[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
Available via the World Wide Web: http://www.access.gpo.gov/congress/
house
or
Committee address: http://edworkforce.house.gov
______
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30-079 WASHINGTON : 2006
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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.]