[Congressional Record Volume 153, Number 102 (Friday, June 22, 2007)]
[Senate]
[Pages S8291-S8294]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                        EMPLOYEE FREE CHOICE ACT

  Mr. HATCH. Mr. President, I rise in fierce opposition to the horribly 
misnamed Employee Free Choice Act.
  When I first came to the Senate, I thought the 1977-1978 labor law 
reform bill we turned back was bad public policy. The bill we are 
considering moving to the floor, H.R. 800, is far worse.
  Where is the free choice for employees in this horribly misnamed 
Employee Free Choice Act? In all my years in the Senate, I have to say 
that the title of this bill is the most misleading of any I can recall. 
This bill doesn't give rights to employees; it takes away the rights of 
employees and replaces them with the rights of union bosses.
  Back in 1977 and 1978, when we fought the labor law reform bill, 
there were 62 Democrats in the Senate and only 38 Republicans. But we 
were able to defeat that bill by one vote. Thank goodness we did 
because this would be a far different country today.
  This bill would more aptly be named the Union Bosses Free Ride Act 
because it would allow union organizers to skip the efforts of having 
to convince employees to vote for union representation in secret ballot 
elections to gain certification as the exclusive bargaining 
representative. Then it would allow union negotiators to skip the 
efforts of bargaining for a first contract. Instead, unions need only 
make a pretense of collective bargaining for an initial union contract 
before turning to the Federal Government, which can for 2 years impose 
the wages, benefits, and other terms and conditions of employment 
binding on employees, without employees' ratification or approval--
binding on the employer as well, without the employer's ratification or 
approval.
  Is this what my colleagues want to support--eliminating secret ballot 
elections and mandating Government certification of a union based on 
union-solicited authorization cards? Is this what my colleagues want to 
support--the Federal Government writing the binding contract terms for 
private sector wages, benefits, and other terms and conditions of 
employment? That is what this bill does.
  Apparently, it is not what the American public want us to support. 
According to a January 2007 poll by McLaughlin and Associates, 79 
percent of the public opposes this bill, including 80 percent of union 
households, 80 percent of Republicans, and 78 percent of Democrats.
  When asked: ``Would you be more or less likely to vote for a Member 
of Congress who supported this bill?'' the response was 70 percent less 
likely.
  Recent polls also suggest that 87 percent of voters, almost 9 out of 
10, agree that every worker should continue to have the right to a 
federally supervised, private-ballot election when deciding whether to 
organize a union. The same survey found that 79 percent, that is 4 out 
of 5 voters, oppose efforts replace the current private-ballot system 
with one that would simply require a majority of workers to sign a card 
to authorize organizing a union. There was virtually no variation in 
reply among Republicans, Democrats, or Independents in this survey; 
this sentiment rings true across the board.
  Likewise, in a 2004 Zogby International survey of union workers, it 
was found that the majority of union members agree that the fairest way 
to decide on a union is for the government to hold a private-ballot 
election and keep the workers' decisions private. In the same survey, 
71 percent of union members agreed that the current private-ballot 
process is fair. The survey also found that 84 percent of union workers 
stated that workers should have the right to vote on whether or not 
they wish to belong to a union.
  It is hard to believe that we are seriously considering a bill to 
deny workers a secret ballot vote so soon after the national elections, 
and our own elections, given our Nation's history in promoting secret 
ballot elections for the disenfranchised members of society through the 
suffragette and civil rights movements. This is especially true 
since we are fighting for the opportunity of individuals around the 
world to have the democratic right to a secret ballot election.

  Apparently, even congressional cosponsors of the bill acknowledge 
that it would be bad policy to take away secret ballot union 
representation elections, at least for workers in Mexico. In a 2001 
letter to Mexican Government

[[Page S8292]]

officials, the House sponsor of H.R. 800, 16 Members of the House of 
Representatives including one then-member who now serves in this body, 
wrote:

       We understand that the private ballot is allowed for, but 
     not required by Mexican labor law. However, we feel that the 
     private ballot is absolutely necessary in order to ensure 
     workers are not intimidated into voting for a union they may 
     not otherwise choose.

  If private ballot elections are absolutely necessary for workers in 
Mexico, why aren't they necessary here? That is what you have to ask.
  The answer is simple. Union bosses are more successful under card 
check. Recently, according to official NLRB statistics, unions have won 
over 60 percent of NLRB-supervised secret ballot union representation 
elections. In other words, they are winning the vast majority of 
elections on secret ballot. They want to win all of them, and that is 
why they support this card-check approach. At least by political 
election standards, that 60 percent is a high mark. But not for union 
bosses. Statistics show that under a card check, unions win 
approximately 80 percent of the time, and an even higher percentage 
when the employer remains neutral and does not communicate with 
workers, as employers are permitted to do under the section 8(c) free 
speech provision of the National Labor Relations Act.
  In effect, forced employer neutrality would be the result of card 
check under H.R. 800, since union organizers would control the timing 
of the election by quietly securing a majority of signatures--50 
percent plus 1--among a group of employees, large or small, determined 
by the union organizer, and then springing the demand for certification 
upon the employer and the NLRB. The result would, in effect, silence 
the employer and thus deny employees the right to be fully informed 
about the particular union seeking their support.

  Under this bill, the role of the NLRB, which has such a proud history 
of conducting secret ballot union representation elections, would be 
reduced to that of handwriting analysts checking to make sure that 
employees' signatures were not forged, and determining whether the 
group of employees designated by the union constitutes an appropriate 
unit. Remember, under NLRB law, the unit petitioned for does not have 
to be the appropriate unit, or the most appropriate unit, but only an 
appropriate unit for bargaining where the employees share a community 
of interest. Thus, in effect, the union organizer can select a group of 
employees that are most easily organized by means of card check, force 
NLRB certification by designating ``an'' appropriate unit, and then 
force a government-imposed first contract, the terms of which could 
incorporate employer obligations affecting the employer's entire 
operations, such as contract provisions barring subcontracting of work.
  In effect, H. R. 800 is push-button unionism.
  Under this bill, to force union representation, union organizers only 
have to get employees to sign union authorization cards, which the 
Supreme  Court has an ``inherently unreliable'' indicator of true 
employee support due to peer pressures, intimidation and coercion.

  Would the unions like the employers to have the same right, to be 
able to go privately and intimidate employees as the union organizers 
will do and get 50 percent plus 1 to throw the union out? Not on your 
life.
  In fact, 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.'' NLRB v. Logan Packing Co., Fourth 
Circuit Court of Appeals.
  Some supporters of the bill have asserted that the bill does not 
eliminate secret ballot elections. But if they simply read the bill, it 
provides just the opposite. Just so we are clear, quoting from the 
bill:

       Notwithstanding any other provision of this section, 
     whenever a petition shall have been filed by an employee or 
     group of employees or any individual or labor organization 
     acting in their behalf alleging that a majority of employees 
     in a unit appropriate for the purposes of collective 
     bargaining wish to be represented by an individual or labor 
     organization for such purposes, the board shall investigate 
     the petition. If the board finds that a majority of the 
     employees in a unit appropriate for bargaining has signed 
     valid authorizations designating the individual or labor 
     organization specified in the petition as their bargaining 
     representative and that no other individual or labor 
     organization is currently certified or recognized as the 
     exclusive representative of any of the employees in the unit, 
     the board shall not direct an election but shall certify the 
     individual or labor organization as the representative 
     described in subsection.

  How can one say with a straight face that card check for union 
representation is any more protective than a private ballot election 
where employees may be solicited, intimidated, and coerced, subtly or 
not so subtly, to sign union authorization cards by fellow employees 
during nonwork hours and nonwork areas at the workplace, or by outside 
union organizers at the employees' homes or at the union hall or simply 
on the street or at the plant gates.
  How is card check more of a free choice than the long-established and 
hard-won employee protections of a private ballot election, which is 
supervised, monitored, and shielded by Government officials of the 
National Labor Relations Board, who are present at the voting booth to 
prevent improper electioneering and misconduct by representatives of 
either labor or management?
  The compulsory, first contract, interest arbitration is even a 
greater departure from sound national labor policy because it destroys 
free collective bargaining.
  Under this bill, to force an initial union contract, union 
negotiators only have to make a pretense of bargaining for 90 days 
before calling on federal mediation for 30 days. If not resolved, the 
contract then must go to a federally appointed arbitrator who will 
write the employment terms binding on the employees and the employer 
for 2 years. That is long enough to sour employees on the federally 
imposed terms of employment, and long enough to bankrupt an employer or 
make it so noncompetitive that it decides to close operations and do 
business elsewhere--perhaps and probably overseas.
  How can one say with a straight face that it is an employee's free 
choice to have the Federal Government write the terms of employment 
through compulsory interest arbitration by a federally appointed 
arbitrator? Under this bill, the arbitrator has unfettered authority to 
impose the wages, benefits, terms and conditions of employment of an 
initial union contract, which is then binding on employees and their 
employers for two years, without the employees even being able to 
approve or ratify those terms as they can under current law? How is 
that employee free choice? How is that open collective bargaining?
  And how is it an employee's free choice then, by operation of the 
current contract bar doctrine, to prevent those employees from 
challenging the union's continuing majority support by an NLRB 
supervised secret ballot election?
  This bill is not about employee free choice. It is about union 
leaders calling in their political chits in order to increase 
membership, and being able to deny workers the protections of an NLRB-
supervised secret ballot election.
  It is about union leaders then being able to get the Federal 
Government to impose wages, benefits, terms and conditions of 
employment and deny workers the right to ratify or approve the first 
union contract that will govern their employment for 2 years.
  This is a huge and radical change in national labor policy, which the 
bill's sponsors are trying to foist on American workers and employers 
without even the benefit of a committee mark-up. Imagine, with only one 
day of committee hearings, completely rewriting and reversing over 70 
years of national labor policy by injecting the Government into private 
sector collective bargaining through compulsory arbitration. The 
Federal Government steps in, not where the parties voluntarily agree to 
such intervention, but by congressional mandate, by operation of law, 
whether the parties agree or not.

  That is not the way national labor policy is designed to work. This 
is not how it worked when the original Wagner Act was enacted in 1935, 
and in all subsequent amendments including the 1947 Taft-Hartley Act. 
Consistent with the decisions of every NLRB in Democratic as well as 
Republican administrations--and enforced by every federal

[[Page S8293]]

court including the Supreme Court, it has been bedrock national labor 
policy that the Federal Government must not set the terms of the 
private employment contract. The role of the Federal Government through 
the NLRB and the courts has been to establish the rules for good faith 
bargaining. And the law does not require agreement, nor does it require 
a contract, so long as the parties bargain in good faith. Those sound 
national labor policies are destroyed under H.R. 800, which ignores 
whether the parties are bargaining in good faith and mandates a first 
contract binding on both sides.
  This bill does not require a finding by the NLRB or the courts that 
the parties have failed to engage in good faith bargaining. Although 
misguided and bad policy, at least the 1977-1978 labor law reform bill 
addressed union complaints about the difficulty of reaching agreement 
on first contracts by first requiring a finding by the NLRB that the 
employer was guilty of bad faith bargaining. Then, the so-called make 
whole remedy proposed was to pay wages equivalent to a BLS index of 
average hourly manufacturing wages for the period of the employer's 
refusal to bargain. That, in my opinion, is not something Congress 
should endorse.

  But to show you how truly extreme the current bill is, under H.R. 800 
there is no requirement of a finding that the employer had violated the 
National Labor Relations Act by failing to bargain in good faith on an 
initial contract. The employer may have negotiated completely in good 
faith, and the parties need not have even reached an impasse in 
negotiations, to trigger the supreme sanction of having the Government 
step in and write the contract. The only trigger is when the parties 
have been unable to agree on a contract after 90 days of negotiations 
and 30 days of federal mediation. In effect, we are legislating that it 
is an unfair labor practice for an employer not to reach agreement on a 
first contract within 90 days of bargaining and 30 days of mediation, 
and that unless you agree to the union's terms the penalty is that the 
Federal Government will appoint an outside, third party to impose a 
contract on you for 2 years. Now that is not American.

  Think of the effect of all this on the Nation's small business 
community. Informed of union certification because of card check, 
suddenly dragged to the bargaining table within 10 days of the union's 
demand, and most likely never having engaged in collective bargaining 
before, the small business owner will be confronted with professional 
union negotiators insisting on wages, benefits, terms, and conditions 
perhaps beyond the small business owner's ability to accept and remain 
competitive. But unless the small business owner agrees, the Federal 
Government, through a federally appointed arbitrator, will step in and 
write the contract.
  Do we want the Federal Government writing private sector contracts? I 
don't think so. I cannot stress enough my concern about the bill's 
provision for first contract compulsory interest arbitration, 
especially as it would affect small business. That is even worse than 
the card check scheme to begin with, but without the card check scheme, 
you can't get to this.
  It is close to socialism to mandate that the Federal Government, 
through federally appointed arbitrators, should dictate private sector 
wages, benefits, and other terms and conditions of employment. These 
are not simply my words and my concerns. Let me quote from the Nation's 
leading basic textbook on arbitration, Elkouri & Elkouri, ``How 
Arbitration Works,'' the sixth edition, 2003, which is published by the 
American Bar Association's section of labor and employment law with 
editors representing labor and management.
  The Elkouri text states:

       Compulsory arbitration is the antithesis of free collective 
     bargaining.

  The text then lists several reasons against compulsory arbitration.

       Broadly stated, that: First, it is incompatible with free 
     collective bargaining; second, it will not produce 
     satisfactory solutions to disputes; third, it may involve 
     great enforcement problems; and fourth, it will have damaging 
     effects on economic structure.

  The text continues.

       Compulsory arbitration is a dictatorial and imitative 
     process rather than a democratic and creative one.

  Summarizing the arguments against compulsory arbitration, the text 
concludes:

       Compulsory arbitration means governmental--politically 
     influenced--determination of wages and will inevitably lead 
     to governmental regulation of prices, production, and 
     profits; it threatens not only free collective bargaining, 
     but also the free market and enterprise system.''

  Can you imagine being a small business owner, especially the owner of 
a family business, confronted with the choice of capitulating to a 
skilled union negotiator's unreasonable demands after 90 days of 
bargaining? Imagine the business being, in effect, turned over to a 
Federal arbitrator to impose whatever wages, benefits, terms, and 
conditions of employment the arbitrator chose to impose, as Elkouri 
states, ``affected by the arbitrator's own economic or social theories, 
often without the benefit or understanding of practical, competitive 
economic forces''?
  Is that what we want to do to our small business community, much less 
to larger businesses, whose issues for bargaining are even more 
complex? Since there are no limits on what an arbitrator may impose 
through interest arbitration, it is conceivable that the terms could 
include participation in an industry's underfunded multiemployer 
pension plan, for example, something which could eventually force an 
employer into insolvency.
  Lost in what little debate we have had on this bill is the unfairness 
of its provisions for anti-employer punitive sanctions. Once again, 
these provisions in the bill are a radical departure from the balance 
of traditional national labor policy which for over 70 years has 
confined the act to ``make whole'' remedies, and, at least since the 
1947 Taft-Hartley Act, has tried to maintain a balance of the remedies 
for union unfair labor practices and employer unfair labor practices.
  H.R. 800 provides, for the first time, punitive rather than remedial 
sanctions under the National Labor Relations Act and contains only 
anti-employer sanctions. That is, H.R. 800 contains revolutionary 
punitive sanctions only against employers. Regardless of how corrupt 
the union may be, there are no sanctions possible against the union.
  It provides for increased damages against employers in the form of 
back pay and liquidated damages equal to two times that amount for 
anti-union discrimination from the initiation of a union organizing 
campaign and until the first collective bargaining. These increased 
damages are clearly punitive, not remedial and not designed to make 
whole an employee for anti-union discrimination. Nowhere in H.R. 800 
does the law provide for such punitive sanctions against union unfair 
labor practices.
  In addition to back pay, the bill provides civil penalties against 
employers of $20,000 for each violation. Since each unfair labor 
practice charge filed against employers or unions often contains 
allegations of multiple violations, the $20,000 civil penalty could 
multiply several times for a single charge. Of course, under the bill, 
the $20,000 simple penalty applies only against employers. How fair is 
that? Nowhere does H.R. 800 provide civil monetary damages against 
unions where they commit unfair labor practices against employees.
  Finally, the bill provides for a mandatory injunction against 
employers' alleged acts of anti-union discrimination, including--and I 
am reading from H.R. 800--allegations that the employer:

       (1) discharged or otherwise discriminated against an 
     employee; (2) threatened to discharge or to otherwise 
     discriminate against an employee; or (3) engaged in any other 
     unfair labor practice that significantly interferes with, 
     restrains, or coerces employees in the exercise of their 
     rights guaranteed in section 7.

  This is, in other words, the right to organize, bargain collectively, 
and engage in concerted activities such as strikes.
  Supporters of the bill argue this provision mirrors the act's section 
10(I) injunction against unions which is mandatory when unions engage 
in secondary boycotts affecting neutral parties. Of course, therein 
lies the reason for the injunction. By current definition a section 
10(I) injunction applies only where a neutral third party is involved 
and the injunction is designed

[[Page S8294]]

to prevent harm to the public where labor disputes are expanded to 
those employers not directly involved in such disputes.
  That is not the type of unfair labor practice against an employee 
during the course of a union organizing campaign, where a make-whole 
remedy of reinstatement with full back pay is available.
  Mandatory injunctions are extraordinary penalties, especially 
involving small businesses, since they involve expensive Federal court 
litigation. As such, the threat of a mandatory injunction--which, for 
example, would mandate the employer reinstate the employee during the 
investigation and prosecution of the injunction--could operate to 
silence the employer from communicating its views regarding 
unionization. This is the employer's right under section 8(c) of the 
National Labor Relations Act.
  There has been much said recently by supporters of H.R. 800 about 
employer misconduct during union organizing campaigns and collective 
bargaining for a first contract. This has been used to justify the 
radical provisions of H.R. 800 denying workers of private ballot union 
elections, increasing anti-employer sanctions, as well as compelling 
interest arbitration of first contracts.
  Unfortunately, much of what has been said is simply untrue or 
exaggerated and based on flawed information and studies of dubious 
quality. I cite as an example one fatally flawed study conducted by 
Cornell Law School Professor Kate Bronfenbrenner. It is frequently 
cited regarding the firing of union organizers in over one-quarter of 
union organizing campaigns. The study is based on a survey of union 
organizers for their opinion as to how often organizers are fired 
during a union organizing campaign. That hardly constitutes an 
objective, unbiased sample, and such anecdotal opinions hardly 
constitute the type of factual, statistical information we have the 
right to expect before radically changing over 70 years of national 
labor policy.
  Also, supporters of H.R. 800 claim from an NLRB report that over 
31,000 employees received back pay annually and thus presumably were 
fired during union organizing campaigns, which represent one worker 
fired every 17 minutes. That figure grossly misapplies the report and 
its basis. In fact, that number includes a very high percentage of 
workers who were already represented by unions, some for many years, 
who were being paid back pay because their employer took some 
unilateral action, such as contracting out work, without consulting 
their union. Therefore, a high percentage of such back pay had 
absolutely nothing to do with union organizing campaigns, and 
supporters of H.R. 800, who must know better, are simply using this 
statistic to exaggerate their claims. Also, supporters of H.R. 800 
ignore the more accurate number that according to the NLRB's most 
recent annual statistics only 2,000 employees were ordered reinstated 
by the Board.
  As we debate over whether or not to deny private ballots to workers 
deciding whether or not to unionize, it is my hope that we will be able 
to at least hold fast and true to the facts. And there should be full 
debate on these facts, not simply a cursory one-day hearing, bypassed 
markup and we move straight to the floor. We must not rely on slogans, 
anecdotal stories, and questionable secretly-commissioned and selective 
statistics about alleged unfair labor practices.
  In conclusion, those on the other side of this debate have advanced--
with fervor--several misleading arguments about the so-called Employee 
Free Choice Act. I look forward to a debate on the facts of this 
legislation. We should debate. Let each side be passionate. And of 
course we will disagree; but let us be respectful. Most importantly, 
let's make sure that this is an honest debate.
  As we enter this debate we should not be fooled by the misinformation 
from supporters of the bill:
  They claim that employers coerce employees to vote no on 
unionization. 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 that under the current system unions are not able to win. 
The truth is that unions won 62 percent of the National Labor Relations 
Board elections in 2005--the last year where a complete set of 
statistics exists.
  They claim that the use of a card-check system is the best, most 
reliable and fair way of judging employees' true intentions of 
unionizing. The truth is that the use of a card-check system is an 
inherently unreliable indicator of an employee's true sentiments which 
lead me to a few other truths on their misleading reliability claim. 
The truth is that the card acquisition process is unregulated, meaning 
there is no check on potential undue influence when gathering cards; 
the truth is that we have found that intimidation, coercion, and 
pressure tactics can be--and usually are--used to obtain signatures; 
the truth is that often, bounties and financial incentives are paid to 
union organizers to obtain signatures on cards; the truth is that 
intentional deception and misrepresentation are often used by unions 
when obtaining cards; and the truth is that employees are often induced 
to sign cards by promises of higher pay, better benefits, and waivers 
of fees--of course the same employees are not made aware of the 
potential risks and costs of unionization. And finally, they claim that 
American workers want to form unions using a card check system.

  The truth is that according to a recent poll 79 percent of Americans 
oppose the elimination of private ballots when voting in union 
organizing elections.
  Senators should be aware this is not a free vote! The bill is not 
passed this year, or is passed but vetoed, it will put those of us who 
voted for it on record as supporting a radical change in national labor 
law and labor policy. It will put us in support of a system which 
denies workers a secret ballot election, which has been the bedrock 
underpinning of national labor policy--the crown jewel of the National 
Labor Relations Board.
  A vote for this bill, or for cloture, will put us on record as 
against free collective bargaining on first contracts and in support of 
a political, government-dictated system of compulsory interest 
arbitration where a federally-appointed arbitrator will dictate the 
wages, benefits, terms and conditions of employment binding on 
employees without their even having a vote to approve those terms.
  And it will put us on record as supporting an unbalanced system of 
remedies where employers are subject to punitive sanctions, rather than 
remedial make whole remedies while ignoring sanctions for union unfair 
labor practices.
  In the end, H.R. 800 will hurt workers and will take away rights they 
currently have under federal labor law.
  In the end, it will hurt employers, leading some to look elsewhere to 
do business and foreign investment to turn elsewhere rather than the 
United States.
  We will be on record, and we will be reminded of our vote today in 
future congresses. We must vote no on cloture, just as we should vote 
no on the bill.
  Mr. President, I hope my statement reflects why this is such a 
horribly misnamed and bad bill.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Wyoming is recognized.

                          ____________________