[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.
  The PRESIDING OFFICER. Under the previous order, the time between now 
and 2:30 p.m. will be equally divided and controlled between the 
opponents and the proponents of the motion to proceed to S. 55.
  Mr. HATCH addressed the Chair.
  The PRESIDING OFFICER. The Chair recognizes the Senator from Utah 
[Mr. Hatch].
  Mr. HATCH. Mr. President, during the course of this debate, we have 
talked at length over the legal and other issues raised by the 
legislation. I wish to summarize what is really at stake here.
  First, balance of power is at stake.
  Much of this debate has been about the balance of power and whether 
or not it is currently level. The question is not economic balance, or 
whether in each dispute neither side has an advantage. Micromanaging 
the American economy and the millions of American workplaces is not the 
function of the U.S. Senate.
  Balance of power under the law between labor and management is our 
responsibility, and I assert that current law lives up to our 
obligation. Labor has the right to strike. It is an awesome 
responsibility. Management has the right to continue operating--if 
necessary, by hiring permanent replacements. This delicate balance of 
power has existed for over 56 years, has been endorsed by Congress over 
that time, and must be maintained if we are going to have that delicate 
balance maintained between management and labor.
  Second, more strikes and inflationary wage settlements are going to 
be the result if we pass this legislation.
  One of the core arguments in favor of this legislation is that there 
are not enough strikes. Enactment of the strike bill would immediately 
correct that perceived problem. S. 55 encourages more work stoppages 
because unions would no longer risk the consequence of a bad strike 
decision. The ultimate risk of going out on strike--permanent 
replacement--would be removed, thus opening the flood gates to 
increased strikes.
  This is not merely my estimation. In the early days of the historic 
labor law reform battle in the late 1970's, the Carter administration 
rejected a more limited ban on replacements during strikes over first 
contracts. That administration's reason for rejecting the provision: It 
would result in more strikes, force inflationary wage settlements, and 
shift the balance of power in favor of unions. I agree.
  Third, there would be a deamatic impact on U.S. economy.
  Passage of S. 55 would threaten U.S. economic growth--most 
importantly jobs--by spreading disruptions throughout the economy. It 
is important to remember that the striking workers and the company 
being struck are not the only entities being affected. Strikes--
especially prolonged ones--jeopardize suppliers, distributors, freight 
lines, retailers, and their employees.
  This bill will bestow powerful new economic leverage and the upper 
hand in bargaining to unions. Regardless of the reasonableness of 
bargaining demands, employers would have little option but to agree or 
go out of business. The direct result will be reduced productivity, 
higher prices for consumers, and fewer American jobs.
  Fourth, let us talk about coerced union organizing.
  Make no mistake about it, this is a coerced union organizing bill. 
The bill breaks the nondiscriminatory precedent of more than half a 
century by conferring special benefits only to unionized work forces or 
to those seeking representation. The legislation bans permanent 
replacements even in strikes at nonunion companies to force union 
bargaining even before there is a secret ballot election among workers. 
Regardless of the number of workers who sign union authorization cards, 
a minority of strikers could shut down an operation and force union 
recognition. The law should not countenance such coercion.
  Fifth, this is antiworker legislation.
  The legislation is antiworker in a very real sense. It puts in doubt 
the very jobs the unions seek to guarantee. It threatens the continued 
existence of many businesses. But the impact on workers is not limited 
to strikers alone. More strikes may increase costs and more disruptions 
and layoffs. The strike bill will result in nonunion personnel of the 
company shut down by the strike to be sent home without pay, without a 
means to feed their families. It will cause workers to lose their jobs 
and suppliers and customers if the business shuts down by a strike.
  The strike bill, if it were to pass, would be devastating to all 
workers--as consumers and as workers--whether union or not.
  Mr. President, just one more point. Several of my colleagues have 
maligned those of us who oppose this measure for filibustering this 
bill. The Senator from Michigan referred to their debate as a ``work 
stoppage'' in the Senate.
  Well, Mr. President, I support the right of workers to strike. That 
has never been at issue. And I support the right of those in the 
minority to filibuster. I suggest to the Senator from Michigan that our 
employers--the American people--are perfectly capable of deciding 
whether or who should be permanently replaced in this body.
  The minority in this body, I believe, speaks for the majority of the 
American people--60 percent, according to a Time poll. Moreover, given 
that the outcome of this legislation would be detrimental to this 
country, even the Washington Post alludes to the fact that the 
filibuster may be necessary to stop it.
  Depending on the issue at hand, there is not a Senator here who has 
not voted both for and against cloture. So let us be honest about this. 
If you favor the bill, argue the merits.
  I oppose this bill on the merits. That is why I am going to try to 
defeat this bill with every weapon at my disposal, and that includes 
extended educational dialog.
  The Senator from Kansas [Mrs. Kassebaum] said it succinctly 
yesterday. I will repeat it now: A vote for cloture is a vote for this 
ill-conceived, economically dangerous, antiworker bill.
  I hope our colleagues will vote against cloture and send a message 
throughout this country that we are not going to let this type of a 
power grab occur. I reserve the remainder of my time.
  Mr. METZENBAUM addressed the Chair.
  The PRESIDING OFFICER. The Senator from Ohio [Mr. Metzenbaum] is 
recognized.
  Mr. METZENBAUM. Mr. President, I yield myself 5 minutes, reserving 
2\1/2\ minutes for the Senator from Massachusetts.
  In a few minutes, the Senate will vote on whether to proceed to 
consider the Workplace Fairness Act, which would ban the hiring of 
permanent striker replacements. The Republican leadership is blocking 
this bill from being debated or voted on by the Senate. It is a policy 
matter for the Republicans, who say that workers of this country cannot 
have the right to strike without jeopardizing their jobs.
  By this action, the Republican Party is, once again, turning its back 
on America's working families. Today, the right to strike is a cruel 
joke in America. Of what value is it to have the right to strike if you 
know somebody is going to come in and take your job away from you? 
Federal law protects the right to strike, but workers can lose their 
jobs if they exercise it.
  This bill restores fairness to collective bargaining. It will enable 
workers and managers to work together to improve U.S. competitiveness. 
Every other industrial nation in the world protects the right of 
workers to strike, but not the United States, by reason of the fact 
that the Republicans are not willing to let this matter come to a vote 
on its merits.
  Do not take my word for it. Listen to what the rest of the country is 
saying. The American people support this bill by a margin of over 2-to-
1, according to a recent poll in April of 1994. But the Republican 
leadership still says no.
  The House passed the bill by 239-190, but the Republican leadership 
still says no and says to their Members: Do not vote with the 
Democrats; do not permit the Democrats to protect workers' right to 
strike, or we will discipline you for your conduct.
  President Clinton supports this measure, but the Republican 
leadership still says no.
  Many State legislatures and local governments have recognized this 
problem, and some have enacted provisions to address it. But the 
Republican leadership still says no.
  Advocates for women and minorities have universally endorsed this 
bill, recognizing the substantial contributions unions have made to the 
wages of working women and minorities. But the Republican leadership 
still says no.
  The religious community has strongly supported the Workplace Fairness 
Act, but the Republican leadership still says no. A very broad cross-
section of America supports this bill, but today the Republican 
leadership is blocking the Senate from considering the bill or voting 
on it.
  Once again, the Republican Party is seen in the position of turning a 
cold shoulder to American workers, preferring to side with big 
business. The Republican party has a long history of fighting minimum 
wage, fighting job safety, opposing civil rights, opposing extended 
unemployment compensation, opposing family and medical leave 
legislation.
  I say to the Republicans in the U.S. Senate: Let this measure go. Let 
the Members of the Senate vote on it in an up-or-down vote, and it will 
pass. That is what the people of this country want.
  I yield the floor.
  Mr. KENNEDY addressed the Chair.
  The PRESIDING OFFICER. The Senator from Massachusetts is recognized.
  Mr. KENNEDY. Mr. President, do I understand we have 2\1/2\ minutes 
remaining?
  The PRESIDING OFFICER. There are 3\1/2\ minutes remaining.
  Mr. KENNEDY. Mr. President, arguments have been made here during the 
debate yesterday, and again early this afternoon, about what is really 
basically and fundamentally at issue, and that is economic justice and 
fairness for workers in America. We all recognize that strikes are not 
favored either by management or by employees. But the right to strike 
has been an integral part of the system of industrial relations that 
helped make America the greatest industrial democracy in the world.
  That system of industrial relations has been tarnished and 
compromised significantly by the whole issue of permanent replacement 
of striking workers. Who are the workers who have been replaced? They 
are workers who are fighting for increased economic opportunity. They 
are workers who are fighting for safer working conditions. They are 
workers who are fighting for greater security for themselves and their 
families.
  Over the last 20 years, and particularly beginning in the 1980's, we 
have seen a substantial increase in the use of permanent replacements. 
And it is no coincidence that over the same period of time, real wages 
have been declining and working people have been finding it more 
difficult to provide for their families, educate their children, put 
food on the table, pay the mortgage. The use of permanent replacements 
is part of a strategy being pursued by too many employers in this 
country--an effort to drive down costs by slashing wages and benefits 
and replacing higher-paid workers with low-wage workers, contingent 
workers and part-time workers.
  We see what is happening all over the country. Newly organized 
workers making just over the minimum wage go on strike for a 5-percent 
wage increase and a grievance procedure to address unfair treatment--
and they are permanently replaced.
  Workers with 20 or 30 years seniority go on strike to prevent their 
employer from contracting out their jobs--and they are permanently 
replaced.
  Working mothers struggling to balance the demands of their work with 
the needs of their families go on strike to protest mandatory overtime 
work--and they are permanently replaced. That is what is happening in 
the United States of America.
  The use of permanent striker replacements has denied these workers 
the ability to exercise their rights in the struggle for economic 
justice. They deserve to have those rights restored. Virtually every 
other industrial nation of the world who we compete with protects 
striking workers from being permanently replaced, and we ought to give 
the same kinds of protections to American workers. That is the issue.
  The PRESIDING OFFICER. The Senator from Utah is recognized.
  Mr. HATCH. Mr. President, first of all, the right to strike is not an 
issue. I will fight to my death to maintain that. The delicate balance 
between management and labor is.
  Frankly unions have this awesome power, the right to strike. Now they 
want to do away with the only tool that the management people have or 
the business has, and that is to prevent a strike by having a right to 
hire permanent replacements. So the unions want the power to strike and 
they want the power to win every strike.
  The only thing that keeps us together and keeps strikes down in this 
society is the fact that we have current labor laws that work.
  The Washington Post, not noted for being against labor, noted for 
being for labor, basically said this in its editorial:

       The striker replacement bill may come up this week in the 
     Senate, where at last count there appeared to be the votes to 
     block it. We hope so. This is bad legislation that in the 
     name of restoring balance to labor law and relations would in 
     fact unbalance them and could well do lasting economic harm.

  They summed it up. That is the way it is. I hope everybody will vote 
against cloture.


 the workplace fairness act: a chance to restore the balance to labor-
                          management relations

  Mr. DASCHLE. Mr. President, for most of this century, the 
relationship between labor and management has been governed principally 
by the National Labor Relations Act [NLRA]. Since 1935, the NLRA has 
expressly protected the right of workers to strike over economic 
conditions. Moreover, the act promises workers that they cannot be 
discharged by their employer for exercising this right.
  The central tenet of the act is its endorsement of collective 
bargaining as the preferred method for settling labor disputes. Through 
collective bargaining, labor and management can attempt to negotiate a 
peaceful resolution to their dispute.
  As in any negotiation, each side must have bargaining power. In labor 
negotiations, management holds the cards with respect to wage levels 
and working conditions. The card held by workers is their right to 
withhold their labor--the right to strike.
  Until recent years, the bargaining power of labor and management were 
relatively equal. Yet in an era where more and more employers are 
hiring individuals to permanently replace workers who decide to strike, 
the scales of power are no longer in balance. Instead, management has 
the upper hand.
  Oddly enough, employers are not violating the NLRA when they hire 
replacement workers during a strike and promise to make those positions 
permanent. Rather, these employers are taking advantage of a true 
anomaly in Federal labor law, one which sets out a dubious distinction 
between firing a striking worker and permanently replacing that worker.
  To the worker, however, it is of little comfort to know that he or 
she has been permanently replaced rather than fired. The result in both 
cases is essentially the same.
  This legal anomaly stems from the 1938 Supreme Court decision in 
National Labor Relations Board versus Mackay Radio & Telegraph Co. In 
that case, the Court held that as company which rehires workers after a 
strike cannot discriminate against those individuals who had actively 
supported the strike. However, the Court went on to say--in dictum--
that the NLRA permits a company to hire permanent replacement workers 
during a strike and to give them preference over workers who had 
participated in the strike.
  For more than 40 years, this wrinkle in the law had little practical 
effect. However, that changed in the 1980's, with President Reagan's 
firing of the air traffic controllers involved in the PATCO strike and 
extension of the Mackay Radio doctrine by the Supreme Court.
  Since 1981, tens of thousands of American workers have lost their 
jobs to permanent replacements, and hundreds of thousands have been 
threatened with the same fate. This tactic is now so common that the 
use or threatened use of permanent replacements occurs in one out of 
every three strikes.
  It is time to bring labor-management negotiations back into balance. 
We know that the collective bargaining process cannot work if each side 
does not have a credible economic bargaining chip. When permanent 
replacements are used or threatened, the bargaining chip workers--their 
ability to halt the productivity and revenues of their employer by 
striking--is effectively eliminated.
  The Workplace Fairness Act would give workers back their bargaining 
chip. By preventing the hiring of permanent replacement workers during 
a strike, this legislation would rid Federal labor law of the anomaly 
caused by Mackay Radio and restore a level playing field for labor-
management negotiations.
  Opponents of this legislation contend that employers need permanent 
replacement workers in order to keep their operations afloat during a 
strike. However, employers have other means at their disposal: hiring 
replacements on a temporary basis, having management personnel fill in 
for striking workers, subcontracting work and/or stockpiling inventory 
in advance. These options would protect businesses from having to shut 
down during a strike--and would protect their workers' jobs as well.
  Opponents also argue that a ban on the hiring of permanent 
replacements would make strikes risk free for workers. Nothing could be 
further from the truth. Workers go without pay and without benefits 
during a strike, without any guarantee that the strike will leave them 
better off financially. This gamble is particularly risky because many 
workers are forced to deplete their savings while they wait for their 
representatives to resolve the dispute with management.
  For almost 60 years, Federal law has encouraged labor and management 
to resolve their disputes through collective bargaining. Until the 
1980's, this system worked well because both sides had relatively equal 
bargaining power. But that balance has been upset, giving management 
the upper hand in all negotiations.
  Passage of the Workplace Fairness Act would tilt the balance back 
again, restoring a level playing field to labor-management 
negotiations. American workers certainly deserve no less.


                         workplace fairness act

  Ms. MIKULSKI. Mr. President, I rise today in support of S. 55, the 
Workplace Fairness Act. I am a cosponsor of this bill and have been 
working for its passage for several years.
  It is time to end the years of gridlock and filibusters on this issue 
and move to the issue itself. Let's stop these tactics of delay and 
deadlock. Recently, I voted for cloture on legislation even though I 
had reservations about some aspects of the bill. I believe in majority 
rule. I am for: cloture, action on the issues, and an end to gridlock. 
The American people are tired of Congress' inability to act because a 
minority of Senators are opposed. It is our duty to move forward with 
the issues--to end gridlock, filibusters and minority rule. I urge my 
colleagues to support cloture.
  The main reason I support the workplace fairness legislation is that 
I support the right to strike. I can't support Solidarity's right to 
strike in the shipyards of Gdansk and not support the rights of 
American unions to strike here at home.
  The Workplace Fairness Act will protect the right of Americans to 
strike by prohibiting employers from permanently replacing striking 
employees. This bill will also force managers to deal with the issues 
raised in the strike, not just replace workers who protest as a last 
resort. It will restore basic fairness to the bargaining process.
  Strikes can mean economic ruin for both the workers and the company 
they rely on for work. There must also be equal pressure on both the 
workers and the company to compromise if a strike does occur.
  I believe that allowing management the threat of replacing workers 
gives them an unfair advantage at the bargaining table. If strikers can 
be permanently replaced, there is considerably less pressure on 
businesses to settle with their workers. However, if businesses can 
hire only temporary replacements and workers have to face the social 
economic disruption of a strike, the pressure remains on both sides to 
work out their differences.
  That is why I strongly support this legislation to prohibit the 
permanent replacement of striking workers. This legislation will 
restore fairness to the bargaining table, protect the right to strike 
and make it easier to resolve labor disputes fairly. Supporting this 
legislation is a matter of fairness to the American worker. I urge my 
colleagues to join me in seeking cloture and in passing this important 
legislation.
  Mr. CAMPBELL. Mr. President, I rise today to express my strong 
support for S. 55, the Workplace Fairness Act.
  Put simply, Mr. President, S. 55 is designed to protect the right of 
every worker. The right to strike without fear of employer reprisal, as 
all my colleagues are aware, is guaranteed by law. To me, Mr. 
President, it makes absolutely no sense to allow workers to strike, and 
then defeat the purpose of the right by allowing employers to hire 
permanent replacement workers.
  The entire concept of collective bargaining is to provide a situation 
in which both employer and employee can negotiate labor terms with 
enough leverage on each side of the table so that neither side has an 
unfair advantage in the process. How can a union representative come to 
the bargaining table with any leverage if he or she knows that the 
employers can permanently replace workers if they decide to strike?
  Since the early 1980's, employers have increasingly resorted to this 
exploitation of the collective bargaining process. Today, one out of 
every three employers threatens to, or does in fact, hire permanent 
replacement workers during strikes. Workers throughout the country are 
at the point where they are caught in limbo when choosing between their 
jobs and the right to strike.
  Opponents of this bill argue that passage of this bill would 
dramatically increase the number of strike occurrences around the 
country. Mr. President, these same opponents should keep in mind that 
while the act of striking is the most potent ability labor has, workers 
view it only as a last resort.
  Strikes are never risk free for labor. When workers strike, they give 
up their wages. Workers are sometimes forced to go to such extremities 
as having to use their life savings to keep their families fed without 
any guarantee that their disputes with management will be settled.
  Opponents might also argue that passage of this bill would also lead 
to longer and more bitter strikes. Studies have shown that the hiring 
of permanent replacement workers only prolongs the collective 
bargaining process. If labor was guaranteed that they would not be 
permanently replaced, it would force the employer to come to the 
bargaining table. Without the ability to go on strike, collective 
bargaining is a lop-sided process that can only favor management.
  In 1987, in my home State of Colorado, some 300 union workers at a 
Monfort plant in the town of Greeley were in a dispute with management 
over the unfair distribution of bonuses. The union workers decided to 
go on strike. Within 1 week, Mr. President, all 300 workers were 
permanently replaced.
  Many big businesses and opponents of this bill fear that the United 
States ability to compete on a global market will be diminished if the 
striker replacement bill is passed. Perhaps Mr. President, we should be 
taking the example other highly successful industrialized nations such 
as Japan, Germany, France, and Canada--our biggest competitors--have 
set by banning the hiring of replacement workers.
  In closing, Mr. President, I wish to remind my colleagues that the 
Workplace Fairness Act will truly equalize our Nation's collective 
bargaining process. It will allow management and labor to settle 
disputes much more efficiently and effectively. It will preserve the 
right of organized workers to strike and not his or her job.
  Mr. SPECTER. Mr. President, striker replacement is the most 
controversial labor-management bill during my 14 years in the Senate.
  In my judgment, the Senate should proceed to consider this matter to 
see if legislation would serve national public policy and accommodate, 
as best we can, the conflicting interests of the parties.
  As I said last month on voting to invoke cloture on the product 
liability bill, I believe that the filibuster should be used very, very 
sparingly because of the fundamental principle that in a democracy, the 
majority rules--without having a super majority of 60 percent to even 
consider an issue.
  There are a number of alternatives which have been suggested to S. 
55. Whether any legislation should be enacted depends upon analysis, 
debate, and deliberation.
  One suggested alternative proposal would call for arbitration in a 
situation where there is a dispute on finances or other factual 
questions. If the union declined to arbitrate, then strikers could be 
replaced. If the company declined to arbitrate, then strikers could not 
be replaced.
  Another possible alternative would permit replacement of strikers 
where the union sought to improve compensation or working conditions 
but would prohibit striker replacement where the union sought to retain 
the status quo.
  It is only when the Senate proceeds to consider such issues can there 
be a determination of whether legislation is in the public interest. 
This subject matter has attracted enormous attention from labor, 
management, and the public; and in my judgment, it ought to be at least 
considered by the Senate.


will the senate vote to upset the balance between labor and management?

  Mr. NICKLES. Mr. President, we are here today to decide the fate of 
the striker replacement bill (S. 55). This legislation would prohibit 
employers from hiring permanent replacements for striking workers 
during a strike over economic issues, such as pay or benefits.
  Why is it so important that the Senate turn back this effort to 
rewrite this fundamental principle of U.S. labor law? The answer is 
straight forward: Banning the use replacement workers would disrupt the 
free flow of commerce in this country and create a chilling environment 
for resolving labor disputes. Ultimately the very people its proponents 
intend to help, the rank and file workers, will fall victim to the 
effects of this ill-conceived proposal.
  The National Labor Relations Act of 1935 established and protected 
the right of a worker to strike. In 1938, the Supreme Court upheld the 
right of employers to hire permanent replacements and the court has 
maintained that stance for 50 years.
  I recognize and support the right of workers to organize, to 
collectively bargain, and to strike. But I also support the rights of 
employers to keep their doors open. The Striker-Replacement legislation 
will encourage strikes, because its use will insure success, and it 
will force countless employers to close their doors, thus putting 
workers permanently out of a job.
  The fact is that most employers in this Nation still view a strike as 
a potentially crippling development and will do all that they can 
reasonably do to avoid it--as will most union members. Perhaps this is 
one reason that the level of strike activity is so low--it is in 
everyone's interest for things to be worked out at the bargaining 
table.
  It should also be noted that current law prohibits the hiring of 
permanent replacements by an employer who is guilty of any unfair labor 
practice. S. 55, however, expands that prohibition to instances of 
economic issues. Meaning a strike could be called for virtually any 
reason and the business would be powerless to keep operating unless it 
recedes to union demands.
  The striker bill is antifree enterprise and will deal a significant 
blow to America's economy. This is not the time to upset the balance 
which has existed for 50 years between management and labor. This 
legislation is not in the long-term interest of employees or employers.
  Proponents of striker replacement say that it will ban the hiring of 
permanent replacements, however the result will be far more 
detrimental--the creation of permanent layoffs.
  Mr. President, I urge my colleagues to vote against cloture and ask 
unanimous consent that an editorial from the Tulsa World be printed in 
the Record.
  There being no objection, the editorial was ordered to be printed in 
the Record as follows:

                 [From the Tulsa World, June 14, 1993]

                          A No-Penalty Strike

       Quebec has a law prohibiting employers from hiring 
     permanent new workers during a strike.
       The idea is to make it easier to strike. And it works. 
     Since the law went into effect, according to a study in the 
     Journal of Labor Economics, the prohibition has had a 
     perverse effect on labor-management relations in Quebec and 
     has contributed to an increase in both the number and the 
     duration of work stoppages.
       Senators Ted Kennedy, D-Mass., and Howard Metzenbaum, D-
     Ohio, want a similar strike-encouragement law in the United 
     States. Their so-called Striker Replacement Bill has been 
     blocked twice in the Senate by filibusters, but it is up for 
     consideration again.
       There are sound economic arguments against the bill. By 
     providing new incentive for strikes, the bill almost 
     guarantees a rise in loss of work and decline in 
     productivity. The cost will be picked up directly by U.S. 
     industry and, indirectly, by U.S. consumers.
       But the most obvious reason this bill should be killed is 
     that it is, quite simply, unfair. Its purpose is to rig the 
     game in labor-management disputes in favor of unions.
       In theory at least, the government has always been 
     considered a sort of referee or arbiter in labor disputes. 
     Laws protect the right to strike and outlaw unreasonable 
     strikebreaking tactics by employers.
       This bill makes the Federal Government a handicapper of 
     employers and an ally of unions.
       Unions have gotten along without this unfair advantage for 
     nearly a century. In recent years, the power and membership 
     of unions, except for public employee organizations, have 
     been in steady decline. Union officials want this bill to 
     help them recover their lost clout.
       If the bill passes, strikes can be called at will over 
     trivial issues with minimal risk to strikers. It denies 
     others the right to apply for permanent employment and 
     discriminates against workers who stay on the job by denying 
     them promotions.
       This isn't a fair-labor law. It is an anti-jobs bill.

  Mr. McCONNELL. Mr. President, I preface these remarks with a tribute 
to the folks from my State who have lobbied me over the past few years 
to support the striker bill. Countless times members of Kentucky union 
locals traveled hundreds of miles to the Capitol to make their voices 
heard. Since the 101st Congress, the striker bill has been at the top 
of the national unions' agendas and when called upon to lobby on its 
behalf they did so admirably. These men and women have been tenacious 
and passionate in the support of it. They have known almost from the 
outset where I stood buy they did not let up and I respect them for 
that. In the end, I will oppose S. 55 and cloture because a whole lot 
of other folks in Kentucky think it is a bad bill, including this 
Senator, not because of a lack of effort on their part.

  Mr. President, I would also like to commend the able leadership of 
Senator Kassebaum. The Senator from Kansas has taken on the stewardship 
of one of the most contentious issues before the Senate, and in doing 
so has injected into the debate a degree of comity and rationality as 
only she can. No one can reasonably accuse Senator Kassebaum of a lack 
of compassion and empathy for the people this bill purports to assist. 
It is out of concern for Americans of all political persuasions--labor 
and nonlabor--that the Senator and I oppose S. 55.
  It is my firm belief that defeating the striker bill is in the best 
interest of all Americans--including union rank-and-file. For over half 
a century, the Supreme Court's Mackay decision has provided balance in 
labor-management negotiations. Currently, workers are protected from 
being permanently replaced in the event of an unfair labor-practice 
strike. Employers may temporarily replace workers in these instances 
but must, when the strike is over, return strikers to their jobs.
  However, in the event of an economic strike in which union members 
exercise their right to strike in order to secure a more lucrative 
package, under Mackay employers have the right to say: ``no, sorry, we 
cannot afford your demands and will hire permanent replacements if you 
persist in striking.'' Employers only rarely have exercised this right, 
but it is an essential component in labor-management negotiation.
  In any labor-management negotiation, a union's ultimate leverage is 
the frightening specter of a strike that could financially cripple the 
company. Conversely, a company's ultimate leverage is the specter of 
strikers being permanently replaced. Mutually assured destruction, in a 
sense.

  Mr. President, it isn't pretty, but it is fair. Free enterprise is 
not risk-free, but it is fair. It is what we like to call around here a 
level playing field.
  S. 55, Workplace Fairness Act--no truth-in-labeling there--would, in 
fact, be unfair. Armed with S. 55, unions could call strikes with no 
fear of losing jobs in the process, unless of course the company goes 
out of business. But at least workers would not have been replaced. 
Fair, right? Wrong.
  It might seem fair to union members, on the surface. Where, Mr. 
President, is the fairness in this for business owners, stockholders, 
managers, nonunion members, consumers, and the legions who are affected 
when an industry suffers from strikes?
  For instance, the American Farm Bureau Federation opposes S. 55. You 
might ask why farmers are so concerned about this bill. The federation 
opposes enhancing strike opportunities for striking workers handling or 
processing perishable agricultural commodities with short shelf-lives. 
The federation's 4 million farm and ranch families depend on 
transportation and processing--two heavily unionized industries--to get 
their commodities to market. And, needless to say, consumers count on 
these commodities getting to market.
  What happens if American farmers and ranchers can't get their 
commodities to market? Grocery stores start looking a lot like the old 
Soviet Union. Bare cupboards. Astronomical prices.
  That is illustrative of the reverberations that major strikes can 
cause throughout this country.
  And what about union members--the very people this bill purports to 
protect? Protect from what? Perhaps under S. 55 they would not suffer 
the indignity or fear of being permanently replaced--rather a rare 
occurrence, by the way, according to a GAO study requested by 
supporters of the bill, which found that less than 3 percent of 
strikers were permanently replaced in 1989. How about the terror of 
being permanently unemployed?

  What a consolation. Instead of losing your job by being replaced, you 
have the privilege of losing your job when the company goes under.
  To subject businesses to crippling strikes, without permanent 
replacements as a recourse, hardly enhances competitiveness or 
employment prospects in the United States. It could, however, be a big 
favor to our trade competitors. They probably would love for us to pass 
this bill, to tie up our domestic producers in strikes so that they can 
flood our markets with imports.
  This debate is about fairness. It is about working men and women and 
those who seek work. The fact is, S. 55 is unfair. And in the long run 
it would be extremely detrimental to all Americans.
  In closing, Mr. President, it is not often that I am in sync with the 
Washington Post: However, today in an editorial opposing the striker 
bill they make some points worth noting:

       This is bad legislation that in the name of restoring 
     balance to labor law and relations would in fact unbalance 
     them and could well do lasting economic harm.
       Organized labor says the ban is necessary to protect the 
     right to strike, which it claims is threatened. But this is 
     not an effort to regain a lost right. Rather, it's an effort 
     to regain lost power--the membership and clout that labor has 
     lost in recent years for reasons having mainly to do with a 
     weak competitive position in the world economy. A change in 
     labor law won't solve that problem, and would likely make it 
     worse.

  There it is, Mr. President, the striker bill is being advanced under 
false pretenses. It is not fair. It would not help Americans. The 
Senate would do this country a great service by driving a stake through 
the heart of S. 55 with a resounding vote against invoking cloture 
tomorrow as it did this afternoon.
  Mr. LIEBERMAN. Mr. President, I rise in support of this motion to 
allow this Chamber to proceed to consideration of S. 55, the Workplace 
Fairness Act. I very much believe that allowing us to proceed is a 
matter of fairness just as I believe that S. 55 is a matter of 
fairness.
  Put simply, this bill permits employees to exercise their legal right 
to strike without fear of losing their jobs. The Workplace Fairness Act 
prohibits the hiring of permanent replacements for employees engaged in 
a strike over economic issues. In addition, this bill prohibits 
preferential treatment for workers who offer to return to work over 
those employees who continue to participate in a labor dispute.
  To me, that seems like basic American fairness. The right of workers 
to strike is rendered all but meaningless if they can be permanently 
replaced. If employers can permanently continue operations with little 
or no pause, what incentives do they have to resolve the dispute? What 
is left of the right of workers to bargain collectively and strike if 
necessary? What will be left of their jobs? What will happen to their 
families which depend on those jobs?
  In an increasing number of cases the right to strike has evolved into 
a right to lose your job to someone else. S. 55 is an attempt to 
restore balance to labor management relations. Under this legislation, 
employers will still have the option of hiring temporary workers to 
keep their operations going during a strike. This legislation does not 
err by tilting in favor of labor. It restores the balance between labor 
and management in negotiations.
  I am joined in that belief by nearly two-thirds of the American 
public. And I am joined in that belief by the other body which has 
already approved this bill in a 239-190 vote.
  Mr. President, because we can't be projobs and antibusiness, I look 
critically at proposals which tie business in governmental knots or 
impose unnecessary burdens on business. But we also should not be 
probusiness in a way that is antijobs, and what S. 55 tries to do is 
protect the jobs of working people who exercise their legal right to 
strike for economic reasons.
  In fairness, I hope that we will proceed to consideration of this 
bill. In fairness, I hope that we will pass this bill. I thank the 
Chair.


                    s. 55, striker replacement bill

  Mr. JEFFORDS. Mr. President, it certainly is no surprise that at this 
relatively late stage of the 103d Congress we are returning to the 
legislative debate on banning the hiring of permanent replacements for 
economic strikers. This is an important issue, and one which generates 
unusually high levels of public interest. The large number of calls, 
letters, telegrams, and faxes received in my office from Vermont offer 
a broad testament to this fact. Undoubtedly, my colleagues from more 
populous States have experienced similar or greater levels of response 
from their constituents. And, when nonconstituent contacts are factored 
in, the volume of public concern on the issue far exceeds the norm.
  President Clinton made his support of this legislation clear 
throughout the election campaign, and he and Secretary of Labor Reich 
have reaffirmed the Clinton administration's commitment to the bill on 
numerous occasions since. Clearly, the President will sign the bill if 
it gets to his desk. Since the House has passed its version of the 
bill, the only open question is whether S. 55 can make it out of the 
Senate. As presently drafted, I do not believe this bill should be 
passed, so I answer that question in the negative. Thus, I will vote no 
on both the cloture motions, and, if necessary, on the bill itself.
  It seems that no traditional labor law issue so galvanizes the 
actions of the interested parties as does the legislative debate on 
striker replacements. While all can agree that this issue cuts to the 
very heart of the collective bargaining relationship, there is wide 
disagreement on whether passage of this legislation will help or hurt 
the institution of collective bargaining.
  At the outset, Mr. President, we need to agree on whether there is a 
problem requiring a legislative solution before passing that solution 
into law. My difficulty with S. 55 is that I am not convinced there is 
a problem with the hiring of permanent striker replacements that 
requires any legislative solution, much less the specific solution 
advocated by this bill. As the present parliamentary situation attests, 
I am not alone in this conclusion. Moreover, even the data produced in 
support of this measure is at best inconclusive on whether use of 
permanent replacement is a growing trend in the business community or 
that it is any more prevalent now than it was in the past.
  Mr. President, the impetus for this legislation is, to a large 
extent, driven by the celebrated cases where permanent replacements 
were used. Thus we have heard over the years about Eastern Airlines, 
Greyhound, and the New York Daily News to name a few. However, these 
and other examples of the use of permanent replacements do not suggest 
models of successful corporate strategies. To the contrary, many of 
these companies have suffered grinding reversals of their business 
fortunes, up to and including total business collapse, following the 
use of replacements. I do not believe that many companies will want to 
adopt a pattern of behavior which leads to such results. And again, of 
course, the statistics do not show that many have chosen to do so.
  The Clinton administration has set in motion the process of taking a 
hard look at our system of labor laws. Toward that end, a blue ribbon 
Dunlop Commission was established with the mission of studying 
workplace cooperation and recommending ways of reforming worker/
management relations to create an environment within which American 
business can prosper.
  From the beginning of the debate on this issue, I have suggested that 
we need to open up a broad-based discussion on the way in which labor 
relations disputes are resolved. I am a supporter of the American 
system of collective bargaining and I believe, for the most part, that 
it does a good job. However, the simple truth is that system works 
better for everyone in times of economic expansion than it does in 
connection with the setbacks and retrenchment found during a recession. 
This elementary fact probably has more to do with any increase that may 
have occurred in replacement situations than does some fanciful 
conclusion about changes in employer attitudes brought on by President 
Reagan's handling of the air traffic controllers strike.

  I for one would be willing to explore the options which exist in the 
area of alternative dispute resolution. We do have some history on this 
issue. There are segments of the American workforce where the right to 
bargain collectively does not include the right to strike. The majority 
of these are within the public sector. In those instances, various 
systems have been devised for resolving disputes on which the parties 
themselves cannot agree. Perhaps it is time to begin moving away from 
the ultimate labor warfare of strikes, lockouts and replacement workers 
and toward some alternative system of dispute resolution for more of 
the private sector.
  Mr. President, this is not a new exercise that we engage in today. 
Elements found in the bill have been seen in legislative offerings at 
least as far back as the last big labor law reform effort in the 
1970's. Further, a little more than two years ago the Senate debated 
and rejected this same legislation. The fact that there has been no 
evolution toward consensus in the bill's terms is a sad testament to 
our failure to address this issue realistically.
  Given the long history of the underlying issues, and the ongoing 
involvement of the Dunlop Commission, there are many aspects of 
collective bargaining that we might productively reexamine. For 
example, it troubles me that unfair labor practice strikers must wait 
so long for a resolution of their charges. Further, it might be 
profitable to examine stronger sanctions against those who engage in 
unfair labor practices. And as one who supported labor law reform in 
the late 1970's, I am certainly open to suggestions on ways to 
streamline the process of deciding whether or not a group of workers 
wishes to organize.
  With specific regard to permanent replacement of economic strikers, 
for the past few years I have stated that we should look at the special 
circumstances presented in concessionary bargaining situations and 
first contract negotiations. As I stated on the floor of the Senate 
during the 1992 debate, the situation presented by an employer's demand 
for contract give backs or concessionary bargaining demands may well be 
one in which the use of permanent replacements is not justified. 
Adoption of a restriction on this practice would address most, if not 
all of the instances of abuse presented to Congress as demonstrating 
the need for this legislation.
  Similarly, in first contract negotiations, where there is no 
established bargaining relationship, I believe a third party 
intermediary could serve a useful role. Neither the Senate nor the 
House Labor Committees have examined these ideas in their processing of 
this bill. Rather, the limited amendments which the majority permitted 
to be offered in the House have been rejected, while in the Senate S. 
55 has remained almost defiantly unchanged even in the face of obvious, 
and now fatal, opposition.
  Perhaps the biggest resolution since the Mackay decision in 1938 has 
been the shrinking of our world. We were an insular power, one of many, 
and we emerged from World War II as the greatest economic power on the 
planet. This was not surprising given that our country was spared from 
damage during the war. Nor is it surprising that our pre-eminence has 
eroded in the decades that followed the war as other countries have 
rebuilt and retooled.
  In 1938, we could afford to consider labor-management relations in 
isolation. In 1994, we no longer have that luxury.
  The Dunlop Commission can and should look into all of these issues. 
Certainly I would support it in doing so. With the preliminary report 
recently issued by the Commission, it has begun this process. However, 
I view it as putting the cart before the horse in the extreme to create 
a commission to study the need for reform of our system of labor laws, 
but to exclude the issue of striker replacements from consideration by 
that commission. But that is precisely what was done in this instance 
in the false belief that S. 55 could be passed and signed into law 
without the need for further study or debate.
  Passage of the present legislation will change the face of labor 
relations in this country. Clearly that is the intent, but is it in the 
best interest of the country? That is the question. I have yet to hear 
sufficiently compelling answers to prompt me to vote for this measure. 
Maybe those answers will be forthcoming in the next session of Congress 
when we may have more substantive hearings. Or maybe, as it should have 
in the first place, the Dunlop Commission will look into the issue as 
part of its comprehensive recommendations for labor law reform. Only 
those who control the agenda can decide whether these items will be 
added.
  Accordingly, while I remain open to the possibility of passing 
meaningful and wise legislation in this area, S. 55 is not such 
legislation. Thus, I will again vote no on that bill today.


                            position on vote

  Mr. WELLSTONE. Mr. President, I wanted to indicate for the record 
that I was necessarily absent for rollcall vote 187. Had I been present 
I would have voted ``nay.''

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