[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]


 
                   EXAMINING WHETHER COMBINING GUARDS
                   AND OTHER EMPLOYEES IN BARGAINING
                  UNITS WOULD WEAKEN NATIONAL SECURITY

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

                                HEARING

                               before the

              SUBCOMMITTEE ON EMPLOYER-EMPLOYEE RELATIONS

                                 of the

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

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               __________

                           September 28, 2006

                               __________

                           Serial No. 109-60

                               __________

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



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                COMMITTEE ON EDUCATION AND THE WORKFORCE

            HOWARD P. ``BUCK'' McKEON, California, Chairman

Thomas E. Petri, Wisconsin, Vice     George Miller, California,
    Chairman                           Ranking Minority Member
Michael N. Castle, Delaware          Dale E. Kildee, Michigan
Sam Johnson, Texas                   Major R. Owens, New York
Mark E. Souder, Indiana              Donald M. Payne, New Jersey
Charlie Norwood, Georgia             Robert E. Andrews, New Jersey
Vernon J. Ehlers, Michigan           Robert C. Scott, Virginia
Judy Biggert, Illinois               Lynn C. Woolsey, California
Todd Russell Platts, Pennsylvania    Ruben Hinojosa, Texas
Patrick J. Tiberi, Ohio              Carolyn McCarthy, New York
Ric Keller, Florida                  John F. Tierney, Massachusetts
Tom Osborne, Nebraska                Ron Kind, Wisconsin
Joe Wilson, South Carolina           Dennis J. Kucinich, Ohio
Jon C. Porter, Nevada                David Wu, Oregon
John Kline, Minnesota                Rush D. Holt, New Jersey
Marilyn N. Musgrave, Colorado        Susan A. Davis, California
Bob Inglis, South Carolina           Betty McCollum, Minnesota
Cathy McMorris, Washington           Danny K. Davis, Illinois
Kenny Marchant, Texas                Raul M. Grijalva, Arizona
Tom Price, Georgia                   Chris Van Hollen, Maryland
Luis G. Fortuno, Puerto Rico         Tim Ryan, Ohio
Bobby Jindal, Louisiana              Timothy H. Bishop, New York
Charles W. Boustany, Jr., Louisiana  [Vacancy]
Virginia Foxx, North Carolina
Thelma D. Drake, Virginia
John R. ``Randy'' Kuhl, Jr., New 
    York
[Vacancy]

                       Vic Klatt, Staff Director
        Mark Zuckerman, Minority Staff Director, General Counsel
                                 ------                                

              SUBCOMMITTEE ON EMPLOYER-EMPLOYEE RELATIONS

                      SAM JOHNSON, Texas, Chairman

John Kline, Minnesota, Vice          Robert E. Andrews, New Jersey
    Chairman                           Ranking Minority Member
Howard P. ``Buck'' McKeon,           Dale E. Kildee, Michigan
    California                       Donald M. Payne, New Jersey
Todd Russell Platts, Pennsylvania    Carolyn McCarthy, New York
Patrick J. Tiberi, Ohio              John F. Tierney, Massachusetts
Joe Wilson, South Carolina           David Wu, Oregon
Marilyn N. Musgrave, Colorado        Rush D. Holt, New Jersey
Kenny Marchant, Texas                Betty McCollum, Minnesota
Bobby Jindal, Louisiana              Raul M. Grijalva, Arizona
Charles W. Boustany, Jr., Loiusiana  George Miller, California, ex 
Virginia Foxx, North Carolina            officio
[Vacancy]


                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on September 28, 2006...............................     1

Statement of Members:
    Andrews, Hon. Robert E., a Representative in Congress from 
      the State of New Jersey....................................     3
        American Federation of Government Employees (AFGE) 
          prepared statement.....................................    37
    Johnson, Hon. Sam, Chairman, Subcommittee on Employer-
      Employee Relations, Committee on Education and the 
      Workforce..................................................     1
        Prepared statement of....................................     2

Statement of Witnesses:
    Boston, Janet, organizer, Service Employees International 
      Union (SEIU)...............................................    15
        Prepared statement of....................................    16
    Foley, BG David W., (USA retired), president, Wackenhut 
      Services, Inc..............................................    18
        Prepared statement of....................................    19
    Hickey, David L., president, International Union, Security, 
      Police and Fire Professionals of America (SPFPA)...........    11
        Prepared statement of....................................    12
    Schurgin, William P., partner, Seyfarth Shaw LLP, on behalf 
      of the United States Chamber of Commerce...................     5
        Prepared statement of....................................     7


  EXAMINING WHETHER COMBINING GUARDS AND OTHER EMPLOYEES IN BARGAINING
                  UNITS WOULD WEAKEN NATIONAL SECURITY

                              ----------                              


                      Thursday, September 28, 2006

                     U.S. House of Representatives

               Subcommittee on Employer-Employee Relations

                Committee on Education and the Workforce

                             Washington, DC

                              ----------                              

    The subcommittee met, pursuant to call, at 10:33 a.m., in 
room 2175, Rayburn House Office Building, Hon. Sam Johnson 
[chairman of the subcommittee] presiding.
    Present: Representatives Johnson, Kline, McKeon, Foxx, 
Andrews, Payne, McCarthy, and Tierney.
    Staff present: Steve Forde, Communications Director; Ed 
Gilroy, Director of Workforce Policy; Rob Gregg, Legislative 
Assistant; Jessica Gross, Press Assistant; Kai Hirabayashi, 
Professional Staff Member; Richard Hoar, Professional Staff 
Member; Jim Paretti, Workforce Policy Counsel; Deborah L. 
Emerson Samantar, Committee Clerk/Intern Coordinator; Loren 
Sweatt, Professional Staff Member; Jody Calemine, Counsel, 
Employer and Employee Relations; Tylease Fitzgerald, 
Legislative Assistant/Labor; Rachel Racusen, Press Assistant; 
Marsha Renwanz, Legislative Associate/Labor; Michele Varnhagen, 
Special Labor and Benefits Counsel; and Mark Zuckerman, Staff 
Director/General Counsel.
    Chairman Johnson [presiding]. A quorum being present, the 
Subcommittee on Employer-Employee Relations of the Committee on 
Education and Workforce will come to order.
    Thank you all for being here this morning. We appreciate 
it.
    We are here this morning to look into an issue that may 
seem narrow in scope but raises broad implications both for 
Federal labor law and, as we will hear from our witnesses, 
potentially for national security. The question is whether 
employees who provide critical security and protective services 
for employers can or should be included in the same union as 
non-guard employees.
    Why is this important? Well, the law has long recognized a 
simple fact that most of us would agree is common sense. In a 
crisis, an employer needs to know that those employees who he 
pays to protect facilities, property and other employees have 
an undivided loyalty to maintaining safety and security.
    And when we are talking about guards who are providing 
security and protective services for employers and sites that 
are vital to homeland and security, the issue is all the more 
critical.
    In the post-9/11 world, we cannot risk the potential for a 
lapse in security that could have disastrous consequences, and 
that is just dangerous.
    It is clear on its face that the National Labor Relations 
Act generally disfavors guards and non-guard employees from 
being included in the same union or bargaining unit.
    In fact, Section 9(b)(3) of the act makes clear that the 
NLRB will not require any employer to recognize a mixed unit of 
guards and non-guards and will not certify a bargaining unit 
that does.
    This provision of the act, known as the guard exemption, 
has been the law for more than 50 years. However, the law does 
not absolutely prohibit these sorts of unions. Under the act, 
if an employer voluntarily chooses to recognize and bargain 
with a union that includes guards and non-guards, it is free to 
do so.
    The question before us is whether allowing for that choice 
continues to make sense. And if it does, how do we ensure that 
an employer's voluntary choice is, in fact, voluntary and based 
on legitimate needs and security concerns, not outside pressure 
or other agendas?
    In recent years, we have heard arguments from both sides. 
We have seen legislation proposed that would completely 
eliminate the guard exemption. And we have heard from others 
who argue that even voluntary recognition should not be 
allowed.
    Finally, we have seen an increasing trend in unions that 
represent a broad spectrum of employees pressing employers to 
recognize them as representatives of the guards.
    This morning we are going to hear from a broad range of 
witnesses, legal experts, representatives of employees and 
security employers who will shed light on the questions these 
issues raise and give us guidance as to whether and how we need 
to address these matters going forward.
    I welcome all of you and look forward to this morning's 
hearing.
    I will now yield to the distinguished ranking minority 
member of the subcommittee, Mr. Andrews, for whatever opening 
statement you care to make.

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

    Good morning, and welcome.
    We are here this morning to look at an issue that may seem narrow 
in scope, but raises broad implications, both for federal labor law 
and, as we will hear from our witnesses, potentially for national 
security.
    The question is whether employees who provide critical security and 
protective services for employers can or should be included in the same 
union as non-guard employees.
    Why is this important? Well, the law has long recognized a simple 
fact that most of us would agree is common sense:
    In a crisis, an employer needs to know that those employees who he 
pays to protect facilities, property, and other employees, have an 
undivided loyalty to maintaining safety and security.
    And when we are talking about guards who are providing security and 
protective services for employers and sites that are vital to homeland 
security the issue is all the more critical.
    In the post 9/11 world, we cannot risk the potential for a lapse in 
security that could have disastrous consequences. That's just 
dangerous.
    It is clear on its face that the national labor relations act 
generally disfavors guards and non-guard employees from being included 
in the same union or bargaining unit.
    In fact, section 9(b)(3) of the act makes clear that the NLRB will 
not require any employer to recognize a ``mixed'' unit of guards and 
non-guards, and will not certify a bargaining unit that does. This 
provision of the act, known as the ``guard exemption'' has been the law 
for more than fifty years.
    However, the law does not absolutely prohibit these sorts of 
unions.
    Under the act, if an employer voluntarily chooses to recognize and 
bargain with a union that includes guards and non-guards, it is free to 
do so.
    The question before us is whether allowing for that ``choice'' 
continues to make sense. And if it does, how do we ensure that an 
employer's ``voluntary'' choice is in fact voluntary, and based on 
legitimate needs and security concerns--not outside pressure or other 
agendas.
    In recent years, we've heard arguments from both sides. We've seen 
legislation proposed that would completely eliminate the ``guard 
exemption.'' and we've heard from others who argue that even voluntary 
recognition should not be allowed.
    Finally, we've seen an increasing trend in unions that represent a 
broad spectrum of employees pressing employers to recognize them as 
representatives of guards.
    This morning, we will hear from a broad range of witnesses--legal 
experts, representatives of employees, and security employers--who will 
shed light on the questions these issues raise, and give us guidance as 
to whether and how we need to address these matters going forward. I 
welcome all of them, and look forward to this morning's hearing.
                                 ______
                                 
    Mr. Andrews. Thank you, Mr. Chairman.
    Good morning, colleagues and ladies and gentlemen. This 
hearing rests on two rather curious premises, as far as I am 
concerned.
    The first curious premise is that we should be doubtful or 
even suspicious of agreements voluntarily reached between 
employers and employees that would permit a mixed guard union 
to represent employees for a given employer.
    I will say this again. The National Labor Relations Act 
already says that unless the employer agrees, a bargaining unit 
may not include both guards and non-guards, so by definition 
the only circumstance where we have a collective bargaining 
organization that includes security personnel and other workers 
is where the employer has agreed to do so.
    I think one of the primary premises of labor law in this 
country is that we recognize free choice by workers and by 
employers. And I find it a bit odd that we are questioning that 
free choice in this narrow circumstance.
    Second, there is an implicit premise in this hearing that 
somehow there is a jeopardy for national security in cases 
where you may have a mixed bargaining unit of guard and non-
guard personnel.
    Although I am sure it is not the chairman's intention, I 
frankly find the premise to be a little offensive to even talk 
about, that somehow the notion that people who are collectively 
bargaining and organized are a greater risk to national 
security than those who are not.
    I think, frankly, the recent record of tragedy in this 
country would indicate otherwise. Every firefighter, every 
police officer who responded to the tragedy at the World Trade 
Center on September 11th, 2001 was unionized--all of them.
    And I don't think there are many Americans who would take 
the position that they were in some way impeded or restricted 
from doing their jobs to protect the country and protect the 
people who were at risk that day because they were a member of 
a collective bargaining organization.
    So when we are talking about changing the law, there is a 
burden of proof, in my mind, on those who wish to change the 
law.
    And for those who would take the position that we should 
disrupt the present law, which recognizes the voluntary free 
choice of employers to recognize a union that mixes guard and 
non-guard personnel, I think that is a burden that has to be 
overcome by those who would advocate for that position.
    And then second, if the justification for changing the law 
is that the national security somehow requires us to do so, I 
think it is also incumbent upon those who would make that 
argument to tell us exactly how and what evidence there is for 
that proposition.
    The framers of the 1947 Taft-Hartley amendment thought 
through this problem, and they understood that there are 
circumstances where divided loyalty between being in a union 
that may be on strike, for example, and protecting the property 
interests of the employer during the strike may create some 
issues, may create some problems.
    So they specifically said in 1947 that you can't have the 
possibility of that situation unless the employer agrees to it. 
And again, I am curious as to why it is even an issue that we 
should doubt that decision that employers have voluntarily 
made.
    In cases where we should doubt it, to the extent that it is 
tied to national security, I think there is a record that I 
would like to see, because I don't think it exists at this 
point.
    So I look forward to hearing from the witnesses, but I 
think that those who would advocate for a change in the law 
have a burden of proof to meet.
    Thank you, Mr. Chairman.
    Chairman Johnson. You know, Mr. Andrews, I wouldn't 
disagree with you that the guys in New York did a super job. 
And nobody is accusing unionization of being wrong. I am not, 
anyway.
    The problem exists that when you mix those two and they are 
not recognized under law, you know, sometimes it causes some 
difficulties, I believe. And I thank you, Mr. Andrews.
    He is a good patriot and I appreciate and welcome your 
comments.
    I welcome our witnesses and look forward to their testimony 
today. We have a distinguished panel of witnesses before us. 
And I thank you all for coming today. I will identify them, and 
then we will allow you all to speak.
    Mr. William Schurgin is a partner in the law firm of 
Seyfarth Shaw. Mr. Schurgin has a broad-based labor and 
employment law practice and has been involved in the 
representation of employers in a variety of industries 
throughout the United States.
    Mr. David Hickey is the international president of the 
Security, Police and Fire Professionals of America, the 
nation's oldest and largest guard union. SPFPA represents over 
27,000 security police professionals across North America.
    Ms. Janet Boston works as an organizer for the Service 
Employees International Union helping private security officers 
and other service workers unite to form a union.
    Retired General David Foley is the president of Wackenhut 
Services. WSI was formed as a subsidiary serving high-security 
U.S. Government customers and generally involving prison 
environments.
    We thank you all for being here.
    Before you begin your testimony, I would indicate that we 
will be asking questions after the entire panel has testified. 
In addition, Committee Rule 2 imposes a 5-minute limit on all 
questions.
    And I forgot to say, if anybody cares on this panel to 
submit a written statement for the record, you are open to do 
that.
    Finally, I want to make clear--oh, wait, there is--you all 
saw those lights working for us. I don't know if you realize 
what they are. It is a 5-minute limit on the speeches. If you 
would try to close down when you see the red light come on, we 
would appreciate it. You will get a yellow at 1 minute.
    Finally, I want to make clear the question before us today 
is not whether security guards should be allowed to join a 
union. No one would suggest they shouldn't. The question is 
what sort of union is appropriate for these critical security 
employees.
    And now I will recognize the first witness. You may begin, 
sir.

 STATEMENT OF WILLIAM P. SCHURGIN, PARTNER, SEYFARTH SHAW LLP, 
           ON BEHALF OF THE U.S. CHAMBER OF COMMERCE

    Mr. Schurgin. Mr. Chairman and distinguished members of the 
committee, thank you for inviting me here today to discuss the 
propriety of allowing unions which represent non-guard 
bargaining units to also represent guards under the National 
Labor Relations Act.
    By way of background, Section 9(b)(3) of the National Labor 
Relations Act expressly provides that a labor union cannot be 
certified as the representative of guards if that labor union 
also admits non-guard employees to its membership.
    In other words, the only type of union the National Labor 
Relations Board can certify as the collective bargaining 
representative of guards is a labor union which only represents 
guards.
    This statutory prohibition is based on the principle that 
guards must have undivided loyalty toward their employers and 
that employers must have complete confidence in their guards' 
willingness, in the employer's interest, to monitor activities 
and enforce rules against other employees.
    For example, in the event of a strike or a labor dispute, 
if striking employees engage in picket line violence or 
property acts of destruction, the employer must be able to rely 
on those guards to protect its non-striking workers and its 
property.
    The role guards play today in maintaining a safe and secure 
workforce and workplace is greater than ever. Guards are an 
employer's first line of defense in protecting other workers 
from workplace violence.
    Guards are entrusted with enforcing important safety and 
conduct rules against other employees, including rules relating 
to theft, use or sale of illegal drugs and possession of 
weapons.
    In such cases, guards are often the employer's primary 
witness in labor arbitrations challenging the termination of 
employees who engage in such misconduct.
    Private guards today also protect critical facilities such 
as nuclear power plants, chemical factories and defense 
installations from outside threats as well as from potential 
sabotage by employees and other workers.
    In these facilities, guards monitor loading docks where 
union-represented employees deliver supplies and pick up 
products. Guards are responsible for monitoring and patrolling 
defense contractor constructionsites where members of many non-
guard unions work for a variety of different employers on the 
site.
    Given the critical safety and security role that guards 
play today, a serious concern over potential divided loyalty 
arises when guards may be forced to choose between supporting a 
fellow union member and reporting suspicious activity to their 
employer.
    It is important to recognize, as has been said earlier, 
that no on here today is challenging guards' right to unionize. 
There are a number of unions which have represented guards and 
only guards for many years. These guard unions regularly 
negotiate with employers over wages, benefits and training for 
the guards they represent.
    Instead, the issue today is whether mixed guard unions, 
which are unions that represent both guards and non-guards, 
should be allowed to use pressure tactics to force security 
guard employers to waive their rights under Section 9(b)(3) of 
the act.
    The ultimate goal of these pressure tactics is for the 
employer to enter into what is called a card-check neutrality 
agreement. A card-check neutrality agreement requires the 
employer to remain neutral and often silent during union 
organizing and provides that the employer will recognize the 
union once a majority of the employee's guards have signed 
union authorization cards.
    Over the past 30 years, certain mixed guard unions 
repeatedly have been found to have violated the National Labor 
Relations Act by threatening unlawful picketing and secondary 
boycotts against employers.
    Today some of those same unions have modified their 
approach by resorting to what we call a corporate campaign.
    A corporate campaign is an organized assault by a union 
designated to undermine a company's relationship with its key 
stakeholders through a variety of external tactics, including 
attacks on the company's products, services, customers, 
suppliers and stakeholders.
    The use of a corporate campaign in the context of guards is 
particularly disturbing. With respect to guards, the National 
Labor Relations Act specifically provides that a mixed guard 
union cannot be certified as the collective bargaining 
representative of guards.
    Instead, under current interpretations, the only way that a 
mixed guard union can represent guards is to ask that the 
security guard employer waive its Section 9(b)(3) rights and 
voluntarily recognize that union.
    Mixed guard unions take the position that using corporate 
campaign tactics to force employers to agree to card-check 
neutrality constitutes a form of voluntary recognition. This is 
a very difficult proposition to accept where the very purpose 
of a corporate campaign is to force an employer into an 
agreement.
    In the case of mixed guard unions, the use of corporate 
campaigns to pressure a security guard employer to waive the 
right to have its employees represented by a union which only 
represents guards is very troublesome.
    The use of corporate campaigns are attempting to pressure a 
security guard employer to waive these rights, and that flies 
directly in the face of the spirit of the act. In 1947, when 
Section 9(b)(3) was enacted, corporate campaigns were not part 
of union organizing strategy.
    The purpose of Section 9(b)(3) was to assure that an 
employer could have the full confidence and loyalty of its 
guards to maintain a safe and secure workplace without risk of 
divided loyalty.
    In today's world, these principles are even more important. 
The use of corporate campaign tactics by mixed guard unions 
places employers in a position where they are forced to 
compromise their confidence in the loyalty of their guards in 
protecting the workplace.
    Thank you.
    [The prepared statement of Mr. Schurgin follows:]

Prepared Statement of William P. Schurgin, Partner, Seyfarth Shaw LLP, 
           on Behalf of the United States Chamber of Commerce

Introduction
    Good morning Mr. Chairman and members of the Subcommittee. I am 
pleased and honored to be here today to testify regarding the propriety 
of allowing unions which represent non-guard bargaining units to also 
represent guards under the National Labor Relations Act. Thank you for 
your invitation.
    By way of introduction, I am a partner with the national law firm 
of Seyfarth Shaw LLP. I currently serve as a member of Steering 
Committee of the firm's Labor and Employment Department and I have 
previously served as the co-chair of the Labor and Employment 
Department's Traditional Labor Practice Group. In addition to my 
private law practice which has focused on traditional labor issues for 
over twenty five years, I have also regularly taught labor and 
employment law courses to law students at DePaul University and Loyola 
University in Chicago, Illinois.
    I am testifying today on behalf of the United States Chamber of 
Commerce. The Chamber is the world's largest business federation 
representing more the three million businesses and organizations of 
every size, sector, and region. My firm serves on the Chamber's Labor 
Relations Committee, as well as its subcommittee focused on traditional 
labor issues.
    Today, we are here to discuss the use of corporate campaign tactics 
by unions who wish to represent guards as well as non-guard employees. 
These labor organizations are typically referred to as mixed-guard 
unions. The National Labor Relations Act (``NLRA'' or ``Act'') has long 
contained a prohibition against certifying such mixed-guard unions as 
the bargaining representative of guards. Section 9 (b)(3) of the NLRA 
expressly provides that ``a labor organization shall not be certified 
as the representative of employees in a bargaining unit of guards if 
such organization admits to membership or is affiliated directly or 
indirectly with an organization who admits to membership employees 
other than guards.'' 29 U.S.C. Sec. 159 (b)(3). Accordingly, under the 
plain language of the NLRA, mixed-guard unions cannot seek National 
Labor Relations Board (``NLRB'') approval to represent guards. In fact, 
the only way that mixed-guard unions can legally represent guards is to 
ask an employer to waive its Section 9(b)(3) rights and ``voluntarily'' 
recognize the union.
    Over the years some mixed-guard unions have used threats and 
secondary boycotts to attempt to force employers to recognize them as 
the representative of guards without using the NLRB election process. 
In many cases, the NLRB and the courts have ordered these mixed-guard 
unions to cease and desist from using such illegal tactics. Today, 
these same unions are increasingly relying on corporate campaign 
tactics to achieve this same goal. The purpose of a corporate campaign 
is to force a targeted employer to give up its right to free speech and 
its employees' right to a secret ballot election by pressuring the 
employer to agree to card-check recognition, a process in which 
employees select a union by simply signing authorization cards. This 
approach is labeled as ``voluntary recognition'' by these unions--
although recognition is often anything but voluntary.
    Respect for employees' free choice to unionize, or not to unionize, 
is a fundamental principle upon which our labor relations system is 
based. Over 50 years ago Congress established a system to govern labor-
management relations. An integral part of that system is the right of 
employees to make a free and democratic choice regarding union 
representation. Secret ballot elections supervised by the National 
Labor Relations Board are, without question, the gold standard for 
protecting employee free choice. Unfortunately, certain labor unions 
have abandoned secret ballot elections and instead rely on corporate 
campaign tactics to organize employers. These corporate campaign\1\ 
activities aim to limit employee free choice and stifle any opposition 
from management through a process known as card-check/neutrality.
---------------------------------------------------------------------------
    \1\ Jarol B. Manheim, Professor of Media and Public Affairs and of 
Political Science, The George Washington University, Washington D.C., 
and an expert in the field of corporate campaigns, defines a corporate 
campaign as ``an organized assault by a union or some other group, 
literally a form of warfare designed to undermine a company's 
relationships with its key stakeholders and to define that company as 
an outlaw that must be stopped before it does further damage to our 
society.'' Compulsory Union Dues and Corporate Campaigns, Testimony 
before the U.S. House of Representatives, Committee on Education on the 
Workforce, Subcommittee on Workforce Protections, 107th Congress, p. 6 
(July 23, 2002).
---------------------------------------------------------------------------
    The Chamber strongly supports the important policy considerations 
underlying the prohibition contained in Section 9 (b)(3). Congress 
included the prohibition in Section 9 (b)(3) of the Act because of its 
concern over the risks of mixed loyalties if guards were represented by 
unions that also represent other employees. In this regard, employers 
must be completely confident in their guards' allegiance to their 
interests when carrying out their important safety and rule enforcement 
duties regardless of their relationship with or affiliation with other 
employees. Permitting the same union to represent both guards and non-
guards severely limits an employer's capability to utilize guards to 
monitor, witness, and enforce employer rules. The efforts of certain 
unions to organize guards through forced card-check recognition 
severely compromises the guards' ability to serve these critical roles 
for their employers. Therefore, the Chamber urges the Subcommittee to 
carefully consider these issues in the context of the language and 
intent of Section 9 (b)(3) of the Act.
Current Law
    Under the NLRA, a labor organization may be certified as the legal 
representative of a group of guards, so long as the labor organization 
representing the guards does not represent other types of employees. As 
noted above, Section 9 (b)(3) prohibits the National Labor Relations 
Board from certifying a labor organization ``as the representative of 
employees in a bargaining unit of guards if such an organization admits 
to membership, or is affiliated directly or indirectly with an 
organization which admits to membership, employees other than guards.'' 
Congress defines guards as employees who ``protect property of the 
employer'' and/or ``to protect the safety of premises.'' See NLRB v. 
Kentucky River Comm. Care, Inc., 532 U.S. 706 (2001).
    To understand the significance of this limitation, we should first 
consider the principle that guards represent employer interests against 
all others including other employees. For example, if striking 
employees engage in picket line violence on the employer's property, 
the employer must maintain the right to utilize its guards to protect 
non-strikers and employer property. Recognizing the inherent risk of 
divided loyalty among guards who were represented by unions that also 
represented non-guard employees, Congress, in passing the Taft-Hartley 
Amendments in 1947, granted guards the right to unionize with a very 
clear limitation. As noted in the Conference Committee Report in 
discussing the intent of Section 9(b)(3):

          We accepted a provision regarding plant guards. We had 
        exempted foremen in the Senate bill, but we had not exempted 
        plant guards. The House bill exempted plant guards, and also 
        time study employees, and personnel forces. We did not accept 
        any of those provisions, except that as to plant guards we 
        provided that they could have the protections of the Wagner Act 
        only if they had a union separate and apart from the union and 
        general employees.\2\
---------------------------------------------------------------------------
    \2\ 93 Cong. Rec. 6603, 6656 (1947).

    Congress required the separation between the guard and non-guard 
unions in order ``to insure to an employer that during a strike or 
labor unrest among other employees, [the employer] would have a core of 
plant protection employees who could enforce the employer's rules for 
protection of [its] property and persons without being confronted with 
a division of loyalty between the employer and dissatisfied fellow 
union members.'' McDonnell Aircraft Corp., 109 N.L.R.B. 967, 969 
(1954).

Policy Supporting Section 9 (b)(3)
    The concerns that motivated Congress to expressly separate guard 
units from all other unions continue to hold true for employers today. 
Although the incidents of picket line violence may have decreased, 
unfortunately they have not disappeared; leaving guard loyalty toward 
their employer in the context of a labor dispute critical for employers 
needing to protect non-union personnel and property. Today guards also 
play a significant role in policing employee behavior. Given the well-
documented cases of employee violence in the workplace, guards play an 
increasing important role in maintaining workplace peace and responding 
to workplace threats. Guards are often responsible for observing and 
investigating employee misconduct, such as theft, drug use, and 
violence. Indeed, if an employer terminates an employee, the 
termination decision is not infrequently based on information gathered 
by a guard. As such, guards are often called on to testify as 
management witnesses in arbitrations and court proceedings related to 
employee misconduct and discipline.
    We must also be mindful, in this post-9/11 world, of the increasing 
role guards play in many safety-sensitive industries. Private guards 
protect nuclear power plants, chemical factories, and defense 
contractor operations. While guards protect these critical facilities 
from outside threats, unfortunately it is also true that they must 
protect them from possible sabotage by employees. With such important 
security roles resting on the shoulders of guards, we cannot place 
guards in a situation in which they are forced to choose between 
supporting a fellow union member and reporting suspicious activity to 
their employer.
    All of these important roles that guards serve would be severely 
compromised if they felt a divided loyalty between their employer and 
their union. ``Congress drafted this provision `to minimize the danger 
of divided loyalty that arises when a guard is called upon to enforce 
the rules of his employer against a fellow union member'.'' Drivers, 
Chauffeurs, Warehousemen and Helpers, Local No. 71 v. NLRB, 553 F.2d 
1368, 1373 (D.C. Cir. 1977). If mixed unions succeed in their efforts 
to force employers to allow them to represent both guards and non-
guards, employers will no longer have ``a core of faithful employees'' 
that it can count on to represent its interests when other employees 
violate rules. Wells Fargo Armored Serv. Corp., 270 N.L.R.B. 787, 789 
(1984). One can only imagine the potential strain placed on plant 
guards and their employers when the guards are forced to choose between 
carrying out the duties of their job by supporting their employer or 
preventing a fellow union member from losing his or her job.
    In short, Section 9(b)(3) of the Act bars the NLRB from certifying 
any mixed-guard union because of the potential conflict of interest for 
the guard union members between loyalty to the employer and loyalty to 
the non-guard union. Recent efforts by certain unions, to organize 
guard units through corporate campaign tactics is an effort to 
circumvent this important prohibition by evading the Act's jurisdiction 
all together.

Union's Corporate Campaign Activity
    Labor organizations devote significant resources today to obtain 
agreements from employers under which they become the bargaining 
representative of a group of employees without undergoing an NLRB-
supervised, secret-ballot election. These agreements, referred to as 
``neutrality'' and/or ``card-check'' agreements, come in a variety of 
forms, with the unifying factor being that virtually every agreement 
deprives employees of the right to make a decision about the union with 
the protection of a voting booth and a secret ballot. In addition, 
these agreements also often include provisions designed to assist the 
union, such as:
     An agreement to provide the union with a list of the names 
and addresses of employees in the potential unit;
     An agreement to allow union representatives access to the 
employer's facility;
     An agreement prohibiting the employer from communicating 
with employees about the union;
     An agreement regarding the dispute resolution system for 
collective bargaining negotiations; and
     An agreement to extend the card-check/neutrality agreement 
to other locations or facilities.
    Labor organizations have resorted to forcing employers to agree to 
these one-sided agreements because of the steady decline in union 
membership in the private sector workforce in the United States. While 
there are varying causes for this decline (unions represent only about 
8% of the private sector workforce), including more robust state and 
federal employment laws, significant improvements in the benefits and 
working conditions provided to employees, and the failure of organized 
labor to offer a message that appeals to workers, unions blame the NLRB 
election process as one of the main causes. Arguing that the NLRB's 
process is slow and ineffective, unions purport to offer employers and 
employees a faster solution--that being a card-check/neutrality 
agreement, which eliminates the NLRB's involvement, as well as all the 
protections associated with the NLRB's election processes.
    So why are unions dissatisfied with the NLRB's election processes, 
especially when they are winning approximately 50% of NLRB secret 
ballot elections involving newly organized units--a statistic that has 
remained largely unchanged for the last thirty (30) years? See NLRB 
Election Report; 6 Months Summary--October, 2005 through March, 2006 
and Cases Closed March, 2006, at p. 20 (April 12, 2006). While unions 
argue that the blame lies with the NLRB and allegedly improper employer 
tactics, the more likely reason is the overwhelming success unions 
experience organizing employees once they obtain a card-check/
neutrality agreement. Once unions strip away employees' fundamental 
right, to vote in an NLRB secret ballot election and eliminate an 
employers' fundamental right to engage in free speech concerning union 
representation, the unions' ability to organize new members is greatly 
enhanced.
    To achieve this holy grail of organizing, unions frequently engage 
in corporate campaigns. Unions engage in corporate campaigns by 
exerting pressure on targeted employers through a variety of tactics 
using largely external leverage, not employee support. This leverage 
can take a many of forms including attacks on the targeted company's 
products, services, customers, suppliers, stakeholders, and regulatory 
actions. Unions challenge targeted employers' efforts to seek favorable 
legislation, to secure necessary permits, to obtain outside capital, 
and to expand facilities. This political and/or regulatory pressure 
often is coupled with a negative public relations campaign. Corporate 
campaigns are intended to leave an employer's customers questioning the 
quality of the company's products and an employer's stakeholders 
questioning the quality of the company's management. Under the pressure 
of such forces, targeted employers are often left no choice but to 
``give in'' to the Union's demands, sign a card-check/neutrality 
agreement, and give away their free speech along with employees' free 
choice.
    Although card-checks may offer an adequate view of employee 
sentiment when it comes to the threshold question of whether the NLRB 
should hold an election, they are inadequate in truly determining 
employee sentiment regarding unionization and therefore, not an 
adequate substitute for the secret ballot election. The card check 
process is inferior because unions can use a variety of tactics to 
obtain cards, such as lying, coercion, misrepresentation and 
intimidation (largely without legal challenge)--none of which are 
allowed in the ballot booth.
    This method of organizing, which focuses on first forcing the 
leadership of the company to surrender, and only later appealing to the 
desires of the employees, flies in the face of the system of organizing 
designed by Congress in the National Labor Relations Act. In a 
corporate campaign, the employees themselves are often forgotten as 
unions recognize that once card-check neutrality is achieved their 
success in organizing is virtually guaranteed. This certainly does not 
seem cogent with the intent and spirit of Section 7 of the Act, which 
focuses on employees' rights to freely exercise a choice to support or 
not to support a union.

Corporate Campaigns and Guard Units
    While organized labor's efforts to ignore the NLRA's secret ballot 
elections process raise serious legal and policy questions, certain 
mixed-guard unions are now advocating using corporate campaign tactics 
and card-check/neutrality agreements to circumvent the prohibitions in 
Section 9 (b)(3) of the Act. A mixed-guard union's use of corporate 
campaign tactics to secure representational status over guard employees 
without a Board-conducted election blatantly disregards the important 
policy considerations underlying the Taft-Hartley Amendments.
    Such an approach is not new for certain unions. In the 1970's, the 
National Labor Relations Board concluded that the Service Employee 
International Union (``SEIU'') engaged in serious unfair labor 
practices by using unlawful boycotts and other pressure tactics to 
attempt to organize guards. See, e.g., Wackenhut Corp., 287 N.L.R.B. 
374 (1987) (union found guilty of violating sections 8 (b)(1)(A), 8 
(b)(4)(ii)(B) and 8 (b)(7)(C) of the Act in an effort to force a 
security guard firm to recognize it); General Service Union Local No. 
73, affiliated with Service Employees International Union, AFL-CIO, 230 
N.L.R.B. 351 (1977) (union found guilty of violating sections 8 
(b)(7)(C) and 8 (b)(4)(i) and (ii) (B) in an effort to force a security 
guard firm to recognize it). Although mixed-guard unions may have found 
a loophole in Section 9(b)(3) that they can exploit through corporate 
campaigns and card-check neutrality agreements this is no less 
offensive to the policy behind 9(b)(3) than these earlier infractions.
    It should also be emphasized that from a practical standpoint, 
there is simply no need for mixed-guard unions to represent guards. 
Organized labor has long recognized union jurisdictional rights and 
limitations. A union's right to organize and to represent employees is 
often defined by geography, industry and/or job classifications of 
workers. With respect to guards, there are a number of well-established 
unions that have organized and represented this class of workers for 
many years. Ironically, these traditional guard unions have, in our 
experience, largely supported the NLRB secret ballot election process 
as the preferred approach to exercising employee free choice.
    Thus, the issue today is not whether guards are currently 
represented by qualified unions. The issue is also not whether there 
are experienced guard unions that will continue to organize guards in 
the future. The answer to both of these questions is a resounding yes. 
The only question before you today is whether a non-guard union should 
be allowed to represent guards through the use of card-check/neutrality 
agreements which are often achieved through corporate campaign tactics. 
The intent of the Taft-Hartley Amendments and nearly 60 years of legal 
authority upholding the important distinction between guards and the 
employees that they are entrusted to enforce rules against call for a 
resounding NO to that question.

Conclusion
    In conclusion, the Chamber has serious concerns about the efforts 
of certain mixed-guard unions to undermine Congress' intent and purpose 
in enacting Section 9 (b)(3) of the National Labor relations Act. Mr. 
Chairman and members of the Committee, thank you for the opportunity to 
share the Chamber's concern regarding this important issue. Please do 
not hesitate to contact me or the Chamber's Labor, Immigration, and 
Employee Benefits Division if we can be of further assistance in this 
matter.
                                 ______
                                 
    Chairman Johnson. Thank you, sir.
    Mr. Hickey, you are recognized.

    STATEMENT OF DAVID L. HICKEY, INTERNATIONAL PRESIDENT, 
 INTERNATIONAL UNION, SECURITY, POLICE, AND FIRE PROFESSIONALS 
                       OF AMERICA (SPFPA)

    Mr. Hickey. Thank you, Mr. Chairman, and good morning.
    I am David L. Hickey, president of the International Union, 
Security, Police and Fire Professionals of America, SPFPA. Let 
me declare at the outset that I am not a witness for either 
political party or any party. Equally, I am not here to support 
or oppose the views of any employer or any other labor 
organization.
    My duty and sole role is as an advocate for the interests 
of the SPFPA and its members. The views I express have been 
held by our union since its founding in 1948.
    Appearing with me today is Gordon A. Gregory, our longtime 
general counsel who has testified before both Senate and House 
subcommittees on today's subject.
    The SPFPA is the country's largest security union devoted 
to the exclusive representation of security personnel, 
statutory guards. By virtue of Section 9(b)(3) we are an 
independent, unaffiliated union.
    We have a proud tradition of representing security officers 
wherever employed throughout the United States and Puerto Rico. 
We have been in the forefront of improving and advancing the 
interests of security officers and the security profession.
    Our accomplishments include the landmark Burns successor 
case in the U.S. Supreme Court, the McNamara O'Hara Service 
Contract Act and the raising of professional security 
standards.
    In terms of national security, our members have been and 
are employed at the Kennedy Space Center, Cape Canaveral; 
Patrick Air Force Base; Houston Space Center, DOE facilities 
such as Oak Ridge, Savannah River, Idaho National Lab; nuclear 
power plants; entertainment venues such as Disney World, 
Universal Studies and the Spectrum; Federal courts, military 
forts, King's Bay Submarine Base, Federal buildings and 
reservations, and many, many more.
    Since 9/11 the demands on security professionals have 
increased dramatically with respect to job duties, hours, 
training and physical fitness.
    There has been increasing specialization of private 
security by the development of rapid response teams, hostage 
teams, canine units and others. Our members are first 
responders and must make immediate decisions regarding threat 
assessment and response.
    It is noteworthy that the subject of this committee's 
inquiry is examining whether combining guards and other 
employees in bargaining units would weaken national security 
without mention of Section 9(b)(3), which has for 59 years 
declared that guards and non-guards should not be in the same 
unit.
    Indeed, prior to 1993 the NLRB placed guards in separate 
units because of their unique duties and responsibilities.
    The divided loyalty rationale for separate guard units 
continues and is more paramount because of increased levels of 
security. While there is a lack of studies due to the long 
history of guard-only units, it is clear that a mixed unit is 
incompatible with national security or any form of security.
    Effective security depends upon focus and dedication which 
should not be impaired by the added stressor of enforcing rules 
and regulations against union brothers and sisters.
    Now, my opposition to combined units of guards and non-
guards is not based upon consideration of loyalty or 
patriotism. American workers are concerned with national 
security and through their unions enhance such security.
    But there is a substantial and significant difference 
between those who respect national security and those who are 
responsible to enforce it. The ability of those who enforce 
should not be diminished by changing over 60 years of 
established labor law.
    I respectfully suggest that this committee's inquiry 
conclude with a finding that there are no compelling reasons to 
amend Section 9(b)(3) or board precedent.
    I thank you for the opportunity to appear and state the 
position of the international union, SPFPA. Thank you.
    [The prepared statement of Mr. Hickey follows:]

Prepared Statement of David L. Hickey, President, International Union, 
       Security, Police and Fire Professionals of America (SPFPA)

    As President of the International Union, Security, Police and Fire 
Professionals of America (SPFPA), I vigorously oppose any amendment to 
Section 9(b)(3) of the National Labor Relations Act, as amended, which 
would combine statutory ``guards'' with non-guards in a common 
bargaining unit. Such a change is antithetical to the original 
legislative philosophy and intent of the Act, and its promotion of 
industrial stability. Moreover, it would be inimical with national 
security.
    The International Union, United Plant Guard Workers of America 
(UPGWA) was founded on February 17, 1948 and has become the world's 
largest Union devoted to the representation of guards and security 
employees exclusively.\1\ Our Union represents industrial and agency 
guards in every major industry and at numerous Government installations 
throughout the United States and Puerto Rico. Throughout the years we 
have negotiated successive National Bargaining Agreements with General 
Motors Corporation, DaimlerChrysler Corporation, Ford Motor Company and 
other major corporations. Many of our collective bargaining units are 
at Government facilities, such as the Kennedy Space Center, Savannah 
River, Oak Ridge, Idaho National Lab, King's Bay Submarine Base, 
military forts, nuclear power plants and with defense contractors such 
as Boeing.
---------------------------------------------------------------------------
    \1\ The Union's name was changed to International Union, Security, 
Police and Fire Professionals of America (SPFPA) in May 2000.
---------------------------------------------------------------------------
    Our Union did not seek the initial enactment of Section 9(b)(3). We 
were the product of it. Prior to 1947, the core of what was to become 
the UPGWA was known as Local 114, UAW. In 1947 the labor movement did 
not seem unduly disturbed about Section 9(b)(3). Industrial guards were 
regarded as representatives of management. Indeed, the original House 
Bill would have included guards within the definition of 
``supervisor.'' The compromise, of course, was to place guards in 
separate bargaining units and separate guard unions. Thus we were left 
to our own devices and resources to form an international guard union.
    Despite our statutory exile from the house of labor, the UPGWA/
SPFPA has always enjoyed a close relationship with leaders of the AFL-
CIO and its affiliated unions. Although we must presently avoid any 
affiliation, directly or indirectly, with an organization which admits 
to membership employees other than guards, our Union has achieved 
international union status and has accepted and performed a significant 
role in the labor movement.
    Since its enactment in 1947, the philosophy of Section 9(b)(3) has 
proven workable and effective. Guard employees have unique and special 
hours and other terms and conditions of employment. The National Labor 
Relations Act has, of course, recognized the special community of 
interest enjoyed by guard employees and has, therefore, directed that 
guards be placed in separate bargaining units. This rule has resulted 
in a stability and continuity of labor relations not always enjoyed by 
other bargaining units of employees. For example, guard units are not 
subject to NLRB petitions for craft or departmental severance. The 
maintenance of guards in separate bargaining units and unions has 
avoided conflicts of interest between the enforcement of plant rules 
and the obligations of union membership. Equally, conflicts of interest 
have been avoided in strikes and other labor disputes while preserving 
the rights of the respective parties. Since industrial crime and 
terrorism is on the increase, the continued need for a separate 
identity of guard employees is even more apparent.
    The Congress has rejected prior efforts to amend 9(b)(3) to combine 
guards and non-guards or to permit guard representation by non-guard 
unions.
    In 1978 our Union successfully opposed the so-called ``Riegle 
Amendment'' to S. 1883 which would have limited 9(b)(3) to guard 
agencies only. Directly employed or in-house guards would lose the 
protection of 9(b)(3).
    In 1983-1984, we opposed H.R. 2197 and 2198 which would have 
permitted non-guard unions to represent guards at employers and 
locations where it did not represent non-guards.
    Similarly, in 1986, we opposed S. 1018 which would amend 9(b)(3) to 
apply to ``plant guards'' only. Agency guards would not be subject to 
9(b)(3), and thus the NLRB could certify a non-guard union to represent 
a mixed bargaining unit.
    It is evident that committees of both the Senate and House have 
recognized the adage that ``If it ain't broke, don't fix it.'' Section 
9(b)(3) is not broken and will continue to serve its purpose of 
providing statutory ``guards'' with the right to representation while 
avoiding the serious problem of divided loyalties.
    The SPFPA represents statutory guards at numerous military, space 
and defense installations throughout the country. The security 
personnel at such facilities are not traditional ``plant guards.'' They 
are highly trained, dedicated and motivated professionals who are 
prepared to meet the current challenges of terrorism, sabotage and 
treason. Mixed bargaining units would destroy the stability and 
community of interest created by Section 9(b)(3) by placing statutory 
guards in heterogeneous units with representation by non-guard unions.
    In 1984 the NLRB placed its guard representation policy in harmony 
with the legislative intent of Section 9(b)(3). In University of 
Chicago, 272 NLRB No. 126, 117 LRRM 1377 (1984), it was held that a 
guard/non-guard union is barred from intervening in an election for a 
guard unit. The Board stated in relevant part as follows:
    ``As enacted, Section 9(b)(3) applies both to mixed units of guards 
and other employees and to guard/non-guard unions. The statute renders 
the former inherently inappropriate, and proscribes the Board from 
certifying the latter. Although the provision addresses two different 
situations, we conclude that, given the purpose underlying its 
enactment, Section 9(b)(3) was intended to achieve a uniform result. 
Thus, we find no basis for distinguishing between the degree of 
exclusion to be applied to a mixed unit and that to be applied to a 
guard/non-guard union. Such a distinction is at odds with the 
fundamental purpose of Section 9(b)(3) inasmuch as it permits a guard/
non-guard union to attain indirectly that which it cannot attain 
directly, that is, a place on the ballot in the Board conducted 
election. Moreover, it can scarcely be gainsaid that placing a guard/
non-guard union on the ballot contributes to a result antithetical to 
the legislative history of Section 9(b)(3). Clearly, this practice 
creates the false impression that the guard/non-guard union is equally 
as capable of securing the protections of the Act as other candidates 
on the same ballot. As we noted in Brink's, supra, we shall not, indeed 
cannot, sanction a practice which utilizes Board processes in 
furtherance of an end which a specific provision of the Act was plainly 
intended to discourage.
    Thus, we construe Section 9(b)(3) not only to bar the formality of 
certification, but also to preclude a disqualified labor organization 
from taking advantage of the Board's election processes, including the 
privilege of being placed on the ballot as an intervenor with an 
accompanying certification of the arithmetical results. Therefore, we 
hereby over rule Burns II, Bally's Park Place, and their progeny.'' 
(117LRRM 1379-1381, emphasis added).
    Also, to the same effect is Board policy set forth in Brink's, 
Inc., 272 NLRB No. 125, 117 LRRM 1385 (1984) and Wells Fargo Armored 
Service Corp., 270 NLRB No. 106, 116 LRRM 1129 (1984).
    Edward Miller, a former NLRB Chair, appeared before a Senate 
subcommittee in 1986 and urged no change in 9(b)(3) as follows:
    Under the Armored Motor Services case, and for thirty years and 
more now, [the NLRB] has applied the law to all guards, including 
armored car guards and courier guards. This has been true under both 
Republican and Democratic administrations. Neither the courts nor the 
Congress have found the Board to be in error. * * * I know of no 
evidence that the various unions which do limit their membership to 
guards are not representing them well, effectively, and honestly. * * * 
Does the Congress have any solid evidence that there are a lot of 
guards out there seeking union representation whom the established 
guard unions are not trying to organize or are not interested in 
organizing? Or is it simply the fact that some other non-guard unions 
would like an opportunity to raid the guard unions? I hope it is not 
the latter. * * * Is this Congress really interested in furthering 
internal union disputes and raiding tactics? I doubt it.
    In their definitive study ``Guard Unions And The Problem Of Divided 
Loyalties'' published in 1989 by the Wharton School, Industrial 
Research Unit, the authors stated conclusions that are timely today and 
applicable to this Subcommittee's inquiry as follows:
    Indeed, legislation to repeal or weaken section 9(b)(3) would seem 
to fly in the face of the current public policy trend toward greater 
sensitivity to conflicts of interest involving persons who serve in 
positions of trust whether with respect to labor disputes, terrorism, 
or day-to-day security.
    Congress in 1947 had no trouble seeing that serious conflict of 
interest problems could arise if guards could be mixed together in the 
same bargaining units, or represented by the same labor organizations, 
as nonguard employees. Guards, by definition, serve in positions of 
special trust. They are charged with protecting property and safety. 
They are the people employers depend on to prevent unauthorized entry, 
sabotage, and other misconduct during labor disputes or otherwise. To 
put such persons in positions where their loyalties could be divided 
between their duties to the employer and their allegiance to a union 
would undermine the very essence of their function.
    Section 9(b)(3) is a carefully drawn safeguard against such 
potential conflicts of interests. It allows guards to join, assist, and 
form guard unions and exercise all the rights of employees under the 
NLRA as to collective bargaining. It simply requires that they do so in 
the context of separate bargaining units and through separate, 
independent unions. Senator Taft recognized in 1947 that the slight 
limitation section 9(b)(3) thus placed on guards' rights under the NLRA 
was ``a minor one, nevertheless a reasonable one.''
    Nothing has happened in the forty-plus years since 9(b)(3)'s 
enactment to warrant a different conclusion today. The limitations 
placed on guards have indeed proven very minor. It has not prevented 
them from having effective, powerful labor unions of their own 
choosing. There is no indication that guards have fared any less well 
from a labor relations standpoint than non-guard employees. And the 
safeguard that section 9(b)(3) established is every bit as reasonable 
by today's standards as it was by 1947's. The problem of potential 
conflicting loyalties is certainly as real today as it was then, and 
the American public has, if anything, grown far less tolerant of such 
conflicts--or even the appearance of conflicts of interest.
    The SPFPA continues to protect and advance the rights of security 
employees. The occupation and profession of security officers will not 
gain from an amendment of 9(b)(3) that would combine guards and non-
guards in bargaining units.
    The UPGWA/SPFPA did not sponsor or support the original 9(b)(3) in 
1947. We were temporarily orphaned by it. We survived and grew however 
because of an ability to recognize and deal with the special problems 
and needs of security officers. This has been accomplished in 
accordance with the finest traditions of trade unionism and consistent 
with sound labor relations policy. Any amendment of 9(b)(3) would be 
destructive of 59 years of progress in the exclusive representation of 
security employees, and contrary to national security. It would detract 
from the mission of security officers at all levels of private 
security.
    Contemporary security officers have become first responders with 
responsibilities unknown prior to 9/11. They must not be encumbered by 
restraints unrelated to the security function such as conflicts of 
interest arising from the enforcement of rules against non-guard co-
workers.
    National security demands a strengthening of the security 
profession, not a diminution of it in opposition to established federal 
labor policy.
    This Subcommittee should recommend that there be no change in 
Section 9(b)(3) or NLRB precedent.
                                 ______
                                 
    Chairman Johnson. Thank you for your comments, sir. You are 
appreciated.
    Ms. Boston, you are recognized.

    STATEMENT OF JANET BOSTON, ORGANIZER, SERVICE EMPLOYEES 
                      INTERNATIONAL UNION

    Ms. Boston. Good morning, Chairman Johnson, Representative 
Andrew and distinguished members of the subcommittee.
    It is an honor for me to speak today for my union brothers 
and sisters. My name is Janet Boston. I worked at the World 
Trade Center for 25 years for many different contractors. Over 
the years, I have worked at almost all the jobs in the 
building, as a matron, an elevator operator, console operator 
and more.
    I was a shop steward and member of SEIU Local 32BJ, which 
represents more than 85,000 workers in security, cleaning and 
other property services.
    I lost my job at the World Trade Center on 9/11. Thousands 
of working people lost their lives on that horrible day. Sixty-
two were my union brothers and sisters. Many were my friends. I 
was very fortunate to have taken a day off to work on the 
primary election.
    When I heard what had happened I went back into lower 
Manhattan to find my friends and to help them connect with 
their loved ones.
    I had been through an attack before. In 1993 I was working 
at the World Trade Center when a terrorist drove a truck into 
the building. Security officers were not yet members of our 
union and had no training. When that bomb exploded, I can tell 
you it was total chaos.
    People did not know what to do. My co-workers and I just 
did what we could, helping people out of the building to 
safety.
    Right after that, things changed. The security officers 
joined our union and started to get real training. We learned 
screening and evacuation procedures and practiced for 
emergencies.
    Security officers knew that building inside out, and it was 
our union that helped make that training possible. So when 9/11 
happened, we were better prepared. Nine-eleven was a terrible 
day. But what some people don't realize is when the planes hit 
our building, private and public security was ready.
    And on that day, 99 percent of the people in the tower 
below where the planes hit got out. That day, security 
officers, union members properly trained through their union, 
helped save those lives, working right alongside police, 
firefighters and rescue workers.
    Even workers who were off that day came to help with 
rescue. In fact, our sister health care union, 1199, helped 
with emergency evacuations.
    Nobody thought about their union card that day. We all 
cared about our fellow workers, the people in the buildings and 
our city. And nobody asked if security officer were in the same 
union as the elevator operators or the janitors.
    That is what security officers in cities all around the 
country are looking for. I know, because they told me their 
stories. They know unions will help them provide for their 
families, build their careers and lend dignity and respect for 
the work they do.
    They want their job to be more professional, they want 
training, and they want protection from getting fired if they 
speak out about security problems. And they want a union that 
is big enough and strong enough to stand up for them. If that 
means joining force with janitors and nursing, that is no 
problem.
    It makes me sad that we are still having this conversation 
5 years later. Instead of asking whether security officers 
should be in a union or what kind of union, we should be asking 
why some security companies and building owners are standing in 
the way of security officers who want to join with other 
workers to improve the standards of their industry and their 
standards of living.
    Don't you think the best way to protect our national 
security is to honor the memories of the union security 
officers who lost their lives on 9/11 doing a job they loved? 
They were the original first responders, proud union members 
trained, prepared and ready to defend the people of this great 
country.
    Thank you.
    [The prepared statement of Ms. Boston follows:]

   Prepared Statement of Janet Boston, Organizer, Service Employees 
                          International Union

    My name is Janet Boston. I worked at the World Trade Center in New 
York City for 25 years. I lost my job at the World Trade Center on 9/
11, my union lost 62 brothers and sisters on that horrible day. Over 
the years I worked almost all the jobs in the building, as a matron, 
elevator operator, console, and others working for the Port Authority 
and ABM. During that time I was a shop steward and member of my union, 
SEIU Local 32BJ, which represents more than 85,000 workers in security, 
janitorial and other property services professions.
    The Service Employees International Union (SEIU) is the nation's 
largest union of property services workers, representing more than 
50,000 private security officers and public safety personnel 
nationwide.
    Our union lost 62 of our members on 9/11. I lost a lot of friends. 
I was very fortunate to have taken the day off so that I could be 
working on the primary election that day and was not in the building at 
the time of the attacks. When I heard what had happened I went back 
into Lower Manhattan to find my friends and help them connect with 
their loved ones.
    In 1993 I was working at the building when a terrorist drove a 
truck bomb into the World Trade Center. In those days the security 
officers were not yet members of our union and did not have any 
training. When that bomb exploded I can tell you it was total chaos. 
People did not know what to do. My co-workers and I just did what we 
could, escorting people out of the building to safety.
    After the 1993 attack, things changed. The security officers at the 
buildings joined our union and began receiving real training. We did 
drills, studied evacuation procedures, and practiced for emergencies. 
Security knew the building inside and out. And it was our union that 
helped make that training possible.
    I know how much pride we had in being union members and in our jobs 
at the World Trade Center. We had respect on the job because of the 
union and we knew that whoever came to do that work would be well-
trained and be professional and see their job as a career--because they 
were union.
    So when 9/11 happened, we were better prepared. 9/11 was a terrible 
day. But what some people don't realize is, when the planes hit our 
buildings, private and public security was ready. Unions in New York 
City represented all the security personnel, police and fire who acted 
so bravely to save lives on that terrible day.
    And on that day, according to USA Today, 99 percent of people in 
the towers below the floors where the planes hit, got out of the 
buildings. That day security officers--union members properly trained 
through their union--helped save those lives, working right alongside 
policemen, firemen, and rescue workers. Even workers who were not at 
work that day came to the buildings to help with the rescue. In fact, 
our sister health care union 1199 helped with emergency evacuations. No 
one thought about their union card, that day, we all cared about our 
fellow workers, building residents and our city.
    Prior to 9/11, SEIU was speaking out about inadequate airport 
screening due to poor training of airport screeners. Nobody listened. 
Then 9/11 happened. Today our union, SEIU, continues to advocate for 
more training for security officers and pushing for higher standards 
and lower turnover. For example, today SEIU Local 32BJ has a program 
called ``New York Safe & Secure'' that is training thousands of 
Manhattan security officers and other property services workers in 
cooperation with the NYPD. Hopefully, this time, people will listen to 
our plea to improve standards and training in the security industry.
    Our union makes us all safer by insisting on higher training, 
better wages and benefits so that workers perform with the highest 
level of professionalism.
    When union security officers get paid more, they stay on the job 
longer. When officers stay on the job longer, they can do their job 
better. There is more opportunity to improve their skill through 
training. In Chicago, where security officers in downtown have been in 
SEIU for decades, the turnover rate is 25 percent a year while in non-
union cities, the turnover rate is 100% or even as high as 300% in some 
places. With a union, officers get more training, more respect for the 
work they do and have more dignity on the job and, most importantly, 
they provide better security services
    Without a strong union of security officers we know what happens: 
security officers become nothing more than a body in a suit. People are 
not trained. They get paid crumbs with no benefits. They leave the job 
after only a few months, sometimes only a few weeks. The job turnover 
rate may be 300 percent. We never had that in the World Trade Center. 
That is why a few years ago USA Today called private security the 
``Weak Link'' in our homeland security.
    Security officers have come to SEIU because they make less than the 
janitors in buildings where SEIU represents the cleaners. Isn't that a 
sad commentary on how we value the workers who we trust to keep us safe 
and secure.
    The problem with private security is that not enough officers have 
unions. I know because I have talked to officers all over the country. 
They want a union so they can provide for their families, build their 
careers, and be respected and rewarded for the work they do. They want 
their jobs to be more professional. They want to be trained, and they 
want protection from getting fired if they speak-out about poor 
training or security problems. Unions provide whistle-blower protection 
for workers who tell the truth.
    Since 9/11, it is a fact that the security companies, office 
building owners, and the government have done very little to 
systematically address the problems with private security. Since 9/11, 
however, SEIU and other labor unions have been out front helping 
security officers nationwide improve training and raise industry 
standards. With my written testimony you will find citations of reports 
reflect why we need better security in our private and public buildings 
and infrastructure.
    It saddens me that we are still having this conversation five years 
later. Instead of asking whether or not security officers should be in 
a union, we should be asking why some security companies and large 
commercial building owners have been standing in the way of security 
officers efforts' to raise the standards of their profession by forming 
a union.
    The best way to protect our national security would be to honor the 
legacy of the union security officers at the World Trade Center who 
lost their lives on 9/11 doing a job they loved. They were the original 
first-responders--union and proud, trained, prepared, and ready to 
defend our country.
    Thank you.

                            DOCUMENTS CITED

U.S. Department of Energy, Office of Inspector General, Office of 
        Inspections and Special Inquiries: Inspection Report: 
        Protective Force Training at the Department of Energy's Oak 
        Ridge Reservation. DOE/IG-0694 June 2005
U.S. Department of Energy, Office of Inspector General, Office of 
        Inspections and Special Inquiries: Inspection Report: 
        Protective Force Contracts at the Oak Ridge Reservation. DOE/
        IG-0719 February 2006
Report to Congressional Requesters, United States Government 
        Accountability Office: CONTRACT SECURITY GUARDS: Army's Guard 
        Program Requires Greater Oversight and Reassessment of 
        Acquisition Approach. GAO-06-284 April 2006
                                 ______
                                 
    Chairman Johnson. Thank you, ma'am. I appreciate your 
testimony.
    General Foley, you are recognized.

 STATEMENT OF BG DAVID FOLEY, USA (RET.), PRESIDENT, WACKENHUT 
                         SERVICES, INC.

    General Foley. Thank you, sir.
    Good morning, Mr. Chairman and distinguished members of the 
committee. My name is Dave Foley, president of Wackenhut 
Services Incorporated.
    Thank you for the opportunity to testify before this 
committee to discuss the Taft-Hartley Act issues regarding 
security and Federal facilities' concerns about having mixed 
units as opposed to security-only units protect these national 
sensitive facilities.
    Wackenhut Services Incorporated provides security to many 
of these sites. However, attempts by outside mixed units--
specifically, the SEIU--to get Wackenhut to waive the rules 
under Taft-Hartley has us very concerned.
    Let me tell you a little bit about my company and my 
background before I go into the 9(b)(3) issues.
    Wackenhut Services Incorporated employ 8,000 full-time 
workers and provides security and fire protection to over 90 
sites throughout the United States and overseas--DOE, DOD, 
NASA, and then we have 600 firefighters in Iraq providing all 
the fire fighting and emergency services for our soldiers, 
sailors, airmen and Marines deployed.
    WSI has collective bargaining agreements with seven 9(b)(3) 
security unions. WSI has 45 years of history of providing the 
best protection for people and property in the security 
industry.
    WSI's operations entail multiple levels of highly trained 
paramilitary response teams equipped with rapid fire and 
special weapons, armored vehicles, helicopters, Marine patrols 
and full service fire and rescue. We are the astronaut rescue 
force at the Space Center.
    We are here today to ask for your help in protecting the 
Taft-Hartley 9(b)(3) provisions and to protect national 
security.
    The SEIU, the Service Employees International Union, which 
is a mixed union representing a diverse number of occupations, 
has been coercing WSI through a corporate campaign designed to 
damage our reputation and asking us to waive the U.S. 
government's right to protect their facilities under Section 
9(b)(3).
    They are asking to sign a neutrality agreement and to waive 
our rights of our employees to a secret ballot election 
sponsored by the NLRB.
    Dr. Jarol Manheim, the professor of media, public relations 
and political science at George Washington University, 
describes a corporate campaign as an organized assault 
involving economic, political, legal, regulatory and 
psychological warfare on a company that has offended a labor 
union.
    We have several examples that we can cite, and clearly 
there is some in the testimony. But clearly, tremendous 
pressure has been placed upon my company in an attempt to get 
us to waive our rights under the 9(b)(3).
    The 9(b)(3), as you have heard, is a section--when Taft-
Hartley amendments to the Wagner Act were authored, there 
were--a special section that specified that guard unions must 
be separate from non-guard unions or mixed unions so that any 
labor dispute does not affect the security of the site.
    I have included the actual text in the written testimony 
for you. The authors of the 9(b)(3) anticipated that different 
representation was needed for the workforce that protected 
facilities, and hence you see the security guard-only unions.
    WSI believes that the 9(b)(3) rule protects national 
security, particularly when it is applied to the strategic 
assets of the Department of Defense and the Department of 
Energy installations. And we don't believe that we ought to be 
able to waive that right for the Department of Energy or for 
the Department of Defense.
    We won't waive our 9(b)(3) entitlements. And additionally, 
it is particularly offensive to WSI that SEIU would demand that 
we give our up our employees' rights to a secret ballot 
election in favor of a card-check process.
    The majority of our officers are ex-or former military and 
law enforcement officers, and they have sacrificed to protect 
the rights that we enjoy as Americans; specifically, the right 
to vote.
    Now, SEIU has already demonstrated that they endorse 
coercion as a tactic. They are trying to coerce our company. We 
would expect the same kind of treatment for our employees if we 
allowed this card-check process.
    In conclusion, to ensure that non-guard unions cannot 
coerce government contractors into signing these illegal 
waivers, the Congress should make it clear, at least on 
sensitive DOE and DOD sites, that agencies should not allow any 
contractor who provides security to sign such a waiver with the 
SEIU or any other mixed union.
    If the law is ignored, there is a possibility the strategic 
Federal facilities, including DOD, DOE, NASA and other highly 
sensitive complexes could have their security compromised. The 
National Labor Relations Board should not have the power to 
make or change the law. Only Congress should.
    And it should not be left up to the appointees of an 
administrative board to make law by de facto proxy, 
specifically when it comes to the defense of our nation. 
Congress should act now to protect the precedents as well as 
the security of our country by strengthening the law, not by 
ignoring it.
    Mr. Chairman, thank you very much, and I would be happy to 
answer any questions.
    [The prepared statement of General Foley follows:]

   Prepared Statement of BG David W. Foley (USA Retired), President, 
                        Wackenhut Services, Inc.

    Mr. Chairman and Subcommittee Members, thank you for the 
opportunity to testify before the Education and Workforce Committee to 
discuss the Taft-Hartley Act issues regarding security at federal 
facilities and concerns about having'' mixed'' unions as opposed to 
security-only unions protect those national security sensitive 
facilities. Wackenhut Services Incorporated (WSI) provides security to 
many of these sensitive facilities with employees who belong to 
security unions and we enjoy an excellent working relationship with 
those officers. However attempts by outside ``mixed'' unions to get 
Wackenhut to waive rules under Taft-Hartley and allow those ``mixed'' 
unions to represent our security officers has us very concerned. I will 
speak later about those specific concerns and what recommendations we 
have to offer the committee to address those issues.
    By way of explanation for my perspective on these topics I would 
submit that my views are shaped by 31 years experience with the United 
States Army and an additional five years with WSI providing security to 
both the U. S. Department of Energy (DOE) and the U. S. Department of 
Defense (DOD). I have served as either the Chief Operation Officer or 
WSI President for the past three years, after having previously served 
for two years as a Senior Vice President and General Manager for WSI at 
the Department of Energy's Nonproliferation and National Security 
Institute (NNSI). The NNSI is DOE's central training facility as well 
as a national training center for other governmental agencies.
    Prior to joining WSI, I was a member of the U.S. Army Military 
Police Corps (MPC), having held every position in the MPC from Platoon 
Leader through Chief of Military Police. I finished my career as the 
Commanding General of the U.S. Army Criminal Investigation Command. My 
specialization was in Military Police training and operations as well 
as serving on the Army Staff and as part of the U.S. Special Operations 
Command. I am also a graduate of the Army's Command and General Staff 
College and the National War College in Washington, D.C.
    For the record, I would like to provide some information on the 
background and performance of WSI with regard to the provision of law 
enforcement, security, fire, emergency response, aviation and 
operations and maintenance services to the Departments of Defense and 
Energy. It is vital for you to understand the services provided by WSI 
and the level of excellence we have achieved at our various contract 
sites in order to more fully understand the ramifications of the 
outcome of this hearing.
WSI Background
    Wackenhut Services, Incorporated employs over 8000 full-time 
employees and provides security and fire protection to over 90 sites 
throughout the United States and overseas. The average wages and 
benefits within WSI exceed the security industry average by over 40% 
and are ahead of major competitors. WSI pays almost 75% of employee 
health care expenses. WSI also has the highest staff retention in the 
United States security industry.
    WSI has collective bargaining agreements with seven 9(b)(3) 
security unions. They are the Security Police and Fire Professionals of 
America, National Association of Special Police and Security Officers, 
Independent Guards Union of America, United Government Security 
Officers of America, Independent Guard Association of Nevada, United 
Union of Security Guards and the Independent Employees Service 
Association.
    WSI has a 45 year history of providing the best protection of 
people and property in the security industry. WSI operations entail 
multiple levels including highly trained paramilitary response teams 
equipped with rapid fire and other special weapons, armored vehicles, 
helicopters, marine patrol, full service fire rescue and high-end 
security guard/officers, training and security consulting services.
    Training requirements are contract specific but all receive 
substantial weapons and use of force training. Our DOE officers attend 
a DOE Academy and other offices are Special US Marshals, hold GSA 
certification, are Special Police Officers and many have state Law 
Enforcement credentials. WSI meets the state licensing requirements at 
all our contract locations. Our DOE officers receive substantially more 
initial entry and sustainment training than most local and state police 
agencies. In short these are some of the best trained security officers 
in the world.
    WSI protects America's most sensitive Department of Energy and 
Department of Defense facilities such as Savannah River, Oak Ridge, 
Nevada Test Site and Fort Bragg. As you know these DOE sites are 
critical to our nuclear weapons programs and Ft Bragg is home to the US 
Army's ready response force, the 82d Airborne Division, and our special 
operations forces.
    WSI is proud to protect our most vital assets. Additionally, the 
WSI Fire and Emergency Service in Iraq is the primary emergency 
response capability for 18 DOD fire departments. The start-up of 18 
fire departments in Iraq represents the largest single fire and 
emergency services effort in a combat zone in over 30 years.
WSI Performance
    WSI has been recognized for excellence in the provision of security 
to both DOE and DOD contracts. The most important recognition a 
security contractor can receive is the performance ranking. WSI 
rankings from DOE and DOD have been outstanding over the past five 
years resulting in renewals of contracts multiple times at all of our 
major contracts.
    As proof of the excellent performance I have included the following 
information in regards to our work at DOD Army sites and our three 
largest DOE sites, Nevada Test Site, Oak Ridge and Savannah River:
     In 10 DOE performance ratings over the last five years at 
the Nevada Test Site, Wackenhut has received only one score under 95%. 
The average rating for Nevada Test Site over the last five years is 
96%.
     The last nine DOE performance ratings for WSI at the Oak 
Ridge facility have been 93% or higher, with an average score of 97% 
over the last five years.
     WSI has received scores of 96% or higher in the last ten 
DOE performance ratings at Savannah River Site. Five of those ten were 
perfect 100% ratings. The average rating for Savannah River Site over 
the last five years is 99%.
     The average performance rating for WSI Army site contracts 
over the last three years is 97%.
    More specifically, the following are a few examples of significant 
accomplishments by the WSI Savannah River Site (WSI-SRS) team in 2004-
2006. These are offered as a summary of the types of awards WSI wins on 
a consistent basis throughout our operations.
     The Commission on Accreditation for Law Enforcement 
Agencies(CALEA) awarded WSI-SRS the highly regarded and broadly 
recognized Public Safety Training Academy Accreditation for a three-
year period. To date, WSI is the only private security firm with this 
National Accreditation.
     The WSI-SRS Aviation Program earned national recognition 
this year by winning the Department of Energy Federal Aviation Program 
Award. The DOE Operations Support Professional Award for 2004 and the 
GSA Federal Aviation Operations Support Professional Award for 2004 was 
awarded to WSI-SRS Aviation Chief of Maintenance. The WSI-SRS Aviation 
Program has received the Helicopter Association International's (HAI) 
Annual Operator Safety Award each year from 1986 to 2006.
     At the 2006 Security Protection Officer Training 
Competition (SPOTC), WSI-SRS captured the top team and individual 
events for the third consecutive year, and the WSI-SRS team won the 
2006 Secretary's Trophy, and the 2006 Security Police Officer of the 
Year Award.
     WSI-SRS Canine Teams competed in two United States Police 
Canine Association (USPCA) events earning first and second place in a 
number of categories. In addition, all WSI Canine Teams successfully 
completed their USPCA certification requirements.
    The above distinctions serve as examples of WSI actions that lead 
to innovative programs, cost efficiencies and mission accomplishment 
for the Department of Energy and Department of Defense. It is a 
reflection of the tremendous accomplishment, ability and background 
possessed by the entire WSI team at all locations.
National Labor Relations Act and 9(b)(3)
    Regarding the Taft-Hartley law that I spoke to earlier, I have 
provided some background in order to better understand the purpose and 
intent of the drafters of this important legislation on the issues of 
security based issues.
    When the Taft Harley Amendments to the Wagner Act were authored 
there was a special section included which specifies that a ``guard'' 
union must be separate from a ``non-guard'' or ``mixed'' union so that 
any labor dispute does not affect the security of the site that those 
unionized guards are protecting. This section of the Act is known as 
the 9(b)(3) rule.
    The actual text of the National Labor Relations Act reads as 
follows (emphasis added):

          Sec. 9 [Sec. 159.] (b) [Determination of bargaining unit by 
        Board] The Board shall decide in each case whether, in order to 
        assure to employees the fullest freedom in exercising the 
        rights guaranteed by this Act [subchapter], the unit 
        appropriate for the purposes of collective bargaining shall be 
        the employer unit, craft unit, plant unit, or subdivision 
        thereof: Provided, That the Board shall not (1) decide that any 
        unit is appropriate for such purposes if such unit includes 
        both professional employees and employees who are not 
        professional employees unless a majority of such professional 
        employees vote for inclusion in such unit; or (2) decide that 
        any craft unit is inappropriate for such purposes on the ground 
        that a different unit has been established by a prior Board 
        determination, unless a majority of the employees in the 
        proposed craft unit votes against separate representation or 
        (3) decide that any unit is appropriate for such purposes if it 
        includes, together with other employees, any individual 
        employed as a guard to enforce against employees and other 
        persons rules to protect property of the employer or to protect 
        the safety of persons on the employer's premises; but no labor 
        organization shall be certified as the representative of 
        employees in a bargaining unit of guards if such organization 
        admits to membership, or is affiliated directly or indirectly 
        with an organization which admits to membership, employees 
        other than guards.

    The authors of Section 9(b)(3) anticipated that different 
representation would be needed for the workforce that protected 
facilities than the representation of those generally working at the 
facility. If general employees at a plant or warehouse or some other 
form of business were to strike and the employees guarding that 
business were affiliated with the striking employees, thereby 
supporting their fellow brothers by also striking, the business would 
be left unprotected.
    This realization is particularly stark when one considers that the 
very same situation could happen at a nuclear weapons facility, 
military complex or other highly strategic asset within the United 
States. The national security of this country could be jeopardized by 
something as small as a dispute over fringe benefits.
    WSI believes that the 9(b)(3) rule protects national security, 
particularly when it is applied to strategic assets such as DOD and DOE 
installations currently guarded by WSI. We further believe that 
previous NLRB rulings have consistently supported the right of the 
employer to be protected by 9(b)(3) and that the employer is the only 
entity with the power to undermine that right.
    For this reason we have negotiated with seven different guard-only 
unions, secured excellent working relationships with those unions and 
insisted that employees who desire to join a union be represented by 
guard-only unions.
    We make no apologies for this as we are in the business of 
providing security to the nation and in our assessment to do otherwise 
imperils our country's safety at a time when there are those who would 
do our nation harm. The moral quality of this course of action is 
consistent with the values we cherish and impart throughout WSI.
    There are significant and serious national security implications 
resulting from a specious interpretation of this section of the 
National Labor Relations Act by the National Labor Relations Board 
(NLRB). In an administrative ruling almost 20 years ago the NLRB 
stated:
    ``The policies of Section 9(b)(3) and of Burns I are not 
inconsistent. Section 9(b)(3) is grounded in a concern about the 
protection of certain property rights of an employer, and that concern 
is not undermined when the employer voluntarily waives its 9(b)(3) 
rights and recognizes a guard/nonguard union for a unit of guards.'' 
[Stay Security, 311 NLRB 255]
    Some ``mixed'' unions, who represent employees other than just 
security guards, are using this specious interpretation to pressure 
security companies to waive the 9(b)(3) protection provided by the Taft 
Hartley amendment.
    WSI believes this ruling puts the real right of the 9(b)(3) 
protections with DOE and DOD as the employer concerned with property 
rights. The facilities WSI protects are owned by the United States 
government, specifically the Department of Defense and the Department 
of Energy. We hold that it is the right of the government through DOD 
and DOE to decide if the 9(b)(3) right to protection of property with 
guards represented by guard-only unions should be waived.
    Further, we would encourage Congress to establish the government's 
right to protection of its property by enacting legislation that would 
ensure top national security facilities are not left vulnerable to 
attack in the event of a mixed union strike by guards with divided 
loyalties.
SEIU and the Corporate Campaign
    The Service Employees International Union (SEIU), which is a 
``mixed'' union representing a diverse number of occupations, has been 
pressuring WSI, through a ``corporate campaign'' designed to damage our 
reputation, to waive the US Government's right to protection under 
Section 9(b)(3), to sign a neutrality agreement and to waive the right 
of our employees to a secret ballot election sponsored by NLRB.
            Neutrality Agreement
    Signing a neutrality agreement with SEIU is just plain wrong. It 
violates 9(b)(3) and particularly in the face of the unethical 
corporate campaign they are running against our company and employees 
would be irresponsible leadership on the part of WSI. SEIU has 
conducted attack after attack on WSI for the last two years.
    There are two recent examples that illustrate exactly how devious 
and unprincipled SEIU has become in its reckless quest to try to coerce 
WSI into signing an agreement with them and waiving 9(b)(3).. Both of 
these attacks were designed to influence a pending procurement process 
and damage the reputation and bond that WSI has built with two of our 
clients, the Department of Energy and the Department of Homeland 
Security.
    The first case happened in Tennessee where WSI has held the 
security contract for the Y-12 National Security Complex and the Oak 
Ridge National Laboratory since 1999. The contract for security 
services at this site is currently being re-bid and WSI is competing to 
renew its contract.
    This past Spring, WSI became aware through multiple congressional 
staff members that their offices had been receiving telephone calls 
from an ``888'' number in which it appeared that a direct marketer (or 
some type of telephone bank operator) was connecting constituents with 
the congressional office through a conferencing capability. We received 
information about these calls from staffers of Senator Lamar 
Alexander's office and Congressman John Duncan's office.
    From these staff members, we understand that the calls clearly were 
an orchestrated campaign against WSI's operations at the Oak Ridge 
Tennessee facility, as part of the larger corporate campaign instigated 
by the SEIU against WSI in an attempt to influence the procurement.
    The phone bank operator would remain on the line after the call had 
been connected and while the constituent was speaking with the 
congressional staff. The staff members reported that during some of 
these telephone calls they could hear the other individual on the line 
coaching the constituent regarding the supposed grievances the 
individual wanted the constituent to report. The congressional staff 
said that the constituents clearly were not very familiar with the 
claims they were making and were relying upon the third party for 
information.
    In instances where the congressional staff members inquired about 
the presence of another person on the call, the other party on the line 
declined to identify themselves and instead quickly disconnected from 
the call. According to Senator Alexander's staff, in one instance the 
constituent said that the person placing the call was with SEIU.
    In addition, we were informed by the spouse of an employee of WSI 
that, during the same period, she received a similar ``marketing'' 
call. The call was initiated by a woman who identified herself as 
Lillian Hennessy and said that she was calling from New York on behalf 
of SEIU. Ms. Hennessy encouraged the employee's spouse to contact her 
congressional representatives. (Such discussion ended when this 
individual voiced disagreement.) This individual noted that the 
telephone call came from a toll-free ``888'' telephone number. Given 
the substance of the message communicated during these telephone calls 
and the similarity between the calls reported by members of the public 
and congressional staff, it is clear that the communications to 
congressional offices are being instigated at the behest of SEIU.
    While reprehensible and feckless, these tactics are not surprising 
to us. It has become quite clear over the past two years that SEIU will 
stoop to any level to do damage to the reputation of WSI and our 
security personnel. SEIU clearly has attempted to influence the Oak 
Ridge procurement because we will not bow to their ``corporate 
campaign'' and waive 9(b)(3).
    In another instance, the SEIU orchestrated a smear campaign against 
WSI at the Department of Homeland Security Headquarters in Washington, 
DC. The DHS communications staff, led by the now former DHS employee 
Brian Doyle, was completely incompetent in their response to the SEIU 
attacks failing to defend their agency or their security contractor, 
WSI, from unsubstantiated rumors by disgruntled former employees and 
union officials.
    SEIU recruited three employees who had been fired by WSI to make 
unsubstantiated and outrageous claims about the security at DHS 
Headquarters at the Nebraska Avenue Complex. They spun their story to 
the press, got a sympathetic reporter to write a story , held a press 
conference across the street from DHS and continued to spread the 
spurious rumors despite knowing they were unfounded.
    WSI responded to this scurrilous attack through the press and also 
wrote directly to the Secretary of the Department of Homeland Security 
Michael Chertoff, asking him to direct his communications staff to set 
the record straight. Much like their past response to many problems DHS 
remained silent. They refused to defend themselves against the union's 
untruths.
    Part of our response to the allegations which included claims that 
WSI security personnel mishandled a package with white powder, 
maintains too small a presence at gates and did not provide the proper 
equipment or training included the following points:
     The widely reported incident in which a WSI security 
officer mishandled an envelope with the white powder did not happen as 
reported. The facts are that WSI officers were approached by a DHS 
employee with the envelope that reportedly contained white powder. The 
envelope--as is the procedure--had already undergone the appropriate 
testing in the mailroom. The WSI security personnel notified their 
command center and asked the DHS employee to remain on the post. The 
DHS employee refused and walked back to his office with the envelope. 
The WSI officer notified DHS security. DHS security quickly arrived 
and, took control of the envelope, placed it in a plastic bag and 
ordered an evacuation. At no time did WSI security officers even touch 
the envelope much less mishandle it. WSI personnel followed approved 
procedure and were praised by DHS security officials..
     The recent contract award for services at DHS headquarters 
was the culmination of a normal procedure and no performance-driven 
concerns drove the process. On April 1, 2005 GSA/DHS assumed full 
control of the previously run NAVY NAC contract. GSA/DHS had one year 
to develop an RFP to compete the security contract. In November 2005, 
as planned, DHS issued an RFP for a permanent security force for an 
anticipated start date of April 1, 2006. While the proposal process was 
in place, WSI was awarded, sole source, as an interim contractor, an 
additional four month contract with two additional 60 day options. This 
happened on March 1, 2006 and on March 31, 2006, DHS announced the end 
of the interim contract and the start of the permanent contract and 
awarded it in an openly competitively bid process to Paragon. This was 
a natural contract process and was not caused by any performance-driven 
concerns.
     During our service at DHS Nebraska Avenue Complex, we 
believe (and confirmed with appropriate Department personnel) we met 
100% of the training and performance requirements as requested by the 
Navy.
     The former employees of WSI that held a press conference 
supported by SEIU alleged that they were not properly trained and had 
no idea what to do if a situation escalated. These allegations are 
simply untrue and unfounded. WSI met all Navy requirements in regards 
to training, met or exceeded all required weapons training classes and 
additionally provided training in First Aid, CPR and the use of deadly 
force.
     Another charge made by an Associated Press reporter had to 
do with accounts of under-guarded building entrances and improper 
detection techniques used by security officers at the front gates. 
These were reportedly observed by the reporter as he sat across the 
street from the entrance to the facility. The reporter is not a 
security expert and would not know what the proper techniques were from 
casual observance. He also is not aware of the multiple layers of 
security and checkpoints that exist throughout the facility. WSI 
personnel carried out all procedures that were required by the Navy 
contract.
    The entire DHS controversy was an SEIU orchestrated attempt to 
influence the DHS procurement process and was designed to attempt to 
force WSI to sign the SEIU agreement. Simply put, SEIU will use half-
truths and lies in the conduct of their ``corporate campaign'' against 
WSI.
            Right to a Secret Ballot Election
    It is particularly offensive to WSI that SEIU would demand that we 
give up our employees' right to a secret ballot election in favor of a 
card check process. As I mentioned in my opening comments, the majority 
of WSI security officers are former military and law enforcement. They 
have all sacrificed to protect the rights we enjoy as Americans.
    It is my opinion that the right to vote is one of the most 
important of those rights. Since the Constitution of the United States 
was ratified in 1789 it has only been amended 27 times. Five of those 
amendments, the 15th, 19th, 23rd, 24th and 26th were adopted to keep 
states from limiting suffrage.
    At one time in America you had to be white, male and wealthy in 
order to vote. Brave men and women challenged that and won. Thomas Dorr 
fought for the right of the poor to vote in Rhode Island. Alice Paul 
was imprisoned for picketing President Wilson for the right of women's 
suffrage. Bob Moses withstood police arrests and beatings from 
Mississippi police in his work with the Student Nonviolent Coordinating 
Committee for the right of African-Americans to vote.
    It is unconscionable and immoral that in 21st Century America there 
is an organization asking to deny the right of others to vote.
    The Chamber of Commerce website has provided examples of what the 
courts have to say about union authorization cards in opposition to 
secret ballot elections. Here are a few examples:
     ``[S]ecret elections are generally the most satisfactory--
indeed the preferred--method of ascertaining whether a union has 
majority support.'' NLRB v. Gissel Packing Co., 395 U.S. 575, 602 
(1969).
     ``[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 (2nd Cir. 1965).
     ``An election is the preferred method of determining the 
choice by employees of a collective bargaining representative.'' United 
Services for Handicapped v. NLRB, 678 F.2d 661, 664 (6th Cir. 1982).
     ``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).
            Waiving of 9(b)(3)
    The SEIU has demanded WSI ``waive'' the 9(b)(3) rule based on the 
previously mentioned interpretation of the Taft Hartley law made by the 
National Labor Relations Board almost 20 years ago. This pressure has 
been applied with no forethought by the union given to the following:
     The 9(b)(3) section of the National Labor Relations Act 
specifically prohibits the National Labor Relations Board from 
including guards in the same unit as other employees. It further 
prohibits the Board from certifying a labor organization as the 
representative of a plant guard unit if the labor organization has 
members who are non-guard employees or if it is ``affiliated directly 
or indirectly'' with an organization that has members who are non-guard 
employees.
     The 9(b)(3) section of the law has never been legally 
amended to allow what SEIU is demanding these companies consent to do.
     The 9(b)(3) section of the law exists to protect property 
and American citizens. Security guards represented by a mixed union 
would be compelled to be loyal to their fellow union members in the 
event of a strike--leaving property and citizens unprotected while the 
guards are on the picket line.
Conclusion
    To ensure that non-guard unions cannot coerce government 
contractors into signing these illegal ``waivers'' the Congress should 
make it clear that, at least on sensitive DOE and DOD sites, the 
agencies should not allow any contractor who provides security to sign 
such a ``waiver'' with the SEIU or any other mixed union.
    If the law is ignored there is a possibility that strategic federal 
facilities, including DOD, DOE, NASA and other highly sensitive 
complexes, could have their security compromised. In a post 9-11 world 
there is no room for error when it comes to the protection of the 
United States' military, intelligence and weapons capabilities.
    The National Labor Relations Board does not have the power to make 
or change law--Congress does. It should not be left up to appointees of 
an administrative board to make law by de facto proxy, especially when 
it comes to the defense of our nation. Congress should act now to 
protect its precedence as well as the security of our country by 
strengthening the law, not letting it be ignored.
    Thank you, Mr. Chairman, for the opportunity to appear before this 
Subcommittee today and offer my views on an issue that is of vital 
importance to the national security of the United States of America.
                                 ______
                                 
    Chairman Johnson. Thank you.
    I appreciate the testimony of all of you.
    General, I wonder if you could say a little more in detail 
what sorts of services your company provides that would 
directly affect national security, i.e. the types of 
facilities, types of work your employees do, and how you feel 
that that work and those services would be impacted if you were 
working with a mixed union.
    General Foley. Yes, sir. As I said, we are at many of the 
DOE sites, approximately 70 percent of the Department of Energy 
nuclear weapons sites--Oak Ridge, Savannah River, the Nevada 
test site, and other smaller sites.
    We are at many of the Department of Defense installations, 
both as access control on the outer gates and then, in the case 
of Fort Bragg, internally at the special operations and JSOC 
center.
    We provide much of the security and fire protection for 
NASA, and we do that through the 9(b)(3) security unions, and 
we feel, clearly, that the 9(b)(3) was put into place by the 
framers for the purpose of insisting that there was a separate 
union, that did not--was not representative of the workers on 
that site.
    And we feel that protection is very, very important for the 
site. And most importantly, sir, we don't feel that we as the 
employer ought to be able to waive that for the Department of 
Energy or Department of Defense. And in our case, that is what 
we are being asked to do.
    And clearly, we are enforcing substantial security, 
substantial rules, substantial regulations, and we feel like 
those bargaining units ought to be separate.
    Chairman Johnson. Well, thank you. I kind of agree with 
you. The fact that you get a mixed union sometimes--I think you 
may have experienced it--in other areas where if it is not a 
guard unit, they might have different goals for their union 
than the guard union. And if they are the same union, they 
possibly could impact the guard operation.
    You all do a lot of prison work, too, don't you?
    General Foley. Sir, there is a difference between the 
Wackenhut Corporation and Wackenhut Services Incorporated. The 
Wackenhut Corporation generally is the commercial operation of 
about 38,000 people. Wackenhut Services is the government-
cleared operation of about 8,000 people.
    So we have the security clearance work and the sensitive 
governmental work. We are an American proxy board company that 
belongs ultimately to Group 4 Securicor, a company in Great 
Britain. But we have an American proxy board that completely 
firewalls us from the Wackenhut Corporation and from the Group 
4 Securicor.
    So the prison work is run by a company called Geo, which 
was a subsidiary of the Wackenhut Corporation. It was sold and 
is its own independent company at this time. The name continues 
to be used.
    Chairman Johnson. We still call it that----
    General Foley. Yes, sir.
    Chairman Johnson [continuing]. At least in Texas. Thank 
you.
    Mr. Schurgin, as a practical matter, it doesn't sound like 
to me that any employer would voluntarily recognize a mixed 
union. It sounds more like they are being backed in a corner. 
Would you care to comment?
    Mr. Schurgin. In my experience, sir, at no time have any of 
my clients voluntarily recognized a mixed guard unit.
    I think the issue under Section 9(b)(3) is that it is the 
employer's choice to make the decision as to whether there is a 
concern over mixed loyalties in their choice to voluntarily 
recognize such a union.
    The problem is that unions are exerting corporate campaign 
tactics, pressure tactics, which you have heard from Wackenhut 
just a moment ago, to really force employers into agreeing to 
card-check neutrality agreements.
    That, to me, flies in the face of the concept of voluntary 
recognition.
    Chairman Johnson. Yes, I believe in the secret ballot, and 
I am sure you do, too.
    Mr. Andrews, my time has expired. You are recognized for 5 
minutes.
    Mr. Andrews. Thank you.
    The title of this hearing is Do Combining Guards and Other 
Employees in Bargaining Units Weaken National Security. Well, 
odd. We have had a debate about people's views on corporate 
campaigns as to whether they are for them or against them, and 
we probably should have a hearing about that some time.
    But I am interested in asking some questions about the 
topic of this hearing. The Bureau of Labor Statistics estimated 
there is 122,000 security guards working protecting critical 
infrastructure. And I assume that they fall, Mr. Schurgin, into 
three camps.
    There would be--some of those individuals--probably most--
are not organized, not members of unions. Some would be members 
of guard-only unions under the statute. And others--I would 
assume the smallest category would be in mixed guard and non-
guard unions.
    Has your organization conducted any research on differences 
in quality of security among those three categories?
    Mr. Schurgin. No, we have not, sir.
    Mr. Andrews. Are you aware of any research that exists that 
distinguishes among those three categories?
    Mr. Schurgin. I am not, sir.
    Mr. Andrews. OK.
    General Foley, how about you? Same question. Has your 
company conducted any research on whether there is a difference 
in quality among those three categories of guards?
    General Foley. No, sir, we haven't conducted any research.
    Mr. Andrews. Well, let's look at something more closely 
that I am sure you do know about. My understanding is that your 
company is responsible for security at the Dresden nuclear 
power plant in Illinois, is that correct?
    General Foley. Sir, the same answer that I gave the 
chairman--the Wackenhut Corporation has a nuclear power 
division that would be responsible for that. We really are 
not--we are the----
    Mr. Andrews. Is it the same----
    General Foley [continuing]. Wackenhut Services 
Incorporated, so we have the Department of Energy and NSA 
weapons plants. We don't have any of the commercial nuclear 
power plants whatsoever.
    Mr. Andrews. OK. Well, then your--is it fair to call it 
your sister company or cousin company?
    General Foley. Sir, they would be--I guess you could--we 
are a wholly owned subsidiary of that company.
    Mr. Andrews. OK.
    General Foley. We have an American proxy board that 
completely separates us. In fact, I can't talk to those 
individuals without getting permission from our government 
security council, so----
    Mr. Andrews. So there is a related company in some way that 
has responsibility at Dresden. Are you aware of any--and that 
is a mixed union situation, correct?
    General Foley. Again, sir, I am not--I have no information 
whatsoever about the Dresden plant, so I am--I will try to 
answer as best I can, but I don't know if it is a mixed union 
or----
    Mr. Andrews. It is.
    General Foley [continuing]. A security-only union.
    Mr. Andrews. No, it is. I assume, then, you are not aware 
of any complaints about security difficulties from the Excelon 
Corporation that runs the plant?
    General Foley. Sir, I am not. I don't even know where the 
Dresden plant is.
    Mr. Andrews. OK. Are you familiar with the contract that 
either your--perhaps it isn't your company, but one of your 
related companies--has at Fort Bragg----
    General Foley. Yes, sir.
    Mr. Andrews [continuing]. To protect the headquarters of 
Delta Force?
    General Foley. Yes, sir.
    Mr. Andrews. Now, is that a mixed union that is 
representing the security guards there?
    General Foley. Sir, that is a mixed union.
    Mr. Andrews. How have you done? Have you had problems there 
or difficulties with the client, or have you done pretty well 
there?
    General Foley. Sir, that contract has run wonderfully.
    Mr. Andrews. OK. I guess I am a little curious that I could 
not think of a more relevant location for national security 
than the headquarters of the Delta Force at Fort Bragg. It 
seems to be pretty significant.
    And we have a situation where there is a mixed union, 
right? The union represents both guards and non-guards. And you 
just told us that it has worked just fine.
    Why, then, do you testify that we should change the law so 
that other employers could not make the very same choice and 
have a mixed union represent employees at similar facilities if 
your own company has had such a great experience?
    General Foley. Sir, great point. I would ask you to not 
allow me, as the employer, on Department of Energy or 
Department of Defense critical facilities to be able to waive 
the 9(b)(3) exclusion.
    I would ask you not to do that, because there is tremendous 
pressure on companies like myself from the SEIU to be able to 
enter that market.
    Mr. Andrews. What was wrong with your company waiving it at 
Fort Bragg? What damage to national security occurred as a 
result of----
    General Foley. Sir, there was no damage to national 
security. That particular union was very cooperative and non-
coercive. The SEIU has made a specific demand: You will waive 
the rights of 9(b)(3), sign a neutrality agreement, and do a 
card check, or we will destroy your company.
    Now, sir, that is very coercive. There is nothing voluntary 
about that.
    Mr. Andrews. I understand.
    There is also nothing on the record that would answer the 
question that the hearing poses as yes. It seems to me that we 
have had witnesses who I just asked whether combining guards 
and other employees in bargaining units would weaken national 
security.
    No one has given us a shred of evidence that the answer is 
yes. And I yield back.
    Chairman Johnson. How many people are in that facility down 
there?
    General Foley. Sir, it is a relatively modest facility. At 
that particular site, there is about 100 folks. It is both JSOC 
and the compound.
    Chairman Johnson. Yes, small unit.
    You are recognized for 5 minutes, sir.
    Mr. Kline. Thank you, Mr. Chairman.
    Thank you to all members of the panel for being here today. 
I think we need to explore a couple of issues here I am a 
little bit confused on, so I would appreciate your help.
    The chairman asked about the size of the organization, 
General Foley, down at Fort Bragg.
    Let me ask you, Mr. Hickey--it is probably here in front of 
me, but I just don't see it. What is the size of your union, 
the SPFPA?
    Mr. Hickey. We represent about 27,000 security 
professionals throughout the United States and Puerto Rico.
    Mr. Kline. Twenty-seven thousand, that would seem to be a 
little bit more than a small group. OK. Let's explore this 
conflict of interest issue. Mr. Andrews was asking if there was 
a specific breach of security down at Fort Bragg. Let's go at 
it another way.
    You, I think, Mr. Hickey, have argued that guard-only 
unions or bargaining units prevent conflicts of interest. What 
would those conflicts of interest be and how does the guard-
only union prevent that?
    Mr. Hickey. Well, clearly, our position hasn't changed in 
almost 60 years. We believe that we are the best organization 
to represent security officers and don't believe that there 
should be a change in 9(b)(3) of the National Labor Relations 
Act.
    Mr. Kline. Yes, sir. Excuse me. But what would be a 
conflict of interest?
    Mr. Hickey. The loyalty issue becomes a--could possibly be 
a conflict of interest where a security officer has to make a 
decision as to whether or not to do exactly what his job is or 
to protect a union brother and sister.
    Mr. Kline. OK. I assume that your organization is guard 
only, but you probably had the opportunity to look at mixed 
units, right, that include guards and non-guards, is that 
correct? Have you had a chance to get some assessment?
    Mr. Hickey. Yes.
    Mr. Kline. Help me to understand the difference here. You 
are very clearly convinced that a guard-only union is superior 
for its function than a mixed unit. Why?
    Mr. Hickey. Well, we would prefer that all security 
officers were in our union, obviously. That is a decision that 
we would prefer.
    However, you know, based on your question, you know, we 
don't take a position if an employer and a non-guard union, a 
mixed union, want to have a voluntary recognition agreement. We 
don't take a position against that.
    We do believe, though, that we are the best organization to 
represent security officers because that is all we represent. 
We specialize in the representation of security professionals.
    Mr. Kline. OK.
    Let me switch it over to General Foley, sort of same 
question. If you had a mixed guard unit, what, in your 
judgment--what is the problem with that?
    General Foley. Sir, as you heard, we do have a mixed guard 
unit at Fort Bragg and at one other location. Those operate 
well.
    The problem comes in that since the Taft-Hartley amendments 
and the voluntary nature of this, we feel that because of the 
corporate campaign that is being waged against us by SEIU that 
we needed to raise this issue that says there is a national 
security concern here that this will not be a voluntary waiver 
of those 9(b)(3)--and that what the framers attempted to do was 
say if there is a reason to put these two unions--to put these 
two groups together and do a unit and have a mixed unit, that 
you might do it.
    But we don't think that we as a company ought to be able to 
waive that right for the Department of Energy and the 
Department of Defense at these sensitive facilities. And 
currently, we are in that position where with the tremendous 
pressure by a mixed union--specifically, SEIU--we can put 
national security at risk.
    Mr. Kline. OK.
    Mr. Chairman, I yield back.
    Chairman Johnson. Thank you, sir. Thank you for your 
questions.
    Mr. Tierney, I believe, you are recognized for 5 minutes.
    Mr. Tierney. Thank you, Mr. Chairman.
    Better audience here than Plano, Texas.
    Chairman Johnson. Tierney came down to Texas, and I will 
tell you what, he got out with his skin.
    Mr. Tierney. The John Birchers were out in wild force.
    Chairman Johnson. You did a good job, sir. I appreciate it. 
Thank you.
    Mr. Tierney. Ms. Boston, you know, one of the theories we 
just heard espoused here was this idea of divided loyalties, 
that somehow the guards would join strikes or picket lines of 
other bargaining units. Are you aware of that ever happening?
    Ms. Boston. I didn't hear you, sir.
    Mr. Tierney. All right. Is this microphone on? OK?
    Ms. Boston. OK.
    Mr. Tierney. One of the theories that we just heard talked 
about here was that there is a concern that guards will have 
divided loyalties, and they would join strikes or picket lines 
of other bargaining units. Are you aware of that ever 
happening?
    Ms. Boston. No, sir.
    Mr. Tierney. How does SEIU address that issue? Don't you 
put into your contracts a provision--a no-strike clause 
prohibiting guards from honoring picket lines?
    Ms. Boston. Yes, sir.
    Mr. Tierney. And has that generally held?
    Ms. Boston. Yes, sir.
    Mr. Tierney. Thank you.
    Ms. Boston. And we make sure it is held.
    Mr. Tierney. Thank you.
    Mr. Foley, if I could address a question to you, now, sir, 
your company has been in front of me when I was on the 
Government Reform Committee in the last session.
    And I have to tell you, I don't want to seem overly biased, 
but the company didn't cover itself in glory in terms of work 
that it had done in some of the nuclear power plants and the 
security provided for there.
    And I won't go through a litany of the inspector generals' 
reports on that except to say that in many instances we relied 
on labor people to blow the whistle on that.
    And I think one of the benefits of organized labor and 
good-sized unions is it gives people protection to be able to 
give the government and the overseer of these things an idea of 
what we ought to do for oversight and to better protect our 
facilities.
    But you had written testimony, and you say you make no 
apologies to oppose mixed guard unions; to do otherwise 
imperils our country's safety.
    Your parent company, you just told us, is Group 4 
Securicor. That company is based in the United Kingdom and 
provides security in over 100 countries. In February of this 
year, it signed a recognition agreement with a large British 
general labor union, GMB.
    GMB is a general union. It represents workers in all 
sectors of the British economy. And now it represents Group 4 
security guards in Britain, including Group 4 guards at the 
General Communications headquarters in Gloucestershire, 
England, which provides intelligence services to M15 and M16.
    So your parent company has agreed to recognize a mixed 
union for its guard employees at some very sensitive sites in 
the United Kingdom. Would you say that your parent company has 
imperiled that country's safety?
    General Foley. Sir, I think the labor laws over in the 
United Kingdom----
    Mr. Tierney. Oh, sir, I am going to interrupt you just for 
a second, because my question, all right----
    General Foley. Yes, sir.
    Mr. Tierney [continuing]. Was are you telling us that your 
parent company has imperiled that country's safety.
    General Foley. Sir, I am not prepared to answer that 
question for you. I am not aware that they have signed that 
agreement, nor am I aware to say that my parent company has 
imperiled their country's safety.
    Mr. Tierney. Well, then let's do it this way. Let's assume 
that I am telling you the truth when I tell you that in 
February of this year they signed a recognition agreement with 
a mixed union.
    You say that that would imperil our country's safety if it 
was done here. Do you say that, if you accept the premise that 
they have signed the agreement, they would be imperiling Great 
Britain's security?
    General Foley. Sir, I wouldn't say that they were 
imperiling Great Britain's security. I have no information 
about what that campaign was like.
    Mr. Tierney. Well, it has nothing to do with campaigns. It 
has to do with a mixed union, you know, working that facility. 
You know, the campaign issue--I know you are all hot and 
bothered about that. We heard about it.
    But we are here to talk about security.
    General Foley. Yes, sir.
    Mr. Tierney. So did that mixed union--did that company 
having a mixed union imperil Great Britain's security?
    General Foley. Sir, I would say any union that would use 
coercion to----
    Mr. Tierney. No, we are not talking--come on. You can have 
that debate when we have a hearing on, you know, corporate 
tactics and union tactics or whatever.
    You know, you came in here to testify, ostensibly, about 
security.
    General Foley. Yes, sir.
    Mr. Tierney. Let's take another look at this. Group 4 has 
also recognized a mixed union in South Africa, the South 
African Transport and Allied Workers Union. So are they 
imperiling South African clients' safety?
    General Foley. Sir, again, I am not prepared to talk about 
what----
    Mr. Tierney. All right.
    General Foley [continuing]. Group 4 is doing.
    Mr. Tierney. Well, then they recognized the Hezmari Trade 
Union in Israel, a country that has suffered from decades of 
ongoing terrorist attacks. The Hezmari Trade Union is an 
affiliate of the mixed Histadrut Labor Federation, Israel's 
equivalent of the AFL-CIO.
    So are we imperiling Israeli clients' safety when Group 4 
does that?
    General Foley. Sir, again, I think our labor laws are 
different, and I am here to talk to you about the 9(b)(3)----
    Mr. Tierney. Well, we are here to talk about mixed unions 
and your claim that to allow them would imperil our country's 
safety. So now I have given you three examples of countries 
that allow them at some very sensitive security sites.
    And I am asking you to tell me how that has imperiled their 
safety and whether or not your company, your parent company, in 
allowing that to happen has imperiled the safety of Great 
Britain, South Africa and Israel.
    General Foley. Yes, sir. My contention is that in the 
United States the 9(b)(3) rule ought to be upheld, and clearly 
we should not have the capacity or capability of a mixed union 
to coerce a company into waiving the Department of Energy and 
Department of Defense----
    Mr. Tierney. So you can't answer or won't answer my 
question about security. It appears in your mind that only 
American workers can't be trusted with a mixed union, is that 
about it, the bottom line?
    General Foley. No, sir.
    Mr. Tierney. I yield back.
    Chairman Johnson. Mr. Kildee, you are recognized for 5 
minutes.
    Mr. Kildee. Thank you, Mr. Chairman.
    And, General Foley, my son has been an airborne Ranger-
trained captain in the U.S. Army, so I share your concern that 
we have proper protection for the Delta Force. He was not in 
the Delta Force, but has done similar work around the world on 
that.
    So I share your concern, but actually you have a mixed 
union at that site, and you say there is no--you experienced no 
problem there, that they----
    General Foley. Yes, sir.
    Mr. Kildee [continuing]. They are doing a good job.
    General Foley. Yes, sir.
    Mr. Kildee. So the fact that a union is mixed is not really 
a problem. They can exercise their loyalty to their obligation.
    General Foley. Sir, I think there are some circumstances 
where that would be true.
    Mr. Kildee. But here at----
    General Foley. At Fort Bragg, that is true.
    Mr. Kildee. That is true. That is what I am referring to, 
Fort Bragg.
    General Foley. Yes, sir.
    Mr. Kildee. So we have nothing to worry about a mixed union 
there at Fort Bragg, and that is a rather sensitive force, the 
Delta Force.
    General Foley. Yes, sir.
    Mr. Kildee. Can you tell us of a situation or incident 
where mixed union members' security obligations to their 
employers is subverted because they belonged to a mixed union?
    General Foley. No, sir, I can't give you an example. I 
don't know what the framers--what examples occurred back in the 
early 1940's when the framers put this together and insisted, 
so I don't have a specific example.
    But again, I do believe that allowing me to waive this 
under coercion is something you ought to be concerned about.
    Mr. Kildee. Yet you are not aware of any problem where 
there is any subversion of obligations of members of these 
unions, either at the Delta Force area or----
    General Foley. No, sir.
    Mr. Kildee. So are we then looking for a solution for a 
problem that does not exist?
    General Foley. No, sir, I think a problem does exist. I 
mean, I think what you have got is an employer who has 70 
percent of the nuclear weapons sites and substantial Department 
of Defense sites and NASA sites, and we have a mixed union that 
is attempting to coerce us into signing away the United States 
government's rights for protection on those sites.
    Mr. Kildee. But you are called here as an expert witness, 
which you are, with your background, and I don't question that 
expertise at all, but you really cannot cite any example where 
there has been any lessening of security or feeling of 
obligation of security on behalf of the members of these mixed 
unions.
    General Foley. No, sir, I can't.
    Mr. Kildee. All right. Thank you very much, General.
    General Foley. Yes, sir.
    Chairman Johnson. Ms. McCarthy, you are recognized for 5 
minutes.
    Mrs. McCarthy. Thank you, Mr. Chairman.
    I am having a real hard time here, hearing this discussion, 
because I am not hearing anything that has to do with national 
security.
    And one thing I will say, because I come from New York and 
I certainly saw my union members go down there for recovery and 
working together--and I think today is a little bit different 
than going back. We are all Americans.
    And I think our union members will all work together to 
make sure that this country is secure. So that, to me, is 
important.
    And for anyone to say that any of our union members 
wouldn't be working together to have the training that they 
need to protect, certainly whether it is our nuclear power 
plants or our military--I know TSS just started a program at 
the airports basically training--whether it was the floor 
cleaner or the people that clean the bathrooms--that they were 
being trained for the eyes and the ears, so that every American 
can be certainly on top to look for anything suspicious, even--
whether it is profiling or anything else--to look at anything 
suspicious.
    So with that, I am having a hard time--what this hearing is 
actually really about. But let me give you a little background. 
In New York, as everybody knows, we suffered on September 11th. 
New York City continues to be a high-profile target for 
terrorist attacks. We know that. We are still No. 1--
Washington, D.C., No. 2.
    One landmark that is the most vulnerable, in my opinion, is 
certainly the Empire State Building and certainly Wall Street. 
It is not only the tallest structure in Manhattan but also the 
center of New York tourism and finance.
    Recently, members of the New York delegation met with 
several security officers working the Empire State Building. 
They are contract security officers who have become 
increasingly frustrated with the low pay and the lack of health 
insurance provided by their employer.
    My question would be when security guards have low pay and 
low benefits--and the average guard's salary across industry 
was $19,400--that was in the year 2003--what does that mean for 
security, less training, less knowledge of the building, less 
loyalty?
    Empire State Building has high turnover rate--55 guards 
transfer each month. Wouldn't collective high pay and benefits 
keep people there and improve the security?
    So I mean, the question to all of you is what guarantee can 
the contractor make to ensure that the consistency and 
effective security of the building from a potential attack when 
the turnover is so high?
    And I think that is something that--you know, when we have 
union representation, we see better coverage all the way. And I 
would be more than--to hear your answers.
    General Foley. Would you like me to go first, ma'am?
    Mrs. McCarthy. Absolutely.
    General Foley. Yes. We certainly support union 
representation. At the sites that I am speaking of--at all our 
large sites, we have 9(b)(3) unions, with the exception of Fort 
Bragg, and clearly feel that the unions are very, very helpful 
in setting appropriate pay scales and very helpful in us being 
able to work those sites very, very securely.
    All our sites are U.S. Government sites, so the U.S. 
Government sets the standard they would like at that particular 
location. A nuclear weapons plant might have different--or does 
have different security than Fort Bragg, which has different 
security than the Kennedy Space Center.
    Each of those levels of security, each of the levels of 
training, are set by the U.S. Government. And in the unions--
the 9(b)(3) unions are very helpful in achieving those levels 
of security. So this is not about does WSI recognize unions at 
all.
    Mrs. McCarthy. But that is the point I am getting at. I am 
not seeing what this hearing is supposed to be about, which is 
national security. And I am not seeing where the answers are 
coming from. Going over all the testimony, I haven't seen where 
you are talking about having national security--I see that you 
want to talk, Ms. Boston.
    Ms. Boston. Yes. And I am so honored to see you. I remember 
9/11, and you were there with us. And what you said by me being 
in the field is exactly what you say when I hear security 
officers' stories.
    The fact is that they have loyalty, but they also want to 
have loyalty to be able to know how they are going to be able 
to feed their families. And what happens is that speaking to 
security officers, they realize that they don't receive the 
dignity and the respect because people--they are not trained 
the way they want to be trained.
    They look at their self with that uniform on and think that 
they should have the same respect that a police officer or a 
firefighter has. And what happens is that the turnover rate is 
so high that tenants that work in buildings can't remember them 
because the fact is no one stays because the fact is that they 
can't afford to stay at that job.
    And me being in the field talking with security officers--
some of them have two and three jobs because the fact is that 
they don't make enough.
    And then to work in a building and knowing that they would 
have protection and have a voice on the job is what they are 
looking for so they can gain the respect and dignity that 
people have with police officers and firefighters, because the 
fact is they want to be able to secure the buildings with the 
tenants and the people that come in and out the building.
    Chairman Johnson. Mr. Payne, you are recognized.
    Mr. Payne. Thank you very much.
    I am trying to browse through the testimony here, coming in 
a bit late. But I, too, think it is the same line of 
questioning that I would have with my colleagues here on this 
side of the fence.
    I know that the hard-working people at SEIU--we have 32BJ 
over in New Jersey that have been attempting to organize 
janitors, the Justice for Janitors program that we kicked off 
in New Jersey 3 years or 4 years ago--and of course, the 
security guard issue.
    I think that I, too--when I came in late, I thought I was 
confused for a good reason--I mean, I am confused sometimes for 
no good reason, but I thought I was confused for a good reason 
here, because--I wanted to get here early because of this 
concern about, you know, national security.
    And that this hearing is about national security--being in 
New Jersey, 700 people perished in the World Trade Center who 
lived in New Jersey. We are very close to the whole issue. And 
national security is very, very important, I am sure, to all 
Americans, but to us in the New York-New Jersey region even 
more so.
    And so I am wondering--the national security--when it is 
mentioned that you have a concern about these workers, the 
mixed union and non-union--but you don't have a single concrete 
example in your testimony of a mixed union undermining national 
security--you don't like SEIU's corporate campaign.
    I think you had indicated that you felt that calling 
congresspeople on behalf of SEIU, raising issues about 
Wackenhut's Federal contracts--that there was something wrong 
with this, but this is the way this place works, as you know.
    So I am just trying to find out whether you really believe 
that hard-working American men and women, working in the 
security area, would compromise our national security in the 
war on terror.
    Many of them--you know, there were, I think, 16 security 
officers in the World Trade Center that perished. No one ever 
mentioned them. And so why would they want to jeopardize our 
security when we are all in this together?
    I think that it is sad that we are dividing this country 
even more when we bring up issues that are not germane. It is 
un-American. And people have spent their lives as you have, in 
a noble position, being a general. I think we need to bring 
people together rather than to come up with issues that are 
frivolous, that are unsubstantiated, that are--not to bash 
unions.
    Now, a lot of people don't like unions, and rightfully so. 
That is your right. That is business's right. However, I think 
it is wrong to put the fear tactic--we have Americans fearful 
of everything. And if we make up issues to even make Americans 
more fearful that some security officers are going to look the 
other way--you know, that really disturbs me tremendously.
    And I would hope that we could get beyond that. They have 
done it with the air traffic controllers. We have taken people 
having the right to organize out of so many other areas.
    And I just think that we are going from the ridiculous to 
the sublime when we start to try to make up this potential 
boogeyman who is going to show disloyalty to the country 
because they are going to sympathize and not do their job as 
relates to national security.
    And so I am just shocked at, you know--purgatory has seven 
levels. You know, we continue to go further down as we talk 
about issues. And I don't think that is a question.
    So I will yield back the balance of my time.
    Chairman Johnson. The time of the gentleman has expired.
    Thank you, Mr. Payne.
    I am going to ask Mr. Hickey one question.
    They have been ignoring you. I don't know why. But have you 
had the opportunity to observe how well mixed units including 
guards and non-guards function? And if you have, are there any 
concerns we ought to be aware of?
    Or I guess another way of looking at it is why in your view 
are guard-only units superior to mixed units?
    Mr. Hickey. Again, you know, pursuant to my statement, I 
didn't come here today to take a position on guard union versus 
mixed unions. I thought the question was units, mixed units of 
guards and other employees.
    Although I will tell you, again, we think that the SPFPA is 
best to represent security professionals because that is all we 
do. I mean, let's make that clear. That is our position, and we 
have no conflict with representing anybody else.
    However, again, our position on the mixed guard unions--we 
are neutral as to the position as whether or not a guard group 
can be represented by a mixed guard union if there is a 
voluntary recognition.
    Chairman Johnson. Thank you.
    I think we are all interested in protecting the integrity 
of the United States of America and our country, both sides of 
the aisle, in spite of the questions that you might have heard 
this morning.
    And I just want to thank you, witnesses, for your valuable 
time, and----
    Mr. Andrews. Mr. Chairman, if I could----
    Chairman Johnson. Yes.
    Mr. Andrews [continuing]. I have one unanimous consent 
request, that I have a statement from the AFGE on collective 
bargaining, which I would submit for the record, with your 
consent.
    Chairman Johnson. Without objection.
    [The prepared statement from the AFGE follows:]

 Prepared Statement of the American Federation of Government Employees 
                                 (AFGE)

    The Honorable Chairman Johnson and Ranking Member Andrews: the 
American Federation of Government Employees (AFGE), representing more 
than 600,000 federal employees, including the Transportation Security 
Officers (TSOs) working for the Transportation Security Administration 
(TSA) who are the first and best line of defense against acts of air 
terrorism submits this statement for the record of the hearing on 
Collective Bargaining and National Security before the Employer-
Employee Relations Subcommittee of the Education and the Workforce 
Committee. Unionized emergency response professionals came to the 
country's defense on September 11, 2001, and continue to work 
diligently to ensure the public's safety against terrorism. Being 
organized in a union aided them in their ability to seek the necessary 
skills, experience, equipment, and work benefits that they utilized in 
their unprecedented efforts on behalf of our country. Collective 
bargaining rights for privatized transportation security screeners and 
federalized TSOs stands as both an honor to the courage of the 366 
police officers and firefighters--all union members with collective 
bargaining rights--who were killed responding to the 9/11 terrorist 
attacks, and serves to facilitate the continuing commitment of those 
federal workers (including 60,000 union members working in the 
Department of Homeland Security) who continue the fight against 
terrorism.
    Regulating management and labor disputes aids in minimizing such 
disputes, and therefore, is in the public interest; this is 
particularly true when the employees work on behalf of national 
security. Private sector employees working on behalf of national 
defense have had the right to collectively bargain throughout times of 
national security and strife. In fact, the National Labor Relations 
Board has specifically asserted jurisdiction over government 
contractors in the name of national defense, stating:
    It has [eliminated requirements for Board jurisdiction not required 
by statute] * * * because it believes that it has a special 
responsibility as a Federal agency to reduce the number of labor 
disputes which might have an adverse effect on the Nation's defense 
effort.\1\
    Additionally, the Board has repeatedly asserted jurisdiction over 
government contractors even when those contractors work on security 
and/or national security issues for government agencies.\2\
    There is no evidence to support the contention that collective 
action to secure safe, decent and healthy workplace conditions would 
conflict with transportation screeners' mandate to secure air travel 
for national security whether they be employees of a contractor or 
federalized TSOs employed by TSA. The Supreme Court has repeatedly 
affirmed ``the right to organize and select representatives for lawful 
purposes of collective bargaining * * * as a fundamental right * * *'' 
\3\ Prohibiting workers who perform baggage and passenger screening at 
U.S. airports from asserting their fundamental right to organize for 
the purpose of collective bargaining is not justified based on the 
unsupported belief that such concerted action would somehow undermine 
national security.
    The current situation of TSOs who have been stripped of their right 
to organize for the purposes of collective bargaining is an example of 
the type and prevalence of workplace abuses that occur when an employer 
(private or government) believes they operate with unfettered 
accountability to their employees. Numerous government reports and 
newspaper articles decry workplace problems within the TSA that could 
be resolved through regulated employee organizing and collective 
bargaining that have a detrimental impact on the ability of TSOs to 
protect the public:
     For the fourth year in a row TSA and TSOs have the highest 
rate of on-the-job injury in comparison to any other agency or group of 
employees in the entire federal government including the Marine 
Corps.\4\
     The DHS Office of the Inspector General (OIG) revealed 
serious flaws in TSA training of its security screeners in a September 
2004 report. While noting some improvements, the OIG found that, 
``neither passenger nor checked baggage screeners received instruction, 
practice, or testing for some skills necessary to their functions, such 
as safety skills to handle deadly or dangerous weapons and objects.'' 
\5\
     In its April 4, 2006 testimony before Congress, The 
Government Accounting Office stated that the annual attrition rate for 
TSOs currently is approximately 23 percent, including a 50% turn-over 
rate for part-time TSOs.\6\
     Continuing under-staffing at some airports has resulted in 
chronic mandatory overtime at many airports. Excessive mandatory 
overtime causes numerous problems for TSOs: for example, increased 
exhaustion (which leads to injury), difficulty in meeting child-care 
obligations, or both.
    A collective bargaining agreement that provided for sufficient 
training, safety measures, fair overtime, rotations, and other terms or 
conditions of employment may have reduced the high levels of TSO injury 
and attrition, thereby assuring the career professional, federalized 
workforce the public demanded in the aftermath of September 11.
    The NLRB has acted to ensure that private airport screeners the 
right to bargain collectively, along with the protection of labor laws. 
It is time for Congress to act to restore to federalized TSOs the 
protection of federal labor laws enjoyed by other DHS workers by 
passing legislation to repeal the statutory footnote in the Aviation 
and Transportation Security Act that federal courts and the Merit 
Systems Protection Board have broadly interpreted as denying TSOs 
enforceable labor rights, including the right to bargain 
collectively.\7\
    The daily abuses endured by TSOs could be easily remedied with the 
right to collectively bargain, allowing TSOs and TSA to rightfully turn 
their attention to ensuring the safety of air travel and preventing 
terrorist attacks like the terrible events of September 11, 2001.

                                ENDNOTES

    \1\ Ready Mixed Concrete and Materials, Inc. and Local #669, 
Concrete Products and Material Yard Employees, 122 NLRB 318, 320 
(1958).
    \2\ See U.S. Corrections Corp. and International Union, United 
Plant Guard Workers of America, 304 NLRB 934 (1991); and Castle Instant 
Maintenance/Maid, Inc. and SEIU, 256 NLRB 130 (1981).
    \3\ International Union Auto Workers v. Wisconsin Employment 
Relations Board, 366 U.S. 245, 259 (1948).
    \4\ TSA: The Most Injured Feds, FederalNewsRadio.com, August 3, 
2006., Occupational Safety and Health Administration Federal Injury and 
Illness Statistics for Fiscal Year 2006 (First Quarter Totals).
    \5\ Department of Homeland Security, Office of Inspector General.
    \6\ General Accounting Office testimony before the Subcommittee on 
Federal Workforce and Agency Organization, Committee on Government 
Reform, April 4, 2006.
    \7\ 49 U.S.C. 44935 note.
                                 ______
                                 
    Mr. Andrews. And the second thing, if I might take a point 
of personal privilege, I know because of the term limits rule 
on your side of the aisle, and we think because of the will of 
the voters in the country on our side of the aisle, that this 
may be the last hearing that you chair of the subcommittee.
    I just wanted to extend our appreciation for your 
graciousness, fairness and the chance we have had to work 
together. I think I understand the rules correctly that you 
don't get--am I incorrect about that, that you get three? Well, 
if your side is in the majority, we hope that you will be back 
in the chair.
    But we frankly hope your side won't be in the majority.
    [Laughter.]
    But I did want to extend our appreciation for the fairness 
in the way that you have run the subcommittee.
    Chairman Johnson. Thank you. I appreciate both of you--all 
of you.
    [Applause.]
    It has been my pleasure to be in this committee and be with 
such distinguished members on both sides of the aisle.
    And now I would like to thank the witnesses for their 
valuable time and your testimony--we appreciate you being 
here--and both the witnesses and members for their 
participation.
    And if there is no further business, the subcommittee 
stands adjourned. Thank you.
    [Whereupon, at 11:41 a.m., the subcommittee was adjourned.]

                                 
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