[Congressional Record Volume 153, Number 42 (Monday, March 12, 2007)]
[Extensions of Remarks]
[Pages E522-E523]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      THE EMPLOYEE FREE CHOICE ACT

                                 ______
                                 

                         HON. GEORGE RADANOVICH

                             of california

                    in the house of representatives

                         Monday, March 12, 2007

  Mr. RADANOVICH. Madam Speaker, with one of the most misleading names 
ever put to a piece of legislation, the House of Representatives voted 
last week on a bill entitled ``The Employee Free Choice Act.'' (H.R. 
800). If made law, the Act would result in the most important changes 
in federal labor law since the enactment of the Wagner Act in 1935 and, 
contrary to its title, would deprive employees of free choice in the 
two most important issues involving unions by denying employees the 
right to a secret ballot election to determine whether or not they want 
to be represented by a union and by denying employees the right to 
approve or disapprove the first labor contract with their employer.
  Under present law, the most common way to determine whether employees 
want to be represented by a union is through a secret ballot election 
conducted by a federal agency, the NLRB. The United States Supreme 
Court has emphasized that other methods of deciding about unionization 
are inferior. Under the new bill, a union would be able to gain the 
right to represent employees through a ``card check'' in which a union 
simply would have to collect the signatures of a majority of employees 
on union authorization cards in order to represent them. The result 
would be that employees' signatures on union cards, which now are used 
to call for an election, would be used to preclude them from having an 
election. Moreover, once unionized through a card check, employees 
would not be able to change their mind by the same mechanism.
  Nothing could be more undemocratic, as is evidenced by the AFL-CIO's 
own study showing that when unions get from 60 to 75 percent of 
employees to sign union authorization cards, they win less than 50 
percent of elections.
  It seems painfully obvious that, as Congressman Howard Berman (one of 
the Act's co-sponsors), said when he was in the California Assembly, 
secret ballot elections are essential to ``the self determination of 
the workers'' that federal labor law seeks to promote. As Yale's Robert 
Dahl concluded: ``In the late nineteenth century, the secret ballot 
began to replace a show of hands. . . [S]ecrecy [in voting] has become 
the general standard, a country in which it is widely violated would be 
judged as lacking free and fair elections.'' Federal law now requires 
that in elections for federal office, the citizens must be able to vote 
``in a private and independent manner'' and that ``the privacy of the 
voter and the confidentiality of the ballot'' must be protected. 42 
U.S.C. Sec. 15481(a)(1). The lack of privacy under H.R. 800 would 
subject employees to overwhelming pressure from union organizers and 
other workers to sign union cards, putting them back in the 19th 
century.
  Card checks not only violate the workers' right to privacy but 
deprive workers of the right to hear the arguments against as well as 
for unionization. Again, as Professor Dahl observed, ``voters must have 
access . . . to alternative sources of information that are not . . . 
dominated by any . . . groups or point of view.'' Unions usually 
solicit cards with no notice to the employer, so that H.R. 800 would 
deprive employees of the ``alternate sources of information'' necessary 
to make an informed, and hence free, decision.

  H.R. 800 compounds these inherent defects in the card check process 
by providing no remedy if a union uses improper pressure or deception 
in getting employees to sign cards. Present law establishes a detailed 
and comprehensive procedure for dealing with election misconduct by 
both employers and union. H.R. 800 contains no such protections.
  H.R. 800's card check provisions also violate the parity of the 
processes for employees to bring in a union and rejecting an existing 
union representative. Under present law and under the proposed new law, 
once employees bring in a union, it is not easy for them to change 
their mind and get rid of the union. In most cases, a secret ballot 
election is necessary both to bring in a union and jettison one. Under 
the proposed law, it would be easy for unions to get in through a card 
check, but difficult for employees to get free of union representation 
because the formalities of a secret ballot election would be required. 
There is no rational basis for establishing different procedures for 
choosing to be represented by a union and choosing not to.
  H.R. 800 would deprive employees of their other basic free choice: 
the right to use their collective economic power to negotiate the best 
agreement they think they can get and the right to approve or reject 
any contract negotiated by their union. Presently, employees are free 
to strike if they do not approve of a proposed labor contract, but H.R. 
800 makes the contract fixed by a panel of government-appointed 
arbitrators binding for two years and now most employees covered by a 
proposed labor contract have the right to vote whether or not to accept 
it. H.R. 800 would strip this right away from them for the first (and 
most important) contract with their employer. If their employer and 
union did not reach agreement on a first contract after 90 days, the 
Federal Mediation and Conciliation Service (``FMCS'') would appoint a 
board of private arbitrators to determine the terms of the contract, 
which would be binding on the employees, the union, and the employer. 
There is no limit on the arbitrators' authority. They could raise wages 
by 100 percent or lower them. They could require employees to pay union 
dues or lose their jobs. This part of the law is clearly 
unconstitutional because it establishes no standards or procedures for 
the arbitrators to follow and does not provide for any review of the 
private arbitrators' decisions, either administrative or judicial.
  In 1925, the Supreme Court declared unconstitutional under the 
Fourteenth Amendment a state law requiring certain private sector 
employers and workers to submit to binding interest arbitration by a 
panel of judges if the parties could not agree on a contract.
  Accordingly, H.R. 800 can be upheld only if it provides procedural 
due process. It does not. Conspicuously absent from the statute are the 
procedural safeguards customarily considered necessary to ensure a fair 
hearing (e.g., the right to notice, to know what standards will be 
applied, to present evidence, to some kind of review, administrative or 
judicial). Of course, it is possible that the NLRB will utilize their 
rulemaking authority to provide for such procedures. Even so, neither 
agency is authorized to review an arbitration board's decision on the 
basis of non-compliance with such procedures. Similarly, an arbitration 
board's non-compliance with procedural safeguards is not a basis for 
judicial review. Moreover, in most arbitrations, the parties' agreement 
to a particular procedure is the best guarantee of fairness. Under H.R. 
800, the parties have no voice in determining procedure.
  In addition to due process infirmities, H.R. 800 effectuates an 
impermissible delegation of legislative authority to private actors, 
violating principals of separation of powers. Pursuant to H.R. 800, 
private arbitrators are vested with the ability to bind nonconsenting 
parties. Most importantly, employees are not parties to the mediation 
and have no right to participate in the arbitration proceeding or 
challenge the arbitrators' decision. While a majority of the affected 
employees will have signed union authorization cards (as defective as 
they are) supporting the union, the contract imposed by the arbitrators 
will bind all bargaining unit employees, including those who did not 
support union representation.
  Aside from constitutional defects, H.R. 800 would eviscerate large 
portions of the over 70 years of case law developed carefully under the 
National Labor Relations Act. The resulting uncertainty would be a 
major force in destabilizing labor relations and causing labor strife 
the NLRA was intended to resolve. For example, over 97 percent of 
private sector labor

[[Page E523]]

contracts contain provisions for the binding arbitration of disputes 
under those contracts. Such arbitration provisions are enforceable only 
if they are consensual.
  The underlying problem with the mandatory arbitration portion of H.R. 
800 is that in addition to depriving employees of the right to 
disapprove of the arbitrators' ``agreement'', it would destroy 
collective bargaining by eliminating the role of economic power and 
injecting procedural requirements for a fair adjudication or rulemaking 
proceeding that are inconsistent with collective bargaining. A labor 
negotiation is a contest of economic power, fundamentally different 
than an adjudication or rulemaking. Any attempt to graft direct 
government determination of the terms and conditions of employment onto 
a law promoting private decision-making through collective bargaining 
is bound to fail. The two cannot be reconciled.
  I stand firm behind my vote against H.R. 800 and fully support a 
Presidential veto of the bill.

                          ____________________