[Congressional Record Volume 153, Number 102 (Friday, June 22, 2007)]
[Senate]
[Pages S8283-S8285]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                        EMPLOYEE FREE CHOICE ACT

  Mr. ENZI. Mr. President, I thank the Senator from Alabama for his 
steadfast effort to inform the Senate and other people about the flaws 
of the immigration bill. It is a bill that was put together by a 
coalition. It didn't go through committee. I have never seen a bill 
that passed this body that didn't go through a committee. That is 
because people put together the bill by bringing together their own pet 
projects and one saying to the other: I don't like your part, but if 
you will put my part in there, I will vote for your part and we will 
stick together to the bitter end. And that is usually what happens to a 
bill like that, it is a bitter end.
  I don't think people are paying attention to their phone calls, their 
e-mails, and other things they are getting if they stick steadfast with 
that bill. But that is not what I am here to talk about today.
  I am here to voice my strong opposition to the grossly misnamed 
Employee Free Choice Act. It should be called the Union Intimidation 
Act.
  For generations, this body has faithfully protected and continually 
expanded the rights of working men and women. Today, however, the 
proponents of this legislation would do exactly the opposite and would 
strip away from working men and women their most fundamental democratic 
right--the right to a secret ballot. That is right. This bill would 
strip away the right to a secret ballot.
  If the Democratic Party stands behind that principle, they should 
have to change their name. You can't strip away the right to a secret 
ballot from people of the United States or, hopefully, anywhere in the 
world. For generations now we have guaranteed to all workers in our 
country the right to choose whether they do or do not wish to be 
represented by a union. That is very often a critical decision for most 
employees, one that entails significant legal and practical 
consequence. It is a fundamental matter of individual choice and an 
essential right in the workplace.
  Given its importance, we have secured that right through the use of 
the most basic and essential tool of the free and democratic people--
the private ballot. The private ballot is the way those of us who live 
in a free society select all of those we would ask to represent us. 
Everyone in this Congress was selected by a private ballot, and 
American citizens wouldn't have it any other way. That is why it is so 
astonishing to me the majority is trying to take us to this bill, this 
Union Intimidation Act.
  Under this bill, the rights and safeguards for a private ballot would 
no longer apply when employees decide whether they want the union to be 
their exclusive representative in the workplace. It is a very 
disturbing development when this body, which has no greater purpose 
than the preservation of our democratic rights, would choose to tell 
the working men and women of this country that democracy will stop at 
the factory gate.
  To make it even more astonishing, some of the very people now pushing

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this antidemocratic agenda are on record previously recognizing both 
the importance of the private ballot and the fallibility of just 
signing cards with the intimidator over your shoulder. In 2001, the 
lead sponsor of this misguided legislation in the House, along with 15 
of his then-colleagues, wrote a letter to the Mexican Government 
regarding its labor laws in which they noted:

       The secret ballot election is absolutely necessary in order 
     to ensure that workers are not intimidated into voting for a 
     union they might not otherwise choose.

  Now, what would prompt legislators in both Houses of Congress to 
lecture foreign governments on the necessity of private ballot union 
elections in their respective countries while simultaneously voting to 
deprive workers in this country of the same right?
  In 1998, two of the AFL-CIO's most prominent unions argued to the 
National Labor Relations Board that:

       The National Labor Relations Board supervised election 
     process is a solemn occasion conducted under safeguards to 
     voluntary choice. Other means of decision-making are not 
     comparable to the privacy and independence of the voting 
     booth. The secret ballot election system provides the surest 
     means of avoiding decisions which are the result of group 
     pressures and not individual decisions.

  What could possibly convince us to become partners in hypocrisy by 
joining these same unions and their surrogates when they now claim that 
we would strip workers of the right to decide the question of 
unionization in their own workplace by private ballot?
  The view that the private ballot is the best way to determine 
employee choice and that alternatives such as card check are fatally 
flawed is not only shared by our colleagues across the aisle and labor 
unions, it is consistent with the views of the Federal Judiciary. The 
U.S. Supreme Court, along with the Federal Circuit Court of Appeals has 
uniformly, and over the course of decades, held that the private ballot 
is the best, most reliable, most democratic means of determining 
employees' free choice in the matter of unionization, and that all 
other methods, most particularly--most particularly--card signing are 
inherently flawed and unreliable.
  With regard to signed cards, the Supreme Court noted that:

       Cards are not only unreliable because of the possibility of 
     threats surrounding their signing, but because they are 
     inherently untrustworthy since they are signed in the absence 
     of secrecy and the natural inclination of most people to 
     avoid stands which appear to be nonconformist and 
     antagonistic to friends and fellow employees.

  I wonder how many people here and how many people who might be 
listening have had somebody, a friend or somebody they are a little 
afraid of, bring them a petition to sign. How many people turned down 
that opportunity to sign that petition? I will bet not many.
  With respect to the importance of the private ballot, one Federal 
Court of Appeals put it best when it observed that its preservation 
mattered simply because ``the integrity and confidentiality of secret 
voting is at the heart of democratic society, and this includes 
industrial democracy as well.''
  That is what the judges say. So then what would make us reject the 
consistent--consistent--reasoning of the Federal Judiciary compiled in 
a host of rulings authored by scores of judges and accumulated over 
decades of time?
  Finally, we should remember the cynicism of those who seek this 
legislation when they imperiously claim, ``We don't do elections,'' as 
if the democratic process was somehow beneath them. The source on that 
is Michael Fishman, the president of the Service Employees 
International Union, the largest property services local. Or when they 
arbitrarily dismiss fundamental employee rights by claiming, ``There's 
no need to subject the workers to an election.'' The source on that is 
Bruce Raynor, the general president of UNITE HERE. When labor leaders 
act like despots and tyrants, why would we conceivably make common 
cause with them?
  There is no end to the fundamentally disturbing questions this 
legislation raises. Since this legislation was introduced, a host of 
claims have been made in an ultimately futile attempt to answer these 
questions. We need to stop and ask ourselves: What could possibly be 
the justification for this radical departure from our democratic 
tradition?
  First, we have been told the current law is broken and that the 
system of private ballot elections is somehow rigged against labor 
unions. As proof positive of this claim, we have cited the fact that 
labor unions currently represent only 7\1/2\ percent of the private 
sector workforce, where at one time they represented 30 percent of the 
workforce.
  At least in this instance the proponents of this legislation have 
gotten their facts and their statistics right, a notable departure from 
the avalanche of misinformation and completely inaccurate data that has 
characterized their side of this debate. However, what they have gotten 
entirely wrong is the notion that the decline in union representation 
levels has anything whatsoever to do with some infirmity in the law. 
Those who make this claim conveniently forget to mention that the law 
which they complain about today is identical to the law in effect when 
unions enjoyed their greatest organizing success and their highest 
levels of private sector membership.
  The National Labor Relations Act, the statute which governs private 
sector unionization and which this legislation would radically change, 
has been substantially amended only twice in over 70 years--in 1947 and 
in 1959. The process of deciding the question of unionization by the 
use of a government-supervised private ballot election among all 
eligible employees has been unchanged for over six decades. This was 
the law and this was the process when union membership levels were at 
25 or even 35 percent of the workforce. No one complained then that the 
law or the private ballot process was broken. No one ever claimed that 
either was so unfair or one-sided that we should change them by 
stripping away the employees' democratic rights.
  As this chart shows, over the course of the last six decades, private 
sector union membership has declined steadily, but the law has remained 
the same. There is no doubt that the decline has been real, but 
organized labor and the supporters of this legislation need to look 
elsewhere for the cause of that decline since there is no connection 
between the law that has remained the same for 60 years and the steady 
decrease in union membership levels that have happened over that same 
time.
  Second, we are told even if there is no infirmity in the law, 
employers now violate it with impunity and, therefore, unions cannot 
possibly win elections supervised by the National Labor Relations Board 
like they used to.
  That claim is entirely erroneous. The reality is, when unions choose 
to participate in a fair, private ballot process, they are more than 
able to secure the support of eligible employees.
  In fact, the success rate for unions in secret ballot organizing 
elections is at historically high levels. The union win rate in initial 
organizing elections has been over 50 percent for 10 straight years. 
That is an unprecedented run. Even more unprecedented is the fact that 
the union win has increased each and every year for the past 10 years 
in a row. That is what this chart shows. Unions have never before 
enjoyed such a run of increasing electoral success as they have over 
the last 10 years. In the last 2 years unions have won a record of 
nearly 62 percent of initial organizing elections. This, too, is 
historically unprecedented.
  Before anyone buys the phony claim about how the election process has 
suddenly become unfair, they need to not only realize that union 
electoral success is at record highs, they also need to compare the 
past. For example, the unions won organizing elections over 62 percent 
of the time in the last 2 years, and averaged winning nearly 56 percent 
of the time over the last ten years. During the decade of the 1980s, 
the average union win rate was less than 50 percent. So it is going up. 
For example, in 1982, unions won less than 45 percent of the time. The 
same is true for the decade of the 1970s, when unions again averaged 
losing more often than they won.
  Yet, despite union election win rates that were dramatically lower 
than the record highs of the past 10 years, and despite the fact that 
for many of those years the Democratic Party held the majority vote in 
one or both Houses of Congress, no one had the audacity to even propose 
that we should strip away from American workers the most fundamental 
guarantee of a free society--the right to a secret ballot. When

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Democrats were in charge before, they didn't even suggest that.
  Now, the truth is, where unions choose to participate in a democratic 
process and make their case to the workers in an atmosphere of open 
debate, the system is fair and they are more than capable of success. 
Their unprecedented level of recent success plainly makes this point. 
Moreover, it does not remotely justify changing a process that has 
worked for more than 60 years. It certainly does not justify any change 
that strips workers of their democratic rights. In light of organized 
labor's unprecedented electoral success over the last 10 years, this 
bill is like a baseball hitter who is on a decade-long hot streak and 
batting .620, insisting that the game is unfair and that the pitcher's 
mound has to be moved back.

  The claim that the employers are violating the law with increased 
frequency and making fair elections impossible is equally incorrect. In 
fact, the incidents of even alleged but unproven employer misconduct 
have actually dropped steadily and dramatically over the last 10 years.
  That is what this chart shows. The current rate of alleged employer 
unfair labor practices represents a drop of nearly 24 percent compared 
to 1990; a staggering 42 percent when compared to 1980.
  The ACTING PRESIDENT pro tempore. The time of the Senator has 
expired.
  Mr. ENZI. I see there is another Senator left to speak here. I have a 
lot left to say. This is a very important issue. A lot more needs to be 
said when we are faced with a proposal to take away away the right to a 
secret ballot in a bill deceptively called the Free Choice Act. It 
should correctly be called the Union Intimidation Act.
  I will reserve the remainder of my remarks and speak again a little 
later. When I speak later, I will ask the Record not show an 
interruption.
  The ACTING PRESIDENT pro tempore. The Senator from Missouri is 
recognized.
  Mr. BOND. Mr. President, I ask unanimous consent to be permitted to 
speak as in morning business for up to 10 minutes.
  The ACTING PRESIDENT pro tempore. That is the order. The Senator is 
recognized.
  (The remarks of Mr. BOND pertaining to the submission of S. Res. 252 
are located in today's Record under ``Submission of concurrent and 
Senate Resolutions.'')
  The PRESIDING OFFICER (Ms. Klobuchar). The Senator from Ohio is 
recognized.

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