[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.

                          ____________________