[Congressional Record Volume 145, Number 42 (Wednesday, March 17, 1999)]
[Senate]
[Pages S2856-S2859]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. WELLSTONE:
  S. 654. A bill to strengthen the rights of workers to associate, 
organize and strike, and for other purposes; to the Committee on 
Health, Education, Labor, and Pensions.


                     right-to-organize act of 1999

 Mr. WELLSTONE. Mr. President, I rise today to introduce two 
pieces of legislation that I believe would represent a giant step 
forward for working Americans. The first bill, which I am calling the 
``Safer Workplaces Act of 1999,'' contains four provisions that would 
extend health and safety protections for workers in the workplace. The 
second bill, the ``Right to Organize Act of 1999,'' would go a long way 
toward correcting some of the flagrant abuses

[[Page S2857]]

of the law that have resulted in workers being denied their right to 
organize and bargain collectively.


                    The Safer Workplaces Act of 1999

  In recent years some of my colleagues have argued that the 
Occupational Safety and Health (OSH) Act already goes too far in 
protecting the right of employees to work in a safe and healthy 
environment. I have a different view. I believe that, in several 
fundamental ways, the OSH Act does not go far enough.
  There are still too many workers injured on the job in America today. 
There are still too many tragic cases of workers losing their lives 
because their employers deliberately chose to break the law. When 
workers go to work in the morning, they have every right to expect that 
they'll come home at night in one piece--not maimed or killed on the 
job because of their employer's wrongdoing. I don't think that's a lot 
to ask.
  Of course it's not. In fact, I know many of my Republican friends 
couldn't agree more. This is not, and should not be, a partisan issue. 
The four provisions of my ``Safer Workplaces Act,'' which I am also 
introducing individually as separate legislation, have all enjoyed 
bipartisan support in the past. I don't see any reason why they 
shouldn't enjoy bipartisan support in this Congress, as well. I hope we 
can sidestep some of the more bitter controversies surrounding the OSH 
Act and focus instead on meaningful changes that will make a real 
difference in the lives of American workers.
  The first provision in my Safer Workplaces Act, which I am 
introducing separately as the ``Safety and Health Whistleblowers 
Protection Act,'' would encourage employees to step forward and 
identify hazards in the workplace without fear of retaliation from 
their employers. In theory, workers are already protected from 
retaliation under Section 11(c) of the OSH Act, but we know that this 
protection is all too often meaningless. As Assistant Secretary of 
Labor Charles Jeffress recently testified before the Employment, 
Safety, and Training Subcommittee, ``The provisions in place today in 
Section 11(c) of the Act are too weak and too cumbersome to discourage 
employer retaliation or to provide an effective remedy for the victims 
of retaliation.''
  Many, if not most, employees are simply afraid that they'll be 
punished or fired if they complain. And they have every reason to be 
afraid. In 1997 the Labor Department's Inspector General, Charles C. 
Masten, concluded that

       Workers, particularly with small companies, are vulnerable
       to reprisals by their employers for complaining about
       unsafe, unhealthy work conditions. The severity of the
       discrimination is highlighted by the fact that for 653 
     cases
       included in our sample, nearly 67 percent of the workers 
     who
       filed complaints were terminated from their jobs.

The IG further found that workers who complain to their employer 
first--rather than to OSHA--are particularly vulnerable; that workers 
in small firms are the most vulnerable; that employer retaliation is 
often severe, most frequently in the form of firing; that OSHA 
procedures to investigate complaints are inadequate; that there are 
significant delays in OSHA's decisionmaking in 11(c) cases; and that 
the Department is failing to seek effective remedies for employees.
  GAO reached similar conclusions. Of the Compliance Safety and Health 
Officers (CSHOs) surveyed by GAO, 26 percent thought workers have 
little or no protection when they report violations to OSHA. According 
to almost 50 percent of these officers, workers themselves believe they 
have little or no protection. But only 10 percent thought workers faced 
no real danger of retaliation.
  When employees are too intimidated to identify workplace dangers, we 
end up with workplaces that are more dangerous than they should be. The 
Labor Department Inspector General concluded that, ``Based on the 
worker termination rates in the 11(c) cases, many employers are not 
receptive to requests for abatement of workplace hazards and feel free 
to discipline workers who seek abatement.'' So hazards go unreported 
and more workers get injured or killed.
  The problems with Section 11(c) are widely acknowledged. In the 103rd 
Congress, the House Education and Labor Committee issued a stinging 
critique of current law, and many of its criticisms were echoed by OSHA 
itself in 1998. These are some of the shortcomings they identified. 
There's too little time for workers to file a complaint, since many 
don't even learn of their legal rights within 30 days of retaliation. 
There's no protection for employees who refuse to work when they have 
good reason to think they're in danger. Workers have to rely on the 
Department to take their cases to court, and there are no real time 
limits for doing that. While their cases are pending, workers have no 
job and no paycheck. And there are no penalties for employers who 
retaliate against workers.
  My legislation is designed to correct these flaws. It gives workers 6 
months, rather than 30 days, to file a grievance for retaliation. It 
protects not only workers who report unsafe conditions, but also 
employees who refuse to work when they have good reason to think they 
might be harmed or injured. To expedite the process, my bill provides 
for prompt hearings before an administrative law judge. It would allow 
dissatisfied workers to then take their case to a federal appeals court 
themselves, not having to rely on the Department. And it would provide 
for reinstatement during these proceedings, as well as compensatory 
damages and exemplary damages when the employer's behavior has been 
particularly outrageous.
  These common-sense improvements should not be contentious or 
controversial. In fact, a bipartisan consensus has already emerged in 
support of similar whistleblower reforms. In July 1988, Reagan 
Administration Secretary of Labor Ann McLaughlin recommended 
legislation allowing airline employees to refuse work when they have a 
reasonable belief that they might be injured or killed, as well as 
providing a six month grievance filing period, hearings before an 
administrative law judge, and a temporary reinstatement remedy. Labor 
Secretary Elizabeth Dole agreed that ``limitation periods shorter than 
180 days have proved too short for effective protection of 
whistleblower rights.''
  In 1989 President Bush said that reinstatement must be available for 
whistleblowers in cases involving waste, fraud, and abuse because 
``Standard make-whole remedies * * * will be meaningless, in practice, 
if whistleblowers are crushed personally and financially while 
legitimate complaints are caught in procedural limbo.'' In 1991, Gerard 
Scannell, Assistant Secretary for OSHA under President Bush, testified 
that ``we know there is a need to improve whistleblower protection and 
we have been working closely with the Congress on this issue.''
  In the 104th Congress, Republican Congressman Cass Ballenger 
introduced an OSHA reform bill that would have strengthened 
whistleblower protections by lengthening the grievance filing period 
from 30 to 60 days, and by giving employees the right to take their 
cases to court if the Labor Department refuses to act.
  Republicans and Democrats agree that Section 11(c) is woefully 
inadequate and cries out for immediate reform. To ensure a safe and 
healthy work environment for all workers, we must count on employees to 
actively participate in identifying and correcting workplace hazards. 
But they're not going to do that if it means putting their jobs on the 
line. It's that simple. These courageous individuals need more 
protection, not less, and that's what my legislation is all about.
  The second provision of my Safer Workplaces Act, which I am 
introducing separately as the ``Wrongful Death Accountability Act,'' 
would make it a felony to commit willful violations of the OSH Act that 
result in death of an employee. Unbelievably, these criminal violations 
are only a misdemeanor under current law. Under virtually every other 
federal safety and health or environmental statute, by contrast, 
criminal violations are a felony.
  Because the penalty is so insignificant, the Justice Department 
rarely prosecutes. There are not a lot of cases where willful 
violations lead to the death of an employee, but some of them involve 
egregious behavior that needs to be prosecuted. We need to send

[[Page S2858]]

a message. Employers who cause the death of their employees by 
deliberately violating the law should be held accountable with 
something more than a slap on the wrist.
  Before a recent hearing of the Employment, Safety, and Training 
Subcommittee, Assistant Secretary of Labor Charles Jeffress testified, 
``We would urge that these violations not be classified as 
misdemeanors, but felonies, which carry with them the possibility of 
incarceration for periods in excess of one year. Classifying willful 
workplace safety and health violations that lead to an employee's death 
as misdemeanors is woefully inadequate to address the harm caused. 
Classifying such crimes as felonies would more justly reflect the 
severity of the offense.''
  This is another reform that has enjoyed bipartisan support in the 
past, and deserves bipartisan support in this Congress. In 1990 the 
Bush Administration testified in support of making these criminal 
violations felonies. Several Republicans on the Labor Committee--Brock 
Adams, Jim Jeffords, and David Durenberger--all supported such 
legislation.
  The third provision of the Safer Workplaces Act, which I am 
introducing separately as the ``Federal Employees Safety Enhancement 
Act,'' would extend full OSHA protections to employees of the federal 
government. Federal employees have been excluded from OSHA coverage for 
almost 30 years. While a 1980 executive order required federal agencies 
to comply with OSHA standards, it provides no real enforcement 
authority.
  As Assistant Secretary of Labor Charles Jeffress recently testified 
before the Employment, Safety, and Training Subcommittee, ``the OSH Act 
currently does not adequately protect Federal employees. *  *  * OSHA 
has little ability to require positive change on the part of public 
employees. As a consequence, this limited authority hinders OSHA's 
success in reducing illness, injuries, and fatalities on the job.''
  Again, this is a common-sense reform that should be bipartisan and 
uncontroversial. In 1994, Republican Congressman Cass Ballenger 
proposed to cover federal employees in his OSHA reform legislation. 
Last year, under the leadership of Senator Enzi, the Senate voted 
unanimously to extend OSHA coverage to the U.S. Postal Service. On 
introducing his Postal Employees Safety Enhancement Act of 1998, 
Republican Senator Enzi indicated that all federal employees should 
ultimately be covered: ``This important legislation is an incremental 
step in the effort to ensure that the `law of the land' applies equally 
to all branches of government as well as the private sector--and 
everything in-between.''
  Finally, my Safer Workplace Act would also extend OSHA protections to 
employees of state and local government. State and local public 
employees are now covered only if their state happens to have a state 
plan. But in 27 states that do not have a state plan, 8.1 million state 
and local public employees are not protected by OSHA.
  There's no reason why these employees should be treated as second-
class citizens. They face workplace hazards just like workers in the 
private sector, sometimes more. Their health and their lives are just 
as much at risk as those of private sector workers. In fact, in 1997, 
624 public sector workers were killed on the job. In several states, 
the injury rate is higher for public employees than for private sector 
employees.
  At a recent hearing of the Employment, Safety, and Training 
Subcommittee, Assistant Secretary of Labor Charles Jeffress testified. 
``There are numerous examples of on-the-job tragedies that occurred 
primarily because safety and health protections do not apply to public 
employees. These tragedies could have been prevented by compliance with 
OSHA rules.''

  Once again, this is a common-sense, bipartisan proposal. The Bush 
Administration supported OSHA coverage for state and local public 
employees in 1991. I understand there is interest on the other side of 
the aisle in this particular provision, and I welcome it.
  Taken together, the four provisions in this legislation would make a 
real difference for American workers. Fewer of them would be exposed to 
workplace hazards, fewer would be injured or harmed on the job, and 
fewer would be forced to pay with their lives. The Safer Workplaces Act 
would encourage employees to be involved in identifying workplace 
hazards and correcting them before tragedy occurs. It would deter 
employers from putting their employees lives' in danger through 
deliberate violations of the law. And it would give federal employees 
and state and local public employees the same health and safety 
protections that workers in the private sector have long enjoyed. This 
is a sensible package of bipartisan reforms, and I would encourage my 
colleagues on both sides of the aisle to join me in passing this 
legislation in the 106th Congress.


                   The Right-to-Organize Act of 1999

  As Ranking Democrat on the Health, Education, Labor and Pensions 
(HELP) subcommittee with jurisdiction over the National Labor Relations 
Act (NLRA), I am also introducing legislation that would more fully 
recognize the right of American working men and women to organize and 
bargain collectively.
  Workers across America who want to organize a union and bargain 
collectively with their employer are finding that the rules are stacked 
against them in crucial ways. This is clear to any labor organizer, and 
to many workers who have made the effort. To give workers a fair chance 
to organize and bargain collectively, we need fundamental labor law 
reform.
  My ``Right-to-Organize Act of 1999'' will target some of the worst 
abuses of labor law that have become increasingly common in recent 
years. First, employees are being subject to flagrant coercion, 
intimidation, and interference during certification election campaigns. 
Second, employers are simply firing employees who attempt to organize a 
union, and they're doing so with virtual impunity. In fact, despite the 
fact that the NLRA prohibits firing of employees for trying to organize 
a union, as many as 10,000 Americans lose their jobs each year for 
doing just that. The 1994 Dunlop Commission found that one in four 
employers illegally fired union activists during organizing campaigns. 
And third, there is a growing problem of employers refusing to bargain 
with their employees even after a union has been certified.
  The Right-to-Organize Act of 1999 tackles these problems with the 
following provisions:
  First, it would help employees make fully informed, free decisions 
about union representation by providing labor representatives and 
management equal opportunity to disseminate information to employees.

  Second, it would expand the remedies available for employees who are 
wrongfully discharged--for union organizing, for example. Specifically, 
it would expand the remedies available to the National Labor Relations 
Board to include three times back pay, and it would allow employees to 
recover punitive damages in district court when the Board has 
determined that they were wrongfully discharged.
  Third, if protecting the right to join a union and bargain 
collectively is to have any meaning, there must be safeguards to ensure 
that newly certified unions have a reasonable opportunity to reach an 
agreement with their employer. My legislation would provide for 
mediation and arbitration when employers and employees fail to reach a 
collective bargaining agreement on their own within 60 days of a 
union's certification.
  While these provisions are all much-needed to level the playing 
field, I am the first to admit that much more still needs to be done. 
This legislation is very much a work in progress. I will be considering 
additional provisions to strengthen the authority of the National Labor 
Relations Board's (NLRB) to sanction willful violations of the law and 
to prevent abuses that too often string out election campaigns for 
months and months while worker representatives are thoroughly 
intimidated, organizers are fired, and the organizing campaign dies an 
early death.
  I believe very strongly that the Right to Organize is terribly 
important--not only for the workers who want to join together and 
bargain collectively, but for all Americans. One of the most important 
things we can do to raise the standard of living and quality of life 
for working Americans, raise wages and benefits, improve health and 
safety in the workplace, and give average

[[Page S2859]]

Americans more control over their lives is to enforce their right to 
organize, join, and belong to a union. We know that union workers are 
able to earn up to one-third more than non-union workers and are more 
likely to have pensions and health benefits. That's why more than four 
in ten workers who are not currently in a union say they would join one 
if they had the chance.
  When workers join together to fight for job security, for dignity, 
for economic justice and for a fair share of America's prosperity, it 
is not a struggle merely for their own benefit. The gains of unionized 
workers on basic bread-and-butter issues are key to the economic 
security of all working families. Upholding the Right to Organize is a 
way to advance important social objectives--higher wages, better 
benefits, more pension coverage, more worker training, more health 
insurance coverage, and safer workplaces--without drawing on any 
additional government resources.
  I believe that the Right to Organize is one of the most important 
civil rights and human rights causes of the 1990s. Unfortunately, this 
cause has received too little attention in this Congress. I hope I can 
do something to remedy that situation, but this legislation is only a 
first step.
                                 ______