[Congressional Record Volume 153, Number 102 (Friday, June 22, 2007)]
[Senate]
[Pages S8286-S8288]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                        EMPLOYEE FREE CHOICE ACT

  Mr. ENZI. Madam President, I am fascinated to listen to some of these 
discussions to find out we can change the balance of trade if we took 
away the right of employees to decide by secret ballot if they do or do 
not wish to be represented by a union.
  I also heard the argument, that pay and benefits would go up if we 
took away the Democratic right to a secret ballot. Fascinating. 
Fascinating. But, also, not true. You cannot take away rights from 
people in America and expect them to be happy about what is happening 
to them.
  Now, I did see the Senator from Ohio in some national news broadcasts 
thanking one of the major unions for putting the Democrats in power; 
and, as a result, saying that they were willing to bring up this bill 
that would take away the right to a secret ballot. I don't think that 
is how things are supposed to work in America.
  I began earlier and talked about several of the problems with taking 
away this right to a secret ballot under the Employee Free Choice Act--
legislation that I believe should properly be called the Union 
Intimidation Act because that is exactly how it is going to work.
  Previously I was discussing this myth rampant employer misconduct; 
and noted that contrary to these claims even allegations of misconduct 
have dropped significantly.
  The truth is that the National Labor Relations Board scrupulously 
monitors the behavior of all parties during the entire period of a 
union-organizing campaign. Any misconduct by an employer that 
interferes with the employees' free choice in the election process is 
automatic grounds, automatic grounds, to set aside and rerun an 
election.
  Now such misconduct not only includes any employer unfair labor 
practice, but it also includes even less serious transgressions, such 
as an employer's inadvertent failure to provide the union with the 
names and home addresses of all of its eligible employees in a timely 
manner.
  Every word that is uttered and every act that takes place during a 
union organizing campaign is subject to National Labor Relations Board 
review and scrutiny. If a party's words or conduct, clearly including 
the commission of any unfair labor practice, in any way disturbs the 
``laboratory conditions'' required for an election, the NLRB is 
empowered to set aside the election and require it to be rerun.
  However, the fact is only about 1 percent of the National Labor 
Relations Board elections are rerun each year because of the misconduct 
of either employers or unions. So you notice I am not saying this is 
all one-sided, that there are two sides to it. There are some that are 
set aside because of union misconduct.
  Now, just like the number of unfair labor practice charges, this 
figure, has been steadily declining as well. The secret ballot election 
and entire union election process is remarkably fair, heavily 
scrutinized and monitored and tightly regulated.
  Where an employer acts improperly over the course of a union campaign 
and adversely affects the outcome of the election, the National Labor 
Relations Board has full authority to set aside that election and order 
it to be rerun.
  In addition, in those instances where an employer engages in 
misconduct that has the effect of dissipating a union's card majority, 
the law already allows the National Labor Relations Board to certify 
the union and require the employer to recognize and bargain with that 
union. This has been the law for nearly 40 years. The claim that 
employers are increasing violating the law is totally inaccurate.
  What unions and their supporters would like--indeed, what they hope--
to accomplish by this legislation is to characterize any expression of 
opposition to unionization as misconduct and choke it off. Fortunately, 
however, we do not live in a totalitarian country. We live in a country 
that protects free speech and fosters the open debate of ideas. It is 
for those reasons, rooted in the Constitution and the Bill of Rights,

[[Page S8287]]

that current law does permit employers and employees that oppose 
unionization certain limited free speech rights. Even these, however, 
are strictly limited and closely monitored. The supporters of this 
bill, however, would seek to strip away even these limited democratic 
rights and to kill off any opportunity for free speech and open debate 
in the workplace. We cannot oppose totalitarian behavior abroad while 
sanctioning it in America's factories.
  Thirdly, we are told that even if the law is not broken, even if fair 
elections are the norm, and even if employers do not violate the law as 
erroneously claimed, that union membership levels have been steadily 
declining and therefore the law must be changed. That is why they are 
trying to offer this early Christmas gift to union bosses. This is the 
only argument which proponents of this legislation have made that is at 
least based on fact. However, its fundamental premise is shockingly and 
radically wrong and represents a complete reversal of Federal labor 
policy.
  It has never been and it should never be the role of the Federal 
Government to maintain or increase the level of unionization. That is a 
matter of free choice for individual employees, not a matter of 
Government mandate. The role of the Federal Government in private 
sector labor-management relations has wisely and for generations been 
one of neutrality. Our appropriate role has not been to guarantee 
unionization; it has been to guarantee free choice by employees. Our 
appropriate concern must always be the process, not the outcome.
  When it comes to guaranteeing free choice and providing fair 
decisional processes, the history of government and society tell us 
unmistakably that the best means to achieve that end is through the use 
of a private, secret ballot. The proponents of this bill are not 
concerned about employee free choice at all. They are concerned solely 
with giving organized labor a way to stop their decades-long membership 
decline, the loss of membership dues money, and the loss of the 
political leverage such money buys.
  This legislation is a transparent payback to organized labor--maybe 
not too transparent. I have been watching television, and that is 
exactly what has been said to the union leaders who came to DC. 
Catering to special interests is a disturbing enough phenomenon in 
Washington, but when the cost of such catering is the loss of 
employees' fundamental democratic right, the practice is just shameful.
  I want to be sure all my colleagues know that the consequences of 
this bill's enactment would be far greater than merely increasing union 
membership. The bill the majority is asking us to consider today does 
more than take away Americans' right to vote on whether they want to 
join a union; it also upends the enforcement balance of the National 
Labor Relations Act and can destroy the ability of employers to control 
their workplace. In some cases, it also eliminates the ability of 
unionized employees to have a vote on accepting an employment contract.
  The balance struck by the National Labor Relations Act drafters so 
many decades ago included a remedial system that is intended to make 
whole or repair any damage done by violations of the act. Instead, this 
bill will inject a tort-like system into workplace relations, and we 
all know how well the tort system works. Instead of encouraging speedy 
resolution of disputes before the National Labor Relations Board, this 
bill will drag them into the Federal court. The result will be a 
Federal court system even more clogged with litigation and delayed 
resolution of workplace disputes.
  The bill also applies a stronger set of penalties, but only against 
employers. Even though unions face an annual average of almost 6,000 
claims of harassment, intimidation, and coercion, it should come as no 
surprise that the bill's drafters see unfair labor practices as a one-
sided affair.
  The last part of the bill I would like to discuss is perhaps the part 
which worries me the most, and that is the imposition of mandatory 
binding interest arbitration. When employees decide to unionize, the 
first order of business is to negotiate a collective bargaining 
agreement with the employer. This agreement can cover every aspect of 
the workplace, including pay, hours, time off, working conditions, 
health and retirement benefits. Typically, a committee of union leaders 
negotiates with the employer, and once an agreement is reached, all of 
the unionized employees have the right to ratify the agreement. If they 
reject it, the union and employer go back to the negotiating table. 
Under this bill, these negotiations will be halted after a mere 90 days 
and a Government arbitrator will be called in to impose a contract on 
all parties. The workers would lose their right to ratify that 
agreement, the employer would have to comply with the terms of the 
contract even if it crippled the business plan, and the contract would 
be binding for 2 years.
  This is a radical departure from the tradition of private sector 
collective bargaining in which parties to the contract, not some third 
party, make the terms of their own labor agreement. If this becomes the 
law of the land, we can expect the parties in labor negotiations to 
take radical positions to set themselves up for arbitration. This is 
because usually, the arbitration decision comes down in the middle of 
however far the parties are separated. So you have both parties taking 
radical stands, delaying until there is an arbitrator, and nobody 
having a part in the final say except the arbitrator. Again, while the 
current system encourages cooperation, this bill imposes conflict.

  There is another side effect of this provision. Because a 2-year 
contract would be imposed on the parties, employees would lose the 
right to decertify or vote out the union for a period of at least 2 
years. This would be the case even when they did not approve of the 
contract or where they originally signed union cards not knowing what 
they meant or even under pressure. I have no way of knowing whether 
this consequence was intended by the bill's drafters, but I can 
certainly guess.
  Another little hidden gift to organized labor in this bill is that 
under this legislation, there would be no private ballot vote when a 
union was attempting to get into the workplace; however, a private 
ballot vote would be required to let the employees get out of the 
union. Seems like you ought to be able to just get 51 percent to sign 
the card, and it could be done the other way too. But no. That alone 
should make it clear that the only intended beneficiary of this bill is 
organized labor bosses and that its proponents could care less about a 
worker's democratic rights.
  To put it simply, this bill is an attempt to rig the system, deny 
employers any opportunity to present their views on unionization, and 
prevent employees who may oppose unionization from speaking to 
coworkers. It would impose a union on employees based on unverifiable 
evidence of a majority, severely limit employees' ability to get out of 
a union once they are in, and stack the penalties against the employer. 
This may be the perfect recipe to end labor's decades-long losing 
streak, but the only winners will be union bosses and their political 
allies. Not American workers.
  I have listened to the speeches over the last couple of days as this 
bill has been promoted as something essential. Again, I am fascinated 
that the Democratic Party wants to take away the democratic principle 
of the secret ballot. One mythical reason they mentioned is that a 
private ballot election supposedly stalls the process. The fact is, 
according to 2006 NLRB statistics, once a certification petition is 
filed, there is a median of 39 days to an election, and 94.2 percent of 
all elections are conducted within 56 days.
  Another myth out there is that the private ballot election silences 
prounion workers. Here are the facts: All employees have a guaranteed 
right to discuss their support of unionization and to persuade 
coworkers to do likewise while at work. The only restriction is the 
reasonable one that they not neglect their own work or interfere with 
the work of others when doing so. Employees have the unlimited right to 
campaign in favor of unionization away from the workplace. For example, 
they, along with union organizers, can visit employees at their homes. 
In fact, the law requires that employers provide unions with a list of 
employee names and home addresses for just such a purpose.
  Employee speech is virtually unregulated. In an effort to gain 
support for unionization of employees and unions, for that matter, they 
can promise, can

[[Page S8288]]

pressure, can provide financial incentives such as waiving union fees, 
and can spread false claims, distortions, and misrepresentations, all 
with no consequence. By contrast, the employer speech is strictly 
limited, closely monitored, and regulated. Employers cannot lawfully 
visit employees at their homes. Employers can't even invite an employee 
into certain areas of the workplace to talk about unionization. 
Employers cannot promise and cannot make any statement that could be 
construed as threatening, intimidating, or coercive. Such behavior is 
strictly unlawful for the employer.
  The other side says the Employee Free Choice Act, which I call the 
Union Intimidation Act, allows workers to have an election if they want 
one. We just heard that argument. The fact is, we have a body around 
here--a couple hundred researchers at the Library of Congress--that 
does research in a nonpartisan manner. They look at the facts and pass 
them on to us. They were asked about employees being able to have an 
election if they want one under this bill. The Congressional Research 
Service disagrees with their supposition. They read the bill's words 
that say ``the board shall not direct an election'' the way most 
reasonable people would read them. In a memo to me which was entered 
into the Health, Education, Labor and Pensions Committee hearing 
record, CRS wrote:

       An election would be unavailable once the board concludes 
     that a majority of the employees in an appropriate unit has 
     signed valid authorizations designating an individual or 
     labor organization as its bargaining representative.

  The Democrats' own witness at the HELP Committee hearing in March 
admits that it is not true that any one employee who prefers to vote by 
secret ballot election can secure such an election. That is their own 
witness saying: Not true. It was Professor Estlund who said that in 
response to a question for the record.
  Essentially, private ballot elections will only take place under H.R. 
800 if the union chooses to have one by submitting authorization cards 
from less than 50 percent of the workers. As a practical matter, that 
will never happen. If union organizers cannot get enough cards in a 
public, coercive, intimidating signing campaign, they just don't bother 
with an election.
  Another myth: The Employee Free Choice Act, which I call the Union 
Intimidation Act, would increase health care and pension benefits. We 
heard that a few minutes ago. Wishing or asking doesn't make it so. 
Health insurance, like higher wages and benefits, cost money. Unions 
don't have to contribute a single penny toward those costs. In fact, 
since unionized operations are less efficient, they make paying for 
those things more difficult. They don't take into consideration the 
business plan and how to continue the business.
  Comparing union wages versus nonunion wages nationwide is also 
inherently misleading since union workers are concentrated in 
geographic areas and industries where the wages and benefits of all 
workers are generally higher.
  Another myth: Workers seeking to form unions are routinely fired; one 
in five is fired; one in five is fired every 20 minutes.
  OK. Let's look at the facts on that. To begin with, under current 
law, it is illegal to terminate or discriminate in any way against an 
employee for their union activities. If this occurs during an 
organizing campaign, the National Labor Relations Board not only 
remedies the violation, it is also empowered to set aside and rerun the 
election since the necessary ``laboratory conditions'' for a valid NLRB 
election have not been met. However, that occurs in less than 1 percent 
of all elections, and that number has been steadily decreasing.
  That is not the end of the NLRB's authority under current law. If the 
National Labor Relations Board finds a fair election is not possible, 
they can certify the union regardless of the vote and order the 
employer to bargain.
  Yesterday, we heard this same myth repeated, and it is based on three 
phony analyses by stridently prounion researchers, who often make a 
series of wholly unfounded assumptions and routinely misuse statistical 
data.
  The first analysis arrives at its conclusions by taking the number of 
National Labor Relations Board reinstatements offered each year, 
assuming that half occur in the context of an organizing campaign, and 
then dividing that number into some completely mythical and arbitrary 
number of ``union supporters''. Now, even if the first assumption was 
right, it is the number of supporters that matters. The lower the 
number, the more dramatic it looks. This number, however, is completely 
made up. There is no factual basis for determining this number.
  Here are the facts. In 2004, for example, nearly 150,000 employees 
were eligible voters in National Labor Relations Board elections. Using 
their assumptions, there were only about 1,000 reinstatement offers 
that year. That is not 1 in 5; that is 1 in 150. Even that is likely 
very high since the vast majority of these offers are settlements which 
do not account for the fact that many of these terminations may have 
been perfectly lawful. Moreover, since unions won over 61 percent of 
these elections, their supporters amounted to at least 90,000.
  Now, the second ``analysis'' uses the National Labor Relations 
Board's backpay figures as the basis for this claim. Here is the 
problem. The vast majority of those backpay claims do not arise in the 
context of an organizing campaign. They do not involve union employee 
terminations. And they do not single out union supporters. Most involve 
bargaining violations with already-established unions. In 2000, for 
example, two-thirds of the backpay number involved a single case that 
had absolutely nothing to do with an organizing campaign.
  The third study consisted of stridently prounion researchers calling 
union organizers about campaigns they conducted over a short period of 
time in an isolated geographic area. The ``statistics'' relied on were 
nothing more than untested anecdotes.
  So as this discussion continues, we are not going to allow incorrect 
and distorted numbers, and misused and misinterpreted data to obscure 
what is really at issue here. This is about taking away the right for 
people to have a secret ballot. Again, I want to reiterate that while 
this bill may be grossly misnamed as the Employee Free Choice Act, it 
has absolutely nothing to do with preserving free choice. In fact, it's 
just the opposite. How would you like to have someone come into your 
house with two or three people--one of them being very big--and 
pressuring you to sign a union card? Would you feel a little 
intimidated? Most people certainly would. Would you sign because you 
felt pressured, because you just wanted to have people stop bothering 
you, or because you didn't want to offend a co-worker or friend? Most 
people would. However, under this bill all a union would have to do is 
obtain 51 percent this way and it is automatic.
  Once the total reaches 50 percent, there is no latitude. These claims 
that employees could still have an election under this bill are simply 
not true. Oh, yes, there is this extraordinarily deceptive claim that a 
union could stop at 49 percent and ask for an election. That is simply 
nonsense. Why would a union ever do that. More importantly, how could 
employees make the union stop under 50 percent. They can't. And the 
unions certainly won't stop--with one percent more they have guaranteed 
members, and guaranteed dues. Do you really think they'd risk that in a 
secret ballot where someone who signed under pressure would have the 
right to change their mind and vote their real beliefs? Why would a 
union ever do that? Guaranteed union members and guaranteed dues. Do 
you really think union organizers would actually risk that by giving 
employees a truly free choice? I do not think so.
  It is a fundamental democratic principle to have a secret ballot. The 
proponents of this legislation would do exactly the opposite and strip 
away from working men and women this most fundamental democratic right. 
The proponents of this bill ought to change the name of their party if 
they continue to advocate this legislation.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New Mexico is recognized.

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