[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.

                          ____________________