[Congressional Record Volume 153, Number 52 (Monday, March 26, 2007)]
[Senate]
[Pages S3729-S3732]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
THE EMPLOYEE FREE CHOICE ACT
Mr. HATCH. Mr. President, on March 1, the other body passed the
horribly misnamed ``Employee Free Choice Act,'' H.R. 800, and we may
soon be called upon to consider that bill or a similar Senate
counterpart. The bill was steamrolled through the House of
Representatives in less than a month from its introduction, with only a
single day of subcommittee hearings, at which only one expert witness
critical of the bill was permitted to testify. It was considered in the
House with only limited amendments allowed to be offered. Obviously, it
is incumbent on us to make certain the Senate takes the opportunity for
fuller debate on a measure of such wide impact.
The chairman of the Health, Education, Labor, and Pensions Committee
has scheduled a hearing tomorrow, where we will undoubtedly hear how
``unfair'' the current unionization system is and how it must be
amended to allow for greater unionization. I am sure we will have a
full and robust debate in this body. But as we kick off this debate
over whether to deny private ballots to workers who wish to unionize,
it is my hope we will be able to at least hold fast and true to the
facts. There should be a full debate on these facts.
There is ample evidence to indicate that we should be wary of
amending the National Labor Relations Act, the NLRA, in a way that
would upset the balance in national labor policy between labor and
management and employer and employee. We must not rely on slogans,
anecdotal stories, and questionable secretly commissioned and selective
statistics about alleged unfair labor practices.
The NLRA and its attendant volumes of reported decisions and case
precedent by the National Labor Relations Board is an extremely
complicated, interwoven area of law. Amending it in the way the
sponsors of H.R. 800 envision could rip a gaping hole in the precise
weave of this complex fabric and have a dramatic impact with many
unintended consequences.
It must also be considered that amending the NLRA will not only
affect the welfare of unions, but it will also have a negative overall
impact on workers, employers--especially small employers--and on the
economy and America's ability to be competitive in a global economy.
So let us begin the discussion of the bill. The Employee Free Choice
Act is designed to increase union membership, which currently stands at
7.4 percent of the private sector workforce. The bill would accomplish
that through an artificial, union-controlled ``card check''
certification procedure in place of the traditional NLRB-supervised
private ballot election or, as
[[Page S3730]]
some have called it, a secret ballot election.
In fact, the bill would radically upset the balance in labor and
management and employer-employee relations by amending the National
Labor Relations Act in three ways:
First, the bill would mandate union representation without a private
ballot election among employees. The so-called Employee Free Choice Act
mandates that the NLRB certify a union as the exclusive collective
bargaining representative of employees when the union has demonstrated
that a majority of the employees, 50 percent plus 1, have signed union
authorization cards--or, in other words, the ``card check'' system
without a private ballot election among employees.
Not only would this deny employees the right of private, NLRB-
protected ballot elections on the question of initial union
representation, but through operation of the NLRB's current
``certification bar'' doctrine, it would prevent employees from
challenging the union's majority status through a decertification
election for the certification year.
Secondly, the bill would guarantee union contracts where the
Government would impose the wages, the terms, and conditions of
employment for 2 years if the parties fail to agree after 90 days of
bargaining and 30 days of mediation. That is because the so-called
Employee Free Choice Act requires compulsory, binding arbitration of
initial union contracts.
Specifically, under the so-called Employee Free Choice Act, an
employer must begin bargaining within 10 days of the union's demand.
Thereafter, if the union and the employer cannot reach an agreement
within 90 days, the contract terms must be submitted to the Federal
Mediation and Conciliation Service for a 30-day period of mediation. If
the FMCS is unable to mediate an agreement between the parties, then it
must refer the initial contract to an FMCS arbitration panel with the
authority to issue a decision that is binding on the employer and union
for a 2-year period.
Added to current law, the effect would be to deny employees the
opportunity to approve, or ratify, the terms of the contract. They
would be prevented by the NLRB's ``contract bar'' from initiating a
private ballot decertification election challenging the union's
continuing majority status for the 2-year term of the contract.
Finally, the bill would impose new antiemployer penalties. These
include prioritizing NLRB investigations of unfair labor practice
charges alleged to have been committed by an employer during an
organizing campaign and possibly pursuing injunctive remedial action in
Federal Court.
The proposal also provides for liquidated damages in the amount of
two times any back pay found due and owing and subjects an employer to
a civil penalty not to exceed $20,000 per violation of the NLRA. As
this chart shows, the proponents of the so-called Employee Free Choice
Act are asking the American worker to accept the denial of access to
complete information about the union, the denial of a private ballot
vote, the inability to decertify a union for at least 28 months after
it is initially certified, the denial of the right to strike for a
better deal after binding arbitration, potentially the denial of an
employee's opportunity to vote on a contract, and the denial of knowing
if a union is organizing at their place of work.
Let us look at that again. The effect of the Employee Free Choice Act
dissolves workers' rights to access to complete information about the
union, to vote in secret, to decertify the union for at least 28
months, to strike for a better deal--takes that away from them--to vote
on a contract--takes that away from them--and to know if union
organizing is taking place. It takes their rights away as workers.
This deceptively named bill has little to do with employee free
choice. In fact, it would take away an employee's right to choose union
representation through private ballot elections--some say ``secret
ballot'' elections--something the unions have always fought for but now
are going to throw away in their desire to unionize at all costs.
Indeed, it has everything to do with guaranteeing union organizing to
increase union membership, at a time when unions represent a steadily
declining percentage of America's private sector workforce.
As you can see clearly from this chart, since the modern-day union
movement in 1935, when you evaluate their percentage of the overall
workforce, unions have had good years, up in here, and they have had
many bad years.
As that chart clearly demonstrates, under the current system of NLRB
overseeing private ballot elections in recent years, unions have lost
membership.
Currently, I must underscore, union membership stands at 7.4 percent
of the private sector workforce. Proponents of the Employee Free Choice
Act seek to turn back time when it comes to the percentage of the
American workforce that is unionized and that they want to be
unionized.
I have no inherent problem with a fairly considered, fairly elected
union. However, this bill attempts to increase union strength through
an artificial, union-controlled ``card check'' certification procedure
which tosses away the traditional NLRB-supervised private ballot
election.
Where is the problem we are trying to fix? This bill would replace
the time-honored, NLRB-protected private ballot election, the
traditional system under which workers decide whether to be represented
or not represented by a union. Instead, the system would be supplanted
with the mandated ``card check'' procedure, where union organizers can
pressure employees to sign union authorization cards which are then
presented to the NLRB for certification of the union as the exclusive
collective bargaining representative of all of the employees.
It is important for us to consider that the U.S. Supreme Court has
repeatedly denounced union authorization cards as being ``inherently
unreliable'' because of the types of peer pressures, some subtle and
some not so subtle or benign, to sign the cards. In its 1969 Gissel
Packing decision, the Court acknowledged that the use of authorization
cards to determine majority support is unreliable and that private
ballot elections are the ``most satisfactory--indeed the preferred
method of ascertaining whether a union has majority support.''
Unions, likewise, prefer a NLRB-protected and supervised private
ballot election, at least when they are faced with a decertification
petition from their members to determine whether the union has majority
support. That was demonstrated once again last month by union
opposition to a proposed amendment to apply the ``card check''
provisions of the so-called Employee Free Choice Act to decertification
elections. That amendment was defeated in the House committee's markup.
As one court stated with regard to ``card check'' authorization:
It would be difficult to imagine a more unreliable method
of ascertaining the real wishes of employees than a ``card
check'' unless it were an employer's request for an open show
of hands. The one is no more reliable than the other.
That is in the NLRB v. Logan Packing Company of the Fourth Circuit.
It is hard to believe we are seriously considering a bill to deny
workers a private ballot vote so soon after the national elections. It
is also inconsistent with our Nation's history of promoting private
ballot elections for the disenfranchised members of society through the
suffragette and civil rights movements, especially when we are fighting
for the opportunity of individuals around the world to have the
democratic right to a private ballot election that is free of
intimidation and coercion.
I am reminded of a statement made on January 31 of this year by my
longtime friend and colleague from Massachusetts on the need for fair
elections:
For too long, we've ignored the festering problem of
deceptive practices intended to intimidate and deceive voters
in our national elections. . . .''
Although I am not able to say this very often, I can say that I am in
absolute agreement with my friend on that point. In every election,
whether it is for President, local dog catcher, or union organization,
we as representatives of the people whom we serve have an obligation to
ensure our constituents' votes will be cast without fear of
intimidation.
I assert--and I think many also would back this up--that a private
ballot election overseen by the NLRB, a
[[Page S3731]]
Government agency, has a better chance to be more free and fair than
one in which it is left to the union organizers to solicit cards in
secret until they receive a majority of 50 plus 1. What happens to the
other 49 percent? Are they just disenfranchised? The answer is yes.
Under the ``card check'' system, there is no inducement to allow
employees to make an informed decision, learn all the facts, and hear
arguments for and against unionization.
It is difficult for me to believe we would be considering a bill
which would mandate that the Government impose wages, terms, and
conditions of employment where the parties, new to collective
bargaining, have not reached agreement after 90 days. This would
destroy free collective bargaining and the entire labor law concept of
``impasse'' when the parties are unable to agree. Under the so-called
Employee Free Choice Act, for first contracts, ``impasse'' would be
defined as 90 days of bargaining before the Government steps in. Even
basic labor law textbooks term compulsory binding arbitration as the
``antithesis of collective bargaining.''
These are radical changes in collective bargaining which have little
to do with employee free choice. In fact, these amendments would
disenfranchise workers by denying them private ballot elections and a
vote on whether to accept wages, terms, and conditions the Government
arbitration panel would impose on them.
Who would benefit from the passage of the so-called Employee Free
Choice Act? I can tell you. Only unions. They would be virtually
guaranteed organizing success, increased union membership, and more
union dues.
As you can see from this chart, over the past 6 years, unions
traditionally win approximately 50 to 60 percent of NLRB-supervised
private ballot elections. In contrast, it is reported that ``card
check'' elections yield unions success approximately 80 to 85 percent
of the time. Who would benefit? I can tell you. Only unions.
Look at that chart again. ``Union Win Rates in Elections.'' The NLRB-
supervised election, in 2000, the unions won 51 percent; in 2001, the
unions won 54 percent; in 2002, they won 56 percent; in 2003, they won
57 percent; in 2004, they won 57 percent; in 2005, they won 61 percent;
and in 2006, they won 61 percent.
Where ``card check'' elections have been held--because the employers
have agreed to them, I guess, because they are certainly not law yet;
that is why they are bringing this up--80-85 percent have become
unionized even though 49 percent of the people in those companies have
had nothing to say about it. It is not right. It is not the way to go.
Unions would be guaranteed first contracts for a period of 2 years
under this bill.
Looking at the big picture, what would the so-called Employee Free
Choice Act mean for our economy? Let me read from a recent article
written by Jack and Suzy Welch in the March 12 issue of BusinessWeek
magazine. Jack Welch is one of the alltime important business leaders
in this country. Here is what they had to say:
We know it must sound strange to oppose legislation that
promises something as motherhood-y as ``free choice.'' But
the title of this bill is pure propaganda. It won't encourage
liberty or self-determination in the workplace; more likely
it will introduce intimidation and coercion by labor
organizers, who, after a long slide into near-oblivion,
finally see a glorious new route to millions of dues-paying
members. Their campaign could trigger a surge in unionization
across U.S. industry--and in time, a reversion to the bloated
economy that brought America to its knees in the late 1970s
and early '80s and that today cripples much of European
business. If you want to be reminded of what that looks like,
drive through Pennsylvania's Lehigh Valley, as we did last
weekend, and take a look at all the shuttered factories.
Steel--like coal, autos, and so many other industries in the
global economy--paid the inevitable price of unionization run
amok.
. . . The advance of the Employee Free Choice Act
continues unabated. And so pretty soon, if enough business
leaders and legislators don't stand up, it may well be: Hello
again, unions. So long, American competitiveness. The change
will not happen instantly. Companies will fight unions as if
their lives depend on it, because they do. But given the
logistics of the Employee Free Choice Act, any management
campaign is hobbled. If you can't be at the kitchen table
with the organizers and their hard stares, you probably can't
win.
He sums it up:
In those areas where employers have agreed to a ``card
check,'' they have invariably become unionized and many
employees unionized against their will with the obligation of
paying dues.
Mr. President, I ask unanimous consent that the full article be
printed in the Record.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
(See exhibit 1.)
Mr. HATCH. Mr. President, I assert that this is the start of another
historic Senate debate on national labor policy. It is unfortunate that
I have to be involved in this because I was raised in the union
movement. I am one of the few people who have served in Congress who
actually earned a union card, who actually became a skilled building
tradesman, who worked in the building construction trade unions for 10
years. I believe unions are important, but I believe they should have
to earn their membership and not have it given to them.
In conclusion, as we enter this debate, let us not be fooled by the
misinformation from the other side.
Take a look at this chart. They claim employers coerce employees to
vote no. The truth is that in less than 2 percent of cases is it found
that an employer has inappropriately interfered in a union organizing
election.
They claim unions can't win elections under the current system. The
truth is that unions won 62 percent of NLRB elections in 2005, the last
year for which a complete set of statistics exists.
They claim American workers want to form unions using a ``card
check'' system. The truth is that, according to a recent poll, 79
percent of Americans disagree with the elimination of private ballots
when voting in union organizing elections.
The President has issued a Statement of Administration Policy that he
would veto the so-called Employee Free Choice Act if it reached his
desk. That should not make us complacent in the Senate. Even if a veto
were necessary, Senate passage of a bill like that which was passed by
the House would put us on record in future Congresses as being against
private ballot elections for workers in union representation decisions,
in support of Government-imposed wages, benefits, and other terms and
conditions of employment through union contracts where workers
themselves will be denied a ratification vote. Is that where we want to
be a year or two from now? I, for one, do not believe we as a nation
should head in that direction, and I urge my colleagues to resist any
attempt to force unionization on the American workforce.
To paraphrase the movie ``The Godfather,'' I believe union bosses
have made the American workforce a deal they can refuse. We must oppose
any attempt to pass any iteration of the Employee Free Choice Act, and
we must do it on behalf of the American worker.
Mr. President, I yield the floor.
Exhibit 1
[From Business Week, Mar. 12, 2007]
The Unemployment Act
(By Jack and Suzy Welch)
Are you at all concerned about American competitiveness in
the future?
--Srikanth Raghunathan, Irwin, Pa.
Yes. But not for the standard ``the sky is falling''
reasons, like the twin deficits, low-cost Chinese
manufacturing, or intellectual property piracy. We believe
those challenges will largely be ameliorated by market,
political, and legal forces. No, we're as worried as can be
that American competitiveness is about to be whacked by
something no one seems to be talking about: the Employee Free
Choice Act, which is currently weaving an insidious path
through Congress toward becoming law. If it does, the long-
thriving American economy will finally meet its match.
You didn't read wrong. We know it must sound strange to
oppose legislation that promises something as motherhood-y as
``free choice.'' But the title of this bill is pure
propaganda. It won't encourage liberty or self-determination
in the workplace; more likely it will introduce intimidation
and coercion by labor organizers; who, after a long slide
into near-oblivion, finally see a glorious new route to
millions of dues-paying members. Their campaign could trigger
a surge in unionization across U.S. industry--and in time, a
reversion to the bloated economy that brought America to its
knees in the late 1970s and early '80s and that today
cripples much of European business. If you want to be
reminded of what that looks like,
[[Page S3732]]
drive through Pennsylvania's Lehigh Valley, as we did last
weekend, and take a look at all the shuttered factories.
Steel--like coal, autos, and so many other industries in the
global economy--paid the inevitable price of unionization run
amok.
Make no mistake, We don't unilaterally oppose unions.
Indeed, if a company is habitually unfair or unreasonable, it
deserves what it gets from organized labor. But the problem
with unions is that they make a sport out of killing
productivity even when companies are providing good wages,
benefits, and working conditions. It is not uncommon in a
union shop to shut down production rather than allow a
nonunion worker to flip a switch. Only a union or millwright
electrician can do that job! Come on. Companies today can't
afford such petty bureaucracy or the other excesses unions so
often lead to, such as two people for every job and a
litigious approach to even the smallest matters. Yes,
managers and employees will sometimes disagree. But in the
global economy, they have to work through those differences
not as adversaries but as partners.
The Employee Free Choice Act undermines that. Here's how.
Currently, when labor organizers want to launch a
unionization effort, they ask each worker to sign a card as a
show of support. If 30% or more employees do so, a federally
supervised election can be called and conducted with one of
the most revered mechanisms in democracy, the secret ballot.
Thus, employees can vote their conscience, without fear of
retribution from either union leaders or management.
By contrast; under the Employee Free Choice Act, organizers
could start a union if 50% of employees, plus one more
worker, sign cards. That's right--no more secret ballot.
Instead, employees would likely get a phone call with a
pointed solicitation, or worse, a home visit from a small
team of organizers. You can just imagine the scenario. The
organizers sit around the kitchen table and make their case,
likely with a lot of passion. Then they slide a card in front
of the employee with a pen. Who would say no? Who could?
Now, union supporters will tell you that they won't
intimidate employees for votes, and regardless, management
intimidates all the time by threatening to fire employees who
vote union. But the system as it exists has safeguards,
including heavy fines against companies that misbehave and
automatic new elections.
Still, the advance of the Employee Free Choice Act
continues unabated. And so pretty soon, if enough business
leaders and legislators don't stand up, it may well be: Hello
again, unions. So long, American competitiveness. The change
won't happen instantly. Companies will fight unions as if
their lives depend on it, because they do. But given the
logistics of the Employee Free Choice Act; any management
campaign is hobbled. If you can't be at the kitchen table
with the organizers and their hard stares, you probably can't
win.
It's too bad. In fact, its terrible. And ironic. First,
because the ability to unionize already exists in America,
thanks to the secret ballot. And second, because the Employee
Free Choice Act ultimately only provides a free choice nobody
would ever want: how to spend a government issued
unemployment check.
The ACTING PRESIDENT pro tempore. The Senator from Colorado.
____________________