[Congressional Record Volume 153, Number 104 (Tuesday, June 26, 2007)]
[Senate]
[Pages S8378-S8398]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
EMPLOYEE FREE CHOICE ACT OF 2007--MOTION TO PROCEED
______
COMPREHENSIVE IMMIGRATION REFORM ACT--MOTION TO PROCEED
The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will resume en bloc the motions to proceed to H.R. 800 and S.
1639, which the clerk will report.
The assistant legislative clerk read as follows:
Motion to proceed to H.R. 800, an act to amend the National
Labor Relations Act to establish an efficient system to
enable employees to form, join, or assist labor
organizations, to provide for mandatory injunctions for
unfair labor practices during organizing efforts, and for
other purposes.
Motion to proceed to the consideration of S. 1639, a bill
to provide for comprehensive immigration reform and for other
purposes.
The ACTING PRESIDENT pro tempore. Under the previous order, the time
until 11:30 will be equally divided between the Senator from
Massachusetts, Mr. Kennedy, and the Senator from Wyoming, Mr. Enzi, or
their designees, with the time from 11:30 to 11:40 reserved for the
Republican leader and the time from 11:40 to 11:50 for the majority
leader.
The Senator from Massachusetts.
Mr. KENNEDY. Mr. President, I yield 15 minutes to the Senator from
Pennsylvania.
Mr. GREGG. Mr. President, if the Senator will respond to an inquiry,
would it be possible to have an order set up so that we could know when
we are going? If I could get Senator Kennedy's attention, would it be
possible that Senator Alexander be recognized and I be recognized, both
for 5 minutes, at some point after Senator Specter, on Senator Enzi's
time? Is that possible?
Mr. KENNEDY. That is agreeable. We will try to accommodate the time.
Senator Specter wanted 15 minutes; others are 5 minutes. But we will be
glad to accommodate, so if he goes for 15, you can go for 5.
Mr. GREGG. Senator Alexander can be recognized for 5 and then I can
be recognized for 5.
Mr. KENNEDY. That would be fine.
The ACTING PRESIDENT pro tempore. The Senator from Pennsylvania.
Mr. SPECTER. Madam President, I thank the distinguished chairman for
yielding time. I have sought recognition to speak on the legislation
entitled the ``Employee Free Choice Act.'' I have had numerous contacts
on this bill, both for it and against it, very impassioned contacts.
People feel very strongly about it. The unions contend they very
desperately need it. The employers say it would be an abdication of
their rights to a secret ballot. I believe there are a great many
important issues which need to be considered on this matter, and that
is why I will vote, when the roll is called, to impose cloture so that
we may consider the issue. I emphasize that on a procedural motion to
invoke cloture--that is, to cut off debate--it is procedural only and
that my purpose in seeking to discuss the matter is so that we may
consider a great many very important and complex issues. I express no
conclusion on the underlying merits in voting procedurally to consider
the issue.
In my limited time available, I will seek to summarize. I begin with
a note that the National Labor Relations Act does not specify that
there should be a secret ballot or a card check but says only that the
employee representative will represent in collective bargaining where
that representative has been ``designated or selected'' for that
purpose. The courts have held that the secret ballot is preferable but
not exclusive.
In the case captioned ``Linden Lumber Division v. National Labor
Relations Board,'' the Supreme Court held that ``an employer has no
right to a secret ballot where the employer has so poisoned the
environment through unfair labor practices that a fair election is not
possible.''
The analysis is, what is the status with respect to the way elections
are held today? The unions contend that there is an imbalance, that
there is not a level playing field, and say that has been responsible
in whole or in part for the steady decline in union membership.
In 1954, 34.8 percent of the American workers belonged to unions.
That number decreased in 1973 to 23.5 percent and in 1984 to 18.8
percent; in 2004, to 12.5 percent; and in 2006, to 12 percent. In
taking a look at the practices by the National Labor Relations Board,
the delays are interminable and unacceptable. By the time the NLRB and
the legal process has worked through, the delays are so long that there
is no longer a meaningful election. That applies both to employers and
to unions, that the delays have been interminable.
In the course of my extended statement, I cite a number of cases. In
Goya Foods, the time lapse was 6 years; Fieldcrest Cannon, 5 years;
Smithfield--two cases--12 and 7 years; Wallace International, 6 years;
Homer Bronson, 5 years.
In the course of my written statement, I have cited a number of cases
showing improper tactics by unions, showing improper tactics by
employers. In the limited time I have, I can only cite a couple of
these matters, but these are illustrative.
In the Goya Foods case, workers at a factory in Florida voted for the
union to represent them in collective bargaining. Following the
election, the company refused to bargain with the union and fired a
number of workers for promoting the union. The workers filed an unfair
labor practices case in June of 2000, seeking to require the employer
to bargain.
In February of 2001, the administrative law judge found the company
had illegally fired the employees and had refused to bargain. But it
was not until August of 2006 that the board in Washington, DC, adopted
those findings, ordered reinstatement of the employees with backpay,
and required Goya to bargain in good faith--a delay of some 5 years.
In the Fieldcrest Cannon case, workers at a factory in North Carolina
sought an election to vote on union representation. To discourage its
employees from voting for the union, the company fired 10 employees who
had vocally supported the union. The employer threatened reprisal
against other employees who had voted for the union and threatened that
immigrant
[[Page S8379]]
workers would be deported or sent to prison if they voted for the
union. The union lost the election in August of 1991. Although workers
filed an unfair labor practice case with the NLRB, the administrative
law judge did not decide the case until 3 years later, in 1994, and his
order was not enforced by the Fourth Circuit until 1996--a lapse of
some 5 years. In my written statement, I cite seven additional cases.
Similarly, there have been improper practices by unions. On the
balance, I have cited nine on that line, the same number I cited on
improper activities by employers.
At a Senate Appropriations subcommittee hearing, which I conducted in
Harrisburg, PA, in July of 2004, we had illustrative testimony from an
employee, Faith Jetter:
Two union representatives came to my home and made a
presentation about the union. They tried to pressure me into
signing the union authorization card, and even offered to
take me out to dinner. I refused to sign the card . . .
shortly thereafter, the union representatives called again at
my home and visited my home again to try to get me to sign
the union authorization card. I finally told them that my
decision was that I did not want to be represented . . .
despite that . . . there was continuing pressure on me to
sign.
At a hearing of the House Committee on Labor this February, witness
Karen Mayhew testified about offensive pressure tactics by the unions.
I would cite some of my own experience with the issue. When I was an
assistant district attorney in Philadelphia, I tried the first case
against union coercive tactics to come out of the McClellan Committee
investigation. The McClellan Committee had investigated Local 107 of
the Philadelphia Teamsters Union, found they had organized a goon
squad, beat up people, and exercised coercive tactics to form a union.
That case was brought to trial in 1963 and resulted in convictions of
all six of the union officials and they all went to jail. Without
elaborating on the detailed testimony, it was horrendous what the union
practices were in that case.
There is no doubt if you take a look at the way the National Labor
Relations Board functions--it is not functioning at all--but that it is
dysfunctional.
If you take a look at the statistics, on the one category of intake,
it declined from 1,155 in 1994, to 448 in 2006. In another category, it
declined from almost 41,000 in 1994, to slightly under 27,000 in 2006.
On injunctions, where the NLRB has the authority to go in and get some
action taken promptly, it is used very sparingly, and again there is a
steep decline: from 104 applications for injunctions in 1995, to 15 in
2005, and 25 in 2006. The full table shows a great deal of the
ineptitude as to what is going on.
So what you have, essentially, is a very tough fought, very bitter
contest on elections, very oppressive tactics used by both sides and no
referee. The National Labor Relations Board is inert. It takes so long
to decide the case that the election becomes moot, not important
anymore. What they do is order a new election and they start all over
again and, again, frequently the same tactics are employed.
If there is an unfair labor practice in a discharge, the most the
current law authorizes the NLRB to do is to reinstate the worker with
backpay. That is reduced by the amount the individual has earned
otherwise, which is in accordance with the general legal principle of
mitigation of damages. But there is no penalty which is attached. So
when you take a look at what the NLRB does, it is totally ineffective.
Those are issues which I think ought to be debated by the Senate. We
ought to make a determination whether the current laws are adequate and
whether there ought to be changes and whether there ought to be
remedies. We ought to take a look, for example, at the Canadian system.
When I did some fundamental, basic research, I was surprised to find
that 5 of the 10 provinces of Canada employ the card check; that is,
there is no right to a secret election. One of the provinces had the
card check, rejected it, and then I am told went back to the card
check. So their experiences are worthy of our consideration.
In Canada, elections are held 5 to 10 days after petitions are filed.
I believe this body ought to take a close look at whether the
procedures could be shortened, whether there could be mandatory
procedures for moving through in a swift way--justice delayed is
justice denied, we all know--whether there ought to be the standing for
the injured parties to go into court for injunctive relief. That is
provided now in the act, but only the NLRB can undertake it.
This vote, we all know, is going to be pro forma. We have the
partisanship lined up on this matter to the virtual extreme. There is
no effort behind the debate which we are undertaking today to get to
the issues. There is going to be a pro forma vote on cloture. Cloture
is not going to be invoked. We are going to move on and not consider
the matter. We know there are enough votes to defeat cloture. The
President has promised a veto. So it is pro forma.
But that should not be the end of our consideration of this issue
because labor peace--relations between labor and management--is very
important, and we ought to do more by way of analyzing it to see if any
corrections are necessary in existing law.
It is worth noting, in the history of the Senate, there has been
considerable bipartisanship--not present today. But listen to this: In
1931, the Davis-Bacon Act was passed by a voice vote. In 1932, the
Norris LaGuardia Act was passed by a voice vote. In 1935, the National
Labor Relations Act, also known as the Wagner Act, was passed by a
voice vote. In 1938, the Fair Labor Standards Act was passed, again, by
a voice vote. In 1959, only two Senators voted against the Landrum-
Griffin bill.
A comment made by then-Senator John F. Kennedy, on January 20, 1959,
commenting on the Landrum-Griffin bill, is worth noting. I quote only
in part because my time is about to expire, but this is what Senator
John F. Kennedy had to say:
[T]he necessity for bipartisanship in labor legislation is
a principle which should guide us all. . . .The extremists on
both sides are always displeased. . . .Without doubt, the
future course of our action in this area will be plagued with
the usual emotional arguments, political perils, and powerful
pressures which always surround this subject.
Madam President, I ask unanimous consent for 1 additional minute.
The ACTING PRESIDENT pro tempore. Is there objection?
Without objection, it is so ordered.
Mr. SPECTER. In conclusion, it would be my hope we would take a very
close look at this very important law in this very important field and
recognize that harmonious relations between management and labor are
very important. That is not the case today, with a few illustrations I
have given in my prepared statement. We ought to exercise our standing,
which we pride ourselves as the world's greatest deliberative body.
Although that will not be done today because cloture is not going to
be invoked, I intend to pursue oversight through the subcommittee where
I rank which has jurisdiction over the NLRB.
Madam President, I ask unanimous consent that my extensive statement
be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Statement of Senator Arlen Specter--S. 1041, The Employee Free Choice
Act
Mr. SPECTER. Mr. President, I seek recognition today to
discuss the legislation entitled the Employee Free Choice
Act. The Senate will later today vote on Cloture on the
Motion to Proceed to this important legislation. The Senate
prides itself on being the world's greatest deliberative
body, and I am voting for cloture to enable the Senate to
deliberate on this legislation and the important issues it
raises in an open and productive manner.
The Employee Free Choice Act is an issue of deep and
abiding interest to labor organizations and to employers.
There has been intense advocacy on both sides. At the field
hearing in Pennsylvania in July 2004, and in the many
discussions that I have had with labor leaders and employers
since that time, I have heard evidence indicating that
employees are often denied a meaningful opportunity to
determine whether they will be represented by a labor union.
There are many stories and cases about employers asserting
improper influence over their employees prior to an election,
and there are also many cases of unions attempting to assert
undue influence over workers in an attempt to establish a
union. I am talking about threats, spying, promises,
spreading misleading information, and other attempts to
coerce workers and interfere with their right to determine
for themselves whether they wish to be represented by a labor
organization. Based on what I have heard, I have concerns
that we have lost the balance of the National Labor Relations
Act's fundamental
[[Page S8380]]
promise--that workers have the right to vote in a fair
election conducted in a non-threatening atmosphere, free of
coercion and fear, and without undue delay. Workers should be
assured that their decisions will be respected by their
employer and the union--with the support of the government
when necessary. The overwhelming evidence demonstrates that
the NLRB is not doing its job and is dysfunctional.
In light of the numerous contacts I have had with
constituents on both sides of this issue, and in
consideration of the evidence that has been presented by both
sides, I have decided to hold off on cosponsoring the
Employee Free Choice Act in the 110th to give more
opportunity to both sides to give me their views and to give
me more time to deliberate on the matter. At a time when
union membership is decreasing and when employers face
increasing competition in a global economy, it is our duty in
Congress to have a vigorous debate and to reach a decision on
the issues that the Employee Free Choice Act purports to
resolve.
The 1935 Wagner Act guarantees the right of workers to
organize, but it does not require that unions be chosen by
election. Instead, Section 9 provides more broadly that an
employee representative that has been ``designated or
selected'' by a majority of the employees for the purpose of
collective bargaining shall be the exclusive representative
of those employees in a given bargaining unit. The Act
further authorizes the National Labor Relations Board to
conduct secret ballot elections to determine the level of
support for the union when appropriate. Since 1935, secret
ballot elections have been the most common method by which
employees have selected their representatives.
Labor organizations have experienced a sharp decline in
membership since the 1950s. Unions represented 34.8 percent
of American workers in 1954, 23.5 percent in 1973, 18.8
percent in 1984, 15.5 percent in 1994, 12.5 percent in 2004,
and 12 percent in 2006. In Senate debate, we should consider
whether labor laws have created an uneven playing field that
has led to this dramatic decline.
We should also consider where the fault lies in deciding
what changes, if any, should be made to our labor laws. There
are certainly abuses by both unions and employers. The
Supreme Court described the problem in NLRB v. Gissel Packing
Co., 395 U.S. 575 (1969), noting that ``we would be closing
our eyes to obvious difficulties, of course, if we did not
recognize that there have been abuses, primarily arising out
of misrepresentations by union organizers as to whether the
effect of signing a card was to designate the union to
represent the employee for collective bargaining purposes or
merely to authorize it to seek an election to determine that
issue.'' The following cases and testimony are illustrative
of this problem:
At a July 2004 Senate Appropriations Subcommittee I held in
Harrisburg, Pennsylvania entitled ``Employee Free Choice
Act--Union Certifications,'' a letter from employee Faith
Jetter was included in the record. In that letter, Ms. Jetter
testified: ``Two union representatives came to my home and
made a presentation about the union. They tried to pressure
me into signing the union authorization card, and even
offered to take me out to dinner. I refused to sign the card
. . . shortly thereafter, the union representatives called
again at my home and visited my home again to try to get me
to sign the union authorization card. I finally told them
that my decision was that I did not want to be represented .
. . despite that . . . I felt like there was continuing
pressure on me to sign.''
In testimony before the Senate Committee on Health,
Education, Labor, and Pensions on March 27, 2007, in a
hearing entitled ``The Employee Free Choice Act: Restoring
Economic Opportunity for Working Families,'' Peter Hurtgen, a
former chairman of the NLRB, testified that ``in my
experience, neutrality/card check agreements are almost
always the product of external leverage by unions, rather
than an internal groundswell from represented employees.''
On February 8, 2007, at a hearing of the House Committee on
Labor, Education and Pensions entitled ``Strengthening
America's Middle Class through the Employee Free Choice
Act,'' Karen Mayhew, an employee at a large HMO in Oregon,
testified that local union organizers had misled many
employees into signing authorization cards at an initial
question-and-answer meeting. She said: ``At the meeting,
employees asked the union agents questions about the purpose
of the cards. The union agents responded by telling us that
signing the card only meant that the employee was expressing
an interest in receiving more information about the union, or
to have an election to decide whether or not to bring the
union in. It was made clear to all of us there in attendance
that those authorization cards did NOT constitute a vote
right there and then for exclusive representation by SEIU.''
A May 22, 2007 National Review article by Deroy Murdock
entitled ``Union of the Thugs'' quoted Edith White, a food-
service worker from New Jersey who recalled being visited by
a union organizer who told her that she ``wouldn't have a
job'' if she did not sign the authorization card and that
``the Union would make sure'' that she was fired.
A June 29, 2006 Boston Globe article by Christopher Rowland
entitled ``Unions in Battle for Nurses'' reported that
organizers at a local hospital had told nurses that signing
an authorization card would ``merely allow them to get more
information and attend meetings.'' The nurses were quoted as
saying that the process ``left [them] feeling deceived and
misled.''
On February 8, 2007, at a hearing of the House Committee on
Labor, Education and Pensions entitled ``Strengthening
America's Middle Class through the Employee Free Choice
Act,'' Jen Jason, a former labor organizer for UNITE HERE,
testified that she was trained to create a sense of agitation
in workers and to capitalize on the ``heat of the moment'' to
get workers to sign union support cards. She compared the
American system of free ballots to the check card system in
Canada, where she also worked as a union organizer, noting
``my experience is that in jurisdictions in which `card
check' was actually legislated, organizers tend[ed] to be
even more willing to harass, lie, and use fear tactics to
intimidate workers into signing cards.'' She also noted that
``at no point during a `card check' campaign is the
opportunity created or fostered for employees to seriously
consider their working lives and to think about possible
solutions to any problems.''
At that same hearing before the House Committee on Labor,
Education and Pensions, a former union organizer, Ricardo
Torres, testified that he resigned because of ``the ugly
methods that we were encouraged to use to pressure employees
into union ranks.'' He testified that ``I ultimately quit
this line of work when a senior Steelworkers union official
asked me to threaten migrant workers by telling them they
would be reported to federal immigration officials if they
refused to sign check-off cards during a Tennessee organizing
drive . . . . Visits to the homes of employees who didn't
support the union were used to frustrate them and put them in
fear of what might happen to them, their family, or homes if
they didn't change their minds about the union.''
Enactment of the Landrum-Griffin Act in 1959 followed
extensive Senate hearings by the McClellan Committee on union
abuses. Based on evidence compiled by that Committee, where
Senator John F. Kennedy was a member and Robert F. Kennedy
was General Counsel, I secured the first convictions and jail
sentences from those hearings for six officials of Local 107
of the Teamsters Union in Philadelphia. That union organized
a ``goon squad'' to intimidate and beat up people as part of
their negotiating tactics. Their tactics were so open and
notorious that my neighbor, Sherman Landers, with whom I
shared a common driveway, sold his house and moved out,
afraid the wrong house would be fire-bombed. The trial, which
occurred from March through June 1963, was closely followed
by Attorney General Kennedy who asked for and got a personal
briefing on the case and then offered me a position on the
Hoffa prosecution team.
Similarly, there are many examples of employer abuses
during campaigns and initial bargaining. Each of the
following cases illustrates the principle often attributed to
William Gladstone: ``Justice delayed is justice denied.''
In the Goya Foods case, 347 NLRB 103 (2006), workers at a
factory in Florida voted for the union to represent them in
collective bargaining negotiations. Following the election,
the company refused to bargain with the union and fired a
number of workers for promoting the union. The workers filed
an unfair labor practices case in June of 2000, seeking to
require the employer to bargain. In February of 2001, the
Administrative Law Judge found that the company had illegally
fired the employees and had refused to bargain. It was not
until August of 2006, however, that the Board in Washington,
D.C. adopted those findings, ordered reinstatement of the
employees with back pay, and required Goya to bargain in good
faith--six years after the employer unlawfully withdrew
recognition from the union.
In the Fieldcrest Cannon case, 97 F.3d 65 (4th Cir. 1996),
workers at a factory in North Carolina sought an election to
vote on union representation in June of 1991. To discourage
its employees from voting for the union, the company fired at
least 10 employees who had vocally supported the union,
threatened reprisal against employees who voted for the
union, and threatened that immigrant workers would be
deported or sent to prison if they voted for the union. The
union lost the election in August of 1991. Although workers
filed an unfair labor practice case with the NLRB, the
Administrative Law Judge did not decide the case until three
years later, in 1994, and his order was not enforced by the
Fourth Circuit until 1996--five years after the election.
In the Smithfield case, 447 F.3d 821 (D.C. Cir. 2006),
employees at the Smithfield Packing Company plant in Tar
Heel, North Carolina filed a petition for an election. In
response, the employer fired several employees, threatened to
fire others who voted for a union and threatened to freeze
wages if a union was established. The workers lost two
elections--one in 1994 and one in 1997. Workers filed an
unfair labor practices case. The administrative law judge
ruled for the workers in December of 2000, but the NLRB did
not affirm that decision until 2004, and the Court of Appeals
did not enforce the order until May of 2006--twelve years
after the first tainted election.
In another case involving the Smithfield Company, 347 NLRB
109 (2006), employees at the Wilson, North Carolina location
sought an election for union representation. Prior to the
election, the company fired employees who were leading the
union campaign and threatened and intimidated others. The
[[Page S8381]]
union lost the election in 1999. The workers filed an unfair
labor practices case and the Administrative Law Judge found
in 2001 that the employer's conduct was so egregious that a
Gissel bargaining order (which mandates a card check
procedure instead of an election) was necessary because a
fair election was not possible. However, by the time the NLRB
affirmed the ALJ's decision in 2006, it found that the NLRB's
own delay in the case prevented the Gissel bargaining order
from being enforceable and--7 years after the employer
prevented employees from freely participating in a fair
election--the remedy the Board ordered was a second election.
In the Wallace International case, 328 NLRB 3 (1999) and
2003 NLRB Lexis 327 (2003), the employer sought to dissuade
its employees from joining a union by showing its workers a
video in which the employer threatened to close if the
workers unionized and the town's mayor urged the employees
not to vote for a union. The union lost an election in 1993.
The Board ordered a second election, which was held in 1994,
that was also tainted by claims of unfair labor practices.
The employees brought unfair labor practice cases after the
election. In August 1995, the ALJ found against the employer
and issued a Gissel bargaining order because a fair election
was impossible. However, as in the Smithfield case, by the
time the NLRB finally affirmed the ALJ's decision, in 1999,
the Gissel order was not enforceable. In subsequent
litigation, an ALJ found that the employer's unlawful
conduct, including discriminatory discharge, had continued
into 2000--7 years after the first election.
In the Homer Bronson Company case, 349 NLRB 50 (2007), the
ALJ in 2002 found that the employer had unlawfully threatened
employees who were seeking to organize that the plant would
have to close if a union was formed. The Board did not affirm
the decision until March 2007, again noting that a Gissel
order, though deemed appropriate by the NLRB General Counsel,
would not be enforceable in court because of the delays at
the NLRB in Washington, D.C.
The National Labor Relations Board found unlawful conduct
by employers in a number of recent cases in my home state of
Pennsylvania:
In the Toma Metals case, 342 NLRB 78 (2004), the Board
found that at least eight employees at Toma Metals in
Johnstown, PA were laid off from their jobs because they
voted to unionize the company. In addition, David Antal, Jr.
was terminated because he told his supervisor that he and his
fellow employees were organizing a union. He was laid off the
same evening the union petition was filed.
In the Exelon Generation case, 347 NLRB 77 (2006), the
Board found that the employer in Limerick and Delta, PA
threatened employees during an organizing campaign that they
would lose their rotating schedules, flextime, and the
ability to accept or reject overtime if they voted for union
representation.
In the Lancaster Nissan case, 344 NLRB 7 (2005), the Board
found that the employer failed to bargain in good faith
following a union election victory by limiting bargaining
sessions to one per month. The employer then unlawfully
withdrew recognition from the union a year later based on a
petition filed by frustrated employees, automotive
technicians.
In addition to showing employer abuses, these cases
demonstrate the impotency of existing remedies under the NLRA
to deal effectively with the problem. Further, the convoluted
procedures and delays in enforcement actions make the
remedies meaningless.
In 1974, in Linden Lumber Division v. NLRB, 419 U.S. 301
(1974), the court made it clear that an employer may refuse
to recognize a union based on authorization cards and insist
upon a secret ballot election in any case, except one in
which the employer has so poisoned the environment through
unfair labor practices that a fair election is not possible.
In those cases involving egregious employer conduct, the
Board may impose a ``Gissel'' order that authorizes card
checks. This remedy takes its name from NLRB v. Gissel
Packing Co., which I cited earlier.
Most often, however, when the Board finds that an employer
improperly interfered with a campaign, it typically only
orders a second election, often years after the tainted
election, and requires the employer to post notices in which
it promises not to violate the law.
The standard remedy for discriminatory discharge, the most
common category of charges filed with the NLRB, is an order
to reinstate the worker with back pay, but any interim
earnings are subtracted from the employer's back pay
liability, and often this relief comes years after the
discharge.
The other common unfair labor practice case involves an
employer's refusal to bargain in good faith. The remedy is
often an order to return to the bargaining table.
In relatively few cases each year, the NLRB finds that the
unfair labor practices are so severe that it chooses to
exercise its authority under Section 10(j) of the NLRA to
seek a federal court injunction to halt the unlawful conduct
or to obtain immediate reinstatement of workers fired for
union activity. The NLRB too rarely exercises this authority,
and the regional office must obtain authorization from
Washington, D.C. headquarters to seek injunctive relief.
Additionally, under the procedures of the Act, after the
union wins an election, the employer may simply refuse to
bargain while it challenges some aspect of the pre-election
or election process. The union must then file an unfair labor
practice charge under Section 8(a)(5), go through an
administrative proceeding, and ultimately the matter may be
reviewed by a Federal court of appeals, since a Board order
is not self-enforcing. All of this takes years.
The following tables reflect that from 1994 to 2006 the
number of cases handled by the NLRB regional offices declined
steadily from 40,861 cases in 1994 to 26,717 in 2006. Yet,
despite this decline in workload, in 2005 the median age of
unresolved unfair labor practice cases was 1232 days, and for
representation cases the median age was 802 days. In 1995,
the NLRB sought 104 injunctions; in 2005, it sought 15; and
in 2006, 25 injunctions. In Washington, D.C., the Board's
caseload declined from 1155 cases in 1994 to 448 cases in
2006.
The number of decisions issued declined from 717 in 1994 to
386 in 2006. The backlog hit a peak of 771 cases in 1998 and
declined to 364 in 2006, but that decline must be viewed in
the context of a case intake for the Board that had fallen to
only 448 cases in 2006.
TABLE 1: REGIONAL OFFICE STATISTICS
----------------------------------------------------------------------------------------------------------------
1994 1995 1996 1997 1998 2003 2004 2005 2006
----------------------------------------------------------------------------------------------------------------
Case Intake.................... 40861 39935 38775 39618 36657 33715 31787 29858 26717
ULP (Case Age in Days)......... 758 893 846 929 985 1030 1159 1232 --
Representation (Case Age in 152 305 369 370 473 473 576 802 --
Days).........................
Section 10(j).................. 83 104 53 45 17 14 15 25 --
----------------------------------------------------------------------------------------------------------------
TABLE 2: WASHINGTON OFFICE STATISTICS
----------------------------------------------------------------------------------------------------------------
1994 1995 1996 1997 1998 2003 2004 2005 2006
----------------------------------------------------------------------------------------------------------------
Case Intake.................... 1155 1138 997 1084 1083 818 754 562 448
Decisions...................... 717 935 709 873 708 543 576 508 386
Case Backlog................... 585 459 495 672 771 673 636 544 364
----------------------------------------------------------------------------------------------------------------
What has the Board been doing? Although many cases are
resolved at earlier stages out in the regions where the NLRB
may be generally effective, one must ask why it took years
for the Board to order reinstatement in the cases cited
earlier?
During the Senate's debate on the Employee Free Choice Act,
it is important that we focus on the employees' interests,
not on the employers' or the unions' interests. We must
protect employees from reprisals from either side. We must
ensure they have an environment in which they may make a free
choice. We must ensure that employees' decision, whether it
is for or against representation, is respected. And we must
ensure that if the employees do choose to be represented,
they can have confidence that their employer will bargain
with the union, and that the employer will not try to
undermine the union by threatening the employees during
bargaining for an initial agreement.
And finally, we must ensure that the Federal statute
designed to provide this protection of employees--and the
government agency tasked with the statute's enforcement--are
effective. If the statute needs to be modified to provide
stronger remedies or more streamlined procedures, then that
should be addressed. If the NLRB itself is causing delay and
confusion as to what the law is, then that should be
addressed. We do not need symbolic votes. We need meaningful
debate and careful consideration of these important issues.
America's workers deserve nothing less.
It is worthwhile to look at the experience of our neighbor,
Canada, where five of the ten provinces use the card check
procedure instead of secret ballot elections. In hearings
this year before the Senate and the House concerning the
Employee Free Choice Act, witnesses testified that unions are
more successful in their organizing campaigns under the card
check system--perhaps an indication that card check prevents
employers from exercising undue influence over workers to
prevent unionization. On the other hand, there was testimony
suggesting that the Canadian card check system has allowed
[[Page S8382]]
unions to exert undue influence on employees in order to
obtain their signatures on union recognition cards.
In a 2004 study of the gap between Canadian and U.S. union
densities, an economics professor from Ontario found that
simulations suggest that approximately 20 percent of the gap
could be attributed to the different recognition procedures--
card check or secret ballot elections--in the two countries.
She further noted that the election procedures in Canada are
not identical to those of the U.S. I am intrigued by the fact
that union elections in Canada must take place within 5 to 10
days after an application or petition is filed, depending on
the province. In the U.S. there is no such statutory time
limit between petition and voting, and it may be several
months before the election is held. This creates a wider
window of opportunity for the employer to influence workers,
using legal or illegal means. The professor also notes that
when unfair labor practices occur, the differences in
procedures and the role of the courts in the two countries
mean that it is faster and less expensive to process
complaints in Canada than in the U.S.
In 2001, another economics professor published a study in
which he noted that in the previous decade, an increased
number of Canadian provinces had abandoned their long-
standing tradition of certification based on card check by
experimenting with mandatory elections. In British Columbia,
for example, legislation requiring elections was enacted in
1984 and then abandoned in 1993. In examining the impact of
union suppression on campaign success in British Columbia,
the professor tested whether the length of an organizing
drive had an impact on organizing success. The evidence
demonstrated that the probability of a successful
organization of employees decreased by 1 percent for every
two days of delay when an unfair labor practice was involved.
The unfair labor practice itself decreased the probability of
success even further. The professor observed that mandatory
elections, as compared with a card check system, were
detrimental to unions' success. He found that not only did
success rates fall, but the number of certification attempts
fell substantially as well. He concluded that unions believe
organizing will be more difficult under mandatory voting as
so are less willing to invest in it. He concluded his paper
with this observation:
It seems more likely, however, that the recent trend
towards compulsory voting represents a shift in beliefs
towards elections as a preferable mechanism for determining
the true level of support within the bargaining unit. . . .
If governments are opting for a more neutral stance towards
unions, our results suggest that stricter employer penalties
should be considered. Currently even when an [unfair labor
practice claim] is found to be meritorious, penalties for
illegal employer coercion are largely compensatory. . . .
Furthermore, our evidence shows that strict time limits form
a useful policy tool in encouraging neutrality in the
organizing process since the combination of union suppression
and a length certification process is quite destructive.
I also note a 2006 study published in the Industrial Law
Journal by an Oxford professor who has studied the statutory
recognition procedures in England's Trade Union and Labour
Relations Act of 1992. He compares the English, Canadian and
American systems, and states at page 9: ``Indeed, the law
itself has erected the most substantial barriers to unions'
organizational success, and this is manifest in the
dilatoriness of legal procedures. Delay erodes the unions'
organizational base by undermining workers' perceptions of
union instrumentality.'' These studies of the Canadian and
the English experiences are instructive if we are to
carefully consider the many aspects of the secret ballot
election process.
Since 1935, there have been two major substantive
amendments to Federal labor law. In 1947, Congress passed the
Taft-Hartley Act and, in 1959, it passed the Landrum-Griffin
Act. These additions to the law strengthened workers' right
to refrain from union activity and regulated the process of
collective bargaining and the use of economic weapons during
labor disputes, but Congress has not amended the provisions
of federal labor law that protect the right of self-
organization.
On July 18, 1977, President Carter asked Congress for labor
law reform legislation. His proposals were incorporated into
H.R. 8410, which was introduced on July 19, 1977. An
identical bill, S. 1883, was introduced that same day by
Senators Williams and Javits. Ten days of hearings by the
Subcommittee on Labor-Management Relations began on July 25,
1977.
unions, former secretaries of labor, civil rights and the right to work
committee testified against h.r. 8410
In the House alone, from 1961 through 1976, over 60 days of
hearings were held on the National Labor Relations Act.
Nineteen days of hearing were held between July 15, 1975 and
May 5, 1976, concerning, among other bills: H.R. 8110, to
expedite the processes and strengthen the remedies of the
Labor Act with respect to delegation and treble damages; H.R.
8407 to include supervisors within the protection of the Act;
H.R. 8408, to improve the administration and procedures of
the Board in terms of technical amendments; H.R. 8409, to
strengthen the remedial provision of the Act against repeated
or flagrant transgressors; and H.R. 12822, to amend the
National Labor Relations Act to expedite elections, to create
remedies for refusal-to-bargain violations, and other
purposes. In 1978, H.R. 8410 was debated for 20 days in the
Senate. After failing 5 cloture votes on the bill and
amendments, the bill was returned on June 22, 1978 to the
Senate Committee on Human Resources, and there it died. We
should try again to address the problems raised during these
extensive hearings and debates.
The National Labor Relations Act created a system of
workplace democracy that to a large extent has served our
nation well for more than 70 years. American labor unions,
with a strong history of social progress and accomplishments
in improving the workplace, have made America and the
American economy strong. Yet, despite these successes, the
NLRA is too often ineffective at guaranteeing workers' rights
in the face of bad conduct by some employers and some unions.
The essential plan and purpose of the Wagner Act was
described by President Franklin Roosevelt when he signed the
measure into law:
``This act defines, as part of our substantive law, the
right of self-organization of employees in industry for the
purpose of collective bargaining, and provides methods by
which the government can safeguard that legal right. It
establishes a National Labor Relations Board to hear and
determine cases in which it is charged that this legal right
is abridged or denied, and to hold fair elections to
ascertain who are the chosen representatives of employees.
A better relationship between labor and management is the
high purpose of this act. By assuring the employees the right
of collective bargaining, it fosters the development of the
employment contract on a sound and equitable basis. By
providing an orderly procedure for determining who is
entitled to represent the employees, it aims to remove one of
the chief causes of wasteful economic strife. By preventing
practices which tend to destroy the independence of labor it
seeks, for every worker within its scope, that freedom of
choice and action which is justly his . . .''
It has been too long since the Senate has fully and freely
debated whether our labor laws continue to adequately
safeguard workers' rights. It is important that we focus on
the real problems with the NLRA and try to achieve a result
that can garner bipartisan support. Just take a look at the
bipartisan support that has been a necessary basis of any
successful labor legislation:
In 1926, only 13 Senators voted against the Railway Labor
Act.
In 1931, the Davis-Bacon Act was passed by voice vote.
In 1932, the Norris-LaGuardia Act was passed by voice vote.
In 1935, the National Labor Relations Act (also known as
the Wagner Act) was passed by voice vote.
In 1936, the Walsh-Healey Public Contracts Act was passed
by voice vote.
In 1938, the Fair Labor Standards Act was passed by voice
vote.
In 1947, the Taft-Hartley Act was passed when 68 Senators
voted to override President Truman's veto.
In 1959, only 2 Senators voted against the Labor-Management
Reporting and Disclosure Act (also known as the Landrum-
Griffin Act).
In 1965, the McNamara-O'Hara Service Contract Act was
passed by voice vote.
In 1974, not a single Senator voted against the Employee
Retirement Income Security Act.
On January 20, 1959, Senator John F. Kennedy introduced a
section of the Landrum-Griffin Act. His remarks in his floor
speech were instructive and prophetic:
``[T]he necessity for bipartisanship in labor legislation
is a principle which should guide us all. . . . So let us
avoid . . . unnecessary partisan politics or uninformed or
deliberate distortions. This is particularly true in the
controversial field of labor--which is precisely why no major
labor legislation has been passed in the last decade. The
extremists on both sides are always displeased. . . . [But]
in the words of Business Week magazine . . . `wise guidance
in the public interest can be substituted for concern over
wide apart partisan positions.' I wish to mention the key
provisions of the bill introduced today--the basic weapons
against racketeering which will be unavailable in the battle
against corruption if such a measure is not enacted by the
Congress this year: . . . Secret ballot for the election of
all union officers or of the convention delegates who select
them. . . . This is, in short, a strong bill--a bipartisan
measure--a bill that does the job which needs to be done
without bogging down the Congress with unrelated
controversies. Without doubt, the future course of our action
in this area will be plagued with the usual emotional
arguments, political perils, and powerful pressures which
always surround this subject.''
I am voting for cloture today because I believe that it is
time for Congress to thoroughly debate this issue and to
address the shortcomings in the National Labor Relations Act
in a bipartisan and comprehensive manner.
Mr. SPECTER. Madam President, I thank the Chair and yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Wyoming.
Mr. ENZI. Madam President, I yield 5 minutes to the Senator from
Tennessee.
[[Page S8383]]
The ACTING PRESIDENT pro tempore. The Senator from Tennessee is
recognized for 5 minutes.
Mr. ALEXANDER. Madam President, I thank the Senator from Wyoming.
I have enjoyed the remarks, as always, by the Senator from
Pennsylvania. It is not a bad idea to consider labor-management
relations in a bipartisan way. A good place to start doing that is in
the Senate committees, where this discussion belongs, rather than
bringing directly to the floor the question of whether we should just
one day decide to get rid of the secret ballot in elections.
The Senator from Pennsylvania has done a beautiful job of looking at
history. Let me point to some history as well.
May 13, 1861, was the day set aside in North Carolina for the
election of delegates to the State Convention on Secession from the
Union. This is a book by William Trotter about bushwhackers. Part of
the United States in which I grew up and my family has come from is
where counties and families were divided during the Civil War.
On that day, May 13, 1861, according to Mr. Trotter's book, there was
to be a vote about secession, and one of the most visible people in the
square on that misty spring day was the sheriff, who was an ardent
spokesman for secession. He had been elected, according to the author,
and supported by the wealthier farmers and merchants, nearly all of
whom favored the idea of secession.
The sheriff had gotten a little whiskey and was boisterous and
encouraged by his supporters. He went around town making it clear the
prevailing sentiment in the county was for secession. He was in an
exuberant mood because he knew, at the end of day, secession would be
ratified. So exuberant was he, that he shot one of the Unionists, and
that person's father then shot the sheriff. That day is called ``Bloody
Madison'' in western North Carolina.
But the point is that when the secret ballots were counted, despite
the sheriff and the wealthy farmers and merchants, there were only 28
votes for secessionist delegates, and 144 voted to stay with the United
States of America. The secret ballot they exercised that day was for a
reason. It made a difference.
In a little more personal way, a few months ago, we had a contest
here among friends for our No. 2 position on the Republican side of the
aisle. I sought it. So did my friend of 40 years, Trent Lott, the
Senator from Mississippi. Going into the election, I had 27 votes. When
the votes were counted, I had 24. The secret ballot we employ in our
Senate caucus we employ for a reason. It makes a difference.
The unions, in the 1930s, when they were gaining a foothold and being
established, insisted on a secret ballot. They still have a secret
ballot when the vote is to decertify a union.
In our democracy, the right to vote is prized. We keep candidates
away from polling places. We don't want people looking over your
shoulder while you vote. We help you, if you can't read the ballot. We
got rid of the poll tax to give you access to the ballot. The Voting
Rights Act has become the single greatest symbol of the civil rights
movement in the 1960's. The right to vote is the essence of our
democracy.
This proposed legislation is brazen kowtowing to union bosses. This
bill creates the possibility that large union recruiters might come
stand around you at the work site and encourage you to sign a card.
They might visit your home. They might make phone calls. They might be
like the sheriff in Madison County, elected by the powerful and very
persuasive, going around with his pistol or his gun or his influence,
or looking over your shoulder while you voted. Fortunately, instead of
that scenario, we have a secret ballot, and we ought to keep it.
What is next if we get rid of the secret ballot for union elections?
Will we get rid of the secret ballot for union leaders, for Senators,
for Governors, for managers of the pension funds? Even most union
members want to keep the secret ballot. According to a Zogby poll in
2004, 71 percent said that the secret ballot process is fair, and 78
percent said they favored keeping the current system in place.
So whether it is voting day in Madison County at the beginning of the
civil war, whether it is the Senate caucus on the Republican or
Democratic side, or whether it is a union election to organize or to
decertify, the right to vote is precious in America. Not having someone
looking over your shoulder while you vote makes that precious right
even more precious. There is a reason we have a secret ballot. It makes
a difference.
I intend to vote no on cloture. I urge my colleagues to do the same.
The ACTING PRESIDENT pro tempore. The Senator from Wyoming is
recognized.
Mr. ENZI. Madam President, we are debating two things this morning,
the card check and immigration. I yield 5 minutes to the Senator from
New Hampshire.
The ACTING PRESIDENT pro tempore. The Senator from New Hampshire is
recognized.
Mr. GREGG. Madam President, I appreciate the courtesy of the Senator
from Massachusetts earlier who made it possible for us to get an order
for speaking.
Let me associate myself with the remarks made by the Senator from
Tennessee relative to card check. It is totally inappropriate to
eliminate secret ballots in a democracy.
I wish to talk a little bit about the immigration bill. This is going
to come to a vote in a few minutes, or in about an hour, and there are
some serious issues relative to the process. Since this is a process
vote, I wanted to raise those issues. These are the issues: This bill
could have been handled well. It could have been addressed through a
process that would have allowed amendments that Members wanted to hear
and take up, but it hasn't been.
What has happened is there is a working organization which produced
the bill, and it is now controlling the amendment process. For example,
I have requested that we have an effective, clean amendment on the
issue of how we do H-1Bs. H-1Bs are a critical element of getting
quality people to come to the United States and do jobs which we don't
presently have people to do, mostly in the science field. Those people
create jobs; they don't lose jobs. By bringing a person like that, we
are actually creating a job center because that type of individual adds
value to the American workplace. So we need a robust H-1B program. I
wasn't saying it had to be in the bill, but I did say we have to have a
clean vote on it so we can get an up-or-down vote on whether we are
going to have a robust and effective H-1B program.
What has happened, however, is, through this process which has been
developed--which prejudices those of us who are not members of the
process, and since there are only five or six people in the process, it
is prejudicing obviously about 90 of us--there is a situation that has
been created where even if I get a clean vote on H-1B, which I am not
sure they will even give me that under this clay pigeon approach, there
will be language put in the managers' package which will basically gut
the H-1B program. It is called the Durbin language.
The practical effect of the Durbin language is this: It says if you
bring somebody in under H-1B, you must pay them the prevailing wage
under skill level 2 of the prevailing wage. Well, the practical effect
of that is it essentially means if you bring someone in under H-1B,
after you have paid all the fees, all the finding fees, all the
attorney's fees, which adds a lot for bringing that type of individual
into this country, you then must pay a wage which is significantly
higher than other people working in that same area.
Take a small software company in New Hampshire, of which there are
many, that would use H-1B types of individuals, scientists, coming into
our country. Let's say they had 10 positions, they only filled 9, so
they had to bring in a 10th person. The average wage for a software
person is about $80,000 in New Hampshire for nine of those people, but
the person who came into the country would get $100,000. On top of
that, they would also have the fees, the attorney's fees for getting
the permit to bring the individual into the country. Obviously, the
practical effect of that would be that H-1B would not work.
So this language, which is essentially killer language to the H-1B
program, is going to be put in the managers' package, as I understand--
although I don't really know that because nobody will actually tell us
what is going on; this
[[Page S8384]]
is just a rumor--or alternatively, it is going to be put into somebody
else's amendment, which we know will pass. But, anyway, there is a deal
in the works which says the people who drafted this bill are going to
lock hands and make sure that language is put in the bill which, even
if we get a decent vote on a decent H-1B program, will gut that vote.
That raises serious issues of process and obviously fairness. I just
wanted to make it clear that I am not comfortable with it in its
present form and have significant reservations.
Madam President, I yield the floor and yield back the remainder of my
time.
The ACTING PRESIDENT pro tempore. Who yields time?
Mr. BIDEN. Madam President, on behalf of Senator Kennedy, I yield
myself 5 minutes.
The ACTING PRESIDENT pro tempore. The Senator from Delaware is
recognized.
Mr. BIDEN. Madam President, history shows when the union movement is
strong, the middle class is strong. When the middle class is strong,
our Nation is strong.
But when the union movement is under attack, the middle class is
under attack. When the middle class is under attack, our Nation is
weaker economically and politically. Let there be no mistake, the union
movement and our middle class are under attack. Just take a look at the
numbers.
Since 1973, 26 percent of the workers in America belong to unions.
The pay and benefits, the working conditions, the basic dignity they
fought for spilled over to the rest of working class Americans. We are
all better off for it.
I would like to show you a couple of charts. Between 1947 and 1973,
if you look at rising income growth, and based on the percentile of
income shown on this chart, essentially everyone from 1947 to 1973--the
rising tide lifts all boats, and it lifted all boats--there was an
actual real income growth of almost 118 percent for the lowest 20
percentile. The top 20 percentile grew over 80 percent. There was some
genuine equity.
Then take a look at what happened as the union movement began to take
blows from the Supreme Court and the NLRB. There used to be card check
back in those days, by the way. If you wanted to join a union, you got
a card check, a little like we are talking about now.
Look what happened between 1973 and the year 2000. Real income
growth, the lowest 20 percent, grew just about 12 percent. The top 20
percent grew over 67 percent. We begin to see the building inequities
as a consequence of the demise of the American union movement, as well
as tax policy and the types of jobs we are creating.
Now, because I only have 5 minutes, I am going to do this quickly.
Let's fast-forward to the era of President Bush, George W. Bush. Look
what has happened in terms of real income growth, in terms of 2004
dollars. There has actually been a net decline in the income of the
lowest 20 percent, almost 5 percent; the second lowest tier, almost 4
percent; the middle income, people making between $40,000 and $60,000
per family, their real income actually dropped over 2 percent--all the
way across the board, everybody but the top 1 percent. You have to have
an income roughly of $435,000 to make it into that category. Average
salary income in that category is $1.4-plus million per year. That is
the only outfit growing, and look at what happened.
If I could superimpose a chart on organized labor, you would see a
direct decline; you would see an inverse proportion of what happened.
As labor declined, the economic power of corporate America increased,
and the power of the wealthiest among us skyrocketed.
It is time to change. Today, just 12 percent of American workers
belong to unions, and the spending power of the paycheck is actually
lower than it was in 1973. The median income is lower, but productivity
is up more than 80 percent since 1973.
It used to be we had a grand bargain in this country. As labor
increased productivity, as they did more, as businesses and
stockholders were able to benefit from the increased productivity, they
benefited. Now it is in inverse proportion. On the sweat and their
backs, they have increased productivity, and they have been penalized
for it.
Even in my State of Delaware, the hourly wage is down since 2000. The
median family income is below its 2000 level. The number of workers
represented and protected by unions has fallen from 1 in 4 in 1973 to 1
in 10 today. The basic social compact that built our economy, that
built our middle class, that built our country after World War II, has
been broken. That compact said if workers produce more, they would
share in the gains. Today, that is not true. Unions help to cut that
deal, and they kept their end of the bargain. Business and government
have not kept their part of the deal.
It is harder now to organize, harder to get a union certified to
represent the interests of the workers. It is harder because business
is fighting back harder because this administration has launched its
own unrelenting attack on the union movement. It is not just pay that
has taken a hit. Basic benefits such as health care, pensions--things
unions fought for and won--they are, more and more, just a thing of the
past.
More and more of the American people have no health insurance--46
million as of last year--a number that just keeps growing. In my State
of Delaware there are 100,000 uninsured.
Just imagine the fear, the insecurity, the helplessness that the
families must feel, going from day to day--the man lying in bed and the
woman lying in bed at night staring at the ceiling, having no
insurance, looking over at his pregnant wife, knowing it is a premature
child, and they will literally lose their house.
I yield myself 3 more minutes.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. BIDEN. Madam President, a quarter of a century ago, 9 out of 10
American workers could count on a pension plan with a guaranteed
payout. They had security in knowing they could pay their bills. Today,
only about one-third of Americans are in that shape.
Union membership means more security. The facts are clear. Union jobs
earn 30 percent more than nonunion jobs.
We have to stop and reverse the decline of union membership, and that
means passing the Employee Free Choice Act, which I have supported from
the beginning, and which used to exist.
In Delaware right now the Laborers International Union of North
America says the majority of the workers at the Walker International
Transportation Company near my home in New Castle, DE, want to join
them. They want to join because they need the benefits such as decent
health care, pay, and working conditions for which unions have fought.
Since May, the union has filed four complaints with the NLRB,
complaints that the company is interfering with their organizing
efforts.
Under current law, this process could be drawn out indefinitely. They
should be able to resolve this with a clear, simple count of cards,
certified by the National Labor Relations Board.
The Employee Free Choice Act will make the will of the majority of
workers clearer. It will punish employers who break the law, and it
will guarantee that new unions will get their first contract, not just
another runaround.
It is time to bring the strength of the union movement back within
the reach of the American people. It is time to rebuild the middle
class by giving organized labor the strength to fight for decent pay
and benefits.
My colleagues, it is time for a new social compact, a new social
compact because of white-collar workers who never thought they needed a
union, and who all of a sudden are finding out their companies are not
so generous with them when they walk in and shut down a division and
shut them out. I say to my colleagues, I believe American white-collar
workers who never thought about the union movement are prepared to
think about it now.
I don't want to just reverse the slide of organized labor in America,
I want to energize a new compact between white-collar workers and blue-
collar workers to give back power to the middle class so this graph you
see here from the year 2008 through 2020 looks more like this graph
that existed from
[[Page S8385]]
1947 to 1973. It is the only way to keep the middle class in the game.
They are getting crushed now. They are getting crushed.
I yield the floor, and I thank my colleague for the time.
Mr. ENZI. Madam President, as I allocate the time, I do want people
to know that the next sentence I say is tongue in cheek. I had no idea
that taking the secret ballot away from America's workers could solve
all the problems of the world.
I yield 5 minutes to the Senator from Tennessee.
The ACTING PRESIDENT pro tempore. The Senator from Tennessee is
recognized for 5 minutes.
Mr. CORKER. Madam President, I thank the Senator from Wyoming.
It never ceases to amaze me the tremendous creativity that exists in
the Senate, just by virtue of the name of this act we are discussing
today, the Employee Free Choice Act, and to, of course, hear my
colleague, the Senator from Delaware, talk about some of the ills that
face labor today. Certainly, I want to say that as someone who has
worked as a laborer and as someone who has worked with people who have
worked in labor, I want to make sure the American people have good
wages.
I agree with that 100 percent. I think all of us in America want to
see people make a good living, to be able to raise their families in a
way that certainly is full of respect. I want to see the same things
occur.
I wish to say this debate today is most unusual. To talk about this
vote we are going to have a little later today as being one about
``free choice'' is most ironic. Unlike most people who serve in the
Senate, I have actually carried a union card. I have actually paid
union dues. I have actually served as a trustee on a pension fund to
ensure employees of mine who were union employees were able to receive
their pensions down the road. So I worked with labor and I have been a
laborer. I have been one of those people who certainly was talked to
about organization and about people being members of a union.
I wish to say again--to reiterate what the Senator from Wyoming
said--it is amazing that all of the ills relating to the labor movement
today can be brought back to this one act that we are talking about
today that has to do with card check.
I know people have talked about Supreme Court rulings and about books
and about a lot of things. I wish to talk about what it means to be out
on a jobsite and to be talking with union representatives, whether it
is on a picket line or on the jobsite itself. If this act were to pass,
instead of people having a secret ballot, such as we have in the Senate
when we select our leadership, such as people have when they vote for
us to be in the Senate--instead of that, what would occur is that each
individual would be talked to about whether they would like to see a
union come in. I have witnessed this, where people would go up to a
water cooler on a construction site, and four or five large people
representing the union gather around that person and ask them if they
would like to be a member of the union. I have witnessed this when
people are living out in rural areas and they don't want to vote for
the union, but people pay them a visit in the dark of night suggesting
they should check off a card, if you will, so they can call the union
to form in the organization they happen to work for.
This is not about free choice. Certainly, this is about making sure
the union leaders don't have to do the job that is necessary to cause
people to want to join their union by offering the membership things
they would like to have, but instead they would have the ability to
strongarm people and cause people to do things that are not in their
own interest. What is amazing to me is that union membership doesn't
even want to see this happen.
What this, in essence, would do is cause union leadership not to even
have to carry out their jobs in a way that would cause people to want
to be a member of the union but instead threaten people at the jobsite,
at their homes late at night, to cause them to be a member of the
union.
For that reason, and because of the time we have at this point, I
urge all those in the Senate to vote against this piece of legislation,
which goes against the very principle we all support, and that is
secret ballots, freedom of choice. I vehemently oppose this legislation
because I believe this would set our country back a hundred years. I
urge my fellow Senators to vote against this act.
I yield the rest of my time to the Senator from Wyoming.
Mr. ENZI. Madam President, we are hearing two debates today, and that
was intentional. We will shift gears and go to immigration.
I yield 5 minutes to the Senator from Alabama.
The ACTING PRESIDENT pro tempore. The Senator from Alabama is
recognized.
Mr. SESSIONS. Mr. President, I thank the Senator from Wyoming, a fine
Senator and a great manager of legislation.
I have to tell you we pretty well know this card check bill is going
down like a lead balloon. We have an issue that has galvanized the
attention of the American public--and we will be voting on that at the
same time--and that is the immigration bill that we are about to go to.
I think it is odd that the allocators of time allocated a rather
small amount of time to Senator Enzi to allocate to those who oppose
this legislation.
Let me--since I only have 5 minutes and maybe now 4--see if I can
succinctly say to my colleagues why the legislation before us today is
a bad piece of legislation. Yes, we need to reform immigration; yes, we
need to reform immigration in much the way those who are promoting this
legislation say it should be reformed. But the bill we are going to
vote on will not do that--very much like 1986, when the promoters of
that bill said: Let's give amnesty to 3 million people and we will
create a legal system in the future that will work.
Why would I say that, that this bill does not work? Our own
Congressional Budget Office, on June 4--this month--did an analysis of
the legislation. They concluded that if this bill were to become law,
illegal immigration would only be reduced 13 percent. What an
astounding number. Only 13 percent? We have been hearing we must pass
this immigration bill, and if you don't like amnesty, you must vote for
it because that is the only way we are going to create a legal system
of immigration in America.
My analysis, before CBO came out with theirs, was that the bill would
not be effective; it had loophole after loophole. They concluded the
same. They say a 25-percent reduction in the border security and an
increase in visa overstays nets a 13-percent reduction. That is in the
CBO report, which is available to every Senator. We should look at
that. How can we vote for legislation that we know is not going to work
as it is promised to work?
Second, I don't know that the American people or Members of this body
realize it will double the legal immigration flow into America over the
next 20 years, giving twice as many green card statuses, legal
permanent resident statuses, as the current law provides. We are not
going to get any substantial reduction in illegality. We are going to
double illegality. It will cost, according to CBO, the Treasury of the
United States $30 billion--not expenses of enforcement, none of that,
but for additional welfare and other benefits that would be paid to
those who come into the country illegally.
Senator Biden talked about the middle class. This is not a little
issue. I don't know that his numbers were exactly correct. But for some
time I have been troubled by the fact that middle and lower skilled
workers have not seen their income levels rise at the rate that
corporate executives are seeing their income levels rise. Friday, when
I left this body, right on the street there was a gentleman out there
who had gray hair and a gray beard and he had a sign about jobs. I
spoke to him. He said he opposed this immigration bill. He was a master
carpenter from Melbourne, FL. He told me that he, in the 1990s, was
making $75,000 a year. Now he is making a fraction of that. He is going
to have to get out of the business. He attributed that solely to
illegal immigration, this incredible flow of almost unlimited numbers
of workers into his neighborhood, which had made his skill far less
valuable.
If we are concerned about the middle class, we have to ask how many
workers this country can accept without
[[Page S8386]]
seeing a marked drop in their income. The American people do not like
this bill. Our phones are ringing off the hook. A decent respect for
our constituents, I urge my colleagues, would be to say you have
rejected this bill.
The ACTING PRESIDENT pro tempore. The Senator has used 5 minutes.
Mr. SESSIONS. I thank the Chair. I yield the floor and urge that we
vote against cloture on this legislation.
Mr. ENZI. Madam President, I yield 5 minutes to the Senator from
Texas.
The ACTING PRESIDENT pro tempore. The Senator from Texas is
recognized for 5 minutes.
Mr. CORNYN. Madam President, I was forwarded a copy of a transcript
of an interview of a White House official yesterday commenting on some
remarks I made on the floor regarding the immigration bill. I wish to
speak to that.
I have argued the current bill sets up the Department of Homeland
Security for failure because it requires the Department of Homeland
Security to grant full work and travel authorization to applicants for
Z visas within 24 hours of their application, whether or not a
background check has been completed. That is the text in the current
immigration bill. Yesterday, though, the White House told reporters
this was part of a ``misunderstanding and mythology'' surrounding this
provision.
Let me quote the text of the provision. It reads:
No probationary benefits shall be issued to an alien until
the alien has passed all appropriate background checks or the
end of the next business day, whichever is sooner.
That is what the bill says. There is no mythology, no
misunderstanding. I know people think that draft language is a perfect
draft and believe it should attain its own mythological status, but
this is pretty straightforward. If an alien applies, he or she gets
legal status, full travel and work authorization no later than the next
day.
The White House official believes this provision is workable because,
as he says, ``Four of the layers of that background check are almost
invariably completed within 24 hours.'' ``Almost'' always completing a
background check within 24 hours is not always completing a background
check within 24 hours. He acknowledges that one of the checks takes
longer than 24 hours. So by his own admission, the Department of
Homeland Security will confer legal status to nearly every applicant,
even though they have not completed a background check.
This is not what the American people are hearing when they are
selling this bill. The American people are being told that foreign
nationals will have to pass a background check before they are granted
legal status. This is not true, according to the text of the underlying
bill, and it is not factually possible, according to the lead
negotiator from the White House.
Not to be deterred by facts, however, this official believes this
should be of no concern because if anything comes up in the background
check beyond the 24-hour period, then the Department of Homeland
Security will declare that person ineligible and deport them.
Certainly, that is a concept we can all support; that is, if someone
is ineligible, they should be deported. My concern is the gulf between
the promise being made to the American people and the likelihood that
that promise will be carried out. The White House said this is of no
concern because they will declare them ineligible and deport them. But
the question Americans are asking is: Will they? Can they? If they
already have this capability, why has nothing been done about 623,000
alien absconders already?
The Department of Homeland Security has reportedly created a unit to
track down, apprehend, and deport these fugitives, but no appreciable
dent has been made in this number. The Department of Homeland Security
has information on these individuals already.
But let's keep in mind that as the Department of Homeland Security is
so diligently tracking down the thousands of criminal aliens who have
already had a chance and have gone underground, or have left the
country and reentered illegally based on a deportation order, they have
to do a lot of other things, and Americans are asking can they get all
of this done? Can they train, hire, and deploy up to 20,000 additional
Border Patrol agents? Can they implement a worker verification system
to screen the workers around the country? Can they build up to the 370
miles of fencing and 300 miles of vehicle barriers? Can they deploy the
secure border initiative? Can they deploy the exit monitoring system of
the US-VISIT Program? Can they process 12 million initial applicants
for Z visas? Can they build 105 radar and camera towers? Can they
detain all removable aliens caught on the southern border utilizing
detention facilities with a capacity of only 31,500 people per day?
I think the American people can be forgiven for doubting the
commitment of the Federal Government and the willingness of the Federal
Government to actually do all the things it is promising. That is why
this bill is such a tough sell, to say the least--especially because,
as of 2 years ago, we were doing nothing to beef up border security. It
is hard to take the commitment at face value that, yes, now we are
serious about it.
So I fear that, similar to 1986, we are being promised something the
American people know we cannot and will not deliver. We should slow
down, read this bill, offer and debate amendments that will improve the
bill and vote on amendments freely.
I yield the floor.
The ACTING PRESIDENT pro tempore. Who yields time?
Mr. KENNEDY. Madam President, I yield myself 1 minute.
The fact is, if we sink this bill, if we vote against this bill, we
wouldn't even have tried to do all the background checks, we wouldn't
even have tried to get a secure border.
We know what so many Members of this body are against, but we have
yet to hear what they are for. The Senator from Texas outlined in very
considerable detail the kind of security to which we believe this
legislation is committed. Defeat this legislation and all of that
security is out the window.
This bill may not be perfect, but it is the best opportunity we have
to do something significant and substantial, and I believe the bill is
good.
I see my friend from Ohio. I yield him 5 minutes.
The ACTING PRESIDENT pro tempore. The Senator from Ohio.
Mr. BROWN. Madam President, I rise in support of the Employee Free
Choice Act which will be in front of this body this week. Historians
who take a clear-eyed look at the last 30 years will tell you
productivity has been rising, our economy has been expanding, corporate
profits are up, executive salaries are way up, and yet the workers
responsible for our Nation's prosperity have not reaped anywhere near
their share of the benefits.
The hallmark of our economy for generations has been those people who
produce the wealth, people who work with their hands, people who work
with their minds, the employees of this country. Those who produce
wealth will share in the wealth they create. As productivity goes up,
through most of our history, certainly in the last 100 years, so have
wages. But things have changed.
In 2005, the real median household income in America was down 3
percent from the median income in 2000. In Ohio, my State, it was down
almost 10 percent. Meanwhile, the average CEO makes 411 times more than
the average worker. In 1990, the average CEO made 107 times more. We
can see, as productivity goes up for workers, executives make more,
profits are higher, but workers are not sharing in the wealth they
create. That is what made the 2006 elections so important because the
middle class spoke up, the middle class understanding their wages are
stagnated, understanding they have not shared in the wealth they
created. That is what makes today so important.
We are considering today landmark legislation supported by workers,
employers, religious organizations, civil rights groups, advocates for
children's legislation, which will give employees a real choice on
whether they want to join a union.
This legislation probably won't pass this week. Republicans have
again, one more time, threatened to filibuster and one more time we
probably won't get the 60 votes to pass this legislation. But it is
clear a majority of the American people want it, a majority of the
House of Representatives wants it, a majority of the Senate wants it.
We will keep coming back year after year
[[Page S8387]]
supported by these workers, employers, religious organizations, civil
rights groups, and advocates for children.
I would point out, in pursuit of economic justice, why this Employee
Free Choice Act is so important and what has happened to our economy in
the last six decades. Each of these bars represents 20 percent of wage
earners in this country, the lowest 20-percent wage earners and the
highest 20 percent. We can see, from 1947 to 1973, the height of
unionism in our country, the period when the most American workers
belonged to unions, what happened. There was strong economic growth for
all of society, for all workers in every category, but the strongest
economic growth in wages was the lowest 20-percent of wage earners from
1947 to 1973.
In the seventies and eighties, the percentage of American workers in
unions declined. Other things were going on too, such as the trade
surplus went to a trade deficit, and other things. The big part of that
was unionization. Look at 1973 to 2000; there was still economic growth
in all segments of our society. On average, in each category, workers'
incomes went up, but the lowest 20 percent had the lowest percentage
growth in income, and the highest 20 percent had the highest growth in
income. We can already see a splitting apart, where wage growth did not
quite track productivity.
Since 2000, we can see something else happened. This trend has
exploded. Since 2000, all five categories have seen their wages go
down. The lowest 20 percent has had the biggest decline. Only when we
cut off the top 1 percent have we seen incomes go up. The top 1 percent
has seen their incomes go up 6 percent; the lowest has seen their
incomes drop about 5 percent. Again, that is in large part because
fewer and fewer Americans belong to labor unions, and it is more and
more difficult to join a union.
Employers are stronger. Employers spend more money. Employers hire
more firms with great expertise on how to stop union drives, to defeat
unions, to refuse to bargain if a union is voted in. Literally there
have been tens of thousands of infractions those employers have engaged
in against their employees. This bill makes sense.
The PRESIDING OFFICER (Mr. Tester). The Senator has used 5 minutes.
Mr. BROWN. I thank the Presiding Officer.
The PRESIDING OFFICER. The Senator from Wyoming.
Mr. ENZI. Mr. President, I yield 5 minutes to the Senator from Iowa.
The PRESIDING OFFICER. The Senator from Iowa.
Mr. GRASSLEY. Mr. President, I urge my colleagues to vote ``no'' on
cloture on the check card bill. I urge them to do this because a secret
ballot is not only a part of the political process in the United
States, but a part of a process in many organizations to make sure that
people vote their convictions and not their emotions or emotions that
have been forced upon them.
I want to use a personal example of why I think, in union elections
in particular, a secret ballot is so important. I have told some of my
colleagues, not very often, but in past debates on the floor of the
Senate that while I was a member of the State legislature, I worked at
a factory in Cedar Falls, IA, called Waterloo Register Company. We made
furnace registers. I had the glorious job for those 10 years of putting
screw holes with a small punch in those registers. I worked there from
September of 1961 until the plant shut down in March of 1971. During
that period of time, from February of 1962 until the plant shut down, I
was a member of the International Association of Machinists. Everything
was going all right for that plant until about 1967, 1968, 1969, when
our products made by the International Association of Machinists were
not being installed by the Sheet Metal Workers Union members in
Pennsylvania, is what I was told at the time. Our company wanted us to
change from the International Association of Machinists to Sheet Metal
Workers. This is not an instance of the company trying to keep a union
out. There was already a union there. The company was getting behind
the Sheet Metal Workers Union in a dispute that involved an illegal
secondary boycott against our products. So our management thought if we
were part of the Sheet Metal Workers Union we would get our products
installed easier around the country by sheet metal worker installers.
Presumably, we were one of the few companies making registers at that
particular time that was a member of the International Association of
Machinists, as opposed to being a member of the Sheet Metal Workers.
So our company and that union pushed to have an election to change
unions from International Association of Machinists to Sheet Metal
Workers. It was highly debated. Obviously, machinists and their members
loyal to them wanted the machinists union to stay. The company and some
workers who were sympathetic to the company point of view would rather
have the Sheet Metal Workers Union because we were told they would not
stay in business if the Sheet Metal Workers were not there.
We had an election. I forget the exact date. I tried to look up
newspaper stories for this debate, and I couldn't find them. My
recollection is that in March of 1969 or March of 1970, we had an
election. I remember driving 100 miles from Des Moines where the
legislature was in session to my factory--I had a leave of absence--to
vote in that election. I don't mind telling people how I voted. I voted
to keep the International Association of Machinists because I had been
a member for 6 or 7 years. I thought they were serving my interests
right. I wanted to keep them in there, and I didn't believe the story
of the management and I didn't believe we should ratify an illegal
secondary boycott.
In the meantime, we obviously got a lot of pressure both ways--from
the machinists to keep the machinists, and we got a lot of pressure
from management to change the union. There was a lot of intimidation.
But we could go into that secret voting booth and cast our ballot, and
nobody knew how we voted. We did vote, and we kept the International
Association of Machinists in that particular election.
I know the overall reasons haven't changed in the last 40 years to
have a secret ballot. They have been debated well here. But I thought I
would share with my colleagues a personal story about the intimidation
that can come from management, not necessarily from the union, to vote
a certain way.
Consequently, I was fortunate we were able to keep our International
Association of Machinists, and everybody went on happily until the
plant finally closed down a couple years later.
So, I urge colleagues to vote against cloture and preserve the secret
ballot to ensure that the intimidation that can be active by management
as well as labor isn't used.
The PRESIDING OFFICER. Who yields time?
The Senator from Massachusetts.
Mr. KENNEDY. Mr. President, I yield 3 minutes to the Senator from
Colorado.
The PRESIDING OFFICER. The Senator from Colorado.
Mr. SALAZAR. Mr. President, I rise to urge my colleagues to vote
``yes'' on the motion to proceed to S. 1639, the immigration reform
package. This immigration reform legislation has been long in coming.
Immigration has been debated on the floor in the last year for almost a
month. We debated it earlier this year for several weeks. It has been
the subject of multiple hearings.
The fact is this national security problem is not going to go away
until the Members of the Senate have the courage to stand up and deal
with this issue.
The legislation before this body may not be the perfect legislation
everybody wants, and there are people who will find fault with the
legislation, but at the end of the day, it addresses three fundamental
principles we must address on immigration reform.
The first of those principles is that it secures America's borders,
and it does that with tough provisions in how we police the borders,
the addition of more Border Patrol agents, 370 miles of fencing, 70
ground-based radar and camera towers, 200 miles of vehicle barriers,
new checkpoints of entry, and so forth.
Second, this law will enforce our Nation's immigration laws for the
first time. For far too long, for the last 20 years, what has happened
is America has looked the other way and turned a blind eye toward the
enforcement of
[[Page S8388]]
our laws in this country. This legislation has significant enforcement
provisions in it that will, in fact, be enforced and funded.
Third, this legislation secures America's economic future. It does it
by the passage of the AgJOBS Act which is supported by more than 800
organizations, farmers, ranchers, and the agricultural community
throughout our great Nation.
It addresses the economic needs of America by moving forward with a
new temporary worker program that will address the needs of America
today in terms of jobs that other people do not want.
And finally, it sets forth a realistic solution for America's
undocumented workforce, and it is a far cry from what those who are on
the other side of this issue will say--that it is amnesty. It is not.
When we are having the people pay the kinds of penalties we have in the
bill, when we have them go to the back of the line, when we put them
through an 8-year purgatory, when we put them through that probationary
period of time, what we are saying to them is: You have broken the law,
you are going to pay significantly to get back into the line relative
to the possibility of having a green card which will not come until 8
to 13 years from now.
So I think we have struck the right balance here, and I would urge my
colleagues to move forward and to give us a ``yes'' vote on the motion
to proceed to debate this fundamental issue of national security.
Finally, I would say that the moral issues which are at stake, which
are at the foundation of this debate on immigration, are moral issues
we cannot escape from. This Senate has to have the courage to stand up
and say we are going to address those issues now.
Mr. KERRY. Mr. President, we are here today to bring a long overdue
measure of fairness to a system that because of years of powerful
opposition and millions of dollars spent remains rigged against the
American worker.
Today, it is simply too difficult for workers to claim their legal
right to join a union and too easy for employers to prevent them from
doing so. This is no accident, and it must change.
Throughout our history, it is the labor movement above all else which
has stood up as the driving force in support of working Americans, a
gateway to the middle class. So much of what we take for granted
today--the 5-day workweek, paid vacations, pensions, health insurance
didn't happen by accident; they became reality because people in
organized labor were willing to fight, willing to march, and sometimes
willing to die to stand up for the rights of the American worker.
But the work of making America a little bit more fair and a little
bit more just isn't over--and once again to achieve another milestone
we must stand with labor over the objections of powerful corporate
opposition.
As a cosponsor and strong supporter of the Employee Free Choice Act
of 2007, I urge my colleagues to vote for cloture to pass this
important legislation and continue the march of progress in this
century which organized labor began in the last one.
In 1935 Congress passed the National Labor Relations Act, NLRA,
historic legislation that marked the first time the Federal Government
recognized collective bargaining as a right for workers. Employees won
the right to organize and a legal forum to settle disputes with
management, air grievances, and generally improve workplace standards.
This 1935 law represented a tremendous breakthrough for workers, but
its unintended consequences have worked to undo its basic promise that
when a majority of workers want to join a union, they have the right to
do so.
Unfortunately, the union recognition process today allows antiunion
employers to stall both the organizing and bargaining process for
months and even years--opening up the door for the very abuses the NLRA
explicitly seeks to prevent.
First, once workers decide and demonstrate that they would like to
unionize, our current system offers employers a window of time in which
to lobby, cajole, and otherwise pressure them not to do so before
holding a surreptitious secret vote. When presented with signatures
from a majority of employees, employers can call for a secret
election--delaying the process and creating a window of opportunity
during which employers can hire antiunion consultants, conduct an
unlimited number of employee meetings, and bar labor representatives
from the workplace.
Second, under the current rules, there are too few penalties to
dissuade companies from taking illegal actions far beyond the
questionable practices permissible under the NLRA. Facing light
penalties, companies make a rational calculation that it is cheaper to
violate labor laws and be punished than it is to follow them.
In 2005, the National Labor Relations Board, NLRB, reported that
31,000 workers were disciplined or fired for union activity. Studies
show that employees are fired in one-quarter of all organizing
campaigns and that one in five workers who openly advocate for a union
during an election campaign is fired.
The odds are stacked against workers: when they present a majority,
their employers are given every chance to dissuade them from
unionizing. When employers cross these already generous lines and break
the law, they are not held to account.
The Employee Free Choice Act of 2007 brings the letter of the law in
line with the spirit of the law. It takes practical measures to protect
and deliver what is supposedly already guaranteed: workers' right to
organize.
The bill requires the NLRB and businesses to recognize a union when a
majority of employees have signed their names to authorization cards
and presented them to the National Labor Review Board. It also requires
a binding arbitration process if an employer and a new union cannot
reach agreement on an initial contract, empowers the NLRB to enforce
compliance with the law in Federal court, and levies substantial fines
on employers that engage in union-busting activities.
This legislation is about fundamental fairness. Millions of Americans
want to join a union and ought to be able to, but can't. Just ask John
Elia of Melrose, MA, field technician for Verizon who wants to organize
his unit within the Communication Workers of America. John has been
trying for months to get Verizon to recognize the union authorization
cards he and the majority of his coworkers have signed. He even handed
the signed cards to Verizon's CEO Ivan Seidenberg and asked him to
accept them, but he was refused. Earlier this year, Congressman Stephen
Lynch, Congressman John Tierney, Massachusetts Lieutenant Governor Tim
Murray, and I publicly verified the field technician's authorization
cards and called on Verizon to recognize them but we were refused as
well.
John Elia wants what every worker wants--better pay, decent health
care, a stable retirement plan, and real job security. Research shows
that unionized workers are paid 30 percent more than nonunion workers,
92 percent of unionized workers have some health care coverage, and
three out of four have defined benefit retirement plans--compared to
just one in six nonunion members. No wonder a majority of Americans say
they would join a union if they could.
This bill is especially timely because the Bush administration has
rolled back the clock on worker rights and created an atmosphere that
has emboldened many employers to engage in the kind of illegal activity
that this bill would help end. For instance, Wal-Mart has been known to
shut down stores and relocate them with different employees to prevent
them from organizing. The Employee Free Choice Act would require the
country's biggest employer to finally recognize its employees' right to
form unions and bargain for better pay and benefits.
Opponents of this bill including the Chamber of Commerce want us to
believe that instant card check recognition is undemocratic and will
hurt businesses. In fact, it fulfills the promise of the National Labor
Relations Act of 1935 by ensuring that a majority organizing vote will
be honored. What is more democratic than honoring the wishes of the
majority? Doubters at the Chamber of Commerce may also want to talk to
cell phone provider Cingular, which has voluntarily agreed to honor
instant card check unionization. Cingular reported $9 billion in
revenue and a record $782 million fourth quarter profit in 2006. It
hardly seems to be struggling under the weight of its unions.
[[Page S8389]]
Mr. President, as chairman of the Senate Committee on Small Business
and Entrepreneurship, let me assure you that this bill is not bad for
small businesses. It is aimed at large businesses that engage in union-
busting, something small businesses cannot afford to do. In fact, 20
million out of America's 26 million small businesses don't have any
employees.
We must restore balance to a broken labor system that breeds
resentment on both sides. We must do so most of all so that millions of
Americans see their hard work translate into a better standard of
living. I urge my colleagues to support cloture so that we can improve
conditions for hardworking Americans everywhere.
Mr. DODD. Mr. President, I rise in strong support of the Employee
Free Choice Act, a bill that will ensure dignity and prosperity for
millions of American workers.
It is no secret that unions helped build in America the largest and
strongest middle class the world had ever seen. But where does that
middle class stand today? Since 2000, real median household income is
down, real wages are down; real wages, in fact, are lower now than they
were in 1973. Nearly 50 million Americans, and more every day, are
without health insurance. And all this stagnation while corporate
profits are up 83 percent since 2005, while the pay of CEOs has
skyrocketed to 411 times the pay of their workers.
It is no secret that, while American inequality has reached these
heights, fewer and fewer workers are members of unions. In large part,
that is not by choice. Worker intimidation is not the activity of a few
outlaws--it is persistent, it is systemic, and it is devastating.
Employers illegally fired workers in one quarter of union organizing
drives. In 2005, more than 30,000 workers were discriminated against in
connection with union-busting activities.
If we are going to preserve the American middle class--if workers are
going to have the ability to bargain for their fair share--then we need
to deter coercion and discrimination; we need a way for workers to
fearlessly let their voices be heard.
The Employee Free Choice Act is the tool they need. It has three key
provisions.
First, the bill recognizes that union elections are often the high
point of employers' intimidation tactics. Rather than provide them a
concentrated target, the EFCA establishes majority signup: If a
majority of workers sign cards stating that they want union
representation, a union is certified as their official collective
bargaining agent. Workers are still free to participate in a secret
ballot election supervised by the National Labor Relations Board if
they so choose; but the Employee Free Choice Act gives that choice to
workers themselves.
Second, the bill provides strict penalties for employers interfering
with their workers' free choice to join or establish a union. Under the
bill, the National Labor Relations Board may obtain a court injunction
against an employer that is illegally firing or otherwise harassing
workers. Illegally fired workers will be entitled to three times their
back pay--a strong deterrent. And willful and repeated violation of
workers' rights will result in a civil fine of $20,000 per incident.
These penalties replace consequences that, to date, have proven
ineffective. Companies will no longer have an incentive to ignore the
law.
Third, the bill makes it easier for unions and employers to reach
their first contract. It stipulates that bargaining must begin within
10 days of a new union being certified. If, after 90 days, no agreement
has been reached, this legislation then authorizes either party to seek
mediation through the Federal Mediation and Conciliation Service,
which, in 2006 handled more than 5,500 cases and had an 86 percent
success rate; if no contract is reached after 30 days of mediation, the
parties will then submit to binding arbitration, which will impose a
contract that lasts for 2 years. This clear process ensures that unions
serve their purpose--because, without contracts, collective bargaining
is meaningless.
There is no doubt that majority signup, stricter intimidation
penalties, and the clear first contract process will strengthen
American unions. But this is not a union bill, not if that term is
understood to mean any narrow constituency or any narrow interest.
Whatever his or her choice, it is in the interest of every American
worker to have that choice recorded fairly, free from fear and threat.
When the unfair and illegal barriers are removed, however, I am
confident that more and more workers will put their trust in unions.
Unions offer millions of us better wages, sounder health care, and more
secure pensions. They are the best way we have yet discovered to share
the fruits of our prosperity more equally. Workers know that, Mr.
President--and they are waiting to be heard.
Mr. McCAIN. Mr. President, I am strongly opposed to H.R. 800, the so-
called Employee Free Choice Act of 2007. Not only is the bill's title
deceptive, the enactment of such an ill-conceived legislative measure
would be a gross deception to the hard-working Americans who would fall
victim to it.
Since the inception of our democracy, we as citizens have placed a
great amount of pride in our ability to freely cast votes and voice our
opinions on how Federal, State, and local business should be conducted.
Our ability to voice opinions through secret ballots stands as one of
the hallmarks of our democratic process. Certainly, now, perhaps more
than ever, we should be working to uphold this hallmark, not tear it
down for the convenience of organized labor, which has been struggling
with a declining membership. This bill is the product of partisan
politics at its worst, and it must be soundly defeated.
During the early 20th century, we experienced a rapid growth in our
labor force and, as a result, a push by unions to increase their
membership. In response to aggressive and questionable recruiting
practices by some unions, Congress passed the National Labor Relations
Act, NRLA, of 1947. One of the main tenets of this legislation was to
afford hard-working Americans the right to privately cast their vote on
whether to organize, free of intimidation and coercion from union
representatives and employees. Unfortunately, before us today is a bill
that seeks to strip this fundamental right from our Nation's workers.
Ironically dubbed the ``Employee Free Choice Act of 2007,'' this
legislation would enact a ``card check'' process, allowing unions to
bypass the long used and successful secret balloting system.
The proposed legislation is a direct attack on one of the most basic
tenets of our democratic process, which is why it is opposed by a
majority of American workers. A recent poll conducted by the
nonpartisan Coalition for a Democratic Workplace found that 90 percent
of union households oppose this legislation. Another poll by McLaughlin
and Associates indicated that almost 9 out of 10 voters agree that
workers should continue to have the right to a federally supervised
secret ballot election when deciding whether to organize a union.
My concern is--and it is a concern shared by many--that if enacted
this measure would expose workers to intimidation and the fear of
retaliation for votes cast. We simply cannot allow this assault on
democracy from becoming law. Instead, we should be working for the
swift enactment of S. 1312, the Secret Ballot Protection Act of 2007,
which I am proud to cosponsor along with 26 of my colleagues, to ensure
secret ballot elections for employees.
I strongly urge my colleagues to vote no on H.R. 800 and to halt the
full Senate's debate on this ill-conceived, flawed measure.
Mrs. BOXER. Mr. President, I rise today in strong support of the
Employee Free Choice Act. For far too long, our Nation's labor laws
have created an environment that has made it harder and harder for
workers to organize and form unions.
The current system overwhelmingly favors the employer, who too often
use their advantage to intimidate and coerce their employees.
The end result of this system has led to a squeeze on America's
middle-class families, and the time has come to put an end to a union
election system where employer intimidation tactics prevent middle-
class workers from earning decent wages, health care, and fair working
conditions.
It should come as no great surprise that middle-class families are
facing increased economic hardships because of the Bush
administration's policies.
[[Page S8390]]
Corporate profits have jumped 83 percent since 2001, with the richest
Americans getting richer, while health care, energy, food, and
education costs have skyrocketed, creating the largest income gap in 65
years.
In 2005, households in the bottom 90 percent experienced a .6-percent
income loss, while workers at the top enjoyed a 16-percent increase in
income.
Real wages for U.S. workers are lower today than in 1973, and in
California, the real median hourly wage fell by 2.7 percent between
2003 and 2005.
In addition to seeing their wages squeezed, many middle-class workers
are unable to provide health care for their families.
Over 7 million Californians are uninsured and the numbers of
uninsured increase every year.
In fact, from 1999 to 2005, the number of Californians with employer-
provided health care dropped from 60 percent to 55 percent.
To put into perspective the pressure being placed on the middle
class, I recently found my son Doug's pay stub from when he worked as a
checker at a supermarket in 1986.
Twenty-one years ago, a checker at his supermarket earned $7.41 per
hour. According to the United Food and Commercial Workers union, an
entry-level checker starting today would earn around $8.90 per hour,
which is $4.86 less than my son's 1986 wages adjusted for inflation.
This downward pressure on middle-class wages must stop--and increased
union participation can help solve this problem.
Encouraging more participation in unions is a simple and proven way
to help middle-class families.
Union wages are on average more than 30 percent higher than nonunion
wages. Union cashiers earn 46 percent more than nonunion cashiers.
Union food preparation workers earn 50 percent more than nonunion
workers.
To help increase participation in unions, the Employee Free Choice
Act puts to an end the current culture of intimidation and coercion
that surrounds some union elections, and instead presents a choice to
workers contemplating unionization.
Under EFCA, workers can choose to proceed with union elections
through secret ballot or they can choose organization through a simple
card check procedure. Under current law, only the employer can choose
how its employees choose to elect union representation.
Responsible employers, like Kaiser Permanente and Cingular, gave
their employees such a choice, and the results have been great.
At a Kaiser Permanente health care facility in Orange County, CA,
nurses were able to quickly and easily form a union without fear of
intimidation and illegal firings. The smooth unionization process has
led to an all-time low nurse vacancy rate and low nurse-to-patient
ratios, which has increased the quality of health care provided to
Kaiser's patients.
But workers who have not been given a choice on how to proceed with
union elections have faced unfairly harsh consequences.
Employer intimidation and coercion are serious problems.
In 2005, over 30,000 workers lost wages or were fired because they
were involved in union organizing activities.
The current union election system is badly broken and breeds fear in
the workplace.
Workers under open threat of firings and layoffs from their employers
are not given a real choice in choosing to organize a union.
Workers are fired in 25 percent of all private sector union
organizing campaigns, and 1 in 5 workers involved in union organizing
efforts is fired.
Over 75 percent of private employers require managers to give anti-
union messages to employees, and over half of all employers threaten to
close or relocate the business if workers elect a union.
At a Rite Aid distribution center in Lancaster, CA, workers thought
forming a union would help them negotiate better working conditions.
Workers at this distribution center work with no job security,
mandatory overtime after 10-hour shifts, and no temperature controls in
the warehouse.
When the union movement began to gain momentum, one of the lead
employees, who had worked there for 6 years with a spotless record, was
fired for poor performance.
Said the worker after his termination, ``People were afraid to sign
union cards because they saw what happened to me.''
At the Los Angeles Airport Hilton Hotel, two workers leading the
union effort were fired on trumped-up charges. One of them, Alicia
Melgarejo, is a single mother of a 14-year-old daughter, who worked as
a housekeeper at the hotel for 8 years.
Despite the fact that she had never been disciplined in 8 years on
the job, she was immediately fired after being accused by management of
stealing towels.
She asked management to show her video to back up their claim, but
they refused. She believes she was simply fired for her role in union
organizing efforts and her active support of Los Angeles' living wage
law.
Under current law, these gross examples of intimidation can only be
penalized by what amounts to a slap on the wrist for large companies.
Employers can ruin lives, like they did to Alicia and her daughter, yet
they often build into their budgets the costs of union-busting
activities and the small penalties authorized by the National Labor
Relations Board.
The current union election system creates a battle between employer
and employee, with no real winner.
Our workers have earned the right to work in an environment free from
fear, and they should be given the right to choose if they want a union
through a process that doesn't provide incentives for employers to
coerce and intimidate their employees.
EFCA changes the game and provides workers with a fair choice in
choosing to organize.
It also takes away incentives for employers to break the law and
illegally fire union organizers by requiring back pay for workers who
are fired or retaliated against, increasing civil fines to up to
$20,000 for each illegal act, and authorizing Federal court injunctions
to immediately return fired workers to their jobs.
EFCA provides employees with a choice in choosing a union, gives
teeth to penalties for violations to prevent employer bullying and
intimidation, and levels the playing field for workers seeking well-
deserved living wages, health care, and fair workplace treatment.
I urge my colleagues to support cloture on the motion to proceed to
this bill.
Mr. OBAMA. Mr. President, all across the country, Americans are
anxious about their future. In a global economy with new rules and new
risks, they have watched as their Government has shifted those risks
onto the backs of the American worker, and they wonder how they are
ever going to keep up.
In coffee shops and town meetings, in VFW halls and all along the
towns that once housed the manufacturing facilities that built our
country, the questions are all the same. Will I be able to leave my
children a better world than I was given? Will I be able to save enough
to send them to college? Will I be able to plan for my retirement? Will
my job even be there tomorrow? Who will stand up for me in this new
world?
The Employee Free Choice Act can alleviate some of these concerns. I
support this bill because in order to restore a sense of shared
prosperity and security, we need to help working Americans exercise
their right to organize under a fair and free process and bargain for
their fair share of the wealth our country creates.
The current process for organizing a workplace denies too many
workers the ability to do so. The Employee Free Choice Act offers to
make binding an alternative process under which a majority of employees
can sign up to join a union. Currently, employers can choose to
accept--but are not bound by law to accept--the signed decision of a
majority of workers. That choice should be left up to workers and
workers alone.
Moreover, workers who want to form a union today are vulnerable to a
concentrated period of union-busting tactics by employers. Far too
often, workers petition to form a union, the employer is notified, and
then the employer uses the time between notification and the vote to
force workers into closed-door meetings where they might
[[Page S8391]]
mislead and scare their employees into opposing the organizing drive.
In thousands of cases, employers just start firing prounion employees
to send a message. And they consider any penalties that result from
that behavior an acceptable cost of doing business.
The Employee Free Choice Act would give workers the right to collect
signed cards from a majority of their colleagues to form a union and
would require the employer to respect and accept that decision. It
increases penalties to discourage employers from punishing workers
trying to organize their colleagues, and it encourages both sides to
negotiate the first contract in good faith by sending stalemates to
binding arbitration.
As executive compensation skyrockets and money managers rake in
millions in income annually, American workers are wondering if the
rules aren't tilted against them. They question whether their vote and
their efforts matter. They feel they have an increasingly weaker voice
in the decisions their employers and their Government make. They find
themselves competing against workers abroad who lack fair pay and
benefits. And they feel ill-equipped to challenge employers who are
cutting wages or refusing to raise wages at the same time as they are
shedding their health care and retirement contributions.
What the history of America's middle class teaches us--and what we
have to make real today--is the idea that in this country, we must
value the labor of every single American. We must be willing to respect
that labor and reward it with a few basic guarantees--wages that can
raise a family, health care if we get sick, a retirement that is
dignified, working conditions that are safe.
To protect that labor, we need a few basic rights: organization
without intimidation, bargaining in good faith, and a safe workplace.
These are commonsense principles, and this bill affirms those
principles. For this reason, I stand in solidarity with working people
around the country as an original cosponsor of the Employee Free Choice
Act, and I urge my colleagues to pass it.
Mr. ENSIGN. Mr. President, I rise today to address the so-called
Employee Free Choice Act.
Over the past few weeks the Democrats have painted a very partisan
picture for the American public; coloring their failures by laying
blame at the feet of the Republicans. In reality, Republicans have come
to the table in good faith time and again to address the issues facing
this Nation and its hard-working citizens.
Now, this week, despite their promises to deliver energy solutions,
the Democrats have chosen to set aside the only energy bill they have
brought before the Senate. Sadly, we only had mere days to debate
proposals that could have put this country on the path to lower gas
prices and energy independence.
What is more important than securing America's future?
It is with complete disregard for the rights of American workers that
the Democrats have brought to the floor--at the cost of vital
legislation--the deceptively titled ``Employee Free Choice Act.'' This
act would revoke the right of workers to cast secret ballots in
elections when voting on whether to form a union. Workers could now be
unionized by the practice known as ``card check,'' which would make
employees cast their vote publicly by signing cards that would be
allowed to count as votes in place of a secretly cast ballot. This
practice would allow for unionization as soon as a majority of
employees give consent, thus eliminating the voice and vote of a
significant percentage of employees.
This country is founded on the fundamental principles of freedom and
choice. Let's be clear, this is not a debate about the merits of
unionization, rather this is a debate about ensuring that Americans
maintain their right to make their choice in private, from the voting
booth to the workplace. The United States has a rich tradition of
Americans choosing their elected representatives by secret ballot in
free and fair elections. Every Member of Congress was elected through a
secret ballot process, something I have worked throughout my career to
protect. Ensuring that employees maintain the right to secret-ballot
elections protects those who would choose to not unionize from undue
peer pressure, public scrutiny, coercion, and possible retaliation. We
cannot allow political payback to undermine 60 years worth of democracy
in the workplace.
This is not what the American worker wants. Although I do not believe
in governing by polls, it is an important tool to gauge support on an
issue such as this. According to a Zogby poll, 78 percent of union
workers favor keeping the current secret ballot process in place. It is
also important to note that preserving the rights of workers does not
mean the end of unionization. As a matter of fact, a study conducted by
the National Labor Relations Board confirmed that unions win 60 percent
of all elections conducted by a secret ballot. Knowing that would
prompt any reasonable person to ask why the Democrats are so eager to
secure the favor of big labor, especially when it is at the cost of the
workers they claim to protect.
This bill would reverse 60 years of Federal labor law that has
guaranteed workers the right to cast a private ballot. In 1947,
Congress made a decision to amend the National Labor Relations Act and
expressly mandated that workers be given the right to a secret ballot.
Both the National Labor Relations Board, which oversees unions, and the
Supreme Court have upheld the law and the rights of workers by
recognizing that secret-ballot elections are the most satisfactory way
to establish a union. Public support for the secret ballot for union
representation is strong and an overwhelming number of union employees
agree that a worker's vote to organize should remain private.
Currently, during union elections, all votes are cast secretly, and
every vote is counted. This is important to protect employees from
coercion and retaliation, not only from the employer but also from
union officials. You see, what people fail to realize is that union
officials have been as guilty of applying pressure, as they can
alienate individuals, kill careers, or even threaten with physical
force. Employees have had representatives from big labor visiting their
places of employment, writing down license plate numbers, and visiting
their homes later that night. Casting votes in secret provides all
employees protection from these and other pressures.
Allowing the Employee Free Choice Act to pass into law would result
in a dictatorial rule over laborers and their civil rights. I encourage
this body to stand up and ensure that the Democrats are not allowed to
make political fodder of the civil rights of hard working Americans. We
cannot restrict the rights of workers by denying them their fundamental
right to cast a private ballot in union organizing elections. Let's
call this for what it is--a political payback--and vote against the
``Employee No Choice Act.''
Mr. President, I yield the floor.
Mr. KENNEDY. Mr. President, I believe I have 6 minutes; is that
correct?
The PRESIDING OFFICER. That is correct.
Mr. KENNEDY. Mr. President, again I wish to thank my friend from
Colorado for putting into 3 short minutes the compelling case for the
support for cloture we will be voting on in just a very short period of
time and thank him not only for his eloquence and his passion but also
the strong ongoing effort he has made to try to make sure this
legislation is worthy of the goals he has outlined. He has made an
extraordinary contribution, and history will show it.
If the Chair will let me know when I have 1 minute left.
Mr. President, on the employee checkoff legislation, first of all, we
want to point out that free elections are in the Employee Free Choice
Act. They are in the legislation. We have heard a lot of issues and
questions about whether they are in or they are not in. They are in the
legislation. But let me really point out, in the few minutes that
remain, why this legislation is necessary.
It is necessary because of the impact of what is happening today to
so many workers who are trying to be able to pursue their economic
interests.
This is Verna Bader, a machine operator in Taylor, MN. Verna wanted
to form a union to help address health and safety problems at work.
This is often the case. It isn't just their own economic interest; it
is the health and safety problems they see on the job.
[[Page S8392]]
She and other union supporters were harassed by the foreman, who
threatened: ``If you do get a union in here, you're gonna find out that
you aren't gonna have a job.'' We have heard of intimidation, and this
is the type of intimidation which so many workers, when they try to
form a union, are faced with.
After employees voted to form a union, the harassment became
unbearable for Verna. ``There's days that I literally went out of there
crying. This is the kind of conditions that the employer set.''
Taylor Machine illegally shut down the department where union
supporters worked. Eventually, the NLRB ordered the company to give
them back their jobs. The company refused and appealed the ruling,
delaying justice for the workers. Verna and her coworkers didn't get
the backpay the company owed them until 8 years later.
This is Bonny Wallace, a nurse from Roseburg, OR. Bonny and her
coworkers decided to form a union after the hospital began increasing
nurses' patient loads, forcing them to work mandatory overtime. Many
times, these workers would come down exhausted at the end of their 8-
hour shift and be told: No, you are going to have to continue to work.
Many of them had children at home or children they were picking up at
school, and they were told they had to go out. The workers tried to
find out if they couldn't get at least some kind of recognition of
their needs. ``We needed some help and some representation. We needed
someone to listen to us, when management would not. That's why we
called the union.''
The hospital started a campaign of fear and intimidation. Despite a
shortage of workers, the hospital forced them to attend antiunion
meetings during their shifts. The meetings were demeaning and
dehumanizing. ``We felt insulted by the half-truths they put forward.''
The nurses won the election, but 1 year after the union was
certified, they still had no contract. Management has come to
bargaining meetings unprepared to negotiate, stalling the negotiations
and slow-walking the outcome.
So you have the situation where an individual is fired and another
situation where they have just refused to negotiate.
Now, what happens every year? These are the figures from 2005: 30,000
workers--30,000 workers--have had to get backpay from the National
Labor Relations Board because of examples I have just given here this
afternoon. And these are not the exception. This is what is happening
all over America. It didn't used to be that way. It didn't used to be
that way.
Years ago, when they did have the card and the checkoff, the numbers
that were actually being talked about at that time were about 3,000
individuals. Now, as has been pointed out during the course of the
debate, the powers that are out there to defeat these workers,
humiliate these workers, intimidate these workers are very effective,
and we have 30,000 who get backpay.
Employees are fired in one-quarter of all the private sector union-
organizing campaigns. One in five workers who openly advocate for a
union during an election campaign is fired. That is the technique used
in order to destroy. That is what we are trying to deal with in this
legislation. That is what this legislation is all about. Let us allow
the workers to have the choice and the employee recognition that they
can vote for or vote against having a union but not have intimidation.
Finally, what are the penalties? I mentioned 30,000 different
instances where they had to get backpay. The average backpay in 2005
was $2,660. Imagine that worker out of work for 8 years and finally
gets the backpay, and the backpay is $2,660. If you had the violation
on this Smokey Bear image, it would be $10,000.
This is not only an economic issue, it is a moral issue, and we have
this open letter from 124 religious leaders that states: We as leaders
of the faith communities, representing the entire spectrum of U.S.
religious life, call upon the U.S. Senate to pass the Employee Free
Choice Act so that workers will be able to represent themselves.
It is a civil rights issue. The Leadership Conference on Civil Rights
and the Governors understand this. There is a letter from some 16
Governors, who think this makes sense.
There is also this extraordinary letter from a former Secretary of
Labor, Ray Marshall, and he quotes the Dunlop Commission. John Dunlop,
a Republican, was probably one of the greatest Secretaries of Labor in
the history of this country.
Mr. KENNEDY. Mr. President, over the past several days I have
addressed the Senate several times about the dramatic changes in our
economy, and the overwhelming challenges facing American workers. I am
deeply concerned about the growing divide between the haves and have-
nots in our country. Working families are not receiving their fair
share of our economic gains, and it is threatening the vitality of the
American middle class and the American dream.
It is time to have a real conversation about economic security. We
need to be talking about how we can return to the days where the rising
tide really did lift all boats, and working Americans shared in the
Nation's prosperity.
Unfortunately, my colleagues on the other side of the aisle don't
seem interested in having that conversation. Instead, they have chosen
to spread misconceptions and half-truths about the Employee Free Choice
Act.
Before we can continue talking about the economic challenges facing
America's workers, we need to set the record straight. I would like to
clear up the misconceptions and half-truths about this legislation so
we can return to focusing on the issues that matter to working
families.
First, several of my Republican colleagues have come to the Senate
floor to argue that the current system for choosing a union works just
fine. They argue that there is no real problem here because 60 percent
of NLRB elections are won by unions.
Actually, I still find that number disappointing, because in a
substantial percentage of the elections that unions lose, the
organizing efforts had majority support before the election process
began. And nearly half the election petitions filed by unions are
withdrawn even before the election occurs because union support has
been so eroded that there is no point in going forward. Something
happened during the election process to scare and intimidate workers.
But more importantly, the number of NLRB elections that unions win
does not tell the whole story. What tells the story is how many
employees want a union and don't have one. What tells the story is how
many workers never get to that stage of the process.
According to a December 2006 poll by Peter Hart Research Associates,
58 percent of America's nonmanagerial workers--nearly 60 million--say
they would join a union right now if they could. But only 7 percent of
employees in the private sector have a union in their workplace. This
shows that NLRB elections are not working to get workers the unions
they want.
Some critics have also taken issue with some of the supporting
statistics that I and my Democratic colleagues have used to demonstrate
the widespread problem of anti-union behavior and abuses of the law by
employers. Specifically, they have attacked a study performed
by Professor Kate Bronfenbrenner of Cornell University concluding that
employees are fired in one-quarter of all private-sector union
organizing campaigns. These attacks are unfounded.
Professor Bronfenbrenner's study is one of many research projects
that confirm what many of us have long known--that abuses of employees
who try to form a union are rampant and our current system has proved
inadequate to protect workers' rights.
Kate Bronfenbrenner's research has been relied upon for 20 years by
Congress and the U.S. Trade Deficit Review Commission, USTDR, among
others, to gauge the extent of employer behavior that affects the
exercise of rights by workers. Her research has been published in a
number of peer-reviewed books and journals where it was found to have
upheld the stringent standards for methodological review for those
publications.
It's abundantly clear that there is a serious problem, but
Republicans argue that the Employee Free Choice Act is not the
solution. They have pointed to a 2004 Zogby survey of union workers and
a 2007 poll of workers by McLaughlin and Associates to argue
[[Page S8393]]
that workers--even union workers--don't want this.
Both the McLaughlin poll and the Zogby poll are unpersuasive. Both of
these surveys presented people with a false choice--between majority
sign-up and a fair and democratic election. Neither asked workers to
choose between majority sign-up and the NLRB election process.
I think if the choice was presented accurately those results would
have been much different, because a fair and democratic choice is just
not what the NLRB election process provides. NLRB elections are so
skewed in favor of the employer there's nothing fair or democratic
about them.
The Hart research survey I have cited is far more accurate--I'll use
the exact wording so there's no chance of misunderstanding:
Under majority signup, once a majority of employees at a
company join the union by signing authorization cards, the
company must recognize and bargain with the union, with no
election held. Do you favor or oppose this proposal?
When asked this question--with no slant or bias in it--70 percent of
union members and 50 percent of workers overall supported majority
sign-up, compared to only 20 percent of union members and 36 percent of
workers overall who opposed it.
Beyond public perceptions, when it comes to the substance of the
bill, each of the three major provisions of the act--the majority sign-
up, the first contract timeline, and the enhanced penalties--has been
the subject of misleading and inaccurate attacks. I will address each
of these sections of the bill in turn.
On majority sign-up, the most common criticism I have heard is that
the Employee Free Choice Act is undemocratic or that it eliminates the
secret ballot election. Neither of these assertions is true--the bill
does not abolish the NLRB election process, and if the goal of a
democratic system is to have an outcome that reflects the will of the
people, the Employee Free Choice Act establishes a far more democratic
alternative to the current system.
Initially, the bill does not abolish the secret ballot election
process. That process would still be available. It just gives workers--
not employers--the choice whether to use the NLRB election process or
majority signup.
My friend and colleague from Wyoming, Senator Enzi, has cited a
letter from the Congressional Research Service, arguing that this
letter proves that the bill eliminates secret ballot elections. With
respect, I think that's a misreading of CRS's conclusions. What CRS
said was that the bill would not permit an election when the majority
of the employees has already signed valid authorizations designating a
union as their collective bargaining representative. And that is
correct--if the majority has already spoken and chosen a representative
by signing authorization cards, the employees have already decided how
they want to choose a union. It's that majority choice--the decision to
choose a union through majority signup--that we want to protect. If the
workers were to choose to use the election process instead--if they
were to sign cards asking for an election rather than designating a
bargaining representative--they would get an election. The Employee
Free Choice Act lets the workers use the system they want. This makes
perfect sense--after all, it is the workers' representative, why should
the employer get to control how the workers get to choose?
In their discussions of the majority signup process, my Republican
colleagues seem to suggest that the NLRB election process is a model of
democratic fairness. But nothing could be further from the truth. NLRB
elections are nothing like the public elections we use to elect our
Congressional representatives. One side has all the power. Employers
control the voters' paychecks and livelihood, have unlimited access to
voters, and can intimidate and coerce them with impunity. By the time
employees get to vote in an NLRB election, the environment is often so
poisoned that free choice is no longer possible. That is not a free
election or a fair election. Workers should have the option to choose a
better process.
Another common criticism raised about majority signup is that
employees may be coerced by their colleagues, or by union
representatives, into supporting the union. This is really not a cause
for significant concern. It is already clearly against the law for
unions to coerce or intimidate employees into signing union
authorization cards. Those cards are invalid and cannot be counted
towards majority signup, and nothing in the Employee Free Choice Act
changes that.
Along these same lines, several of my colleagues have cited a Supreme
Court case--NLRB v. Gissel Packing Company--for the proposition that
authorization cards are an ``inherently unreliable'' indicator of true
employee support for a union. I am distressed that my colleagues would
take this quotation so drastically out of context.
Those words--``inherently unreliable''--were used by the Court to
articulate the employer's contention, which the Court rejected. In fact
the Court in Gissel held the exact opposite! They found that
authorization cards can adequately reflect employee desires for
representation and the NLRB's rules governing the card collection
process are adequate to guard against any coercion that might occur.
I don't understand my colleague's suggestion that authorization cards
aren't a valid indicator of a worker's wishes. We have always used
these cards to determine whether workers want an election or not, and
there's never been any suggestion that coercion or misrepresentation
makes the process unfair.
Majority signup is a better system. It respects the free choice of
workers by giving them the freedom to choose a union in a simple,
peaceful way. Experience has shown that when majority signup replaces
the battlefield mentality of the NLRB election process, conflict is
minimized and the workplace becomes more cooperative and productive--a
win for both sides.
Briefly, there are three more concerns that have been raised about
majority signup that I would like to dispel. Each of these concerns
reflects a misunderstanding of how the bill would affect current law.
First, my Republican colleagues claim that the Employee Free Choice
Act would require ``public'' card signings, which is simply untrue.
Under the act, signing a card will be no more or less confidential than
it is now. Under current law, workers can request an election if 30
percent of them sign cards saying they are interested in an election.
The NLRB keeps the cards--and the card signer's identity--confidential
and will not reveal that information to the employer. The Employee Free
Choice Act does that change these NLRB confidentiality requirements
that protect workers from being targeted by their employers for later
retaliation.
Second, some of my colleagues have suggested that the Employee Free
Choice Act will ``silence'' employers and restrict their ability to
express their views about the union. But nothing in the Employee Free
Choice Act changes the free speech rights of an employer. Employers are
still free to express their views about the union as long as they do
not threaten or intimidate workers. The act also does not change the
types of anti-union activity that are prohibited by law. What the act
does do is strengthen the penalties for anti-union activity that are
prohibited by law. It also allows workers to find an alternative to the
contentious NLRB election process, when many of these violations of the
law can occur.
My friend and colleague from Utah, Senator Hatch, claims that by
giving workers an alternative to the NLRB election process, the
employer is ``effectively silenced'' because it is possible that the
employer will not know about the majority signup campaign until the
cards are presented to the employer. While that is theoretically
possible, it is highly unlikely. Most employers know when employees are
thinking about forming a union. Even in the rare instance where an
employer was truly taken by surprise, the employer has no ``right'' to
an additional period of time to engage in anti-union tactics. Majority
signup is about workers choosing their own representative. Why should
the employer have a guaranteed say in the workers' decision about their
own representative? That would be like saying that one party in a court
case can't hire a lawyer until the other party has a guaranteed period
of time to argue that his opponent
[[Page S8394]]
shouldn't be allowed to have a lawyer. It is nonsensical.
Third, critics have argued that the Employee Free Choice Act
inappropriately lets employees choose the appropriate unit for
bargaining, instead of the National Labor Relations Board. Again, this
reflects a misunderstanding of current law, and of the scope of the
Employee Free Choice Act.
Under current law, when employees petition for an election they have
a right to choose the unit for bargaining. Employees need only choose
an appropriate unit, not the most appropriate unit. Employers then have
the right to ask the National Labor Relations Board to determine
whether the unit chosen by the employees is inappropriate or unlawful.
The Employee Free Choice Act does not alter the law in this respect.
Employees will still have the right to choose their bargaining unit.
EFCA maintains this important right for employees, while continuing to
protect employers from being forced to recognize an inappropriate or
unlawful unit.
Unfortunately, opponents of this bill have not confined their
misguided attacks to the majority signup provisions. They have also
raised several unjustified criticisms of the provisions in the bill
providing a timetable to get workers a first contract.
Primarily, my Republican colleagues have argued that these provisions
would allow the government to impose a contract on the parties,
threatening business's bottom line. These sensationalistic references
to ``government-imposed contracts'' are way off-base. It is a scare
tactic that has no relationship to what this bill actually does.
The Employee Free Choice Act does not compel arbitration whenever the
parties have difficulty reaching a contract, as my colleagues suggest.
It provides a procedure where unions or employers can seek assistance
from the Federal Mediation and Conciliation Service if they are
encountering difficulties in their negotiations. The first step of this
process is mediation. Collective bargaining mediation provides a
neutral, third-party mediator to assist the two sides in reaching
contract agreement on their own. The FMCS has provided collective
bargaining mediation services--including mediation of first contract
negotiations--for more than 50 years, and they have an 86 percent
success rate in helping the parties agree to a contract. That is a
pretty impressive record.
Only in the rare instance where mediation fails does the act provide
for arbitration. Binding arbitration is a last resort, and will rarely
be used. It primarily serves as an incentive to bring the parties to
the table. Neither the union nor the employer wants any uncertainty in
the process, and therefore the parties have a strong reason to sit down
at the table and work things out on their own rather than letting an
arbitrator rule. The bill's negotiating framework is similar to what is
used in most Canadian provinces. Canada's experience shows that
arbitration is rarely used, and is an incentive--rather than a
roadblock--to parties reaching their own agreement.
Finally, even in the rare case where parties do resort to
arbitration, it will be limited to the issues that the parties are
unable to agree on. These arbitrations will be handled by highly
qualified FMCS arbitrators with long experience in crafting fair
contract provisions. They will not impose unfair or extreme terms. I
also don't know where my colleagues get the impression that an
arbitration through the FMCS would produce a contract biased in favor
of the union. It is not in anyone's interest to put a company out of
business--workers would lose their jobs and unions would lose their
members. Typically, arbitration produces middle-ground solutions that
everyone can live with, and often parties settle their disputes during
arbitration, alleviating the need for the arbitrator to render a
decision at all.
The second criticism that has been leveled against the first contract
timeline is that in the rare instance where a contract is actually
imposed through the arbitration process, workers will lose their
``right'' to vote to ratify the contract. This reflects a complete
misunderstanding of current law. Under current law, employees do not
have a ``right'' to ratify a collective-bargaining agreement. A
ratification vote is a courtesy that unions routinely give the workers
they represent as a matter of policy. It is not a legal requirement.
Under the bill, if unions want to provide their members with input
during the first contract negotiation process, they could submit the
union's arbitration proposal to the membership for a ratification vote.
This would ensure that the position the union takes in arbitration is
consistent with the views of the membership.
Perhaps most importantly, in the rare case where a union gets a
contract through arbitration, this contract will only be for a 2-year
term--a relatively short timeframe for a labor contract. And, during
the short duration of the first contract, the membership will no doubt
still be far better off than if they had no contract at all.
Finally, opponents of the bill have argued that arbitration of first
contracts is incompatible with the collective bargaining process. In
support of this assertion, they cite a text on arbitration written by
Elkouri and Elkouri, quoting it to say that using arbitration to reach
a first contract is the ``antithesis of free collective bargaining.''
My Republican colleagues are taking this quotation out of context.
Read in full, the text says: ``The arguments against compulsory
arbitration as revealed in literature on the subject, are, broadly
stated, that it is incompatible with free collective bargaining . . .''
Elkouri and Elkouri are merely reporting arguments made by others, not
endorsing this position.
Indeed, later in the book, the authors acknowledge that, in some
instances in which ``the parties find it difficult or impossible to
reach agreement by direct negotiation,'' and ``the use of economic
weapons [may] be costly and injurious to both parties'' or to the
public, ``interest arbitration by impartial, competent neutrals,
whether voluntary or statutorily prescribed, offers a way out of the
dilemma.''
Using interest arbitration to resolve difficult situations is hardly
unheard of. In fact, it has become quite common in public sector
employment, public utilities, and railroads. It is also used in most
Canadian provinces, where it has been perfectly consistent with a
robust system of collective bargaining.
The system established by the Employee Free Choice Act gives a
responsible employer every opportunity to pursue a contract fairly.
There's bargaining, then there's mediation--arbitration is only a last
resort. And the parties can always agree to keep talking or to extend
any of the deadlines in the timetable. The process can last as long as
it takes to reach a deal, so long as the parties are acting reasonably
and can agree to keep talking.
Finally, I would like to take just a brief moment to respond to an
argument raised by my friend from Utah, Senator Hatch, regarding
penalties. He argued that the Employee Free Choice Act is unfair
because it requires employers--but not unions--to pay triple backpay
when they violate workers rights. While it is true that the bill does
not provide for the same treble backpay penalty against unions, this is
hardly problematic. Backpay is a remedy for wages to which an employee
would otherwise have been entitled. Unions do not have the power to
fire, demote, layoff, or take away workers' raises or overtime pay.
Those are abuses only an employer can impose. Because unions cannot
retaliate against workers in this manner, there is no reason to impose
treble backpay on them.
In 2005 alone, over 30,000 workers received backpay from employers
who violated their rights. In contrast, unions paid backpay to only 132
employees. This small set of backpay awards against unions primarily
involves mishandled employee benefits--not the types of appalling
abuses the Employee Free Choice Act is intended to address. When it
comes to causing workers to lose their pay and benefits, it is
employers--not unions--that are the problem, and the Employee Free
Choice Act provides a solution, putting real teeth in the law, so that
unscrupulous employers can no longer dismiss the penalties for
violating workers rights as a minor cost of doing business.
The Employee Free Choice Act does one thing--it empowers workers. It
gives them the freedom to choose--
[[Page S8395]]
without fear of intimidation or harassment--whether they want union
representation. There's nothing more democratic than that.
I hope that my comments today have set the record straight. I hope
that we can now move on to discussing the critical role this
legislation can play in helping working families to overcome the
challenges of new economy return to a time of shared prosperity. I urge
all of my colleagues to vote to proceed to this bill so we can have
that important debate.
Mr. ROCKEFELLER. Mr. President, we have before us a bill that will
strengthen the historic right of workers to join together for higher
wages, safer working conditions, and better benefits. The Employee Free
Choice Act, which I have cosponsored for the last three Congresses,
will allow workers to bolster their rights in the employment
negotiation process. It will offer real deterrents for that small
minority of employers who exercise undue influence over fairly and
legally held elections for union representation, and as a result it
will ensure workers more control of their working conditions.
Passage of this bill will have an enormous effect in my State of West
Virginia. It will protect the rights of working men and women in my
State, allowing them to bargain for increased wages, employer-provided
health care and pension benefits, as well as better working conditions.
In fact, the pendulum has swung for too long solidly in favor of
employers. This bill will bring us closer to equilibrium, giving
employees more of a level playing field. The Employee Free Choice Act
will enable a majority of employees to clearly and unambiguously make
their decision known to organize.
If a majority of workers want a union, then they should be able to
band together and speak as one. It is simple and fair, and this right
should be free from intimidation. Today, even within legal strictures
in place, the current election system allows that small--group of
employers to intimidate workers in the midst of a union election, which
is simply unacceptable. For example, under the current regime,
employers may discourage organizing activities while workers who
support unions may not use the workplace as a vehicle to show their
support.
The current system leaves employees who want to organize in a
vulnerable position. They may be threatened with the loss of their job
or the closure of their plant. Among workers who openly advocate for a
union during an election campaign, one in five is fired. In my own
State, Ms. Mylinda Casey Hayes was unlawfully discharged from her job
as a production line worker after she stopped wearing an antiunion
button and began supporting employee efforts to organize.
I could give you many other examples of hard-working West Virginians
fighting for their rights as employees who face similar tactics.
Frankly, the penalties for employers who use these tactics are small--a
mere slap on the wrist that does nothing to deter them from improperly
and illegally influencing the election. It is high time that we put an
end to this practice by showing that there are consequences for
ignoring workers' rights. We must strengthen the penalties for
companies that coerce or intimidate employees. The increased penalties
in the Employee Free Choice Act will restore a more level playing field
for employers and employees.
Now, we have the opportunity to extend democratic principles to all
workers across the country. The Employee Free Choice Act will give
workers the freedom to make their own choices free from intimidation
and harassment. This freedom affects the wages, health care, pensions,
and other benefits of our Nation's families. When America's hard
working men and women are given the opportunity to improve their
economic situations, we are all improved. This bill will improve wages,
health care, pensions, and working conditions--in turn bolstering our
economy. I strongly support this legislation, and I hope my colleagues
will join me.
The PRESIDING OFFICER. The Senator's time is up.
Mr. KENNEDY. I will include those references in the Record, and I
thank the Chair.
Mr. ENZI. Mr. President, I yield myself the remainder of my time.
We are actually debating two things here this morning because we are
going to have two cloture votes right in a row. And there are some
similarities between the two bills. The similarities are that neither
has been through the committee process. Neither bill has been to
committee. And I will tell you, when you don't send bills to committee
around here, at least in my 11 years here, I don't think I have seen
one bill pass that didn't go to committee. Why? Because people don't
feel as if they had any input into it.
Just imagine. A coalition gets together and puts bills together and
leaves everybody out and then tries to limit the amount of amendments
that can be offered on them. The way the coalition works is that one
person has this piece of a bill which they are really enamored with but
hardly anybody likes it. Another person has this piece of a bill which
he is really enamored with but hardly anybody likes it. And you get
enough of those people together, throwing their bad parts of the bill
in and agreeing to support it to the bitter end in order to pass the
bill, but it is a conglomeration, sometimes, of bad things. So it
shouldn't be a surprise when cloture isn't invoked on these bills that
don't go through the committee process. The only chance for the person
who is not in the coalition to have any kind of a voice is at the time
of cloture.
Both of these bills, both the immigration bill and the card check
bill, have not been through committee. The main bill I am talking about
is the Employee Free Choice Act--I have to give them a lot of credit
for picking a good name. Ironically, however, it is not about free
choice; it is about taking away free choice. It should be called the
``Employee Intimidation Act'' or the ``Take Away the Secret Ballot
Act.'' It should not be called the Employee Free Choice Act, and I urge
my colleagues to vote no on cloture on the motion to proceed.
For generations, this body has faithfully protected and continually
expanded the rights of working men and women. This legislation does
exactly the opposite and would strip away from working men and women
their fundamental democratic right. Should cloture be invoked, we will
get to talk about this for 30 hours, and I am going to go through each
and every one of the charts the other side has used to show that
statistics aren't always the truth. But everybody knew that already.
We see some charts that show how much people made during one 25-year
period and which group, which 20 percent, made the most. Then we switch
to another chart, and we show how that changed in the next 25 years.
But the third chart is the fascinating one. If you count the spaces on
that chart, we have gone from five slots of 20 percent to six slots
because the emphasis is on what the top 1 percent in the country made.
If you are going to have honest charts, you have to show what the top 1
percent made on the first two charts as well. Statistics--yes, you can
get them to say what you want.
Another chart claimed that 30,000 people got backpay because they
were fired for organizing. That isn't 30,000 people who got backpay
because of organizing efforts; that is 30,000 people whom the National
Labor Relations Board--through all of their proceedings has awarded
backpay. They do a whole lot of cases that don't have anything to do
with union organizing, such as contract interpretation, and those can
result in settlements that award backpay. For example, in 200, two
thirds of the recipients of ``backpay'' were involved in a single case
involving contract interpretation, it had nothing to do with
organizing.
But I don't want to go into all that now. I will have plenty of time
if we do invoke cloture. I suspect there are plenty of people around
here who can see the flaw in something called the Free Choice Act which
takes away the right of people to vote, so I won't dwell on that.
For generations, we have guaranteed all workers in our country the
right to choose whether they do or do not wish to be represented by a
union. We have secured that right through the most basic means of a
free people--the use of the secret ballot election. Now, however,
proponents of this legislation would cast that right aside. One can
almost feel the discomfort from our colleagues across the aisle as they
grasp
[[Page S8396]]
at straws to ultimately prevent a futile effort to justify the shameful
assault on workers' rights.
We have had related to us that it would solve fair trade, it would
solve executive pay, and untold issues in the world would just be
solved if we just took away the right to vote from people who are being
organized.
We have been told the system is broken and the bill is needed to fix
it. Simply untrue. Unions that participate in the democratic election
process have never in history enjoyed as much success as in the last
decade, a record of 10 straight years of an increasing winning rate,
the last 2 years at record rates of 62 percent. I guess they are upset
that in 38 percent of the votes, they lost.
Employer unfair labor practice allegations are down dramatically,
more than 40 percent over prior decades. Most importantly, the National
Labor Relations Board has only found it necessary to invalidate less
than 1 percent of the elections it held last year. In fact, we took a
look at 2,300 elections, and there were only 19 that were rerun, and
those were because of union violations as well as employer violations.
We are told, secondly, that something must be wrong with the system
because there are fewer unionized employees in the workforce. That is
true, but I would suggest unions need to look elsewhere to explain this
phenomenon. Many observers believe the problem for unions is that
today's employees see them as out of step, too political. They talk
about not having enough money to take on management. If they took some
of the money they put into political campaigns and went after
management, they would probably win more of the elections. Their
members see them as being too political and too concerned with their
own agenda rather than the workers. I don't know if that is true, but I
do know that when unions push an undemocratic bill such as this, which
takes rights away from workers, it does little to dispel that view.
I also note that the level of union membership has absolutely nothing
to do with the law this bill seeks to radically alter. The law
governing unionization and the law providing for a secret ballot has
not changed for over 60 years. It is the same today as generations ago
when union membership was at 35 percent. The law is plainly not the
problem.
Third, we have been told increased unionization is necessary to boost
worker pay and benefits. Increased benefits and pay cost money, and
unions do not contribute a penny to such costs. Thus, the notion that
these two are causally linked is simply smoke and mirrors.
But even if that were the case, the promise of higher wages and
benefits is exactly the kind of appeal a union is free to make to
employees in a free election process with a secret ballot. It is not an
excuse to strip them of the right to vote. This bill is nothing more
than a transparent payoff to union bosses to help them artificially and
unfairly boost their membership numbers, to increase their bank
accounts through more union dues, and increase the political leverage
that such money buys. Pandering to special interests is a bad enough
problem, but when the cost of such pandering is the most basic of
American rights for American workers, it is disgraceful.
I urge my colleagues to reject this effort and to vote no on cloture.
I ask how much time I have remaining?
The PRESIDING OFFICER. The time now belongs to the Republican leader,
the next 10 minutes.
Mr. ENZI. I yield the floor.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Casey). The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. McCONNELL. Mr. President, I ask unanimous consent the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. McCONNELL. Mr. President, first let me thank my friends and
colleagues, Senator Hatch and Senator Enzi, for their hard work on the
card check issue. They have been passionate and persuasive in defending
worker rights. The Republican conference and the American worker are
grateful.
We heard a lot yesterday from supporters of the so-called Employee
Free Choice Act about the potential effect this bill would have in
expanding unions. But we heard next to nothing from them about how it
would bring that about. The way we do things in this country is just as
important as what we do. This is what has always set us apart as a
nation. So it is important we be clear about what this bill would do
and how and why it must be defeated.
First, what would it do? Sixty years ago, Congress gave Americans the
same voting rights at work they had always enjoyed outside of work.
Worker intimidation was common during union organizing drives in those
days, so Congress amended the National Labor Relations Act to include a
right for workers to vote for or against a union without somebody
looking over their shoulder.
As a result, a lot of workers stopped joining unions. Since the
1950s, the number of unionized workers in our country has fallen
sharply. For one reason or another, voters opted out. This is their
choice. Today, less than 8 percent of private sector jobs in our
country are unionized. The so-called Employee Free Choice Act would
reverse that law. It would strip workers of a 60-year-old right that
was created to protect them from coercion, rolling back the basic
worker protection that no one has questioned until now. This is what
the bill would do.
Who is behind it? It should be obvious. The unions are desperate.
They are losing the game, and now they want to change the rules. But in
this case the rule they want to change happens to be one that is so
deeply engrained in our democratic traditions that few people would
believe it is even being debated today on the Senate floor. Surveys
show that 9 out of 10 Americans oppose rolling back the right to a
private ballot at the workplace, including an astonishing 91 percent of
Democrats. Indeed, many of our colleagues on the other side have
defended the secret ballot with passion and eloquence in the past. This
is why we hear about the effects but not the cause.
The Democrats are rolling over in support of this antidemocratic
bill. All but two Democrats in the House voted against their version of
it in March. I expect even fewer Senate Democrats will defect from the
party line today. They know the bill will fail. Senate and House
Republicans have vowed to block it. The President has vowed to veto it.
Yet Senate Democrats are forcing us to vote on it anyway. Why? As the
senior Senator from Delaware told a reporter yesterday:
I'll be completely candid . . . I would not miss that vote
because of the importance to labor.
Republicans appreciate the candor, and we will be candid too. This
antidemocratic bill will be defeated today, but it will not be
forgotten. Republicans will remind our constituents about the fact that
Democrats proposed to strip workers of their voting rights. No one can
put voting rights on the table and expect to get away with it.
For Democrats, the end in this case clearly justifies the means. But
the American people disagree with the means and the end. Voting in this
country is sacred, and it is secret.
Republicans will stand together in defense of that basic right today
by proudly defeating this dangerous and antidemocratic bill.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. REID. Mr. President, I ask unanimous consent the order for the
quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. REID. President Franklin Delano Roosevelt said:
It is one of the characteristics of a free and democratic
nation that it have free and independent labor unions.
Roosevelt's New Deal lifted America through the Great Depression by
showing us the rights of working people can go hand in with economic
growth. His call for equality and basic fairness, which guaranteed our
country a permanent workforce of skilled, trained, and professional
employees, is something that is one of his legacies. But now, 70 years
later, for many Americans the New Deal has become a raw deal.
[[Page S8397]]
Today in America, hourly wages are down, way down, while the number
of uninsured is up, way up. Today in America, household income is down,
way down, while the average chief executive officer's pay is a
staggering, record-shattering, 411 times higher than the pay of the
average working person, and going up every day. This has happened in
part because, to use a term from Las Vegas, ``the boss holds all the
chips.''
I rise to support that we proceed to the Employee Free Choice Act, a
bill that will level the playing field for the American worker. It is
unquestioned that when employees join labor unions, their standard of
living improves and they become more productive employees. It is a win-
win for employers and employees alike. Yet too often some employers
coerce, harass, and threaten their employees to keep them from
organizing. Our current laws give our employees little recourse when
that happens, and it happens a lot. The Employee Free Choice Act puts
the choice to organize squarely on the shoulders of the employees, and
that is where it belongs.
This bill requires employers to recognize the formation of a union
when the majority of employees express their support by signing a
simple authorization card--a card check. It gives both sides a right to
bring in the Federal Mediation Service to mediate the first contract
once a union is formed, and enforces stronger penalties for companies
that interfere with the right to organize.
Providing the American workers with free choice will ensure access to
higher wages and better benefits, better fringe benefits. That means
more working families will have good health care and will be able to
save, for example, for a college education for their children and maybe
even for a better retirement. They will be guaranteed fair benefits,
such as vacation time, a reasonable workday, better on-the-job safety.
This is particularly true for African Americans, Latinos, and
certainly women. There are some who claim this is a political vote, a
gesture to labor. It is a gesture to the American working men and
women. I can only venture to guess that those people who do not
understand what this bill is all about are those who do not like the
bill. This bill is an honest attempt to help improve the lives of
Americans who often work hardest and are rewarded the very least.
Opponents of this bill, I guess, see it differently. Lobbyists for
big business argue the status quo NLRB secret ballot election works
just fine. It is not just fine. It doesn't work just fine. In reality,
the status quo is often unfair and undemocratic. Big business wields
tremendous power in secret balloting, and too often they use that power
abusively. Big business controls the paychecks of the voters and
livelihoods of labor. Big business sets the work schedule and terms of
employment. And big business has a captive audience, an unfiltered
audience to voters. All of us, save our new colleague who was sworn in
at 3:15 yesterday, Dr. Barrasso, have earned a place in the Senate
through an election. But I guarantee everyone here, everyone within the
sound of my voice, in any of the elections of the other 99 Senators who
serve here now, if our opponents controlled 100 percent of the
information that voters receive, none of us would be here.
That is what this is all about. There is nothing more democratic in
politics and in government and the workplace than a level playing
field.
For those who are skeptical of this legislation, let me remind you
that it is already working. The NLRB permits the use of majority
signup, or card check as it is often described. For example, in Nevada,
a State where business and labor work together, most union organizing
drives are implemented through majority signup.
Let me say this. Let me be very clear. This bill does nothing to
limit employee options in right-to-work States such as Nevada, nor does
it eliminate secret ballot elections, as some have said. It simply
gives employees the choice to determine their path to union
representation. That seems fair. That is the level field we are talking
about.
Skeptics of this bill should look to Nevada to see that labor
organizing does not have to be adversarial. The Employee Free Choice
Act will be good for both sides: It will be good for labor, and it will
be good for management. This legislation will help provide the fair,
square deal for working people that President Roosevelt first promised
70 years ago and will keep our country strong and certainly more
competitive.
I encourage all my colleagues to join in supporting the Employee Free
Choice Act. That is what it is, a free choice act.
Mr. President, after we vote on the Employee Free Choice Act, we will
return to immigration. Attention will be brought back to that issue,
which is so critical--comprehensive immigration reform.
We would not have been able to revisit this issue if Democrats and
Republicans hadn't put aside their differences to move forward. We may
not all agree on the destination, but we now do at least have a
roadmap. The process for this debate and the number of amendments we
will consider were decided with the complete support of the Republican
leader, Senator McConnell. Senator McConnell and I have worked together
in good faith to ensure a full, open, and productive debate on an issue
of such overriding national importance. But this bill will not get done
without Republican support. The bill is here, but we need Republican
support.
Sunday I had the good fortune to visit with the President. I spoke
the same evening with Secretary Gutierrez. I spoke to Josh Bolton, the
President's Chief of Staff. I explained to them, this is not a
Democratic bill. They understand that. We had a Democratic bill last
year. It died because the Republicans wouldn't allow us to go to
conference. This is a bill that was negotiated in good faith with the
total support of the President. He has made public statements that he
supports this legislation. Throughout this debate, Democrats have done
our part. Eighty percent of us voted for the President's bill; 14
percent of Republicans did the same. That is not enough. We are not
asking the Republicans to equally match our support, although I wish
they would, for their President's bill. If they deliver even 50 percent
of their caucus, the legislation will pass. We need 25 Republicans to
support us in this matter.
This is important legislation. The stakes are too high for inaction.
We are the Senate of the United States. People have said the issue is
too complex; let's not do it.
We have to take hard votes. We have an immigration system that is
broken and needs to be fixed. That is what we are trying to do, fix it.
We would be derelict in our duties if we didn't make every effort to
get this legislation passed.
When we finish here, is it over with? Of course not. It goes to the
House, and they will take up a measure. They will do what they think is
appropriate. It will go to conference and we will come up with
something that hopefully will solve most of the problems of
immigration. I believe that to be the case. Comprehensive immigration
reform will require us to tackle a number of difficult issues, such as
border security. We have done a remarkably important thing in this bill
regarding border security. Previously, there was authorization for
money to do border security. This bill gives direct funding of $4.4
billion to address border security. If for no other reason, people
should vote for this. I am confident this bill will take care of border
security more than anything we have talked about in recent years. It
will also look at a fair temporary worker program. There is in the
legislation an agricultural workers program that is excellent. In this
legislation there is the DREAM Act for education for children who
previously could not be educated. Of course, there are employer
sanctions which are important.
I am confident this bill addresses all four of these issues in a way
that honors our country, our strong immigrant history, and sets us on
the path to a stronger future.
I was looking at some commentary, talking about me and immigration.
Actually, they made fun of fact that my father-in-law came from Russia,
as if it were a negative. My wife's father was born in Russia. That is
the strength of our country. My grandmother was born in England. I used
to talk to my grandmother. She didn't remember much
[[Page S8398]]
about anything, but she remembered a few things. The fact that my
father-in-law came from Russia, my grandmother came from England makes
us a better country. Immigrants are the strength of this country. This
legislation honors that fact.
We need to proceed with this legislation and send the American people
a better life for everybody. That is what this legislation will do. It
will allow us to solve the problem, secure our borders, have a
temporary worker program that meets the demands of our country, and put
12 million people on a pathway to legalization. As Secretary Gutierrez
said, it is not amnesty. If we do nothing, there is silent amnesty.
What this bill does is make sure that people learn English. It makes
sure they pay their taxes. It makes sure they work, stay out of
trouble, pay penalties and fines. Even then, they go to the back of the
line. Remember, these people, whether we like it or not, have American
children. This will allow them to come out of the shadows, be
productive citizens and with the great work we have done on border
security, stop illegals from coming into the country in the future.
That is what this legislation is all about. It is good legislation. We
have an obligation, as the legislative branch of Government, to do
something to work with the President and get this passed.
cloture motion
The PRESIDING OFFICER. Under the previous order and pursuant to rule
XXII, the Chair lays before the Senate the pending cloture motion,
which the clerk will report.
The legislative clerk read as follows:
Cloture Motion
We, the undersigned Senators, in accordance with the
provisions of rule XXII of the Standing Rules of the Senate,
do hereby move to bring to a close debate on the motion to
proceed to Calendar No. 66, H.R. 800, the Free Choice Act of
2007.
Harry Reid, Ted Kennedy, Patty Murray, Bernard Sanders,
Charles Schumer, Russell D. Feingold, Jack Reed, Barack
Obama, Christopher Dodd, B.A. Mikulski, Pat Leahy, John
Kerry, Robert Menendez, Claire McCaskill, Debbie
Stabenow, Frank R. Lautenberg, Joe Biden, H.R. Clinton.
The PRESIDING OFFICER. By unanimous consent, the mandatory quorum
call has been waived.
The question is, Is it the sense of the Senate that debate on the
motion to proceed to H.R. 800, an act to amend the National Labor
Relations Act to establish an efficient system to enable employees to
form, join, or assist labor organizations, to provide for mandatory
injunctions for unfair labor practices during organizing efforts, and
for other purposes, shall be brought to a close?
The yeas and nays are mandatory under the rule.
The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from South Dakota (Mr.
Johnson) is necessarily absent.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The yeas and nays resulted--yeas 51, nays 48, as follows:
[Rollcall Vote No. 227 Leg.]
YEAS--51
Akaka
Baucus
Bayh
Biden
Bingaman
Boxer
Brown
Byrd
Cantwell
Cardin
Carper
Casey
Clinton
Conrad
Dodd
Dorgan
Durbin
Feingold
Feinstein
Harkin
Inouye
Kennedy
Kerry
Klobuchar
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
McCaskill
Menendez
Mikulski
Murray
Nelson (FL)
Nelson (NE)
Obama
Pryor
Reed
Reid
Rockefeller
Salazar
Sanders
Schumer
Specter
Stabenow
Tester
Webb
Whitehouse
Wyden
NAYS--48
Alexander
Allard
Barrasso
Bennett
Bond
Brownback
Bunning
Burr
Chambliss
Coburn
Cochran
Coleman
Collins
Corker
Cornyn
Craig
Crapo
DeMint
Dole
Domenici
Ensign
Enzi
Graham
Grassley
Gregg
Hagel
Hatch
Hutchison
Inhofe
Isakson
Kyl
Lott
Lugar
Martinez
McCain
McConnell
Murkowski
Roberts
Sessions
Shelby
Smith
Snowe
Stevens
Sununu
Thune
Vitter
Voinovich
Warner
NOT VOTING--1
Johnson
The PRESIDING OFFICER. On this question, the yeas are 51, the nays
are 48. Three-fifths of the Senators duly chosen and sworn not having
voted in the affirmative, the motion is not agreed to.
cloture motion
Under the previous order and pursuant to rule XXII, the Chair lays
before the Senate the pending cloture motion, which the clerk will
state.
The assistant legislative clerk read as follows:
Cloture Motion
We, the undersigned Senators, in accordance with the
provisions of rule XXII of the Standing Rules of the Senate,
do hereby move to bring to a close debate on the motion to
proceed to Calendar No. 208, S. 1639, Immigration.
Ted Kennedy, Russell D. Feingold, Daniel K. Inouye, Tom
Carper, Sheldon Whitehouse, Pat Leahy, Richard J.
Durbin, Benjamin L. Cardin, Ken Salazar, Frank R.
Lautenberg, Joe Lieberman, Dianne Feinstein, John
Kerry, Charles Schumer, Ben Nelson, B.A. Mikulski.
The PRESIDING OFFICER. By unanimous consent, the mandatory quorum
call has been waived.
The question is, Is it the sense of the Senate that debate on the
motion to proceed to S. 1639, a bill to provide for comprehensive
immigration reform, and for other purposes, shall be brought to a
close?
The yeas and nays are mandatory under the rule.
The clerk will call the roll.
The legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from South Dakota (Mr.
Johnson) is necessarily absent.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The yeas and nays resulted--yeas 64, nays 35, as follows:
[Rollcall Vote No. 228 Leg.]
YEAS--64
Akaka
Bennett
Biden
Bingaman
Bond
Boxer
Brown
Brownback
Burr
Cantwell
Cardin
Carper
Casey
Clinton
Coleman
Collins
Conrad
Craig
Dodd
Domenici
Durbin
Ensign
Feingold
Feinstein
Graham
Gregg
Hagel
Harkin
Inouye
Kennedy
Kerry
Klobuchar
Kohl
Kyl
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Lott
Lugar
Martinez
McCain
McConnell
Menendez
Mikulski
Murkowski
Murray
Nelson (FL)
Nelson (NE)
Obama
Pryor
Reed
Reid
Salazar
Schumer
Snowe
Specter
Stevens
Voinovich
Warner
Webb
Whitehouse
Wyden
NAYS--35
Alexander
Allard
Barrasso
Baucus
Bayh
Bunning
Byrd
Chambliss
Coburn
Cochran
Corker
Cornyn
Crapo
DeMint
Dole
Dorgan
Enzi
Grassley
Hatch
Hutchison
Inhofe
Isakson
Landrieu
McCaskill
Roberts
Rockefeller
Sanders
Sessions
Shelby
Smith
Stabenow
Sununu
Tester
Thune
Vitter
NOT VOTING--1
Johnson
The PRESIDING OFFICER. On this vote, the yeas are 64, the nays are
35. Three-fifths of the Senators duly chosen and sworn having voted in
the affirmative, the motion is agreed to.
____________________