[Congressional Record Volume 140, Number 90 (Wednesday, July 13, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: July 13, 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 ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will now resume consideration of the motion to proceed to S. 55, 
which the clerk will report.
  The assistant legislative clerk read as follows:

       Motion to proceed to the consideration of S. 55, a bill to 
     amend the National Labor Relations Act and the Railway Labor 
     Act to prevent discrimination based on participation in labor 
     disputes.

  The Senate resumed consideration of the motion to proceed.
  The ACTING PRESIDENT pro tempore. Under the previous order, the time 
until 10 a.m. shall be equally divided and controlled between the 
Senator from Ohio [Mr. Metzenbaum] and the Senator from Utah [Mr. 
Hatch] or their designees.
  Who seeks recognition?
  Mr. METZENBAUM addressed the Chair.
  The ACTING PRESIDENT pro tempore. The Chair recognizes the Senator 
from Ohio [Mr. Metzenbaum].
  Mr. METZENBAUM. Mr. President, I want to emphasize once again, as we 
turn to the second day of debate with respect to the motion to proceed 
on S. 55, that the American people support a ban on the hiring of 
permanent replacements by an overwhelming majority, by a vote of 2 to 1 
in the most recent poll.
  The President and a majority of both Houses of Congress support it as 
well. But the Republican leadership, true to form, frankly, is just not 
concerned about the interests or needs of American workers and is 
blocking this bill from moving forward.
  Yesterday, the Republican leadership successfully blocked the first 
cloture vote. I would like to thank publicly Senators Hatfield, 
Specter, and D'Amato who voted for cloture, along with 50 Democrats. 
But, unfortunately, the other 41 Republicans voted to keep the Senate 
from fully debating or voting on this bill. I think that is shameful.
  Yesterday after the vote, Senator Conrad urged other Senators to vote 
for cloture today so that we may consider compromises which might break 
the stalemate over this bill. In particular, Senator Conrad indicated 
his intention to offer an amendment which would encourage the parties 
in a labor dispute to resolve their differences through a neutral third 
party factfinder.
  I believe very strongly that this bill should pass as written. But I 
also recognize that compromise is part of the legislative process. I 
applaud Senator Conrad's efforts to end the Republican filibuster and 
allow the Senate to do something to help the working people of this 
country. When this bill was on the floor 2 years ago, Senator Packwood 
offered an amendment, and I know that a number of the Members of this 
body felt that that amendment moved in the right direction. I must say 
frankly that I am disappointed that Senator Packwood has not seen fit 
to move forward with offering some constructive amendment again but 
rather has opted out to join his Republican colleagues and vote no on 
this bill.
  Frankly, this is a party matter on the Republican side. The 
Republican Party is not concerned about fairness in the workplace, 
where tens of thousands of workers have lost their jobs for exercising 
a federally protected right. Nor is the Republican Party concerned 
about fairness in the democratic process where a majority of Americans, 
a majority of their elected representatives want to enact this bill.
  Why is the Republican leadership opposed to this bill? Does it impose 
a new tax? No. Is it an unfunded mandate? No. Will it increase the 
deficit? No.
  Here it is, America: The Republican Party is filibustering this bill 
because they claim that it will destroy U.S. competitiveness in the 
global marketplace. I am truly shocked. I am amazed. I had no idea. Who 
is kidding whom here?
  I have deep respect for my Republican colleagues, but give me a 
break. Every single time the Senate considers legislation to protect 
the rights of American workers, Republicans drag out the same wornout 
cliche. Every single time, with no exception. Frankly, it should be 
embarrassing to them. It is an insult to American workers who built 
this country and made it what it is today.
  Let us go back through the Congressional Record and you will hear the 
refrain of this tired old Republican song every year. You can get a 
violin and put it to music. Take the last 6 years as an example. Go 
back to 1988 when my friend and Republican colleague, Senator Hatch, 
warned that the plant closing notice law would compound the 
difficulties American companies have had making significant inroads 
into foreign markets. Likewise, my Republican colleague, Senator 
Thurmond, claimed that the plant closing provision would limit the 
ability of American business to compete with overseas manufacturers.
  Yet, after its enactment, the 60-day notice bill had no impact 
whatsoever on the competitiveness of U.S. industry, prompting U.S. News 
& World Report to call it ``the disaster that never happened.''
  Go back to 1989 when we heard the same refrain from Republicans when 
Congress raised the minimum wage from $3.85 an hour to $4.25. We will 
not be able to compete, said the Republicans. How absurd can we be to 
suggest that paying workers $4.25 an hour will make it impossible for 
us to compete. With whom will we not be able to compete? The poorest 
workers in the world in some of the far-off nations of the world who 
are being paid $1 a day or $2 a day? We certainly will be able to 
compete with every industrialized nation in the world which pays 
substantially higher wages than that, and we, in America, pay 
substantially higher wages than that.
  But the Republicans, because there was just this little bit of a 
difference--$3.85 to $4.25--said we will not be able to compete.
  Five years have passed and there has not been one shred of evidence 
that those amendments have had any impact on our competitors. Not a 
scintilla of evidence.
  Go back to 1990 and 1991 when Congress had considered and enacted the 
Civil Rights Act of 1991. Senator Coats and two of his Republican Labor 
Committee colleagues told us that allowing women to recover damages for 
sexual harassment ``would impose a substantial increase on the costs of 
doing business in the global marketplace.''
  Again, 3 years later, we know how absurd that prediction was, and my 
guess is that those who uttered those words would like to take them 
back.
  Go back to 1992 when the Republican leadership predicted that the 
OSHA reform legislation pending in Congress would ``hurt the ability of 
American employers to compete effectively in world markets.'' In fact, 
workplace accidents cost our economy over $100 billion a year, and by 
cutting those costs OSHA reform will only improve our competitiveness.
  Go back to 1993 when Senator Hatch said the family and medical leave 
act would ``undermine our ability to compete in the world 
marketplace.''
  We ought to give the Republicans a patent on this language, 
``undermine our ability to compete in the world marketplace.'' Every 
time we bring up a bill having anything to do with the rights of 
American workers in this country, they always talk about undermining 
our ability to compete in the world marketplace.
  In fact, our principal foreign competitors already provide far more 
extensive family and medical leave than the new law provides, and they 
provide paid leave, not unpaid leave as we do. In the competitive 
market, they go much further than we do.
  But the Republicans see fit to claim that somehow it is going to 
affect our competitiveness.
  So pardon me, Mr. President, if I do not get too excited by protests 
from across the aisle that this bill will hurt our competitiveness. 
There are just so many times the Republican Party can cry wolf before 
people stop taking it seriously. Frankly, this criticism has no 
credibility anymore.
  Members on the other side of the aisle are not judging this 
legislation on its merits. They have not looked at what is right and 
what is wrong. What they have done is they have said we will support 
the Republican leadership; we are engaged in a filibuster to keep this 
matter from coming to a vote in the Chamber. It is a matter of party 
loyalty. Fortunately, three Members on that side did not see fit to 
take that oath. But across the board, all the rest did.
  This argument is more of a red herring in this debate about this 
question of competitiveness than it has been in the past. Virtually all 
of our significant trading partners already prohibit the hiring of 
permanent striker replacements in response to a strike. That includes 
Japan, many Canadian provinces, Germany, Belgium, France, Greece, the 
Netherlands, Italy, and Sweden. These countries have obviously 
determined that long-term labor-management relationships yield 
competitive benefits. In fact, in many of these countries, the trade 
union movement is stronger than our own and growing. Does that put 
these countries at a competitive disadvantage? Apparently not.
  So the rationale for the Republican Party's opposition to this bill 
dissolves on closer inspection. In reality, that claim is just a 
smokescreen for the agenda of the National Association of Manufacturers 
and the U.S. Chamber of Commerce and the rest of the big business 
community; namely, reaping corporate profits on the backs of 
hardworking American families.
  If anything, the Workplace Fairness Act may actually improve our 
competitiveness. The hiring of permanent replacements often causes so 
much disruption to an employer's work force and to the community as a 
whole that it impedes a company's ability to compete.
  When you bring in striker replacements, there is a certain kind of 
turmoil that it brings. These are not employees who know how the plant 
operates, who know where the plant facilities are. These are new 
people, and sometimes they come in with some of the old people and some 
of the new people as well, and you have nothing but turmoil.
  That was the conclusion reached by the researchers from the City 
University of New York in a 1992 study called The Costs of Aggression. 
They concluded that ``in today's highly competitive economic 
environment, the losses associated with union busting exact a high toll 
on the entire country, at a time when we all depend on an economy able 
to meet aggressive foreign competition.''
  So it is the hiring of permanent replacements that hurts our 
competitiveness, not this bill. It is time we stopped trying to destroy 
trade unionism in America and look to our trading partners on lessons 
on how to foster it. It is time to remember that America has been 
strongest in the world's markets when our trade union movement was 
healthy and vibrant.
  Columnist Jon Talton of the New Mexican put it this way:

       Every working American owes such basics as sick pay and the 
     8-hour day to labor unions--executives who revel in union 
     busting are hardly building the framework for employee trust 
     and involvement that is so essential to productivity.

  Mr. Talton goes on to say:

       Unions are an indispensable counterweight that helps keep 
     everybody honest in free market capitalism. If unions are 
     hurting, so is the free market.

  So I must say to my colleagues, when you hear that this bill will 
hurt our competitiveness, do not be fooled. The Republican leadership 
trots out that same baseless prophecy every single year, every time the 
Senate considers a bill to protect workers' rights.
  American workers built this country, and they made it great. Our 
successes in world markets would not have been possible without their 
efforts. But the Republican leadership says to them: ``Sorry; tough 
luck; we can't give you any rights because we won't be able to 
compete.''
  That is offensive to me. It is offensive to American workers. It is 
offensive to the principles on which this country was built.
  Our foreign competitors promised their workers a meaningful right to 
strike, and they have kept their promise. They delivered on that 
promise. They have had great success in world markets. It is time that 
we delivered on that promise as well.
  Mr. President, I reserve the remainder of my time.
  The ACTING PRESIDENT pro tempore. Who seeks recognition?
  The Chair recognizes the Senator from Utah.
  Mr. HATCH. Mr. President, we have a few people who want to speak on 
this side, so I hope they will come over now because we have a limited 
amount of time to use. But until they do, I will just say a few words.
  Mr. President, we all know what is involved here. This is not a 
question that we have an inability to compete; we will find some way 
around any issue. It is not a question of unfairness. It is a question 
of whether we are going to change our labor laws in such a way as to 
take away the delicate balance between management and labor that 
currently exists and that forces both of them to the bargaining table.
  I do not want to give an edge to the business community, nor do I 
wish to give an edge to the trade union community. Both need to be 
there in that delicate balance. The current law does have an edge. For 
instance, the trade union movement has a right to strike. I have said I 
would fight to my death to keep that right alive. I think it is an 
awesome economic power, but it is one that is deserved by working 
people. It is their big leverage in making sure they can be treated 
fairly. The strike threat is a strong incentive for business to bargain 
and to be reasonable.
  But to offset that, so that there is an equal incentive to the unions 
to be reasonable, business has a right to hire permanent striker 
replacements to save the business from shutting down. But even so, they 
do not have a right to exercise that right if there is an unfair labor 
practice charge. If they are not bargaining in good faith, which would 
be an unfair labor practice, then the business community has no right 
to hire permanent replacements.
  The law says the business community has to act in good faith, and 
they have to bargain in good faith. But so does the union. In other 
words, we try and bring them together.
  As of the late 1980's, in only 4 percent of all strikes has the 
employer really exercised his option under the MacKay Radio case and 
subsequent Supreme Court cases and subsequent congressional 
endorsements to hire permanent striker replacements. Only 4 percent of 
strikers. And then it went down in a subsequent year--in I think 1989 
or 1990--to 3 percent.
  In those particular cases, the business had no choice other than to 
hire permanent striker replacements to save their business. So it is 
not a widespread abuse. Most unionized businesses are larger 
businesses. Most of them do not want to put up with a strike. 
Therefore, they will come to the table and bargain and sometimes they 
will give in more than they should, and vice-versa. That is the 
process.
  But where the unions do exercise the right to strike and the strike 
is prolonged, the business can then say, ``I cannot put up with this 
anymore. If you don't come to the bargaining table and agree to 
reasonable terms, we are going to have to replace you with permanent 
people.'' If the business decides to do that--and, as I have said, that 
is the case in very few instances because most large businesses that 
are unionized would rather work with the union and one bargaining 
representative than every employee being a bargaining representative. 
It is a way of keeping things moving. There are advantages to being 
unionized, and many large businesses recognize them. So they do not 
like a strike, and they do not like to fail to sit down at that 
bargaining table and resolve that strike.
  Let us assume it comes to the point, as it has in a few instances, 
where the business says we have to replace these people permanently, 
and they do. Under current law they cannot do it if they have committed 
an unfair labor practice. They cannot do it if they have not bargained 
in good faith. But assuming that they have done everything right, and 
it is a purely economic strike, and they do replace them, then the 
union workers can still have the jobs that come open. From that point 
on, jobs have to be offered to the union members first. So there is 
even a little protection there. It is a protection that gives the union 
movement a little bit of an edge. I am for that.
  And I kind of feel badly that my dear friend and colleague from Ohio 
feels it is a Republican issue. Yes, more Republicans are voting 
against striker replacement than Democrats. But it is a bipartisan 
vote. We had six Democrats yesterday who voted with us against cloture. 
Really, if it was not for the dominance of the trade union movement, 
you would have more votes against the billion on the Democratic side. 
This is a tremendous effort to overreach and a tremendous power grab. 
And I cannot blame the unions for wanting to do that. They not only 
have the right to strike, which is an awesome economic power, but they 
want the power to win the strike. I cannot blame them for that. The 
unions want to get that. But that does not make it right.
  I have had people through the years, as we fought some of these 
excessive pieces of legislation, come to me and say, ``Please stop 
it.'' People who are going to vote for it, but it was very bad 
legislation. This is an excessive power grab that would upset this 
delicate balance and cause untold problems in the future, and many of 
my colleagues recognize this.
  So I am very concerned that we look at this matter in an intelligent 
way. I do not think anybody would cite Canadian law, which does not 
allow the hiring of permanent striker replacements, as an example. Now 
they have more strikes than ever, exactly what we predict if this 
legislation should pass.
  I do not think people in Europe have better labor laws. In Germany, 
if it would affect the company drastically economically, the Government 
can just stop the strike. It would be pretty tough to be able to show 
that most strikes, especially over prolonged periods of time, would not 
affect the company. So there are not many strikes in those nations 
because their laws are not as tough as ours in the protection of trade 
unions. I will not go through those laws again. I did the first day of 
this debate on Monday.
  The fact is that this is an overreach. When the Senator talks about 
plant-closing legislation and more is going to happen if plant-closing 
legislation is passed, that is true. The final bill that passed was 
certainly a lot less than what the distinguished Senator from Ohio was 
asking when he first brought this bill to the floor. I have to admit 
that I think there is plenty of evidence that this law has hurt a lot 
of businesses but not nearly as much as the original legislation. Had 
we not fought it, it would not be nearly as reasonable as it is, and I 
still think it is bad law. It passed the Senate, and I accepted that.
  The data from the GAO study on striker replacement has been cited 
repeatedly. As previously noted, those permanent replacements were used 
in only 17 percent of strikes in the late eighties. Further, and even 
more importantly, it shows that in 1985 and 1989 the percent of 
striking workers permanently replaced was only 4 percent in 1985--that 
is, on all the striking workers--only 4 percent were affected in 1985 
and 3 percent in 1989 respectively. It is likely, but not certain, that 
the actual percentage is even smaller since the GAO statistics 
classified them as ``permanent replacements'' even though strikers 
might have gotten their jobs back because the strike was found to be an 
unfair labor strike. So the figures would actually be less.
  Studies by the Bureau of National Affairs are entirely consistent 
with the GAO results, and may in fact demonstrate a downward trend in 
the use of permanent replacement. Most notably, a recent survey 
conducted by the Bureau of National Affairs reported in 1991 that 
striker replacement was used in only 14.6 percent of strikes. The data 
included both temporary and permanent replacements.
  So it is even down below the 4 and 3 percent. This recent study 
confirms not only the fact that the use of permanent replacements is 
not widespread but also that the use of permanent replacements has not 
shown a significant upward spiral through the eighties and early 
nineties.
  I ask unanimous consent that this letter to Senator Kassebaum dated 
May 13, 1994, from the Director of Information of the National Labor 
Relations Board be printed in the Record at this point.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                               National Labor Relations Board,

                                     Washington, DC, May 13, 1994.
     Hon. Nancy Landon Kassebaum,
     Committee on Labor and Human Resources, U.S. Senate, 
         Washington, DC.
       Dear Senator Kassebaum: This is in reply to your letter of 
     May 11, 1994. The National Labor Relations Board does not 
     keep statistics on the percentage of strikes involving 
     permanent replacements. Accordingly, we do not know whether 
     the figures in the chart are accurate. If I can be of further 
     assistance, please let me know.
           Sincerely,
                                                  David B. Parker,
                                          Director of Information.

  Mr. HATCH. This letter says:

       Dear Senator Kassebaum: This is in reply to your letter of 
     May 11, 1994. The National Labor Relations Board does not 
     keep statistics on the percentage of strikes involving 
     permanent replacements. Accordingly, we do not know whether 
     the figures in the chart are accurate. If I can be of further 
     assistance, please let me know.
  So there have been citations on charts here on the floor, and the 
fact of the matter is that probably the use of permanent striker 
replacements is even less than 4 and 3 percent respectively in 1985 and 
1989.
  Let us just be honest about it. This is as bill to stack the deck in 
favor of the unions instead of maintaining the delicate balance of 
power that I think most people who really look at this honestly prefer 
and hope will be maintained.
  That is what we are fighting about here today. I know that many on 
the other side are very, very sincere about this; not all. They would 
like to get this benefit for the union movement. But I do not think 
that the unions are what they were. I worked in the building and 
construction trade unions for 10 years. At that time 85 percent of all 
the heavy duty construction in this country was done by trade union 
companies--unionized companies. We were proud of what we did. Our 
apprenticeship programs were the best. Our skills were the best. Today 
it is exactly the opposite.
  About 85 percent of all the major construction in this country is 
done by merit shop contractors or nonunion contractors. Something is 
wrong here. We have tried to stack the deck in favor of the trade 
unions all the way through. I am proud of the union movement in this 
country. I know that they can do a better job. I know that they have 
economic power and the power to strike that will help them in any 
collective bargaining negotiations. I know they have the power to get 
management to come to the table.
  So we do not need this legislation. This legislation would be 
detrimental to the country. I hope our colleagues will support our vote 
against cloture here today.
  Mr. President, I reserve the remainder of our time.
  The ACTING PRESIDENT pro tempore. The Chair recognizes the Senator 
from Connecticut. Who yields time to the Senator? Does the Senator from 
Ohio yield time?
  Mr. METZENBAUM. How much time does the Senator desire?
  Mr. DODD. Five or six minutes.
  Mr. METZENBAUM. I yield 5 minutes to the Senator from Connecticut.
  The ACTING PRESIDENT pro tempore. The Senator from Connecticut is 
recognized for 5 minutes.
  Mr. DODD. Mr. President, I thank my colleague from Ohio and commend 
him for his efforts in this regard. This issue has received a great 
deal of attention and has generated some heated debate, all across the 
country, since it has been introduced as a legislative proposal. I am 
not going to take a great deal of time because I know others have 
already spoken on this issue.
  What my colleagues certainly know, or ought to know, is that what we 
are debating here is whether or not we can debate. This is a cloture 
motion. We are not debating the bill yet. The issue is whether or not 
we will be able to discuss and debate a proposal that would try to 
redress an imbalance that has occurred in labor relations. This is not 
unique; imbalances occur all the time in many different sectors of our 
society.
  What we are hoping here this morning is that we will be able to end a 
filibuster and then move on to discuss and debate a piece of 
legislation that will try to correct an imbalance. That is all this is 
about.
  So I am hopeful that at the end of this discussion, a little later 
this morning, 60 members--10 more than a simple majority--will see fit 
to allow a debate to go forward on this issue and then allow amendments 
to be offered to modify the legislation that has been introduced. 
Defeat the legislation, fundamentally change it, or do whatever; but at 
least allow us the opportunity to debate and to vote on whether or not 
we ought to redress what many of us think --what a majority of us 
think, I would point out--is legitimately an imbalance between labor 
and management.
  As its name would suggest, Mr. President, this legislation is about 
fairness. We have long recognized in this country that between labor 
and management there is a balance: Management can withhold wages and 
benefits during an economic crisis at a particular facility or plant. 
Labor, on the other hand, can withhold its labor, its hands, if you 
will. That is the balance--wages and benefits on one hand, your labor 
on the other.
  I presume we would think it ridiculous if somehow, through some 
loophole, management was required during a strike to maintain fully all 
economic benefits to the striking work force, that regardless of what 
happened, management had to continue to do that. I presume someone 
would stand up and say, wait a minute, that is not fair, you have an 
imbalance here.
  In this case, however, if members of a work force go out on strike--
which no one likes to see because of the tremendous disruptions that 
occur--management can now hire not just temporary employees, but 
permanent employees. If these replacements were temporary, the debate 
would be somewhat different. But under the current Supreme Court 
interpretation, management can hire permanent replacements for you and 
say you cannot come back here.
  I ask you, from a common sense point of view, what has happened to 
that delicate balance between labor and management once we have 
undercut the ability of labor to withhold its labor in trying to reach 
some agreement? Can we honestly say we have equilibrium if we say to 
one side of the equation that you cannot come back, that we are going 
to hire permanent replacements for you; that you are out?
  What the Senator from Ohio and at least 52 others of us around here 
are trying to do is redress that imbalance. That is what this motion is 
all about, to get us to the point where we can address that inequity. 
Basic fairness is at the heart of this legislation. This fundamental 
right, if you will, has been badly eroded; that is, the right to 
withhold your labor in order to facilitate meaningful negotiations.
  Mr. President, working men and women of this country have paid a very 
dear price indeed for the erosion of this right. The delicate balance 
to which I referred has tilted more and more as employers increasingly 
exploited the loophole that allows them to hire permanent replacements. 
Frankly, I think it all began to worsen after the disastrous PATCO 
strike in 1981--if I were forced to pick a single moment in time when 
things began to shift dramatically, I would point to the air traffic 
controllers dispute.
  This is not a theoretical debate for working men and women in this 
country. They have seen their standard of living slip year by year. 
They have seen their paychecks shrink and benefits fall. They have seen 
their ability to make ends meet and raise a family come under attack.
  Mr. President, they have seen all of these things happen and, at the 
same time, they have seen their right to do something about it slip 
away like sand between their fingers.
  This was not supposed to happen, Mr. President. The hiring of 
permanent replacement workers is clearly not what Congress had in mind 
when it passed the National Labor Relations Act. This practice severely 
undercuts, as I said a moment ago, the only meaningful leverage that 
workers have in an economic dispute, and it encourages employers, in my 
view, to walk away from the bargaining table. Why would you stay? Why 
would I stay and negotiate if I can permanently replace you? What is 
the benefit to me to stay and negotiate, after all? I will just hire 
new people and break your back. That is, in a sense, what we are 
allowing now.
  According to data gathered by the Bureau of National Affairs, 
replacements were hired during a strike 45 times in 1993. Fewer than 
half of those disputes ended with striking workers being reinstated.
  S. 55 would redress the imbalance reflected in these numbers. It 
would prohibit employers from hiring permanent replacements for 
employees who are engaged in a strike over economic issues. 
Additionally, it would prohibit employers from discriminating against 
strikers by giving preference to workers who offer to return to work 
over those employees who continue to participate in the labor dispute.
  Again, I congratulate my colleague from Ohio for his leadership on 
this legislation. Allow us to get to the debate on this. This is 
unfair. We are seeing a tremendous injustice being done. There are 
other debates we have around here, about minimum wage for example, 
where people can honestly disagree about what is the right level to 
set. But let us not perpetuate this significant unfairness and 
imbalance. Let us vote cloture and allow a debate to go forward.
  The ACTING PRESIDENT pro tempore. The Chair advises Senator 
Metzenbaum that he has 7 minutes 40 seconds. Sixteen minutes remain on 
the other side.
  Mrs. KASSEBAUM addressed the Chair.
  The ACTING PRESIDENT pro tempore. The Senator from Kansas is 
recognized.
  Mrs. KASSEBAUM. Mr. President, we have had 3 days of debate and, I 
think, good debate, both pro and con, on this very important issue.
  This is not an issue about party loyalty. As the Senator from Utah 
[Mr. Hatch] pointed out, there are Democrats who oppose S. 55 and 
Republicans who support S. 55, though not a large number on either 
side. But it clearly is not just a question of party loyalty.
  I suggest that it is a question of workplace fairness for both labor 
and management. It has been stated on the floor during the course of 
these 3 days, Mr. President, that those of us who oppose S. 55, and 
those of us who have opposed cloture, do not care about the American 
work force. As the Senator from Maine [Mr. Cohen] pointed out, that is 
just too simplistic. We do care about the American work force and the 
American workplace. As a matter of fact, those of us who oppose S. 55 
really are in favor of fairness. In the long run, if S. 55 should pass, 
it will mean further turmoil, further uncertainty, and greater 
instability.
  As the Senator from Ohio [Mr. Metzenbaum] said, replacing workers 
does take a toll. That is why most management would prefer not to have 
to replace workers. It takes a toll on those in the labor force who go 
out on a prolonged strike, as well. Current labor law for the last 50 
years has provided stability which allows both sides to come to the 
bargaining table with some leverage--some leverage for labor, because 
they can strike, and that would break off negotiations. Management has 
some leverage as well, in that they have been able, for 50 years, to 
have permanent replacements. One would not permanently replace workers 
gratuitously. That is just as unsettling as prolonged strikes; both 
take a toll.
  What this is about, I suggest, is trying to maintain current labor 
law which leads to a greater desire for both labor and management to 
come to the table in good faith in bargaining sessions. This is done 
most times.
  The Senator from Connecticut [Mr. Dodd] mentioned the PATCO strike. 
He said, as has been stated before, that many of the cases involving 
permanent replacement workers came after that strike in the eighties, 
when management was taking advantage of a new atmosphere. But there 
were strikes prior to the eighties and during the seventies in which 
permanent replacement workers were hired. Not many permanent 
replacement workers were hired just as not many are hired today, nor 
should there be. But it should be an option that is available.
  It has been said during the course of this debate that other 
countries that have banned permanent replacements have had a glowing 
record in labor-management relations. We need only compare unemployment 
rates. Ours in the United States is 6 percent; Canada has an 
unemployment rate of 10.4 percent; and the European Community has an 
unemployment rate of 10.9 percent.
  These are not rates that we want to emulate. What we want to achieve 
is even a lower unemployment rate than 6 percent. What we want to 
encourage is harmony in the workplace. S. 55 would only discourage 
harmony in the workplace. It would turn the clock back and we would 
lose the opportunity to encourage both labor and management to use the 
leverage that both have in order to find a harmonious relationship that 
will provide security for American workers in the future.
  I yield back the floor, Mr. President, and reserve the remainder of 
my time.
  The PRESIDING OFFICER (Mr. Dodd). Who yields time?
  Mr. METZENBAUM. Mr. President, I yield 3 minutes to the Senator from 
North Dakota.
  The PRESIDING OFFICER. The Senator from North Dakota.
  Mr. DORGAN. Mr. President, I think one of the most moving speeches I 
have seen or heard as a Member of the Congress came a few years ago 
from a fellow who previously had been an unemployed electrician at a 
shipyard in Gdansk, Poland. He had been beaten and bloodied and thrown 
over the fence for leading a labor strike against the Communist 
Government of Poland.
  As he lay there bleeding on a street, wondering what to do next, he 
pulled himself back up and went back over the fence to lead the strike 
against the Polish Government.
  The purpose was for a free labor movement for democratic principles 
in Poland.
  Ten years later, this unemployed electrician, who was beaten badly 
because he wanted to lead a strike for a democratic labor movement 
against a Communist government, was introduced over in the House of 
Representatives as the President of the country of Poland.
  Do you know what he said to us? He said we did not even break a 
window pane. They had all the guns; they had all the bullets. We had 
something far more powerful. We had an idea. We were working men and 
women armed with an idea, and that idea was democracy, democracy in the 
workplace.
  And that idea ought not be out of fashion anywhere, especially in 
this country, the greatest democracy in the world. But there are too 
many people who think that principle of democracy in the workplace was 
just wonderful for Poland when Lech Walesa was leading a strike against 
the Communist government, but it does not quite fit for Peoria or 
Pittsburgh.
  Well, I heard a news report last night when this issue was on the 
floor of the Senate about replacing striking workers who were striking 
for higher wages.
  Let me talk about one worker, a 50-year-old truckdriver. He worked 16 
years. I talked to him and his wife. They were not striking for higher 
wages. They were offered by his company, as was his bargaining unit, 
lower wages, 15 percent lower. All right. That is fine. They took a 15-
percent pay cut. Then the company came around 2 years later and said: 
Now we want another 20-percent pay cut.
  He and his fellow workers knew it was unfair because this company was 
making money. They said: No, we are not going to do that this time. The 
company would not budge. So they went on strike.
  This man and his family had 16 years committed to this company. Do 
you know what the company did? It said, ``If you go on strike, it is 
over; you are fired.''
  That, in a democracy? It is wrong. And that is what this issue is 
about.
  This is not about unfair labor practices by workers who are greedy 
for more money. This is about protecting people who have a right to 
strike. If you say to companies that if a collective bargaining unit 
goes on strike, you can fire them, they have no right to strike, you 
have severely injured economic democracy; in fact, you have taken away 
economic democracy in the workplace.
  That is what this issue is about. You can paint all other characters 
about it that you like. But it is fundamental fairness for working men 
and women in this country. And I am pleased to support cloture.
  The PRESIDING OFFICER. The time of the Senator has expired.
  Who yields time?
  If no one yields time, the time will be deducted equally from both 
sides.
  The Senator from Ohio.
  Mr. METZENBAUM. Mr. President, how much time does the Senator from 
Ohio have remaining?
  The PRESIDING OFFICER. The Senator from Ohio has 4\1/2\ minutes.
  Mr. METZENBAUM. Mr. President, I yield 4 minutes to the Senator from 
Massachusetts.
  The PRESIDING OFFICER. The Senator from Massachusetts is recognized 
for 4 minutes.
  Mr. KENNEDY. Mr. President, I want to make sure that the Members are 
familiar with an excellent letter that was written by the President of 
the United States to Donald Fites, who is the chairman and the chief 
executive officer of the Caterpillar Corp. and I will include it in the 
Record. But I think one part of the letter that deserves to be included 
at this point in the Record is the part of the letter where the 
President says:

       I believe that the threat or implementation of replacing 
     striking workers has a poisonous effect on the relationship 
     between workers and employers, and it does great damage to 
     the collective bargaining process. I am currently fighting to 
     get Congress to pass S. 55 in the Senate so that we can ban 
     the tactic of hiring permanent replacements as a means to 
     break a strike. Whatever the outcome of this legislative 
     battle, I strongly believe that this practice must stop 
     because it deters the type of collective bargaining and 
     cooperative work forces that we need to prosper in the new 
     world economy.

  That is a very clear statement of principle, Mr. President, by the 
President of the United States about the importance of this 
legislation.
  Mr. President, this issue is about real, flesh-and-blood workers--
people like the 450 workers in Massachusetts who have been permanently 
replaced since 1988. These workers and their families deserve our help. 
This issue is about their jobs, their livelihoods, and their families' 
future. It is about people like Lori Pavao, a former aide in a nursing 
home in Fall River, who was permanently replaced when she and other 
aides and members of the dietary and housekeeping staff went on strike 
in 1989. She recently described what happened to her:

       I worked there for 8\1/2\ years. A lot of patients were 
     like family to me. I felt lost for awhile. I did not want to 
     start all over somewhere else. You always hear about people 
     going out on strike and people going back. I just never 
     dreamed that it would be over that way. I thought I was going 
     to retire from that place.

  This issue is about workers like the women at Diamond Walnut. They 
gave decades of their lives to that company. They agreed to 30-percent 
pay cuts in their meager wages to help their company survive when it 
was facing difficulties. Yet they were thrown out on the street when 
the company recovered and made record profits--in large part because of 
their sacrifices.
  This issue is about the workers at Burns Packages in Kentucky, 45 
percent black, 40 percent female, who were making $4.70 an hour when 
they decided to form a union. They asked for a 5-percent pay raise to 
just $4.95 an hour, and grievance and arbitration procedures for 
resolving complaints about unfair treatment on the jobs. But when they 
went on strike after 12 months of fruitless negotiations at the 
bargaining table, they were immediately and permanently replaced.
  What is at stake here is the standard of living for working men and 
women. The country has suffered a 20-year decline in real wages.
  Hourly compensation has fallen compared to other major industrial 
nations. The downward spiral in wages has coincided with a reduction in 
the percentage of union workers.
  According to the Congressional Budget Office, between 1977 and 1989, 
the after-tax income of the top 1 percent of families rose more than 
100 percent--while that of the bottom 20 percent fell nearly 10 
percent.
  The Census Bureau also recently reported that the percentage of full-
time workers whose wages are too low to bring them above the poverty 
line has increased from 12 percent in 1979 to 18 percent in 1990--a 
development which the Census Bureau itself described as 
``astonishing.''
  In the 1980's, we stood virtually and ominously alone in the 
industrial world as a nation where the disparity in income between rich 
and poor grew wider. That is not a healthy trend for any country, and 
certainly not ours, which is based on the principle of fair opportunity 
for all.
  The facts are disturbing. The ratio in earnings between the top 10 
percent of wage earners and the bottom 10 percent is wider in the 
United States than in any other industrial country. The bottom third of 
American workers earn less in terms of purchasing power than their 
counterparts in other countries.
  At the same time, Americans are working harder than workers in other 
industrialized countries. Our workers now labor 200 hours more a year 
than workers in Europe. While vacation and leisure time have increased 
over the past 20 years for Europeans, they have declined for most 
Americans.
  Health care for American workers has also become increasingly 
expensive. Many employees across the country have gone without pay 
increases in order to obtain good health care, only to see their health 
benefits cut back and be asked to pay a greater percentage of their 
health costs. Since 1980, the share of workers under 65 with employer-
paid health care has dropped from 63 percent to 56 percent. The 
percentage of workers covered by employer-provided pension plans is 
also rapidly decreasing.
  While the earning power of workers has been falling, the compensation 
of top CEO's--which was about 35 times the pay of the average employee 
in the 1970's--has soared to 120 times the average employee pay in the 
1990's.
  This legislation offers us a chance to take a stand against all of 
these disturbing trends. Ending the practice of permanently replacing 
workers will not solve all the problems of working Americans, but it 
can help to turn the tide.
  Mr. President, in the course of the debate over this bill, a number 
of the opponents have attempted to argue that this bill is unnecessary 
because the use of permanent replacements is too infrequent to justify 
a legislative response. But the tens and thousands of workers around 
the country who have lost their jobs for exercising the legal right to 
strike bear witness to the need for action.
  Study after study has shown that the use or threat to use this tactic 
has soared in recent years, and that it is now a routine tactic in 
collective bargaining negotiations.
  In a survey conducted by the Bureau of National Affairs earlier this 
year, 82 percent of employers said that if their employees went on 
strike, they would attempt to replace them, or would consider doing so. 
And of those employers, more than one in four said the replacements 
would be permanent.
  This problem is serious, and it is clearly growing. The results of a 
recent study by Teresa Anderson-Little of the economics department at 
Notre Dame University make the point.
  By searching electronic data bases, published legal articles and 
National Labor Relations Board cases between 1935 and 1991, she 
identified 632 strikes involving the use of permanent replacements. Her 
study is the largest data base of any studies conducted to date.
  Her research confirms that the use of permanent replacements was 
extremely rare in the first 40 years following passage of the National 
Labor Relations, and that the increase has been dramatic in recent 
years.
  The study shows that for nearly 40 years--from 1935 through 1973--
there was an average of only six strikes a year in which employers 
hired permanent replacements.
  Beginning in 1974 and continuing through 1980, the average number of 
strikes per year involving permanent replacements climbed steeply, to 
triple the prior level. From 1981, the year President Reagan 
permanently replaced the striking PATCO workers, through 1991, the 
average rose even higher to 24 strikes a year--4 times the original 
level.
  Opponents of this legislation claim that the ability of employers to 
permanently replace workers helps to promote more cooperative labor-
management relations, and prevent disruptions to the economy caused by 
strikes. But the Anderson-Little study confirms that the use of 
permanent replacements significantly prolongs strikes and prevents 
disputes from being settled.
  The study shows that while the average duration of strikes over the 
past half century has ranged from 2\1/2\ weeks to 4 weeks, strikes 
involving permanent replacements have consistently averaged seven times 
as long.
  The Bureau of Labor Statistics stopped keeping comprehensive data on 
strike duration in 1980's, so the Anderson-Little study covers strikes 
only through 1979.
  However, studies involving limited samplings of strikes during the 
1980's and 1990's confirm that the tactic of hiring striker 
replacements leads to longer strikes.
  Using a GAO-compiled data base of strikes in 1985 and 1989, 
Professors Cynthia Gramm and Jonathan Schnell of the University of 
Alabama found that permanent replacement strikes lasted three times 
longer than strikes where the tactic was not used.
  A survey of strikes involving members of the Steelworkers Union from 
1990 to the present found that where temporary replacements were used, 
the average strike lasted 121 days, but when the employer hired 
permanent replacements, the average lengthened to 284 days.
  The reason is obvious. Once permanent replacements are hired, the 
union and the employer are suddenly at odds on the issue of reinstating 
the striking workers, which dominates the rest of the bargaining. 
Strikes become more bitter, and more difficult to resolve.
  Studies like the Gramm-Schnell study have consistently found that 
employers now hire permanent replacements in 20 percent of all strikes, 
and threaten to hire replacements in another 15 percent of strikes.
  The notion that we can sit back and let this practice continue 
because workers are permanently replaced in only one out of five 
strikes is both heartless and irresponsible. Every single worker who is 
permanently replaced is one too many.
  We know that the livelihoods of real, flesh-and-blood workers are at 
stake behind these statistics. The Industrial Union Department of the 
AFL- CIO has provided the Senate with the names of 19,722 strikers who 
were permanently replaced in strikes that occurred in the 1980's and 
early 1990's. And those are names from just a limited sample of the 
strikes occurring during that period.
  Opponents of this legislation also argue that replaced strikers have 
the right to be placed on a preferential hire list considered for 
future openings if the permanent replacements leave. But the fact is, 
very few such workers ever return to work with their previous employer. 
Many never recover, financially or emotionally, from the devastating 
experience of losing their jobs for exercising what is supposed to be a 
legally protected right.
  The striker replacement bill has solid support from religious groups, 
civil rights groups, and women's groups. They understand that this 
issue is not an abstract power struggle between big business and big 
labor. This is about real people being deprived of the only power they 
have to counteract the enormous power of employers to exploit workers 
unfairly and dictate wages and conditions on the job.
  Opponents also claim that this bill is only about economic strikers, 
and that workers who engage in strikes caused or prolonged by unfair 
labor practices are already adequately protected by law from being 
permanently replaced. But workers who strike over unfair labor 
practices are just as vulnerable to being permanently replaced as 
economic strikers, because the determination of whether a strike is an 
unfair labor practice will not be made until long after the strike is 
over.
  On the average, it takes more than 2 years for a charge alleging that 
an employer has committed an unfair labor practice to be decided by the 
National Labor Relations Board. If employers exercise their extensive 
appeal rights, even more years will pass before a final decision is 
reached by the courts. Even if the employer is found to have violated 
the Act, the back pay for the employee will be reduced by any earnings 
they have made in the interim. Only at that point is the employee 
legally entitled to return to his job.
  The Workplace Fairness Act will ban the practice of permanent 
replacements generally, and end the distinction between economic 
strikes and unfair labor practice strikes. It will also prevent the 
injustice to unfair labor practice strikers that is caused by the 
current system.
  Workers will no longer have to guess and gamble at the outset of a 
strike as to whether the strike will or will not be found years later 
to be an unfair labor practice strike. Workers will know at the 
beginning that their right to strike is legally protected, and 
employers will know that they cannot permanently replace the strikers. 
The need for prolonged and wasteful litigation to determine whether the 
strike was an economic strike or an unfair labor practice strike will 
be eliminated.
  By passing this legislation and reaffirming this country's commitment 
to collective bargaining, we are reaffirming our commitment to a fair 
balance between labor and management. We will be standing up for the 
original historic intent of the labor laws, which have done so much for 
the country in the past half century. This legislation will close a 
loophole that undermines good relations between business and labor, and 
I urge the Senate to approve it.
  Mr. President, I request that the President's letter to Mr. Fites be 
printed in the Record.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                              The White House,

                                        Washington, July 12, 1994.
     Mr. Donald Fites,
     Chairman and Chief Executive Officer,
     Caterpillar Inc., Peoria, IL.
       Dear Mr. Fites: I am writing today not to take sides in the 
     substance of your current labor dispute, but to express my 
     hope that both sides can together work out these differences 
     in a spirit of cooperation which allows you to get back to 
     the business of creating jobs and quality products.
       As you know we had our differences back in 1992 over your 
     threat to permanently replace your workers. Indeed, I even 
     walked the picket lines with your workers. This disagreement 
     in no way detracts from my respect for your company as a 
     market leader and job creator, but the subject of striker 
     replacement is an issue which I felt strongly about then and 
     feel strongly about today. I believe that the threat or 
     implementation of replacing striking workers has a poisonous 
     affect on relationships between workers and employers and 
     that it does great damage to the collective bargaining 
     process. I am currently fighting to get Congress to pass S. 
     55 in the Senate so that we can ban the tactic of hiring 
     permanent replacements as a means to break a strike. Whatever 
     the outcome of this legislative battle, I strongly believe 
     that this practice must stop, because it deters the type of 
     collective bargaining and cooperative work forces that we 
     need to prosper in the new world economy.
       I know that the nature of your current dispute does not 
     raise the permanent replacement issue, but I want to 
     challenge companies like yours that have been split by this 
     issue in the past to move forward to new chapters of 
     cooperation and economic revitalization, and I hope that 
     spirit can be shown by both sides as you work through your 
     current dispute.
           Sincerely,
                                                     Bill Clinton.

  The PRESIDING OFFICER. Who yields time?
  Mr. HATCH. Mr. President, I yield 2 minutes from our side to the 
distinguished Senator from Minnesota.
  The PRESIDING OFFICER. The Senator from Minnesota is recognized for 2 
minutes.
  Mr. WELLSTONE. Mr. President, I first of all would like to thank the 
Senator from Utah for his graciousness.
  This is the end of the debate, and it is right before this vote on 
cloture.
  Mr. President, I just would like to introduce as part of the Record a 
very powerful statement, an appeal of conscience to the U. S. Senate 
from the ecumenical--Jewish, Prostestant, Catholic, major religious 
organizations--from all over the country. I have heard some of my 
colleagues say they have not heard that much from people in the country 
about this. And conscience is exactly the right word.
  Mr. President, this piece of legislation is about workplace fairness. 
I have seen too many people who have been forced out on strike and then 
permanently replaced.
  I have seen too many broken dreams and broken lives and broken 
families, too many unions busted, too many wages depressed, too many 
families not able to put bread on the table, too many Americans denied 
economic justice.
  This is a piece of legislation that is not just for unions. It is for 
working people. It is for regular families.
  Mr. President, right now, as matters stand, too many large companies 
have an atomic bomb that they can use. They can force people out on 
strike and replace them. This bill restores some fairness, some 
economic justice. And it is, in the words of the religious community, 
an issue of conscience.
  I hope that my colleagues will at least vote to let us go forward 
with this debate. Do not block the debate. Do not pour cold water on 
the hopes and dreams of regular people. Let us debate this and let us 
pass a piece of legislation that would guarantee justice for working 
people.
  The ACTING PRESIDENT pro tempore. The time of the Senator has 
expired.
  Mr. HATCH addressed the Chair.
  The ACTING PRESIDENT pro tempore. The Chair recognizes the Senator 
from Utah.
  Mr. HATCH. Mr. President, I yield such time as she may need to the 
distinguished ranking member of the Labor and Human Resources 
Committee.
  The ACTING PRESIDENT pro tempore. The Senator from Kansas.
  Mrs. KASSEBAUM. Mr. President, I wish to offer a few further remarks 
in conclusion.
  I would like to quote from an editorial in yesterday's Washington 
Post. It has been mentioned a couple of times during the course of this 
debate, plus earlier editorials. In the last paragraph, it said:

       The goal of labor law is not to determine the outcome of 
     labor disputes but to maintain a system of mutual deterrence 
     in which neither side can act without risk. An obdurate 
     company risks a strike; obdurate strikers risk replacement. 
     Most of the time the balance works and produces rational 
     results. This bill would destroy the balance and ought not to 
     pass.

  That is really what those of us who have opposed S. 55 have argued 
for some time.
  And I would just like to say that the Washington Post is not some 
hide-bound Republican paper. It had been suggested the other day, when 
I quoted from the Kansas City Star in its opposition to S. 55, that it 
was a hide-bound Republican paper. I would like to note that it opposed 
me editorially in my election in 1978 and it supported Bill Clinton in 
his Presidential election in 1992.
  So I think that there are those who editorialize who do so, Mr. 
President, with a desire to see that fairness exists in the workplace. 
That is not to say that labor or management both do not have a 
responsibility in making it work.
  If S. 55 should pass and if cloture should be invoked, it does not 
mean that we have not had a successful debate. It simply means that we 
would turn the clock back on 50 years of labor law. Instead, we need to 
work harder to make it work better in the future, not change it 
dramatically.
  I yield back any time I may have.
  The ACTING PRESIDENT pro tempore. Who yields time?
  Mr. HATCH addressed the Chair.
  The ACTING PRESIDENT pro tempore. The Chair recognizes the Senator 
from Utah.
  The Senator from Utah has 6 minutes remaining and the Senator from 
Ohio has 30 seconds remaining.
  Mr. HATCH. Mr. President, this has been an excellent debate. Both 
sides have been sincere. Both sides have tried to make their case as 
well as they could.
  This is a perfectly good illustration of why we need the extended 
educational dialog rule. Some call it the filibuster rule.
  The fact is that there are very, very strong feelings on both sides 
of this issue. We feel very deeply on this side that, if you do not 
keep a risk on both sides of an issue like this, then one side is going 
to gain total preeminence over the other.
  Now let us just be honest about it. The unions have a right to 
strike. I have fought for that right and I will continue to do so. It 
is a great economic power and it is a great economic right. A lot of 
business people do not like it, but it is right.
  But businesses should have a right and even the power to save their 
businesses. They should not have to be put out of business just because 
of a recalcitrant union or a vindictive union leader or for any other 
reason that does not make sense.
  The only way they can offset that tremendous economic power to strike 
is to have a right that they usually do not want to exercise --and 
history has proven they do not exercise very often--the right to hire 
permanent striker replacements.
  That is what brings these two very formidable adversaries, business 
and labor, to the table with neither of them having more strength over 
the other for the most part--unions do have a slight economic 
advantage, but not very much--forcing both of them to come to the table 
and having to sit down and negotiate and collectively bargain.
  In all honesty, if business must agree to an uneconomic labor 
agreement, it means resources that are necessary for the business go 
somewhere else. It means that they are less able to compete. It hurts 
the business' ability to ultimately stay in business. If the business 
holds out during a strike and the union has no incentive to come back 
to compromise, they risk going out of business sooner. Neither of these 
scenarios is good for workers in the long term or good for our country.
  The American people understand this. In a Time-CNN poll, they found 
that 60 percent of the American people oppose banning permanent 
replacements. The Gallup Poll--and certainly Gallup has not been known 
to be probusiness--also found that 60 percent oppose this ban that this 
bill would allow.
  I can only conclude that, once again, the people have made a logical 
determination about the legislation. They understand implicitly that in 
labor-management relations, there has to be risks on both sides. You 
just cannot let one side have it all.
  Now, I appreciate that there are strong views on this. I admire my 
colleagues on the other side and I want to compliment them for the 
fight that they have waged. The proponents are certainly sincere in 
doing what they can.
  But we vigorously disagree that this bill is the way to help our 
country, help our economy, or even help American workers. We think it 
will hurt American workers. We think it will hurt the union movement. 
We believe it will hurt business. And we believe it will hurt our 
country as a whole. That is why we are fighting against it in a 
bipartisan way.
  I do not know how anybody could really argue that we should stack the 
deck one way or the other. And, I have to tell you, most people of 
businesses that are unionized do not want to have a confrontation and 
excessive conflict with their unions.
  Mr. President, how much time do I have?
  The ACTING PRESIDENT pro tempore. The Senator from Utah has 1 minute 
and 50 seconds remaining. The Senator from Ohio has 30 seconds 
remaining.
  Mr. HATCH. Let me just take another 20 seconds and I will yield the 
remainder of my time to Senator from Ohio, who has fought long and hard 
for this, so that he will have a little more than 30 seconds.
  Mr. President, I admire my friend from Ohio. I am going to miss him 
when he leaves at the end of this year. There is no one who fights 
harder and there is no one, I think, who does a better job for the side 
that he believes in. I respect him. I just wanted to say that on the 
floor.
  The fact that he is wrong most of the time really may be incidental 
on this point.
  But I just want you to know, Senator Metzenbaum, how much we respect 
your ability to fight these issues.
  I yield the remainder of my time to you.
  The ACTING PRESIDENT pro tempore. The Senator from Ohio.
  Mr. METZENBAUM. Mr. President, first, I want to thank my friend from 
Utah for his gracious remarks. I indeed appreciate it. He and I have 
battled over many years, and we remain friends notwithstanding that 
fact.
  It is pretty obvious that today we are not going to prevail. We will 
have a majority of the Members of the Senate voting for cloture, but we 
will need 60 and that will not be sufficient.
  But let me announce publicly that this is not the end of the issue. 
We will find an opportunity, hopefully, where those on the other side 
of the aisle want some particular piece of legislation. The rules of 
the Senate permit free and open amendment, and so when the opportunity 
presents itself, we will offer S. 55 as an amendment to some pending 
piece of legislation if there is a chance to do so.
  I remember so well how we passed the bill on cop killer bullets, when 
we could not get the bill to the floor and finally we had to put it on 
some agricultural measure in order to get an agreement that we could 
have an up-or-down vote on it.
  We will look for such an opportunity. We have a number of days left 
before the closing of the session. If that opportunity presents itself, 
S. 55 will not be a dead issue but it will be alive and well and we 
will send it over to the House in that manner.
  Mr. President, I yield the floor.
  Mrs. MURRAY. Mr. President, I am honored today to support the 
Workplace Fairness Act. I urge all my colleagues to join me by voting 
for cloture on this landmark legislation.
  This bill is important to America. It is one of those rare pieces of 
legislation that shows that our mass society values the individual. It 
shows the Government respects the needs of ordinary working people. It 
shows that Main Street is just as important as Wall Street.
  And, Mr. President, this bill is especially important to the most 
vulnerable and fastest growing segment of our work force--American 
women.
  Over the last decade, women have assumed ever greater economic and 
family caretaking responsibilities. Everyone in this great country 
should be unsettled by the fact that women and children are most likely 
to fall deeper into poverty and homelessness. One of three families 
headed by a woman lives at or below the poverty line: nearly 70 percent 
of all working women earned less than $20,000 a year, and 40 percent 
earned less than $10,000 annually. These workers need the ability to 
raise their standard of living in order to break the cycle of poverty 
and welfare dependence which many of them endure.
  Passing this legislation is one step in that direction. Perhaps the 
Women's Legal Defense Fund stated it best:

        ``America's working women, especially women of color, are 
     disproportionately concentrated in low-waged, high-turnover 
     jobs. These women and their families are especially 
     vulnerable to the growing management practice of permanently 
     replacing workers who exercise their legal right to strike--
     in other words, firing striking workers. Employers may view 
     women in low-wage jobs as especially easy to replace.''

  Mr. President, you know as well as I that these workers cannot 
bargain effectively unless they are assured that they do not risk 
losing their jobs permanently.
  When then-President Ronald Reagan summarily replaced 12,000 striking 
air traffic controllers, he sent a message to a new generation of 
industry leaders that it was OK to replace a striking work force.
  So, who is next, Mr. President? Nurses, who spend every long night of 
their shifts mopping the brows of the sick? Machinists, who work a 
lifetime ensuring America remains competitive? Longshoremen, who toil 
day in and day out to send the fruits of American labor to every corner 
of the globe?
  It is time to stop treating skilled, loyal workers like outdated, 
unwanted machinery.
  But, Mr. President, you will hear opposing views in this Chamber on 
this issue.
  You will hear that this bill will only increase the likelihood of 
strikes throughout the country. I could not disagree more. America's 
workers do not want to strike. They understand the serious implications 
of a strike. They understand, as I do, the fear being one paycheck away 
from economic disaster. Most of us have home mortgages, car payments, 
educational and medical needs for ourselves and our families. America's 
workers know striking is the option of last resort.
  Mr. President, the Workplace Fairness Act is needed to level the 
playing field. It will allow millions of Americans the right to bargain 
collectively, to bargain in a fair manner, free from coercion and 
threats.
  The Workplace Fairness Act will begin to restore this right, which 
seems to have been lost in this rapidly changing world. It will echo a 
lesson I learned from my parents; it will send a message to America 
that the little guy is just as important as the big guy.
  That is why I urge all my colleagues to join me today in supporting 
the cloture vote on the workplace fairness bill.
  Mr. LEVIN. Mr. President, I support the Workplace Fairness Act, S. 
55, which would make it an unfair labor practice under the National 
Labor Relations Act and the Railway Labor Act to hire permanent 
replacement workers during an economic strike. This legislation would 
restore an appropriate balance to the collective bargaining process in 
which differences between businesses and employees are worked out at 
the bargaining table. For this reason, I am voting in favor of cloture 
to end the filibuster blocking consideration of this vital bill in the 
Senate.
  The National Labor Relations Act [NLRA] has been the primary Federal 
law governing labor relations in the United States for more than five 
decades. The act emphasizes collective bargaining as the best method 
for resolving labor-management disputes, and promotes an atmosphere of 
equal power between labor and management in dispute resolution.
  In recent years, however, the delicate balance has been threatened by 
the regular use of permanent replacement workers. Although management 
has been free under the NLRA to hire permanent replacements during an 
economic strike since 1938, this practice was rarely used by employers.
  In the early 1980's, the scale began to tilt. The shift began with 
the firing of 11,500 striking air traffic controllers by Ronald Reagan 
in 1981. Similarly disputes involving International Paper, Eastern 
Airlines, and Greyhound Lines among others tragically ended in the use 
of permanent replacements.
  A report filed in 1991 by the General Accounting Office [GAO] found 
that employers threatened to hire permanent replacements in one-third 
of the strikes during the 1980's. Permanent replacements actually were 
hired in about 17 percent of those strikes. The report also found that 
most of the employers and workers it interviewed believed that 
replacement workers were hired more often in the 1980's than in the 
preceding decade. Further, the Bureau of National Affairs has reported 
that 82 percent of employers surveyed said they would hire replacement 
workers or consider doing so if their employees went on strike. One-
fourth of those surveyed claimed that these replacements would be 
permanent.
  The Workplace Fairness Act will help prevent the negative economic 
effects of prolonged disputes. A study conducted by Wayne State 
University in Detroit, MI indicates that in the long run, the 
profitability of companies that adopt confrontational tactics like the 
hiring of permanent replacement workers is less than that of companies 
that adopt a cooperative approach to labor relations.
  Some people say that should S. 55 be passed by Congress and signed 
into law, our Nation would witness a dramatic increase in strike-
induced work stoppages. This is simply not true. Economic strikes occur 
in less than 1 percent of all collective bargaining negotiations. Under 
S. 55, workers engaging in an economic strike would still face loss of 
wages, loss of health benefits, and loss of pension benefits. Putting 
family finances in such jeopardy in order to engage in an economic 
strike is not a situation that one would take lightly or into which 
anyone would rush. Losing these vital benefits for any period of time 
is strong incentive for any worker to stay at the bargaining table.
  We need the Workplace Fairness Act to ensure that both sides come to 
the bargaining table on equal footing. The ability of employers to hire 
permanent replacements puts striking workers at severe disadvantage at 
the bargaining table. It increases the likelihood that they will be 
presented with only two options: accept the offer, or lose your job. 
These options are corrosive to the cooperative spirit between business 
and labor that is essential if the collective bargaining process is to 
endure.
  Mr. MURKOWSKI. Mr. President, I rise to speak in opposition to S. 55, 
and to urge my colleagues to oppose the motion to invoke cloture on 
this legislation.
  This legislation will profoundly alter the structure of collective 
bargaining in the United States to the detriment of both employers and 
employees. In the long-term, S. 55 will lead to a more rapid exodus of 
American companies from production activities in the United States and 
a reluctance by many companies to contract with union companies.
  For more than half a century, the bedrock principle that has governed 
labor-management negotiations in the United States has been balance. 
Our Federal labor laws guarantee that an employer's demands at the 
bargaining table are checked by the knowledge that the employees on the 
other side of the table have the right to withdraw their labor from the 
company by engaging in a strike. Employers know that a strike of any 
duration can cause loss of profit and market share and could ultimately 
result in the company going out of business.
  Employee demands at the bargaining table are similarly checked by the 
knowledge that a strike may be met by the hiring of both temporary and/
or permanent replacement workers. Thus, as our labor law is currently 
crafted, neither side in a bargaining dispute has sufficient leverage 
to guarantee the economic result it seeks to negotiate.
  What S. 55 would do is to radically shift the balance of power at the 
bargaining table by insulating striking workers from the risks that 
traditionally have acted as a check on the voluntary decision to strike 
over economic issues and would free organized labor to make economic 
demands that over the long-term could destroy the economic 
competitiveness of their employer.
  Mr. President, it is important to emphasize that this legislation 
does not change the current law prohibiting employers from permanently 
replacing workers who strike in response to unfair labor practices. 
These can include the failure of an employer to bargain in good faith 
or discrimination against workers who engage in protected union 
activity. When an employer engages in such unfair practices, workers 
cannot be permanently replaced. If unfairly let go, they are entitled 
to their former positions and full back pay, and benefits.
  According to a 1991 General Accounting Office [GAO] report, permanent 
replacements are used in less than one in five strikes and barely 3 
percent of striking workers are replaced with permanent replacements. 
The reason that employers are reluctant to replace striking employees 
relates directly to the fact that replacement workers do not measure up 
in productivity with the workers they have replaced.
  I believe that if S. 55 becomes law, it will begin to undermine 
organized labor as we know it today in America. This bill will not 
ensure worker security; it will make it far more attractive for 
companies to close unionized facilities and move to other parts of the 
country or abroad.
  To stay in business today, suppliers must meet tight production and 
delivery timetables to satisfy daily customer demands. Failure of a 
supplier to meet a delivery schedule for a single component can mean 
the shut-down of a complete assembly line with resulting layoffs at the 
factory, the wholesale warehouse, and transporters. Suppliers simply 
cannot survive a strike of even a few days, let alone a month. The only 
choice that many of these companies have, is to consider hiring and 
training permanent replacements in order to stay in business.
  If S. 55 becomes law, it is highly likely that companies will choose 
to do business only with nonunion companies. That will occur not only 
in the case of lean-production manufacturing companies but also in the 
construction industry where extended strike activity can shut down an 
entire project, affecting a multitude of contractors, subcontractors, 
and local communities. These costs would be exacerbated in areas such 
as Alaska where the construction season is very short. As a result, 
contractors will shun employers with union labor for fear that a 
project will shut down instantly because of a strike.
  Mr. President, S. 55 will not provide organized labor the job 
security protections that its leadership has promised. This legislation 
should be rejected.
  Mr. CHAFEE. Mr. President, I oppose legislation banning the permanent 
replacement of unionized employees during economic strikes, the so-
called striker replacement bill. S. 55 is unnecessary, would reduce 
U.S. competitiveness, disrupt labor-management relations, and sacrifice 
more jobs than it would save. The bill is a job-killer--plain and 
simple.
  In my own State of Rhode Island, over the past 18 months, we have had 
relatively few labor disputes. Of the affected workers, only a small 
percentage appear to have been permanently replaced. Importantly 
though, these separated workers have preference under the law to any 
vacancies which arise with their former employers. As such, if not 
immediately rehired, at some point in the future, they may be rehired.
  For this reason, the concept of a permanent replacement is something 
of a misnomer. Indeed, a 1991 General Accounting Office study found 
that only 4 percent of all striking workers permanently lose their 
jobs. In other words, 96 percent ultimately return to their previous 
places of employment.
  S. 55 would have an extremely adverse effect on the collective 
bargaining process, overturning more than 50 years of well-settled 
labor law. Law, I might add, which has produced relative workplace 
harmony, and an exemplary standard of living--by most measures--for 
unionized workers since it was first enacted in 1935.
  In disputes over wages and benefits--as distinct from those involving 
unfair labor practices--the National Labor Relations Act, previously 
the Wagner Act, strives for a balance of shared risk between employees 
and employers. Employees have the right to strike, but employers have 
the right to continue business operations, with replacements, if 
necessary. This concept was upheld by the Supreme Court in 1938 in 
Mackay Radio, and is a well-recognized principle of modern labor 
relations policy.
  This constructive dynamic of shared risk forces both sides to resolve 
their differences through good faith negotiation, thereby preserving 
jobs and productivity. Indeed, we see a growing recognition that the 
labor-management relationship requires increased cooperation. The new 
global economy dictates that to compete successfully--for jobs and 
profit--an enlightened partnership must always be the goal.
  This certainly does not mean that all are pure of heart in 
negotiating disputes. Any one of us may cite examples of labor law 
abuses on the part of employers and employees. While stronger 
enforcement makes sense to ensure any such abuses are minimized, in my 
judgment S. 55 is not the appropriate remedy.
  S. 55 would destroy this dynamic of shared risk by guaranteeing the 
jobs of economic strikers, making it nearly impossible for an employer 
to secure replacement help in the event of a work stoppage. If striker 
replacement legislation were to become law, any replacements hired 
during a strike would be relieved of their duties the moment a 
settlement was reached. In other words, S. 55 makes the employee's 
decision to strike nearly risk-free.
  We must all recognize, under current law, the task of securing 
replacement help during a labor dispute is no small undertaking. This 
is particularly true for smaller firms with less capital, or for those 
businesses which cannot afford any disruption in operations--such as 
hospitals or food processors. First, the employer must persuade 
potential replacements to cross a picket line, an enormous 
psychological barrier, to say nothing of the potential for violence.
  Second, the employer may not coax replacements with the offer of 
better terms than he or she has extended to the strikers.
  Third, replacements must be trained, a potential costly and time-
consuming exercise--particularly in occupations demanding highly 
skilled personnel.
  To compound the already difficult burden of sustaining business 
operations during a labor dispute, the banning of permanent 
replacements would leave employers with a Hobson's choice--either 
accede to union demands, or go out of business. Faced with this choice, 
most employers would prefer to meet union demands than to endure a 
shutdown, even if it meant making imprudent economic concessions.
  Over time, this kind of one-sided bargaining would leave domestic 
employers vulnerable to the lower cost goods and service of foreign 
competitors. With their economic vitality sapped, these vulnerable 
firms would ultimately lose market share and collapse, displacing an 
entire work force. In a State like Rhode Island, which is just 
beginning to feel the fruits of economic recovery, S. 55 would be an 
unmitigated disaster.
  With the risk of job loss largely removed from the equation for 
striking workers, S. 55 would encourage economically motivated labor 
strife. Moreover, it would reduce the labor-management cooperation 
needed to compete and succeed in today's global marketplace.
  Mr. President, because I believe the net effect of striker 
replacement legislation would be to place the economic viability and 
employment prospects of thousands of firms and their employees 
needlessly at-risk, I must oppose S. 55.
  Mr. BRADLEY. Mr. President, global competition, rapid technology 
change, and a frantic decade of corporate greed have put unbearable 
stress on the American worker. Worst of all, at a time when the compact 
of trust between labor and management most needed strengthening, that 
compact instead became weaker. Nothing better symbolizes that collapse 
of trust in the workplace than the trend toward using permanent 
replacement workers to break strikes, and, with them, organized labor 
unions.
  It is about time that we realize that we are all in this together. If 
it is worker against management, rich against poor, pitted against each 
other in vicious disputes like those that laid waste to Eastern 
Airlines and Greyhound, we will never be able to build a society that 
lifts everyone to the higher ground. For most of our history as an 
industrialized nation with a strong labor to movement, we have 
understood this. Although companies had, in theory, the right to hire 
permanent replacement for strikers, they rarely did so, because they 
treated their work force as an investment. Workers were not 
interchangeable parts but partners in the quest for productivity and 
partners in a community.
  But in the last 15 years or so, things changed. A few managements, 
often new owners with no connection to their community, began to see 
labor disputes as an opportunity to increase cash flow by breaking the 
union and replacing the workers most active in negotiating for better 
working conditions. In almost 1 in 5 strikes, some workers were 
replaced, and 1 in 3 disputes were settled under the threat of 
permanent replacement. The ultimate measure of this trend is the 
average hourly wage in the private sector, which dropped by more than 
$1 in the 1980's. A worker does not have to be permanently replaced for 
his or her family to be hurt by the tilting of the balance of power 
away from organization labor.
  While some workers lost jobs and others lost wages, no one has gained 
from the trend toward hiring permanent replacements. Strikes were no 
shorter. The companies that hired replacements were not healthier. And 
our economy did not gain an advantage over the other industrialized 
countries in the world, all but two of which ban permanent 
replacements.
  The case for this bill was eloquently stated by Bishop Frank Rodimer 
of Paterson, NJ, speaking for the U.S. Catholic Conference:

       The right to strike without fear of reprisal is a 
     fundamental right in a democratic society. The continued 
     weakening of unions is a serious threat to our social fabric. 
     We have to decide whether we will be a country where workers' 
     rights are dependent on the good will of employers, or 
     whether we will be a country where the dignity of work and 
     the right of workers are protected by the law of the land.

  In a competitive world, the United States will not have the luxury of 
long brutal strikes or of management tactics that displace skilled, 
committed, experienced, organized workers. We will need a new compact 
in the American work force, an honest effort to rebuild the trust 
between management and labor. As a first step toward trust we must take 
the most brutal and least productive tactic, the hiring or threat of 
hiring permanent replacement workers, off the table for good.
  I understand how controversial this legislation is. I know that 
employers worry that it will lead to more strikes, but the economic 
decision to strike or not to strike remains the same for workers--a 
strike is a grueling, painful, scary, costly effort for workers and 
their families. It is never anything but a last resort. Our objective 
is to restore the balance between management and labor, not tilt it in 
another direction. America's workers have already waited too long for a 
fair balance to be restored.
  Mr. KERREY. Mr. President, I rise in support of the motion to proceed 
to a consideration of S. 55, the Workplace Fairness Act, also known as 
the striker replacement bill.
  As with too many issues today this one has been subjected to the 
polarizing rhetoric of opponents and supporters. Some opponents claim 
the legislation threatens the rights of State to enact legislation 
prohibiting provisions in contracts that make joining a union a 
condition of continued employment. Some supporters have likewise 
claimed that collective bargaining is at risk if this legislation does 
not pass.
  Both of these extremes, bolstered in some cases by independent 
advertising campaigns, have made it difficult to engage in a calm, 
rational look at the state of current labor law. Unfortunately, this 
leads to a confrontation which is not needed at a time when U.S. 
manufacturing is staging such an impressive comeback against foreign 
competitors. In part the remarkable recent gains in productivity are a 
direct consequence of improved working relations between management and 
labor.
  To be clear, Mr. President, neither the problem nor the legislation 
is an extreme as has been described. It is also fair to say that this 
legislation does more than its drafters claim and less than its 
detractors allege.
  It does more than its drafters claim because it reaches beyond 
establishing a statutory right to return to work. It has a provision, 
which must be changed before I would vote for the bill, which may 
provide organizing leverage, something which is neither needed nor 
welcome.
  It also does less than the claims of its detractors because it merely 
restores a right which existed in a de facto way prior to the 1980's. 
And, because a minority of firms engage in the practice of threatening 
permanent replacement, this legislation will by no means tilt the 
balance too far in the direction of labor.
  This bill would simply amend the nearly 60-year-old National Labor 
Relations Act. Known as the Wagner Act, this law is the legal framework 
which guides labor-management relationships in the United States. The 
purpose of the Wagner Act is to guarantee that free and equal 
collective bargaining between labor and management determine conditions 
of employment. Under this act workers have the right to organize to 
select their bargaining agent and then to bargain collectively with 
their employers.
  The Wagner Act created a Federal board to oversee this process. The 
National Labor Relations Board [NLRB], appointed by the President, has 
a range of statutory duties. The NLRB conducts elections to determine 
bargaining agents. It investigates charges of unfair labor practices. 
It issues cease-and-desist orders if employers or employees engage in 
any of the unfair labor practices listed in the Wagner Act.
  The original act has been the subject of constitutional challenges 
and legislative amendments. The most notable and relevant of these were 
two Supreme Court decisions in 1938 and 1989, and congressional action 
taken in 1947.
  The 1938 Supreme Court decision, Mackay Radio and Telegraph versus 
the NLRB, ruled that if a strike is deemed to be for unfair labor 
practices, the striking workers are entitled to full reinstatement upon 
their offer to return to work. If, however, the strike is for economic 
reasons, that is, related to terms and conditions of employment, the 
employer must only rehire striking workers when or if vacancies become 
available.

  In spite of this decision employers refrained for decades from hiring 
permanent replacements. This restraint produced a situation in which 
workers did not need to seek a statutory change, because the companies 
presumed a right to exist.
  However, in the late 1970's and 1980's things began to change. For a 
variety of reasons the practice of replacing workers during strikes 
which had an economic cause exploded. Today, employers use or threaten 
to use permanent replacements in one out of every three strikes. For 
workers who have lost their jobs during a strike the distinction 
between ``permanently replace,'' which is allowed, and ``discharging 
employees for engaging in a lawful, strike,'' which is not allowed, is 
meaningless.
  Still, the arguments for and against this legislation are entirely 
too strident. To illustrate how the need for this legislation is often 
over stated, the fact that one-third of employers threaten permanent 
replacement means that for two out of three strikes no such threat 
occurs. Likewise, those who claim this is a dangerous, costly and 
anticompetitive shift in labor law do not point out that none of our 
principal economic competitors--Japan, Germany, and France--allow 
permanent replacements.
  The 1989 Supreme Court decision, TWA versus Independent Federation of 
Flight Attendants, added fuel to the fire for a change in the law. This 
decision extended the Mackay ruling further. The Court held that those 
employees who cross the picket line to return to work must not be 
discharged to make room for strikers who have more seniority than those 
crossover employees and who wish to return to work when the strike is 
settled.
  The relevant congressional action in 1947 is the Taft-Hartley Act. 
The objective of this act was to give management more power in labor-
management relations. At the time, the balance of power had tilted too 
far in favor of organized labor under the NLRB.
  Taft-Hartley listed a number of unfair labor practices by unions, 
which the NLRB could investigate and prohibit if necessary. The most 
important was any provision in a labor-management contract that made 
joining a union a condition of employment. After Taft-Hartley became 
law, many States--including Nebraska--passed right-to-work laws stating 
that an employee could not be required to join a union as a condition 
of employment.
  The Workplace Fairness Act does not repeal the prohibitions spelled 
out in Taft-Hartley. Representations to the contrary are little more 
than attention getting antics.
  Instead, the Workplace Fairness Act continues the balanced effort of 
all Federal labor legislation since the 1930's. That is, it protects 
the right of workers to organize and bargain collectively while being 
protected from threats to eliminate their jobs if they engage in a 
lawful strike.
  Mr. President, this is a time when America needs work places where a 
spirit of cooperation and collaboration exist. We need policies which 
will reduce the adversarial climate between workers and management. The 
Workplace Fairness Act--if amended in the manner I described earlier--
does exactly that, and deserves to become law.

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