[Congressional Record (Bound Edition), Volume 153 (2007), Part 12]
[Senate]
[Pages 16297-16299]
[From the U.S. Government Publishing Office, www.gpo.gov]




                        EMPLOYEE FREE CHOICE ACT

  Mr. ISAKSON. Madam President, it is my understanding that at some 
point in time in the near future we will have a bill brought to the 
floor known as the Employee Free Choice Act. I thought this morning I 
would take a few minutes to discuss the Employee Free Choice Act, what 
I think it means, why I think it is here, but why we are where we are 
today in America in terms of labor and management relations.
  At the beginning of the last century, the Industrial Revolution began 
in full force. As a byproduct of it, America went to a manufacturing 
society, a creative society. Business flourished--textiles, automobile 
production, manufacturing of all types.
  Out of that came huge employment opportunities. Out of it came large 
companies, and out of it, unfortunately, came abuse of workers. In the 
1920s it became obvious something had to be done. In 1935, this 
Congress and the President then signed the Wagner Act, which created 
the National Labor Relations Board, and for 72 years since then, our 
country has flourished under the rules and regulations of the National 
Labor Relations Board, and addressing the rights of workers.
  It also created the opportunity for workers to join together, to 
unionize, to collectively bargain, and to negotiate. It has served 
America well. What has happened over those 72 years is the creation of 
a plethora of worker benefit programs backed by the U.S. Government. 
Prior to 1935, there was little if any federal worker protection laws. 
Out of that grew the demand for organization and ultimately unions, and 
out of that came the Wagner Act. Since then have come the following: 
OSHA, the Occupational Safety and Health Administration; the National 
Labor Relations Board; the Equal Employment Opportunity Commission; a 
new minimum wage, recently raised on the signature of the President 
here; the adverse effect wage rate, to protect those who come to this 
country and work as immigrants, to ensure they are not taken advantage 
of; workers compensation, a universal plan to make sure that workers in 
high-risk jobs have compensation for injuries they incur in the 
workplace; not to mention the Mine Safety & Health Administration, the 
Nuclear Regulatory Commission, and literally hundreds of agencies in 
the American Government today, created since 1935, for the protection 
of workers. Those all came about because workers deserved that 
protection in terms of their health, their safety, their compensation, 
and other benefits that arise.
  Now, why did those laws come to pass? They came to pass because the 
union movement began to organize businesses and got management's 
attention, and management responded, and where it did not, the 
Government responded.
  Now, how did the union system work under the Wagner Act? It was very 
simple. It said: If 30 percent of the employees of a company decide 
they want to sign off on a card saying they want a vote as to whether 
that company should unionize, they get the chance to have that vote, 
that vote, as sought by labor, and as was demanded in fact by the 
organizers, a secret ballot. It was a secret ballot because, in large 
measure, workers did not trust management. They thought company 
ownership would intimidate a worker, threaten a worker, try and 
prohibit them from making their own free choice, so they insisted on 
the secret ballot, just as our Founding Fathers did, and just as we 
today protect the secret ballot for those who vote for or against us, 
and for or against amendments to our Constitution or any referendum 
that comes before them.
  So the secret ballot allowed brave people to vote, in privacy, as to 
whether they wanted to be organized. If they were organized, if they 
voted 50 percent plus one to organize, they could form a union. If they 
formed that union, they then had the right to collectively bargain, use 
the strength of their numbers with management, negotiate contracts to 
protect themselves and their interests, and bargain for benefits.
  That is not a bad system. It is a neutral system. It is a fair 
system. When you got the 30-percent signatures, you then had a neutral 
system where management had the opportunity to tell you all the reasons 
why they were going to be better and you did not need to organize; and 
labor had all the opportunity they needed to tell you why not to 
believe that and that you needed to organize.
  Out of that came a vote, a private vote, a secret ballot vote. If 50 
percent plus one voted for it, the union got to organize.
  Now, what does the Employee Free Choice Act say? It says: Well, you 
are no longer going to have the opportunity of avoiding intimidation 
because we are going to take away the secret ballot. We are going to 
say: If union leaders decide they want to come in and organize a 
company that is not unionized, they can get 50 percent plus one to sign 
off on a card chit and you have a union. There is no vote. There is 
just the card sign-off, but it is not signed off in secret. You no 
longer have the neutrality to have the opportunity of management 
getting the chance to make its case. You have a negative environment of 
worker against company and, worst of all, as I read the legislation, as 
I understand it, it would then say: The first contract with the company 
is not negotiated, it is written by Federal mediators.
  Give me a break. We are going from a system that has improved America 
to the safest, most productive, most opportunistic country in the 
world, where we have no child labor, we have minimum wages, we have 
hourly standards, we have worker protections, we have overtime, we have 
comp time, we have OSHA, we have regulatory commissions of every type 
to ensure, and we have good union management relationships in most 
places in this country.
  Why is this before us? It is before us because there has been a 
decline in union membership. It is before us because the problems that 
gave way to the union movement have been solved in large measure, and 
we have responded with the laws necessary to protect people and their 
rights regardless of age or sex or disability. We have done that.
  But the union movement has not changed with the times. There are 
exceptions. There are many great relationships today. One of them is 
SMACNA, the Sheet Metal and Air Conditioning Contractors' National 
Association. I happen to know a little bit about these folks because of 
my work in development and construction. They have a partnership with 
their union. It is not an adversarial relationship. They have taken 
advantage of the Wagner Act.
  We must preserve a system that protects workers. Ours is a neutral 
system, a level playing field for those who wished to be organized and 
those who wished for organization not to take place. They have a level 
platform.
  I don't know why it is coming to the floor. I don't know why it is 
not going through the committee system. I don't know why it is going to 
be a quick 1-day vote, which is my understanding of the way it will be.
  I will stake my claim on 72 years of success under the Wagner Act, 
under the right to protect and continue to protect the secret ballot, 
and of my desire to see to it that we honor those things we have 
created in response to the bad things that happened in the early part 
of the 20th century. Why change a good thing? Yes, we have a decline 
now in the union movement. Buy why do you all of a sudden create

[[Page 16298]]

a situation of intimidation, an unbalanced situation, an uneven playing 
field, all for the sake of trying to save a movement that won't save 
itself?
  I submit there is today, has been in the past, and will be in the 
future a viable place for the collective bargaining of workers and for 
unions but not if it is an unlevel playing field, not if the company 
and management don't have the same equal rights as do those workers, 
and not, most importantly, if those workers don't have protection of 
the secret ballot.
  As I understand it, the vast majority, over 70 percent of union 
members, like the secret ballot. Over 70 percent of Republicans and 
Democrats--far more than that--like the secret ballot and think card 
check is crazy. To date, the only thing I have seen endorsing card 
check in print was the 2005 Communist Party convention in the United 
States which endorsed card check and the Employee Free Choice Act. Give 
me a break. This is one time where we ought to ratify what is right 
with America, ratify the success we have had in the past, honor the 
ills we corrected, honor the employees who make America work, continue 
to see to it that the employees do have a free choice, a private 
choice, a secret ballot, and continue to work in the greatest country 
on the face of this Earth with the greatest worker protection of any 
nation in the world.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Utah.
  Mr. HATCH. Madam President, later today a great injustice is going to 
be hoisted upon the American people, and a great shame about this 
injustice is that a great many Americans won't even hear about it. If 
our friends on the other side--if their plans hold, later today they 
will call up H.R. 800, the horribly misnamed Employee Free Choice Act, 
which would deny workers all over this great country their right to 
cast a private ballot when choosing whether to join a union. I find it 
pathetic that at a time when our Nation is at war, every day additional 
illegal immigrants enter our borders, and energy prices are at their 
peak, our friends on the other side are turning away from the important 
business the American people sent us here to do and are instead 
insisting on spending the next couple of days paying back their union 
cronies.
  If I am not mistaken, I recall reading that the energy package is the 
``second highest legislative priority'' for our friends on the other 
side in the Senate. I guess that means that because we are interrupting 
that ``high'' priority, paying back the unions must be their very first 
priority.
  Much has already been said about the denial of a National Labor 
Relations Board-supervised and protected secret ballot election, a 
private vote on whether employees want to be represented by a union. It 
seems to me that the Democrats' and the unions' real objection to 
private ballot elections is not the form of vote, a secret ballot 
versus card check; their real objection is ever since the 1947 Taft-
Hartley amendments, the law allows employers to communicate with their 
employees about union organization. What unions really want is to 
silence the employer during a union organizing campaign through a card 
check process. Then the union would be able to persuade or even 
intimidate the employees so the union can be certified based on a card 
check as soon as the union gets to a majority, no matter how ephemeral 
that support really is.
  What that means is that if the union gets 50 percent plus one talking 
to the employees, then that company automatically becomes unionized 
without a secret ballot election. But it is even worse than that. The 
way they have drafted this bill, it will lead to mandatory arbitration, 
which will result in the Government setting the terms and conditions of 
employment, even pension plans. That is even worse than the card check 
aspect, which is about as bad as it gets. The real key for the unions 
is that the process be within the union's control and before the 
employer has an opportunity to communicate with the employees. In 
effect, the unions want to force employer neutrality based on the 
employer's inability to respond to a union organizing campaign.
  How quick must the quick certification process be to satisfy unions? 
NLRB statistics reveal that in 2006, 94.2 percent of all initial 
representation elections were conducted within 56 days of the filing of 
the petition with the NLRB and that the median time was 39 days. 
Apparently for union organizers, a little over a month is too long for 
them to maintain majority support, although it is important to note 
that under the current secret ballot election procedures, unions still 
win about 60 percent of all elections. That is fine as long as there is 
a balance in these programs, as long as both sides are treated fairly.
  Also union authorization cards make it virtually impossible for 
employees to change their minds, which can happen in the privacy of the 
voting booth. Revoking a signed union authorization card is virtually 
impossible today, when cards are used to trigger NLRB-supervised 
elections. You can imagine how hard it would be for an employee to 
revoke a signed card under a card check process.
  The U.S. Supreme Court has said that union authorization cards are 
``inherently unreliable'' indicators of employee support. Even unions 
themselves have stated that union authorization cards are less reliable 
than NLRB-protected private ballot elections. But the real reason 
unions seek card check is not because it is more reliable but because 
it can be controlled entirely by the union before the employer can 
address the union campaign propaganda. What that really means is that 
employees will be denied an informed choice.
  Under current law, to convince employees to vote for a union, the 
union may use the pressures of the employee polls and interrogation. 
Unions may make predictions. They may promise benefits, whether 
achievable or not, and they may make false statements about the 
employer. It may well be that the labor leaders have never been able to 
negotiate the wages and benefits they promise will result from the 
formation of a new union. It may be that the union, in fact, has 
negotiated contracts with other employers in the same industry and 
geographic area that are less generous than the employees currently 
receive at the location being organized. The union's claims about the 
employer's safety record, its compliance with employment laws, its 
business practices, its executive compensation, its future business 
plans, and so forth are grossly exaggerated. If we silence employers, 
who is going to inform the employees of these facts? Certainly not the 
union.
  Of course, employees may know well that in general their employer 
would prefer not deal with a union, but if, as a result of card check, 
employers are prevented from responding to a union's campaign 
misstatements, who will?
  That is not a license for an employer to threaten, intimidate, or 
coerce employees during an organizing campaign. Under current law, 
employers are not permitted to threaten, coerce, or promise new 
benefits or threaten withdrawal of existing benefits. But under current 
law, the employer can respond factually to the campaign-puffing of the 
union so that the choice made by the employees is an informed choice. 
Through a quickie card check process, that ability will effectively be 
denied.
  So let's be clear: When down the road the union lobby offers to 
compromise by preserving secret ballot elections supported by a 
majority, even a supermajority, of signed union authorization cards but 
only where such secret ballot elections are conducted by the NLRB in a 
week or two from the date the union files an election petition, it will 
be no compromise. There are still a few of us around who remember the 
quickie election provision of the so-called labor law reform bill in 
1977 and 1978. The unions then, just as today, were seeking to in 
effect silence employers during union organizing campaigns. Today, they 
are seeking that result by denying workers secret ballot elections. If 
they thought they could get away with it, unions would have Congress 
repeal employer free speech rights entirely.

[[Page 16299]]

  Denial of employee secret ballot elections and denial of free speech 
vital to ensure an informed choice doesn't sound very much like 
employee free choice to me. It sure doesn't sound very democratic with 
a small ``d'' or even a large ``D.'' That is only part of it. If you 
get into the mandatory arbitration that will inevitably occur because 
they won't be able to negotiate, in fairness, union contracts, you are 
going to have the wonderful people here in the Federal Government 
telling not only the unions but especially the businesses what they can 
and cannot do. They will set the terms and conditions of employment by 
mandatory arbitration and, in the end, they will also basically 
determine things such as pension plans. This isn't right.
  We believe in secret ballot elections in this country. We believe in 
fair processes. As I have said, the process works pretty well because 
unions win 60 percent of these elections. When they win fairly, that is 
the right thing. That may be a good thing. The fact is, under this 
bill, it stacks the whole labor process in favor of one side--the 
unions--and takes away the rights of employers to be able to inform 
their employees of the truth if there are misrepresentations by the 
union and, even if there aren't, to inform their employees how much 
better off they may be without a union so that they can make truly an 
informed choice. There are decent provisions in the labor laws that 
permit a reasonable, decent, honorable process.
  What really interests me is that the trade union movement is 
demanding a secret ballot election process in other countries. Why 
would they demand it in other countries and yet deny it here for both 
employers and employees in these very important decisions that have to 
be made by employees under our current very fair laws?
  Right now, the balance is a little bit in favor of unions. That is 
maybe as it should be. But at least it is a balance. Both sides have 
basically an equal chance of keeping unions, accepting unions, or 
denying unions.
  Frankly, one of the reasons my friends in the trade union movement 
want this type of an unfair process is because they have been losing 
members. It is easy to see why. We are on an energy bill right now that 
may be the death knell of our automobile industry if we don't handle it 
exactly right. The fact is, we could lose the American automobile 
industry, run by Ford, General Motors, and Chrysler, if we don't handle 
it properly. We will go to foreign-made cars. That would be disastrous, 
in my opinion. But part of the reason is the unions have negotiated 
contracts that are so expensive that a lot of the companies just can't 
produce the high-quality cars at reasonable prices that they used to be 
able to do.
  There are good reasons for unionization. I am one of the few people 
here who actually held an AFL-CIO union card. I came up through the 
trade union movement, learned a trade through a formal apprenticeship, 
became a journeyman, a skilled tradesman. I believe in unions. I 
believe in a fair collective bargaining process. But it ought to be 
fair. One of the ways you make it fair is by having secret ballot 
elections. In this particular case, this hoax which is going to be 
brought up on the floor and done in a very quickie way is not the way 
to go.
  I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. DOMENICI. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Tester). Without objection, it is so 
ordered.

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