations). As a result,
  unlike the other reported costs, that amount is likely to accurately
  represent the total cost of the consultant campaign.
\2\ Troy, Michigan is the location of the K-Mart's corporate
  headquarters. The actual counterorganizing activity at K-Mart was
  carried out at several different locations across the country,
  including Oakland and San Jose, California. Several other locations
  may also refer to the corporate HQ rather than the location of the
  counter-organizing campaign.

    Ms. Connelly. The union actually won that election by a 
very small vote. We do have a contract there. But they did a 
lot of what was described in this situation, although not quite 
as long. There was a stipulation to an election, so we didn't 
have to go through a lot of delay with the Labor Board, but in 
the 2 months, 2\1/2\ months up to the election, they did a lot 
of one-on-one meetings inside. They'd actually bring somebody 
in and hire them so that they lived inside the hospital for a 
while, and a lot of literature. And we beat them and I actually 
went and bargained that first contract.
    So what the Attorney General found--the reports don't come 
out--and some of this is described in the additional material 
on Burke that I submitted. The reports, of course, don't come 
out until 1 year or 2 later in terms of what is being spent on 
these kind of union, anti-union campaigns, and there's even 
different filings you have to look at, whether it's an L&Q from 
the hospital or the 990 from the company, you have to put it 
all together.
    I think in that campaign with SEIU, they spent like a 
quarter of a million dollars, which is Medicare/Medicaid money, 
health care dollars which was spent. And that's what Attorney 
General Casey found, that the moneys were being spent illegally 
to fight the union. But nothing was ever done, because there 
was really no penalty. I can get you additional information on 
that if you want.
    Senator Specter. Did you make complaints about that to the 
NLRB?
    Ms. Connelly. On the use of dollars?
    Senator Specter. On the coercive tactics which you've 
described, the union busting and the intimidation. Do you get a 
hearing from the NLRB or any results when unfair labor 
practices are shown?
    Ms. Connelly. I don't believe that we filed objections. If 
it happens after the election, we would file objections to the 
election. Oftentimes we file charges leading up to the 
election. We've filed so many of those, I lose count. And a lot 
of times we will file objections to an election if we lose the 
election.
    Then I mean I was in a situation, this is back in the mid 
1980s, it was against Beverly Enterprises, we lost the first 
election, filed objections, went back 6 months--because the 
Board ordered a new election, went back 6 months later. We won 
that election. No, we won the first one, the employer filed 
objections, we lost the second one. And then the third one we 
finally won.
    It took like 3 years just going through elections before we 
actually got the union. They still have the union there today. 
But we constantly file objections and charges and most often 
they're upheld.
    Senator Specter. Mr. Cohen, as a former member of the NLRB, 
listening to allegations and evidence on both sides, how would 
you recommend sorting out the testimony we've heard today where 
Ms. Atherholt specifies multiple visits, signing cards to, as 
she put it, get rid of a person, contrasted with what Ms. 
Brockel testifies to coercive tactics, and you heard Ms. 
Ruckinger testify about her own discipline.
    I'm not inexperienced in evidentiary hearings, listening to 
conflicting testimony, but how would you recommend sorting it 
out?
    Mr. Cohen. Well, without having personal knowledge, of 
course, of any of those situations----
    Senator Specter. I don't, either. I'm just listening to 
testimony. But firsthand personal experience, this is all 
concrete evidence. It's not hearsay. This is what people have 
been through, but it's on both sides.
    Mr. Cohen. Sure. What came through to me would be to 
recognize that coercive conduct either by employers or by 
unions is prohibited under extant law. And undoubtedly there 
are circumstances where union coercion occurs, there are 
instances where employer coercion occurs. The NLRB has 
mechanisms. Both Ms. Fox and I and Mr. Higgins passed on 
hundreds of cases during our tenures as Board members.
    Senator Specter. Yes, but you're not there now and things 
have slowed up since you left.
    Mr. Cohen. Let's analyze that for a moment, if we can. With 
respect to representation cases, Mr. Higgins said that the 
median time is 40 days to an election, and that is an accurate 
figure from everything that I know. And the reason for that is 
that over 90 percent of the time employers stipulate to the 
holding of an election, and they cannot get more than 42 days 
for the holding of that election. That takes care of the great 
overwhelming majority.
    The remaining less than 10 percent go to hearing. That adds 
more time. But it still provides the 56 day median overall with 
respect to 90 percent of the elections. Where the problem can 
come in is on those cases where the Board actually grants 
review--it's like a certiorari proceeding. Where the Board 
actually grants review, it can take a great deal of time to 
actually get that decision out.
    As Mr. Higgins noted, the Board has not been at full 
strength for the overwhelming majority of time. They've been 
plagued by recess appointments and being short-staffed at the 
top decision-making level. And to be sure, that should be 
corrected.
    With respect to unfair labor practice cases, the Board 
investigates those, they prioritize them, they have a triage 
system. The serious and significant ones and those involving 
union organizing situations go to the top of the pile. They do, 
in my judgment, an excellent job of investigating those cases 
and taking action to issue a complaint or not issue a complaint 
and then go to a hearing before an administrative law judge. So 
I think the system is already in place which deals with the 
overwhelming majority of the cases.
    Senator Specter. Ms. Fox, you testified that in 1996, there 
was a shift in procedures where, as I think you put it, the 
employers insisted on elections.
    Ms. Fox. It was actually 1966, Senator.
    Senator Specter. 1966. But prior to that time, the practice 
had been for employers to accept evidence that was put on cards 
or other evidence without the insistence on elections?
    Ms. Fox. Right. Employers still today can accept evidence 
on a card as a basis for recognizing a union, but prior to 
1966, they were required to unless they had a good faith doubt 
that they were, in fact, valid expressions of employee 
sentiment.
    Senator Specter. So it was not a shift in position by 
employers, it was a shift in the law?
    Ms. Fox. A shift in the law brought about by changes by the 
Board, not by a Congressional change.
    Senator Specter. Not by statute, by the Board?
    Ms. Fox. By the Board, yes.
    Senator Specter. The Board handed that down as a Board 
ruling?
    Ms. Fox. Yes.
    Senator Specter. Well, I was impressed with what you said, 
especially about withdrawal by a majority on the petitions, 
that you can't get a certification of the union by a majority, 
but you can get a withdrawal by a majority on the petition. Is 
that your understanding as well, Mr. Cohen?
    Mr. Cohen. The situation is, unfortunately, a little bit 
more complicated than that. For 50 years the law had been that 
an employer could withdraw recognition based on a good faith 
doubt of majority status.
    That was changed within the last 5 years to require actual 
loss of majority status. So that under extant law, if an 
employer has actual knowledge of loss of majority status, it 
may withdraw recognition without an election. And I think it's 
particularly interesting to note that----
    Senator Specter. Well, how do they determine the actual 
loss?
    Ms. Fox. By signatures on a petition.
    Mr. Cohen. Which can be subject to a litigated proceeding, 
an evidentiary proceeding to see if the employer is wrong.
    Senator Specter. But if they aren't, they can have a 
withdrawal, which is the equivalent of a card withdrawal?
    Mr. Cohen. That is correct. I think it's particularly 
interesting to note that in that very case the AFL-CIO filed a 
brief saying that the only effective barometer of employee 
support should be a Board secret ballot election. And I find it 
very difficult to square that position with the advocacy for 
the subject legislation.
    Senator Specter. Well, can you square the position on 
permitting withdrawal on cards without an election whereas you 
won't allow certification unless there's an election?
    Mr. Cohen. I can, and it's important to understand the 
timing of it. When a union comes in and reaches a collective 
bargaining agreement, there is a document known as the contract 
bar doctrine which for 3 years bars any attempt at 
decertification or withdrawal of recognition by the employees 
during that period of time.
    There is a limited window between 60 and 90 days before the 
contract expires and then if the contract expires without being 
renewed where the employees can express this desire to 
disaffiliate from the union relationship. And in that limited 
context, the employee wishes can be honored without an 
election.
    Senator Specter. I think we're at a substantial 
disadvantage in the Senate, not having any former NLRB members. 
I think we're going to have to elect some of you folks to the 
Senate, maybe even from New Jersey, to move ahead.
    Ms. Connelly. No, thank you.
    Senator Specter. I'm going to blame it on you, Eileen, when 
I talk to Lautenberg.
    Mr. Taubman, you've painted a little different picture. 
You're having a plague on both their houses. Here you have the 
employers and employees get together to engage in coercive 
tactics against individuals who don't want to join the union 
and they're being put upon on both sides. What would you 
recommend as giving fairness to your clientele?
    Mr. Taubman. Well, what I would say is I agree with Mr. 
Cohen's point that the law has remedies for coercive conduct, 
whether it's employer coercive conduct or union coercive 
conduct, and I'm not here to defend any of that.
    My point today is none of this is solved by taking away the 
secret ballot, by mandating that there can be no secret 
ballots, because it is just fundamentally unfair and unAmerican 
and to not get dramatic, we have troops fighting all over the 
world to spread American values and I find it unbelievable to 
think that we have to defend the notion of secret ballot 
election in the United States.
    Senator Specter. Ms. Atherholt, did any of those folks come 
to your house four times to----
    Ms. Atherholt. No, they did not, for the simple fact that 
they knew exactly where I stood with them right from day one. 
They were standing at the end of our driveways as we went into 
work, and after I got some fliers made up like they had fliers 
made up, I just stood right out there with them and passed mine 
out, too.
    Senator Specter. So it is possible for someone in your 
position to be sufficiently resolute and give off the signs 
that nobody's going to annoy you?
    Ms. Atherholt. That is correct.
    Senator Specter. Is it your visor that gives you strength?
    Ms. Atherholt. Well, I don't know. It's just kind of become 
my trademark, I guess. I've worn it for years.
    Senator Specter. Ms. Brockel, you had mentioned that 
charges were filed with the NLRB. How did all that work out?
    Ms. Brockel. The charges were all filed. The charges were 
justified charges and they were presented.
    Senator Specter. Did the N LRB uphold them?
    Ms. Brockel. They allowed us to file the charges.
    Senator Specter. Did they?
    Ms. Brockel. Yes, they did. They were substantiated.
    Senator Specter. Ms. Ruckinger, I want to again tell you 
that if anybody disciplines you for coming to this hearing, you 
contact me.
    Ms. Ruckinger. Thank you.
    Senator Specter. People have a right to speak up in our 
society without fear of intimidation on any side.
    Ms. Ruckinger. Thank you.
    Senator Specter. You can't discharge someone or discipline 
someone for exercising First Amendment rights, you cannot do 
that. A Senator may be in a position to help you out.
    Ms. Ruckinger. Thank you, Senator.
    Senator Specter. This is a very complex subject, ladies and 
gentlemen, as we see, and we will be studying the testimony 
very closely. It seems to me that it requires a lot of 
expertise and we intend to spend the time to make a 
determination. I talked about these hearings with a number of 
my colleagues and there's a lot of interest in this subject.
    We could go on and explore this at some additional 
considerable length. We had to restrict the hearing today, 
because my chief of staff passed away on Wednesday. Carey 
Lackman Slease. And we had to delay the hearing by an hour, as 
you know, at the beginning of the meeting, but I did not want 
to postpone the hearing. These are issues we're taking up. We 
go out of session at the end of next week and I would not be 
able to reschedule until sometime in the fall and I wanted to 
have the hearing. So we postponed it for the hour, and because 
we squeezed the schedule, we can't go on now.
    I think we have the essence of it, and it's not easy. These 
are evidentiary matters. We'll take a look at the formal 
statements which have been filed and we may well call on you 
for additional comments. We appreciate your coming and 
providing the testimony.
    This is a better attended hearing than any we have in the 
United States Senate ordinarily unless we have a celebrity. If 
Michael J. Fox comes in, we have a lot of people. If Elizabeth 
Taylor comes in, we have a lot of people. But if just Senator 
Specter comes in, it's usually very sparse.

                      PREPARED STATEMENT RECEIVED

    We have received the prepared statement of the United Food 
and Commercial Workers Local 1776 which will be placed in the 
record.
    [The statement follows:]

Prepared Statement of the United Food and Commercial Workers Local 1776

    The Employee Free Choice Act, S 1925 is, without exaggeration, one 
of the most important pieces of legislation to labor to be introduced 
since the National Labor Relations Act (NLRA) itself.
    For years, the Labor Movement in the United States has been losing 
membership. This is a trend that continues despite nearly every AFL-CIO 
Labor Union turning its focus to Organizing the Unorganized. Tremendous 
resources, time, staff and financial, have been poured into Organizing 
departments across the nation.
    Our experience, at United Food and Commercial Workers (UFCW) Local 
1776 is very typical of what we face today. In just about every Union 
election, employers have broken the law, almost without sanction. For a 
case and point, Local 1776's efforts to organize Sunoco mini-market 
workers in Philadelphia can be examined.
    Prior to the election date of (DATE), the employer issued repeated 
threats to close particular locations, directly in violation of the 
NLRA. When these threats were not enough, the company would conduct 
polling activities after repeated captive-audience and one-on-ones with 
management. They repeatedly threatened to fire workers who expressed 
positive feelings towards Unionization.
    Finally, on the date of the election, despite clear language in the 
NLRA, managers for Sunoco mini-marts were standing outside the polling 
places and asking workers how they voted.
    This says nothing about Wal-Mart, the largest employer in 
Pennsylvania, the United States and in the world. Their anti-Union 
tactics are both ruthless and legendary. Articles too numerous to 
mention have discussed their illegal efforts to remain union-free. 
Workers are fired under the lamest pretenses for working with, even for 
being seen with Union Organizers. Workers are kept under constant 
threat of discipline if they are seen talking, even with other co-
workers. The Wal-Mart managers manual has a special number for store 
managers to call if they even think that a Union is in their store.
    We are sure that other individuals have testified about some of 
these difficulties bringing new members into the Union. We will be 
happy to amplify and add to this testimony at any time.
    The usual recourse for all these illegal actions and tactics is to 
file charges with the National Labor Relations Board (NLRB). The NLRB 
is made up of political appointees, generally from the ranks of anti-
Union law firms, with little or no representation from Organized Labor. 
How can a board rule and pass judgment on the actions of Labor, without 
someone from Labor there to help explain things?
    The Employee Free Choice Act (S. 1925) is simplicity in itself. It 
simply says that if a Union gets more than half of the workers in a 
potential bargaining unit to sign cards authorizing the Union to be 
their sole representative for collective bargaining, then that unit 
becomes part of the Union.
    The Employee Free Choice Act further puts serious punishments for 
violations of the NLRA and enforces a time-frame for bargaining a first 
contract. As the law currently stands, the punishments for illegally 
firing pro-union workers are so light that it's worthwhile for 
employers to do so. The amount of time that it takes to get a hearing 
before the NLRB and have them determine an illegal firing almost 
guarantees that the employee will not be reinstated until after a Union 
election takes place.
    Because the penalties for these illegal firings and illegal tactics 
are so minor, companies violate them with impunity. The combination of 
all these illegal actions shows employees that the company will do 
whatever it takes to keep a Union out, and makes it even more 
difficult, in most cases, to win a second attempt at a Union election.
    In conjunction with the ``card-check'' and first contract 
provisions in the Employee Free Choice Act, there are sections that 
institute real penalties for violating the National Labor Relations 
Act.
    The middle class in the United States was built by Union members. 
Many benefits that an average worker, with or without a union in their 
workplace, takes for granted are benefits that people in the labor 
movement have fought, and sometimes died, to win for all.
    The absolute worst thing that can happen to the United States is 
for us to lose that middle class, and the labor unions that built it.
    The United States has about 13 percent of its workforce as members 
of labor unions. The vast majority of those workers earn a living wage, 
and have some benefits, including some form of health coverage, 
vacations and other benefits that strengthen individual families. In 
Canada, which had a structure for organizing similar to that under the 
Employee Free Choice Act, 35 percent of the workforce is unionized.
    A study by Kate Bronfenbrenner, Uneasy Terrain: The Impact of 
Capital Mobility on Workers, Wages and Union Organizing, showed some 
shocking statistics. There are as many as 42 million workers in the 
United States who say that they want to belong to a Union. Since Unions 
are out organizing all the time, and currently only have about 12 
percent of the workforce as members, the reason for the disparity must 
be the unfairness of the NLRB election process. About 47 percent of the 
workforce would join a union if there were no interference in that 
decisionmaking process.
    In the retail food industry, Local 1776's core, union workers make, 
on average, 33 percent more than non-Union workers. When comparisons 
are made directly between this Local and workers at big box retail 
stores, the differences are even more dramatic.
    An average retail food member of Local 1776 earns about $12 an 
hour. An average worker at a big box store earns $8. The benefits that 
this local offers are second to none in the nation. Our members have 
earned their health coverage, including dental, vision, mental health 
care and several other health benefits. They have earned their 
pensions, after years of contributions. They have earned the award-
winning education benefit, the child care benefit, and everything else 
that is negotiated in their contracts.
    Please, I urge you to allow other workers to be able to enjoy the 
fruits of their hard work, while having the benefits of a legally-
binding contract. Become a co-sponsor of S. 1925, the Employee Free 
Choice Act, and, once again, demonstrate your strength and your care 
for working families.
    Thank you for your attention to this vital bill, and to our 
thoughts on it.

                         CONCLUSION OF HEARING

    Senator Specter. Thank you all very much for being here. 
That concludes our hearing.
    [Whereupon, at 3:20 p.m., Friday, July 16, the hearing was 
concluded, and the subcommittee was recessed, to reconvene 
subject to the call of the Chair.]

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