[Congressional Record Volume 140, Number 89 (Tuesday, July 12, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: July 12, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
     NATIONAL LABOR RELATIONS ACT AND RAILWAY LABOR ACT AMENDMENTS


                           Motion to Proceed

  The Senate continued with the consideration of the motion.
  Mr. KERRY. Mr. President, I see the Senator from Kansas is here, too. 
I do not know if she is waiting to speak. I also see that the pages are 
busy removing the day's work from the desks, so the bewitching hour has 
obviously arrived in the Senate, and I am messing up everybody's plans, 
which is dangerous to do especially on the night of the All-Star game. 
But I would like to just take a few minutes, if I may, to discuss the 
measure that we wish was before us but on which we are once again in a 
filibuster, another motion to proceed.
  I might comment parenthetically that one of the sad things about the 
Senate is that there seems to be such a continual resort to filibuster 
for almost everything. Someone informed me the other day that from 1776 
until about 1980, we had a total of perhaps 150 filibusters, and from 
1980 until the present we have had 150 or more filibusters. So it shows 
what has happened to the quality of deliberation within the Senate over 
the course of the last 14 years, 10 of which I have been privileged to 
be here. I believe all of us need to think hard about what it means to 
have majority rule and what it means to allow the Senate the 
opportunity to vote on measures.
  This issue before us in the context of yet another filibuster is the 
question really about fundamental rights in America. I have thought 
about it because, as all of us here, I am troubled about what is 
happening in our economy. We are not creating enough jobs. We are 
certainly not creating enough of the kinds of high-wage, high-value-
added product jobs that really raise the standard of living in a nation 
like ours. So increasingly we are forced to look for any kind of 
measure which might save us from some of the costs on our economy.
  We are all more finely tuned to the notion of competitiveness and 
what it takes for business to be able to make it in this new 
international marketplace. Whatever effort that can be made to win at 
the margins must be made. In this country where our businesses, because 
of our standard of living, assume the costs of workman's compensation, 
liability insurance, environmental costs, planning, a host of other 
costs of doing business, obviously there is a certain incentive for 
people to look, as they have, over the course of the last years to 
lower cost of production.
  So people see something like a bill to protect workers' rights, and 
there is an instantaneous reaction: ``Gee. This is just one more of 
those congressionally-inspired efforts that gets in the way of 
business.'' I do not agree with that, Mr. President. I do not think 
that is a fair assessment of what is at stake here. I do not think that 
all of the arguments that have been put forward about the striker 
replacement protection are in fact, legitimate arguments. They are sham 
arguments that do not do justice to the great gains against and 
advances given to the middle class of this country, and to the working 
people over the course of the years by virtue of the courage exhibited 
by the labor movement.
  Mr. President, I have listened very carefully to the arguments on 
both sides of this issue. It occurs to me that this really comes down 
to a very simple choice, not half as complicated as some people try to 
make it in the course of some of these sham arguments that have been 
made here. The question is really whether or not you believe that 
people ought to have sufficient bargaining power in the relationship 
between worker and management. The question is whether or not in that 
bargaining relationship a human being ought to have the right to say 
that, if my working conditions are not what I or we believe they ought 
to be, we or I have a right to strike. Obviously, the right to strike 
individually can be rendered meaningless. It is in the collective right 
to strike of workers in a plant and for a company or a series of plants 
and companies that you have some bargaining power.
  It is also obvious through the history of labor relations in America 
that if people do not have the right to strike, they do not have 
bargaining power. Anyone who suggests otherwise ignores the reality. 
Sure, some people come to the floor and say, well, look at all the 
high-technology companies today. Those high-technology companies are 
not winning over union members. They are not gaining a whole lot of 
union membership or even union presence in those companies. Indeed, 
that is true. But I would respectfully say to those workers, most of 
whom do not have an inkling of this reality, that the reason they do 
not join unions today and the reason they do not have to join a union 
today is because of the battles that were fought by union members years 
ago.
  If it were not for the fact that health care is part of most of those 
larger company's efforts today, you would not see a health care package 
being offered to most of those employees in these other companies. If 
it were not for fact they earned now the 5-day working week and a host 
of other benefits--you have safety within the workplace--they would not 
have those today. It is because a smart employer today knows that the 
way he keeps a union out of the plant is by offering those conditions 
of employment right up front. If you did not have those conditions of 
employment, or if you went back to the days where you had child labor 
in America, you would find all of a sudden people coming together 
organizing around the principle that they deserve better, coming 
together believing that it is only by having the ability of jointly 
objecting to the conditions of their labor that they would indeed be 
able to improve that labor. That is the history of the United States of 
America. I respectfully submit it will be the history of other 
countries as their people begin to gain in economic and political 
power.
  All of us want balance in the relationship obviously. No striker 
should have the ability to hold a company hostage. I am not suggesting 
that. And I would not ask for that, Mr. President. I want a balance. 
But if you literally are told that if you go out on strike, your job 
can be replaced permanently by someone else, you have a choice. You 
have a choice between your job and the onerous conditions that you are 
working in. That is not an American choice. That is something we gave 
up long ago in this country.
  Unfortunately, some people want to go back in time to a kind of 
robber baron capitalism where we do not care about the conditions that 
people are working in, as some have suggested in the course of these 
arguments. Here is an example of one argument. Someone had claimed that 
this act ``forces an employer to shut down or curtail operations during 
a strike because few individuals are willing to accept the position for 
an undetermined period.'' That is one of the most ridiculous arguments 
I have heard in a long time on the floor of the Senate. The largest 
employer in the United States of America is a part-time employer today. 
In fact, more and more Americans are being forced to work in a 
situation where they go into itinerant labor from job to job, 
employment to employment. The truth is that every single one of us has 
heard and understands the term ``scab.'' We know that temporary 
employees or ``scabs'' are available during any strike. In fact, they 
are becoming easier to find today as our work force becomes, in fact, 
increasingly flexible and mobile.
  Mr. President, the truth is that under this act strikers can be 
temporarily replaced. No company is forced to stop working. You can 
bring people in as fast as you can find them. It is also true that 
under this act strikers will lose their pay. They will not be paid 
during the course of the strike. So they have to depend entirely on 
whatever reserves have been put away by their union or whatever 
reserves they have put away for whatever the duration of that strike 
is. It is still a risky undertaking for the individual.
  They also have to take the risk that their employer in a very tough 
marketplace today may not survive the strike. That is a real risk today 
because if there are any of the downsides that others argue are the 
reason that you cannot allow these strikes to take place, they may not 
have a job to come back to, and they obviously have to balance that.
  So it seems to me, Mr. President, that in an equation that is 
delicate in the marketplace where employees clearly have an enormous 
amount to consider before they strike, we have to remember the 
fundamental right in America of collective bargaining. It is a critical 
protection for workers in a free market economy, and the right to 
strike is an essential component of maintaining that free market 
economy. If an employer could simply fire a worker the moment he or she 
begins to strike, what good is the right to strike? It is basically 
being turned into a right to give up your job; a right to be fired; not 
a right to strike; not a right to try to bargain in the marketplace 
with some sense of fairness.
  What this tries to do is take a marketplace imbalance that is flowing 
against a worker and bring it back to a state of equilibrium, Mr. 
President. I think that, if you look at that hard and fast, there are 
many reasons to come to the conclusion that that would not create more 
strikes in this country. Why? Mr. President, just as it takes two 
parties to negotiate, it takes two parties to create a strike. Every 
strike is, in fact, the measurement of a failed negotiation.
  If you give workers a fraction more leverage, it is not going to make 
workers strike more often because of the nature of that balance anyway. 
In fact, I suggest that the opposite is true. This act will provide 
workers with the power to be able to avoid a strike because they will 
have more power in the balance of negotiation.
  Let us be realistic. In any situation, if there is an absolute 
legitimate zaniness, or lack of reality, to whatever the request is on 
one side or the other, they have ample opportunity in today's world to 
gain the upper hand in the publicity and in the bargaining process of 
the court of public opinion. PATCO is an example of where a strike was 
taken in the presumption that they were going to gain from the public 
opinion. Given the levels of salaries and illegality and other 
problems, public opinion turned against them, and there was an enormous 
loss. A great many people have been educated in the last years about 
this balance.
  It seems to me that strikes occur fundamentally when one party 
ignores the other party's concerns, or the counterpart's interests, and 
asks for more than they can get. When workers have so little leverage 
that their only power is to strike, that is when they strike. But if 
they have enough leverage to be able to work out those imbalances, they 
wind up not striking, and you actually have greater equilibrium and 
harmony in the workplace. That is why, with the exception of the United 
States over, I think, a brief period, every industrialized country in 
the world outlaws the permanent replacement of a striker during a 
strike.
  So, Mr. President, protracted and contentious labor disputes not only 
hurt affected workers and businesses, they damage America's economy as 
a whole. This act, which I wish we were able to get to, would help 
facilitate an atmosphere of conciliation in a rapidly changing 
marketplace, with the balance of power shifted against the average 
worker. I believe it would have a positive effect on our marketplace, 
helping us to achieve greater competitiveness and considerably more 
creativity in our work force and in our marketplace. So I strongly 
support S. 55, and I hope Senators will not be deceived by arguments 
suggesting that this bill is something other than it is.
  This bill does not prevent a company from hiring workers during a 
strike. It does not do anything except empower workers to try to argue 
from a position of equality. And to deny them that equality is to deny 
something that has long been at the center place of most of our 
aspirations in the American working place.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. MITCHELL. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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