[House Report 110-23]
[From the U.S. Government Publishing Office]



110th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                     110-23

======================================================================



 
                    EMPLOYEE FREE CHOICE ACT OF 2007

                                _______
                                

 February 16, 2007.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

 Mr. George Miller of California, from the Committee on Education and 
                     Labor, submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                        [To accompany H.R. 800]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Education and Labor, to whom was referred 
the bill (H.R. 800) 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, having considered the same, 
report favorably thereon with an amendment and recommend that 
the bill as amended do pass.
    The amendment is as follows:
    Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Employee Free Choice Act of 2007''.

SEC. 2. STREAMLINING UNION CERTIFICATION.

    (a) In General.--Section 9(c) of the National Labor Relations Act 
(29 U.S.C. 159(c)) is amended by adding at the end the following:
    ``(6) Notwithstanding any other provision of this section, whenever 
a petition shall have been filed by an employee or group of employees 
or any individual or labor organization acting in their behalf alleging 
that a majority of employees in a unit appropriate for the purposes of 
collective bargaining wish to be represented by an individual or labor 
organization for such purposes, the Board shall investigate the 
petition. If the Board finds that a majority of the employees in a unit 
appropriate for bargaining has signed valid authorizations designating 
the individual or labor organization specified in the petition as their 
bargaining representative and that no other individual or labor 
organization is currently certified or recognized as the exclusive 
representative of any of the employees in the unit, the Board shall not 
direct an election but shall certify the individual or labor 
organization as the representative described in subsection (a).
    ``(7) The Board shall develop guidelines and procedures for the 
designation by employees of a bargaining representative in the manner 
described in paragraph (6). Such guidelines and procedures shall 
include--
          (A) model collective bargaining authorization language that 
        may be used for purposes of making the designations described 
        in paragraph (6); and
          (B) procedures to be used by the Board to establish the 
        validity of signed authorizations designating bargaining 
        representatives.".
    (b) Conforming Amendments.--
          (1) National labor relaltions board.--Section 3(b) of the 
        National Labor Relations Act (29 U.S.C. 153(b)) is amended, in 
        the second sentence--
                  (A) by striking ``and to'' and inserting ``to''; and
                  (B) by striking ``and certify the results thereof,'' 
                and inserting ``, and to issue certifications as 
                provided for in that section,''.
          (2) Unfair labor practices.--Section 8(b) of the National 
        Labor Relations Act (29 U.S.C. 158(b)) is amended--
                  (A) in paragraph (7)(B) by striking ``, or'' and 
                inserting ``or a petition has been filed under section 
                9(c)(6), or''; and
                  (B) in paragraph (7)(C) by striking ``when such a 
                petition has been filed'' and inserting ``when such a 
                petition other than a petition under section 9(c)(6) 
                has been filed''.

SEC. 3. FACILITATING INITIAL COLLECTIVE BARGAINING AGREEMENTS.

    Section 8 of the National Labor Relations Act (29 U.S.C. 158) is 
amended by adding at the end the following:
    ``(h) Whenever collective bargaining is for the purpose of 
establishing an initial agreement following certification or 
recognition, the provisions of subsection (d) shall be modified as 
follows:
          ``(1) Not later than 10 days after receiving a written 
        request for collective bargaining from an individual or labor 
        organization that has been newly organized or certified as a 
        representative as defined in section 9(a), or within such 
        further period as the parties agree upon, the parties shall 
        meet and commence to bargain collectively and shall make every 
        reasonable effort to conclude and sign a collective bargaining 
        agreement.
          ``(2) If after the expiration of the 90-day period beginning 
        on the date on which bargaining is commenced, or such 
        additional period as the parties may agree upon, the parties 
        have failed to reach an agreement, either party may notify the 
        Federal Mediation and Conciliation Service of the existence of 
        a dispute and request mediation. Whenever such a request is 
        received, it shall be the duty of the Service promptly to put 
        itself in communication with the parties and to use its best 
        efforts, by mediation and conciliation, to bring them to 
        agreement.
          ``(3) If after the expiration of the 30-day period beginning 
        on the date on which the request for mediation is made under 
        paragraph (2), or such additional period as the parties may 
        agree upon, the Service is not able to bring the parties to 
        agreement by conciliation, the Service shall refer the dispute 
        to an arbitration board established in accordance with such 
        regulations as may be prescribed by the Service. The 
        arbitration panel shall render a decision settling the dispute 
        and such decision shall be binding upon the parties for a 
        period of 2 years, unless amended during such period by written 
        consent of the parties.''.

SEC. 4. STRENGTHENING ENFORCEMENT.

    (a) Injunctions Against Unfair Labor Practices During Organizing 
Drives.--
          (1) In general.--Section 10(l) of the National Labor 
        Relations Act (29 U.S.C. 160(l)) is amended--
                  (A) in the second sentence, by striking ``If, after 
                such'' and inserting the following:
    ``(2) If, after such''; and (B) by striking the first sentence and 
inserting the following:
    ``(1) Whenever it is charged--
          ``(A) that any employer--
                  ``(i) discharged or otherwise discriminated against 
                an employee in violation of subsection (a)(3) of 
                section 8;
                  ``(ii) threatened to discharge or to otherwise 
                discriminate against an employee in violation of 
                subsection (a)(1) of section 8; or
                  ``(iii) engaged in any other unfair labor practice 
                within the meaning of subsection (a)(1) that 
                significantly interferes with, restrains, or coerces 
                employees in the exercise of the rights guaranteed in 
                section 7;
while employees of that employer were seeking representation by a labor 
organization or during the period after a labor organization was 
recognized as a representative defined in section 9(a) until the first 
collective bargaining contract is entered into between the employer and 
the representative; or
          ``(B) that any person has engaged in an unfair labor practice 
        within the meaning of subparagraph (A), (B) or (C) of section 
        8(b)(4), section 8(e), or section 8(b)(7);
the preliminary investigation of such charge shall be made forthwith 
and given priority over all other cases except cases of like character 
in the office where it is filed or to which it is referred.''.
          (2) Conforming amendment.--Section 10(m) of the National 
        Labor Relations Act (29 U.S.C. 160(m)) is amended by inserting 
        ``under circumstances not subject to section 10(l)'' after 
        ``section 8''.
    (b) Remedies for Violations.--
          (1) Backpay.--Section 10(c) of the National Labor Relations 
        Act (29 U.S.C. 160(c)) is amended by striking ``And provided 
        further,'' and inserting ``Provided further, That if the Board 
        finds that an employer has discriminated against an employee in 
        violation of subsection (a)(3) of section 8 while employees of 
        the employer were seeking representation by a labor 
        organization, or during the period after a labor organization 
        was recognized as a representative defined in subsection (a) of 
        section 9 until the first collective bargaining contract was 
        entered into between the employer and the representative, the 
        Board in such order shall award the employee back pay and, in 
        addition, 2 times that amount as liquidated damages: Provided 
        further,''.
          (2) Civil penalties.--Section 12 of the National Labor 
        Relations Act (29 U.S.C. 162) is amended--
                  (A) by striking ``Any'' and inserting ``(a) Any''; 
                and
                  (B) by adding at the end the following:
    ``(b) Any employer who willfully or repeatedly commits any unfair 
labor practice within the meaning of subsections (a)(1) or (a)(3) of 
section 8 while employees of the employer are seeking representation by 
a labor organization or during the period after a labor organization 
has been recognized as a representative defined in subsection (a) of 
section 9 until the first collective bargaining contract is entered 
into between the employer and the representative shall, in addition to 
any make-whole remedy ordered, be subject to a civil penalty of not to 
exceed $20,000 for each violation. In determining the amount of any 
penalty under this section, the Board shall consider the gravity of the 
unfair labor practice and the impact of the unfair labor practice on 
the charging party, on other persons seeking to exercise rights 
guaranteed by this Act, or on the public interest.''.

                                Purpose

    H.R. 800, the Employee Free Choice Act of 2007, seeks to 
strengthen and expands the American middle class by restoring 
workers' freedom to organize and collectively bargain under the 
National Labor Relations Act (NLRA). The bill reforms the NLRA 
to provide for union certification through simple majority 
sign-up procedures, first contract mediation and binding 
arbitration, and tougher penalties for violations of workers' 
rights during organizing and first contract drives. The 
Employee Free Choice Act of 2007 furthers the long-standing 
policy of the United States to encourage the practice of 
collective bargaining and to protect the exercise by workers of 
full freedom of association, self-organization, and designation 
of representatives of their own choosing, for the purpose of 
negotiating the terms and conditions of their employment or 
other mutual aid or protection.

                            Committee Action


                             108TH CONGRESS

    The Employee Free Choice Act was first introduced during 
the 108th Congress. On November 21, 2003, Representative George 
Miller (D-CA), then Ranking Member of the Committee, introduced 
H.R. 3619. A companion bill, S. 1925, was introduced in the 
Senate by Senator Edward M. Kennedy (D-MA) at the same time. 
H.R. 3619 garnered 209 cosponsors, both Democratic and 
Republican. It was referred to the Committee on Education and 
the Workforce and the Subcommittee on Employer-Employee 
Relations.
    Neither the full Committee nor the Subcommittee took any 
direct action on the bill. The Subcommittee, however, conducted 
several hearings which either featured references to the 
Employee Free Choice Act or raised issues related to the 
Employee Free Choice Act--particularly union organizing issues. 
On April 22, 2004, the Subcommittee conducted a hearing on 
``Developments in Labor Law: Examining Trends and Tactics in 
Labor Organization Campaigns.'' On May 10, 2004, the 
Subcommittee conducted a field hearing in Round Rock, Texas, on 
``Examining Union `Salting' Abuses and Organizing Tactics that 
Harm the U.S. Economy.'' And on September 30, 2004, the 
Subcommittee held a hearing on ``H.R. 4343, The Secret Ballot 
Protection Act of 2004.''

                             109TH CONGRESS

    On April 19, 2005, the Employee Free Choice Act was re-
introduced in the 109th Congress as H.R. 1696 by Representative 
George Miller, then Ranking Member of the Committee, joined by 
Representative Peter King (R-NY) as a lead co-sponsor. At the 
same time, Senator Kennedy introduced its Senate companion, S. 
842, joined by Senator Arlen Specter (R-PA) as a lead co-
sponsor. In the House of Representatives, the Employee Free 
Choice Act garnered 214 co-sponsors, both Democratic and 
Republican. H.R. 1696 was referred to the Committee on 
Education and the Workforce and the Subcommittee on Employer-
Employee Relations.
    Neither the full Committee nor the Subcommittee took any 
action on the bill. Democratic Members of the Committee, 
however, conducted field forums on the Employee Free Choice 
Act. For example, on June 13, 2005, Representative George 
Miller, then-Ranking Member on the full Committee, joined 
Representative Rosa DeLauro (D-CT) in New Haven, Connecticut, 
for a field forum on local organizing issues and the Employee 
Free Choice Act. On June 27, 2005, Representative Robert 
Andrews (D-NJ), then-Ranking Member on the Subcommittee on 
Employer-Employee Relations, conducted a field forum on local 
organizing issues and the Employee Free Choice Act in Trenton, 
New Jersey, and was joined by other Members of the New Jersey 
congressional delegation, including Committee Members Donald 
Payne (D-NJ) and Rush Holt (D-NJ). On April 20, 2006, 
Representative George Miller conducted another field forum on 
the Employee Free Choice Act in Sacramento, California. There, 
he was joined by Representative Doris Matsui (D-CA). In each of 
these forums, Members of Congress heard from workers attempting 
to organize unions and expert witnesses on organizing and 
collective bargaining rights.

                             110TH CONGRESS

First Economic Hearing: The State of the Middle Class

    On January 31, 2007, the Committee on Education and Labor 
conducted its first full Committee hearing of the new Congress. 
This hearing, ``Strengthening America's Middle Class: 
Evaluating the Economic Squeeze on America's Families,'' 
provided the Committee with an overview of the state of the 
American middle class. The Committee heard testimony describing 
the scope and causes of the middle class squeeze, i.e., the 
combination of downward pressures on wages and benefits and the 
rising costs of basic family necessities, such as energy, 
housing, health care, and education. Witnesses included 
Professor Jacob Hacker, a professor and author at Yale 
University; Ms. Rosemary Miller, a flight attendant and middle 
class mother; Professor Eileen Appelbaum, the Director of the 
Center for Women and Work at Rutgers University; Ms. Diana 
Furchtgott-Roth, the Director of the Center for Employment 
Policy at the Hudson Institute; Ms. Kellie Johnson, President 
of ACE Clearwater Enterprises, Inc., and Dr. Christian Weller, 
a senior economist at the Center for American Progress.

Second Economic Hearing: Economic Solutions to the Middle Class Squeeze

    On February 7, 2007, the Committee on Education and Labor 
conducted its second full Committee hearing of the new 
Congress. This hearing, ``Strengthening America's Middle Class: 
Finding Economic Solutions to Help America's Families,'' served 
as the second part of the January 31 hearing. In this hearing, 
building on what was learned about the state of the middle 
class, Members and witnesses explored what could be done to 
alleviate the middle class squeeze and strengthen and expand 
the middle class. Witnesses testified about the need for fairer 
trade policies, stronger protections for workers' fundamental 
rights, more rigorous training and education for a high skills, 
high wage economy, and a greater commitment to comprehensive 
health care reform. These witnesses included Mr. Richard L. 
Trumka, Executive Vice President of the AFL-CIO; Dr. Judy 
Feder, Dean of the Georgetown Public Policy Institute at 
Georgetown University; Mr. William T. Archey, President and 
Chief Executive Officer of AeA; and Dr. Lynn A. Karoly, senior 
economist at the RAND Corporation.

Introduction of the Employee Free Choice Act

    On February 5, 2007, the Employee Free Choice Act, as H.R. 
800, was re-introduced in the 110th Congress by Chairman George 
Miller, joined by 230 original co-sponsors, including 
Representative Peter King (R-NY) as a lead co-sponsor. In the 
following days, the number of co-sponsors increased to 234, 
including both Democratic and Republican co-sponsors.

Subcommittee Hearing on the Employee Free Choice Act

    On February 8, 2007, the Subcommittee on Health, 
Employment, Labor, and Pensions (HELP), led by Chairman Robert 
Andrews (D-NJ), conducted a legislative hearing on H.R. 800, 
``Strengthening America's Middle Class through the Employee 
Free Choice Act.'' This hearing featured testimony from two 
panels of witnesses. The first panelconsisted of three workers 
who have attempted to form unions in their workplaces, namely, Mr. 
Keith Ludlum, an employee of Smithfield Foods in Tar Heel, North 
Carolina; Mr. Ivo Camilo, a retired employee of Blue Diamond Growers in 
Sacramento, California; and Ms. Teresa Joyce, an employee of Cingular 
Wireless in Lebanon, Virginia; as well as a former union organizer who 
is currently a union avoidance consultant for employers, Ms. Jennifer 
Jason, founder of Six Questions Consulting LLC and formerly with UNITE-
HERE. These witnesses discussed their experiences in attempting to 
organize unions. The second panel consisted of two labor lawyers, a 
labor economist, and a political scientist, namely, Ms. Nancy Schiffer, 
associate general counsel at the AFL-CIO; Mr. Charles Cohen, a former 
member of the National Labor Relations Board, speaking on behalf of the 
U.S. Chamber of Commerce; Professor Harley Shaiken, a labor economist 
at the University of California-Berkeley; and Professor Gordon Lafer, a 
political scientist at the University of Oregon. These witnesses 
discussed the bill.

Full Committee Mark-Up of the Employee Free Choice Act

    On February 14, 2007, the Committee on Education and Labor 
met to markup H.R. 800, the Employee Free Choice Act. The 
Committee adopted by voice vote an amendment in the nature of a 
substitute offered by Mr. Andrews. Thirteen other amendments 
were offered and debated. None of those amendments were 
adopted. The Committee voted to favorably report H.R. 800, by a 
vote of 26-19.

                                Summary

    H.R. 800, the Employee Free Choice Act, consists of three 
basic provisions:
          1. The majority sign-up certification provision 
        provides for certification of a union as the bargaining 
        representative of the National Labor Relations Board 
        finds that a majority of employees in an appropriate 
        unit has signed valid authorizations designating the 
        union as its bargaining representative. This provision 
        requires the Board to develop model authorization 
        language and procedures for establishing the validity 
        of signed authorizations.
          2. The first contract mediation and arbitration 
        provision provides that if an employer and a union are 
        engaged in bargaining for their first contract and are 
        unable to reach agreement within 90 days, either party 
        may refer the dispute to the Federal Mediation and 
        Conciliation Service (FMCS) for mediation. If the FMCS 
        has been unable to bring the parties to agreement after 
        30 days of mediation, the dispute will be referred to 
        arbitration and the results of the arbitration shall be 
        binding on the parties for two years. Time limits may 
        be extended by mutual agreement of the parties.
          3. The penalties provision makes the following new 
        provisions applicable to violations of the NLRA 
        committed by employers against employees during any 
        period while employees are attempting to organize a 
        union or negotiate a first contract agreement:
                  a. Just as the NLRB is required to seek a 
                federal court injunction against a union 
                whenever there is reasonable cause to believe 
                that the union has violated the secondary 
                boycott prohibitions of the NLRA, the NLRB must 
                seek a federal court injunction against an 
                employer whenever there is reasonable cause to 
                believe that the employer has discharged or 
                discriminated against employees, threatened to 
                discharge or discriminate against employees, or 
                engaged in conduct that significantly 
                interferes with employee rights during an 
                organizing or first contract drive. Likewise, 
                this provision authorizes the courts to grant 
                temporary restraining orders and other 
                appropriate injunctive relief.
                  b. An employer must pay three times backpay 
                when an employee is unlawfully discharged or 
                discriminated against during an organizing or 
                first contract drive.
                  c. The NLRB may impose civil fines of up to 
                $20,000 per violation against employers found 
                to have willfully or repeatedly violated 
                employees' rights during an organizing or first 
                contract drive.

                            Committee Views

    The Committee on Education and Labor of the 110th Congress 
is committed to strengthening and expanding the American middle 
class. The middle class is the backbone of this country's 
strong economy and vibrant democracy. A strong middle class is 
critical to the long-term prosperity and stability of the 
United States.
    The Employee Free Choice Act of 2007 is--in the final 
analysis--about saving the American Dream for millions of hard 
working families who struggle every day to pay for the basics, 
pay for health care when there is a family illness, to build a 
nest egg for their future, and to get their children to college 
in the face of skyrocketing college costs.
    To this challenge, Congress must act decisively on behalf 
of millions of hard working middle class workers who see the 
American Dream slipping from their reach.
    The Employee Free Choice Act is about giving workers basic 
dignity and respect in their workplace--a tradition that is 
deeply rooted in our nation's history. It is about allowing 
employees to make their own decision about whether they want to 
bargain together--to advocate for fairer wages, benefits, and 
working conditions--without the threat or fear of harassment 
and retribution and fear of losing their livelihood.

                         A HUMAN RIGHTS CRISIS

    H.R. 800 addresses a human rights crisis that is a leading 
cause of the middle class squeeze. The freedom to form or join 
a labor union and engage in collective bargaining is an 
internationally-recognized human right. In the United States, 
the freedom of association is enshrined in the First Amendment 
of the Bill of Rights. While this freedom is often associated 
with political ventures, it is a long-standing American 
principle and tradition that working people may join together 
to improve their economic circumstances. The most explicit 
recognition of this principle for private sector workers in 
federal law is the 1935 Wagner Act, also known as the National 
Labor Relations Act (NLRA).\1\
---------------------------------------------------------------------------
    \1\ 29 U.S.C. 151 et seq.
---------------------------------------------------------------------------
    Section 1 of the NLRA declares ``it is the policy of the 
United States'' to ``encourage the practice and procedure of 
collective bargaining and to protect the exercise by workers of 
full freedom of association, self-organizing and designation of 
representatives of their own choosing, for the purpose of 
negotiating the terms and conditions of their employment, or 
other mutual aid or protection.'' \2\
---------------------------------------------------------------------------
    \2\ 29 U.S.C. 151.
---------------------------------------------------------------------------
    The NLRA is a relatively straightforward law. Section 7 of 
the NLRA establishes the fundamental rights of workers to 
``self-organization, to form, join, or assist labor 
organizations, to bargain collectively through representatives 
of their own choosing, and to engage in other concerted 
activities for the purpose of collective bargaining or other 
mutual aid or protection, and shall also have the right to 
refrain from any or all of such activities. . .'' \3\ Section 8 
lays out a variety of prohibitions for both employer and union 
behavior. \4\ For example, employers may not interfere with, 
coerce, intimidate, or discriminate against employees in the 
exercise of their Section 7 rights. The NLRA also requires 
employers to bargain in good faith with their employees' 
exclusive bargaining representative, when a union is 
voluntarily recognized as such by the employer or certified as 
such by the National Labor Relations Board (NLRB), the agency 
which the NLRA establishes to administer and enforce the 
NLRA.\5\
---------------------------------------------------------------------------
    \3\ 29 U.S.C. 157.
    \4\ 29 U.S.C. 158(a) and (b).
    \5\ 29 U.S.C. 158(d).
---------------------------------------------------------------------------

                    WORKERS RIGHTS ARE UNDER ATTACK

    For more than 70 years, workers' freedom to organize and 
collectively bargain has depended upon the effectiveness of the 
NLRA. Today, the NLRA is ineffective, and American workers' 
freedom to organize and collectively bargain is in peril 
everyday as a result.
    The numbers are staggering. Every 23 minutes, a worker is 
fired or otherwise discriminated against because of his or her 
union activity.\6\ According to NLRB Annual Reports between 
1993 and 2003, an average of 22,633 workers per year received 
back pay from their employers.\7\ In 2005, this number hit 
31,358.\8\ A recent study by the Center for Economic and Policy 
Research found that, in 2005, workers engaged in pro-union 
activism ``faced almost a 20 percent chance of being fired 
during a union-election campaign.'' \9\
---------------------------------------------------------------------------
    \6\ American Rights at Work website, at http://
www.americanrightsatwork.org/resources/23cite.cfm.
    \7\ Strengthening America's Middle Class through the Employee Free 
Choice Act, Hearing Before the Subcommittee on Health, Employment, 
Labor & Pensions, 110th Cong., 1st Sess. (2007) (written testimony of 
Harley Shaiken, at 1, n.1) [hereinafter Shaiken Testimony].
    \8\ Shaiken Testimony, at 1.
    \9\ John Schmitt & Ben Zipperer, ``Dropping the Ax: Illegal Firings 
During Union Election Campaigns,'' Center for Economic and Policy 
Research (January 2007), at 3 [hereinafter Schmitt & Zipperer].
---------------------------------------------------------------------------
    The number of workers awarded backpay by the NLRB also 
reveals a worsening trend. The NLRB provides backpay to workers 
who are illegally fired, laid off, demoted, suspended, denied 
work, or otherwise discriminated against because of their union 
activity. In 1969 a little over 6,000 workers received backpay 
because of illegal employer actions.\10\ That number has risen 
by 500 percent although the percentage of the private sector 
workforce that is unionized has declined over the same time 
period from nearly 30 percent to just 7.4 percent.\11\ In the 
1970s, 1-in-100 pro-union workers actively involved in an 
organizing drive was fired. Today, that number has doubled to 
about 1-in-53.\12\
---------------------------------------------------------------------------
    \10\ Strengthening America's Middle Class through the Employee Free 
Choice Act, Hearing Before the Subcommittee on Health, Employment, 
Labor & Pensions, 110th Cong., 1st Sess. (2007) (written testimony of 
Nancy Schiffer, at 3) [hereinafter Schiffer Testimony].
    \11\ Michele Amber, ``Union Membership Rates Dropped in 2006 to 12 
Percent; Manufacturing Leads the Way,'' BNA Daily Labor Report (January 
26, 2007).
    \12\ Schmitt & Zipperer, at 3.
---------------------------------------------------------------------------
    The anti-union activities of employers have become far more 
sophisticated and brazen in recent history. Today, 25 percent 
of employers illegally fire at least one worker for union 
activity during an organizing campaign.\13\ Additionally, 75 
percent of employers facing a union organizing drive hire anti-
union consultants.\14\ During an organizing drive, 78 percent 
of employers force their employees to attend one-on-one 
meetings against the union with supervisors, while 92 percent 
force employees to attend mandatory, captive audience anti-
union meetings.\15\ More than half of all employers facing an 
organizing drive threaten to close all or part of their 
plants.\16\
---------------------------------------------------------------------------
    \13\ Kate Bronfenbrenner, ``Uneasy Terrain: The Impact of Capital 
Mobility on Workers, Wages and Union Organizing,'' (September 6, 2000).
    \14\ Id.
    \15\ Id.
    \16\ Id.
---------------------------------------------------------------------------
    A 2005 study that focused on organizing campaigns in the 
Chicago metropolitan area found that 30 percent of employers 
fired workers engaging in union activities; 49 percent of 
employers threatened to close or relocate if the union won; and 
82 percent of employers hired anti-union consultants to assist 
with their campaign against the union.\17\
---------------------------------------------------------------------------
    \17\ Chirag Mehta & Nik Theodore, ``Undermining the Right to 
Organize: Employer Behavior During Union Representation Campaigns,'' A 
Report for American Rights at Work (December 2005), at 5.
---------------------------------------------------------------------------
    The ``union avoidance'' industry--comprised of anti-union 
consultants who help employers defeat organizing drives or 
encourage the decertification of existing unions--is ``worth 
several hundred million dollars per year.'' \18\ Companies 
intent on busting organizing drives pay top dollar to anti-
union consulting and law firms. \19\ These consultants wage 
highly sophisticated campaigns against workers trying to form a 
union. These campaigns may include such tactics as ``captive 
speeches, employee interrogations, one-on-one meetings between 
employees and supervisors, `vote no' committees, antiunion 
videos, threats of plant closures, and discriminatory 
discharges.'' \20\ A rare light was shed on the ``union 
avoidance'' industry in a 2004 New York Times expose. According 
to the article, the battery company EnerSys had paid the anti-
union law firm Jackson Lewis $2.7 million for its services--
during which time the company, according to a federal complaint 
containing some 120 unfair labor practices, fired union 
leaders, assisted the anti-union campaign, improperly withdrew 
recognition from the union, and moved production to nonunion 
plants in retaliation for workers' union activity. EnerSys 
later accused Jackson Lewis of malpractice for its advice, 
which Jackson Lewis denied. \21\
---------------------------------------------------------------------------
    \18\ John Logan, ``The Union Avoidance Industry in the United 
States,'' British Journal of Industrial Relations (December 2006), at 
651.
    \19\ For example, the Republican witness, presented as a former 
UNITE-HERE organizer in the February 8, 2007, HELP Subcommittee hearing 
on the Employee Free Choice Act, was paid $225,000 in one year, plus 
expenses, by Cintas, a company she formerly was trying to organize but 
had since taken on as a client for her union avoidance consulting firm.
    \20\ John Logan, ``The Fine Art of Union Busting,'' New Labor Forum 
(Summer 2004), at 78.
    \21\ Steven Greenhouse, ``How Do You Drive Out a Union? South 
Carolina Factory Provides a Textbook Case,'' The New York Times 
(December 14, 2004).
---------------------------------------------------------------------------
    This human rights crisis in the United States was 
highlighted in a 2000 Human Rights Watch report entitled 
``Unfair Advantage: Workers' Freedom of Association in the 
United States under International Human Rights Standards,'' 
Human Rights Watch warned: ``Workers' freedom of association is 
at risk in the United States, with yet untold consequences for 
societal fairness.'' \22\ According to the report:
---------------------------------------------------------------------------
    \22\ ``Unfair Advantage: Workers' Freedom of Association in the 
United States under International Human Rights Standards,'' Human 
Rights Watch report (August 2000) [hereinafter Human Rights Watch 
Report].

          A culture of near-impunity has taken shape in much of 
        U.S. labor law and practice. Any employer intent on 
        resisting workers' self-organization can drag out legal 
        proceedings for years, fearing little more than an 
        order to post a written notice in the workplace 
        promising not to repeat unlawful conduct. Many 
        employers have come to view remedies like back pay for 
        workers fired because of union activity as a routine 
        cost of doing business, well worth it to get rid of 
        organizing leaders and derail workers' organizing 
        efforts. \23\
---------------------------------------------------------------------------
    \23\ Id.

    In her testimony before the HELP Subcommittee on February 
8, 2007, union-side labor lawyer Nancy Schiffer echoed this 
---------------------------------------------------------------------------
reality:

          At some point in my career . . . I could no longer 
        tell workers that the [NLRA] protects their right to 
        form a union. Because I knew that, despite the wording 
        of the statute, in practice it does not. And I knew 
        that they would have to be heroes to survive their 
        organizing effort, just because they wanted to form a 
        union so that they could bargain for a better life. 
        \24\
---------------------------------------------------------------------------
    \24\ Schiffer Testimony, at 1.

    The ineffectiveness of the NLRA has put workers' 
fundamental freedoms at risk. These developments have spurred a 
human rights crisis with real economic consequences for 
America's middle class.

          THE ECONOMIC CONSEQUENCES OF THE HUMAN RIGHTS CRISIS

    The rise of workers' freedom to organize and collectively 
bargain dramatically expanded the middle class in 20th Century 
America. The decline of these freedoms has put the middle class 
at risk. Workers' inability to join together and bargain for 
something better, or protect what they already have, has in 
part manifested itself in the middle class squeeze.
    The first two full Committee hearings of the 110th Congress 
examined the middle class squeeze and explored solutions to it. 
Witnesses in the first hearing, ``Strengthening America's 
Middle Class: Evaluating the Economic Squeeze on America's 
Families,'' held on January 31, 2007, described the state of 
the middle class.
    The middle class is less economically secure today than 30 
years ago, as economic burdens and risks have shifted from 
corporate or government insurance programs to individuals and 
families. Witness Dr. Jacob Hacker, a professor of political 
science at Yale University and author of The Great Risk Shift, 
explained: ``Over the last generation, we have witnessed a 
massive transfer of economic risk from broad structures of 
insurance, whether sponsored by the corporate sector or by 
government, onto the fragile balance sheets of American 
families.'' \25\ Dr. Hacker presented research revealing a 
measurable increase in insecurity--not just a ``growing gap 
between the rungs of our economic ladder'' but a ``growing risk 
of slipping from the ladder itself.'' For example, the 
instability of family incomes has increased dramatically since 
the late 1960s. ``You can be perfectly average--with an average 
income, an average-sized family, an average likelihood of 
losing your job or becoming disabled--and you're still two-and-
a-half times as likely to see your income plummet as an average 
person was thirty years ago,'' explained Dr. Hacker. Personal 
bankruptcy filings have risen from less than 300,000 in 1980 to 
more than 2 million in 2005. The share of households seeing 
foreclosures on their homes has increased 500 percent since the 
early 1970s. Americans are burdened by personal debt, with the 
personal savings rate falling from approximately one-tenth of 
disposable income to virtually zero between the early 1970s and 
today. Meanwhile, the American middle class has been losing its 
access to employer-provided health insurance and guaranteed 
pensions. This insecurity ``strikes at the very heart of the 
American Dream'' but also acts as a drag on the economy in 
general. Individuals who feel insecure in their economic 
position are less likely to take on additional risks--such as 
career changes, new training and education, or entrepreneurial 
endeavors--which could benefit the economy overall.
---------------------------------------------------------------------------
    \25\ Strengthening America's Middle Class: Evaluating the Economic 
Squeeze on America's Families, Hearing Before the Committee on 
Education & Labor, 110th Cong., 1st Sess. (2007) (written testimony of 
Jacob Hacker) [hereinafter Hacker Testimony].
---------------------------------------------------------------------------
    These points were supported by witness Dr. Christian 
Weller, a senior economist at the Center for American Progress. 
\26\ He also presented research which found a growing level of 
financial insecurity among America's middle class families. For 
example, according to Dr. Weller: ``A substantially smaller 
share of typical dual income couples between the ages of 35 and 
54 who earn between $18,500 and $88,030 a year--those in the 
middle 60 percent of income distribution--were prepared for an 
emergency in 2004 (the last year complete data was available) 
than in 2001.'' Such emergencies might include the sudden 
unemployment of a breadwinner or the sudden medical emergency 
of a family member. Dr. Weller also explained: ``One of the 
foremost reasons for the erosion in middle class economic 
security is that families face a comparatively weak labor 
market despite a growing economy.'' His research showed that, 
for the first time in any economic recovery, the initial stages 
of the most recent economic ``recovery,'' beginning in November 
2001, were marked by a sustained period of job loss. Between 
2000 and 2005, the share of people without any health insurance 
increased from 14.2 percent to 15.9 percent, and the share of 
people with employer-provided health insurance decreased from 
63.6 percent to 59.5 percent. These structural changes pose an 
increasing threat to the middle class way of life.
---------------------------------------------------------------------------
    \26\ Strengthening America's Middle Class: Evaluating the Economic 
Squeeze on America's Families, Hearing Before the Committee on 
Education & Labor, 110th Cong., 1st Sess. (2007) (written testimony of 
Christian Weller) [hereinafter Weller Testimony].
---------------------------------------------------------------------------
    Today's economy is imbalanced. Witness Dr. Eileen 
Appelbaum, Director of the Center for Women and Work at Rutgers 
University, testified that working people are not receiving 
their fair share of the wealth that has been created by 
economic growth and increased productivity. \27\ She explained: 
``American workers today produce 70 percent more goods and 
services than they did at the end of the 1970s. . . . The 
overwhelming majority of American families haven't shared 
fairly in this bounty. Workers' pay and benefits have lagged 
far behind the increase in productivity.'' Her research pointed 
out that, since the start of 2001, an 18 percent increase in 
productivity has been accompanied by only a 3 percent increase 
in the average real hourly wages of workers, an increase 
``dwarfed by the increases in corporate profits and in the 
incomes of the very richest Americans.'' Dr. Appelbaum 
suggested a number of prescriptions for tackling the middle 
class squeeze, including the Employee Free Choice Act. She 
explained: ``Workers need a greater voice at work and the right 
to form unions if they so desire.''
---------------------------------------------------------------------------
    \27\ Strengthening America's Middle Class: Evaluating the Economic 
Squeeze on America's Families, Hearing Before the Committee on 
Education & Labor, 110th Cong., 1st Sess. (2007) (written testimony of 
Eileen Appelbaum) [hereinafter Appelbaum Testimony].
---------------------------------------------------------------------------
    Witness Rosemary Miller, a flight attendant and mother, 
told the Committee her personal story of the middle class 
squeeze.\28\ After her employer declared bankruptcy, she saw 
``drastic wage and benefit reductions.'' She said: ``I am now 
working longer and longer days as well as having to spend more 
and more time away from home. I have had to miss some of my 
daughters' school events that I vowed I would never miss 
because now I have to work longer in order to keep food on the 
table and a roof over our heads. But not only am I working 
longer; I'm earning less. My pension has been frozen. My 
benefits have been reduced.'' She explained: ``We are asking 
for livable wages, a home that we own, affordable health care, 
comfortable retirement security, and reasonable means to 
provide for our children's college costs. It is obscene that in 
this country, among all others, it is such a struggle to simply 
live decently.''
---------------------------------------------------------------------------
    \28\ Strengthening America's Middle Class: Evaluating the Economic 
Squeeze on America's Families, Hearing Before the Committee on 
Education & Labor, 110th Cong., 1st Sess. (2007) (written testimony of 
Rosemary Miller) [hereinafter Miller Testimony].
---------------------------------------------------------------------------
    The Committee's second economic hearing, ``Strengthening 
America's Middle Class: Finding Economic Solutions for 
America's Families,'' held on February 7, 2007, looked at a 
number of economic solutions to the middle class squeeze. All 
of these solutions complemented one another. For example, one 
solution forwarded at the hearing was the Innovation Agenda. 
Better training and education to ensure that workers have 
sufficient skills and knowledge for a higher-tech economy are 
necessary but not by themselves sufficient for tackling the 
middle class squeeze. Better training and education via the 
Innovation Agenda will ensure that qualified workers are 
available to fill the jobs of today and tomorrow. Without more, 
however, there is no guarantee that those jobs--whether 
service, manufacturing, or high-tech sector jobs--will be 
middle-class family-supporting jobs. To make those jobs good 
jobs, workers must be given a fair playing field on which to 
compete globally and a fair playing field on which to bargain 
for better wages, benefits, and working conditions. In this 
regard, the Committee heard testimony on the need for fairer 
trade practices to allow American workers and business to 
compete on a global scale and stronger enforcement of workers' 
rights at home. Finally, the middle class squeeze is not fully 
addressed without solving the health care crisis--both the 
coverage crisis and the cost crisis. Testimony was also heard 
on policy proposals in this area.
    The Employee Free Choice Act featured prominently as a key 
solution to the middle class squeeze in this hearing. Witness 
Richard L. Trumka, Executive Vice President of the AFL-CIO, 
testified: ``The best opportunity for working men and women to 
get ahead economically is to unite with their co-workers to 
bargain with their employers for better wages and benefits.'' 
\29\ He pointed out that unionized workers earn 30 percent more 
than non-union workers, are 62 percent more likely to have 
employer-provided health care coverage, and are four times more 
likely to have guaranteed defined benefit pensions. According 
to Mr. Trumka, while nearly 60 million workers say they would 
join a union if they could, the vast majority have not because 
of a broken system for forming unions and collective bargaining 
that does not protect workers' fundamental rights. On behalf of 
the AFL-CIO, Mr. Trumka called specifically for Congress to 
pass the Employee Free Choice Act. He explained: ``This 
legislation would represent an enormous step toward restoring 
balance between workers and their employers and helping repair 
the ruptured productivity-wage relationship.''
---------------------------------------------------------------------------
    \29\ Strengthening America's Middle Class: Finding Economic 
Solutions for America's Families, Hearing Before the Committee on 
Education & Labor, 110th Cong., 1st Sess. (2007) (written testimony of 
Richard Trumka) [hereinafter Trumka Testimony].
---------------------------------------------------------------------------

                      UNIONS AND THE MIDDLE CLASS

    The link between the Employee Free Choice Act and new hope 
for a more vibrant American middle class is evident in the 
numbers. By every measure, workers who join together to bargain 
for better wages, benefits, and working conditions do indeed 
receive better wages, benefits, and working conditions. This 
``union difference'' is confirmed by the Bureau of Labor 
Statistics. Unionized workers' median weekly earnings are 30 
percent higher than nonunion workers'.\30\ This wage advantage 
is even more pronounced among women (31 percent union wage 
advantage), African Americans (36 percent union wage 
advantage), and Latinos (46 percent union wage advantage). 
Eighty percent of unionized workers have employer-provided 
health insurance, while only 49 percent of nonunion workers do. 
Sixty-eight percent of unionized workers have guaranteed 
pensions under a defined benefit plan, while only 14 percent of 
nonunion workers do. Sixty-two percent of unionized workers 
have the protection of short-term disability benefits, while 
only 35 percent of nonunion workers do. Unionized workers have, 
on average, 15 days of paid vacation--time that can be taken to 
spend with family--compared to only 11.75 average days of paid 
vacation for nonunion employees. Unionized workers also almost 
invariably have the protection of just cause employment, while 
nonunion workers are typically at-will employees, open to 
firing or layoff for any legal reason or no reason at all.
---------------------------------------------------------------------------
    \30\ This and subsequent statistics in this paragraph are 
attributed to the following sources: U.S. Department of Labor, Bureau 
of Labor Statistics, Union Members in 2006 (January 25, 2007); U.S. 
Department of Labor, Bureau of Labor Statistics, National Compensation 
Survey: Employee Benefits in Private Industry in the United States 
(March 2006); Economic Policy Institute; Employee Benefits Research 
Institute (May 2005).
---------------------------------------------------------------------------
    Unions, however, do not only benefit unionized workers. 
Strong unions set industry-wide standards that benefit workers 
across an industry, regardless of their union or nonunion 
status. Moreover, the threat of unionization often leads 
employers to attempt to match or approach union pay and benefit 
scales in order to discourage unionization. A recent study 
found that, for example, a high school graduate who is not even 
a union worker but whose industry is at least 25 percent 
unionized will be paid 5 percent more than similar workers in 
less organized industries.\31\ A 2002 study found that ``more 
than half of the decline in the average wage paid to workers 
with a high school education or less can be accounted for by 
the decline in union density.'' \32\ A 1999 study found that 
the drop in union density explained about 20 percent of the 
decline in the percentage of workers receiving employer-
provided health insurance between 1983 and 1997.\33\ A 2005 
report recently explained that ``further erosion of 
unionization is likely to coincide with an overall erosion in 
the percentage of workers with employment-based health 
benefits.'' \34\
---------------------------------------------------------------------------
    \31\ Lawrence Mishel (with Matthew Walters), ``How Unions Help All 
Workers,'' Economic Policy Institute Briefing Paper (August 2003), at 1 
[hereinafter Mishel].
    \32\ Henry S. Farber, ``Are Unions Still a Threat? Wages and the 
Decline of Unions, 1973-2001,'' Princeton University Working Paper 
(2002), at 1.
    \33\ Thomas C. Buchmueller, John DiNardo, & Robert G. Valletta, 
``Union Effects on Health Insurance Provision and Coverage in the 
United States,'' San Francisco Federal Reserve Bank (1999).
    \34\ Paul Fronstin, ``Union Status and Employment-Based Benefits,'' 
EBRI Notes (May 2005).
---------------------------------------------------------------------------
    The union difference extends into other areas as well. The 
rise in wage inequality in the U.S., particularly among men, 
has been linked to de-unionization.\35\ A 2004 study on 
workplace hazards produced findings suggesting that unions 
``could reduce job stress by giving workers the voice to cope 
effectively with job hazards.'' \36\ Unions improve product or 
service quality. For example, a 2004 paper revealed that 
``[a]fter controlling for patient and hospital characteristics 
. . . hospitals with unionized R.N.'s have 5.5% lower heart-
attack mortality than do non-union hospitals.'' \37\ Moreover, 
unions have been found to increase overall productivity.\38\
---------------------------------------------------------------------------
    \35\ David Card, Thomas Lemieux, and W. Craig Riddell, 
``Unionization and Wage Inequality: A Comparative Study of the U.S., 
U.K., and Canada,'' NBER Working Paper (February 2003).
    \36\ John E. Baugher & J. Timmons Roberts, ``Workplace Hazards, 
Unions & Coping Styles,'' Labor Studies Journal (Summer 2004).
    \37\ Michael Ash & Jean Ann Seago, ``The Effect of Registered 
Nurses' Unions on Heart-Attack Mortality,'' Industrial and Labor 
Relations Review (April 2004), at 422-442. See also Saul A. Rubenstein, 
``The Impact of Co-Management on Quality Performance: The Case of the 
Saturn Corporation,'' Industrial and Labor Relations Review (January 
2000).
    \38\ Christos Doucouliagos & Patrice Laroche, ``The Impact of U.S. 
Unions on Productivity: A Bootstrap Meta-analysis,'' Proceedings of the 
Industrial Relations Research Association (2004); and ``What Do Unions 
Do to Productivity: A Meta-Analysis,'' Industrial Relations (October 
2003). For an earlier study, see Charles Brown & James L. Medoff, 
``Trade Unions in the Production Process,'' Journal of Political 
Economy (June 1978).
---------------------------------------------------------------------------
    Unions, as the only organizations explicitly representing 
workers qua workers, have been instrumental in building and 
preserving nationwide and statewide systems of social insurance 
and worker protections, such as workers' compensation and 
unemployment insurance, occupational safety and health 
standards, and wage and hour laws such as the minimum wage, the 
40-hour workweek, and overtime premium pay.\39\ All Americans 
reap the benefits of these laws and programs, regardless of 
their union or nonunion status.
---------------------------------------------------------------------------
    \39\ Mishel, at 11-14.
---------------------------------------------------------------------------
    Many of these points were laid out in the testimony of 
Professor Harley Shaiken at the February 8, 2007, HELP 
Subcommittee hearing on the Employee Free Choice Act. As 
Professor Shaiken explained: ``[D]eclining unions fuel `the 
Great Disconnect'--rising productivity decoupled from wages.'' 
\40\ But Professor Shaiken went a step further. In his 
analysis, he found that ``more robust unions'' not only stem 
the middle class squeeze but ``contribute to a `High Road 
Competitiveness'--a more broadly shared prosperity that 
benefits working families as well as consumers and 
shareholders.'' \41\
---------------------------------------------------------------------------
    \40\ Shaiken Testimony, at 2.
    \41\ Id.
---------------------------------------------------------------------------
    In his testimony, Professor Shaiken cited a number of 
studies showing how ``unionization and productivity often go 
hand-in-hand.'' For example, greater fairness on the job and 
wages that reflect a company's success lead to more motivated 
employees. Unions foster ``greater commitment and information-
sharing'' between employees and management. A 1984 study found 
that approximately 20 percent of the union productivity effect 
resulted from lower turnover in unionized firms. This is not 
difficult to understand. As Professor Shaiken pointed out: 
``Lower turnover means lower training costs, and the experience 
of more seasoned workers translates into higher productivity 
and quality.'' On a microeconomic level, Professor Shaiken 
cited a number of companies as examples of high-road 
competitiveness, where an employer respected workers' rights, 
paid higher compensation, and achieved higher levels of 
productivity and quality. These examples included the New 
United Motor Manufacturing plant, Costco, Cingular Wireless, 
and the relationships between Culinary Local 226 and the 
hospitality industry in Las Vegas.\42\
---------------------------------------------------------------------------
    \42\ Id. at 5-8.
---------------------------------------------------------------------------
    Professor Shaiken concluded:

          The [Employee Free Choice Act] restores needed 
        balance to a process that has become increasingly 
        dysfunctional. As we have seen, denying workers the 
        right to form a union has important consequences for 
        the economy and the political process. Workers' freedom 
        to form unions is, and should be considered, a 
        fundamental human right. All Americans lose--in fact, 
        democracy itself is weakened--if the right to unionize 
        is formally recognized but undermined in practice. 
        Strengthening free choice in the workplace lays the 
        basis for insuring a more prosperous economy and a 
        healthier society.\43\
---------------------------------------------------------------------------
    \43\ Id. at 8-9.

    On every score, the collective bargaining process has 
produced better wages, benefits, and quality of life for 
America's working families. The decline in collective 
bargaining--in workers' ability to join together to press for a 
better deal--mirrors the tightening squeeze on the middle 
class. That decline also mirrors a rising tide of employer 
disregard for the law and for the fundamental rights of 
workers.

               THE NEED FOR THE EMPLOYEE FREE CHOICE ACT

    H.R. 800, the Employee Free Choice Act, will help lift the 
middle class and help working people get ahead by restoring 
their freedom to organize and bargain for better wages, 
benefits, and working conditions. It does so by strengthening 
the nation's labor law in three fundamental ways.

   THE NEED FOR INCREASED PENALTIES FOR VIOLATIONS OF WORKERS' RIGHTS

    Current penalties for employers who violate the NLRA are 
insufficient to enforce compliance with the law. Instead, many 
employers treat those penalties as a mere cost of doing 
business to prevent their company from being unionized. When an 
employer fires a worker for his pro-union activities, the 
employee must file a charge with the NLRB. After what are often 
many years of appeals by the employer, the employee may finally 
prevail. Employers are only required to reinstate the employee, 
post a notice promising to never do it again, and pay the 
employee back wages minus what the worker earned or should have 
earned in the interim.\44\ In 2003, the average backpay amount 
was a mere $3800.\45\ While nearly cost-free, illegal firings 
are extremely effective in stopping an organizing drive, 
sending a chilling effect throughout the workforce. 
Additionally, for other serious violations, such as illegal 
threats to close the workplace if the union prevails, employers 
are merely subjected to a cease and desist order and notice 
posting. Again, this remedy is often imposed years later, once 
all appeals are exhausted. By that time, the violation has 
served its unlawful purpose of intimidating or coercing 
employees.
---------------------------------------------------------------------------
    \44\ 29 U.S.C. 160(c); NLRB Rules and Regulations, Sections 103.101 
and 103.102(a); NLRB Casehandling Manual, Paragraph 10528 
(reinstatement) and Paragraphs 10530-10546 (backpay).
    \45\ Schiffer Testimony, at 6.
---------------------------------------------------------------------------
    The HELP Subcommittee heard from two witnesses in the 
February 8, 2007, hearing with direct experience in unlawful 
firings. Keith Ludlum began working at a Smithfield Foods 
meatpacking plant in Tar Heel, North Carolina, soon after 
returning from a tour of duty in Iraq during Operation Desert 
Storm.\46\ After experiencing and witnessing poor treatment of 
workers, Mr. Ludlum began trying to organize a union at the 
plant in December 1993. He testified that, in 1994, he was 
fired by the company for attempting to get his co-workers to 
sign union cards with the United Food and Commercial Workers 
(UFCW). He explained that supervisors and a deputy sheriff 
marched him out of the plant in front of his coworkers that day 
``as an example to intimidate them.'' After more unlawful 
worker filings, a string of unfair labor practices, and 12 
years of litigation, Mr. Ludlum finally won his job back. In 
2006, Smithfield settled to reinstate Mr. Ludlum and pay him 
backpay after the company was found liable by a U.S. Court of 
Appeals, for, among other things, assaulting, intimidating, 
firing, and unlawfully arresting workers who were trying to 
organize a union. Mr. Ludlum testified: ``Smithfield was not 
fined or indicted for breaking the law and none of its 
executives were punished.'' The Smithfield facility in Tar 
Heel, North Carolina, remains nonunion.
---------------------------------------------------------------------------
    \46\ Strengthening America's Middle Class through the Employee Free 
Choice Act, Hearing Before the Subcommittee on Health, Employment, 
Labor & Pensions, 110th Cong., 1st Sess. (2007) (written testimony of 
Keith Ludlum) [hereinafter Ludlum Testimony].
---------------------------------------------------------------------------
    Ivo Camilo worked as an electronic machine operator at the 
Blue Diamond Growers plant in Sacramento, California, for 35 
years.\47\ He told the Subcommittee of how he started working 
with fellow employees on a union organizing drive in October 
2004. On April 15, 2005, he and his coworkers presented the 
company with a letter from the organizing committee, signed by 
58 workers, including himself, demanding that their rights 
under the NLRA be respected. Less than a week later, Mr. 
Camilo, a leader of the organizing drive, was fired. In 
addition to firing Mr. Camilo, the company conducted group 
captive audience meetings and one-on-one meetings between 
employees and their supervisors, where management threatened 
that, if the union won, workers could lose pensions and other 
benefits. They also threatened to close the plant if it 
unionized. Soon, two more workers were fired. In March 2006, an 
NLRB Administrative Law Judge issued a decision finding more 
than 20 labor law violations by the company, including 
unlawfully firing Mr. Camilo and another worker. Under threat 
of a discretionary NLRA Section 10(j) injunction which could 
have put Mr. Camilo and his coworker back to work pending any 
appeal, the company relented and reinstated Mr. Camilo in May 
2006. However, two more pro-union workers were fired in 
September 2006 soon after Mr. Camilo's reinstatement. These 
unfair labor practice charges are awaiting decisions from the 
NLRB. In the end, compared to Mr. Ludlum and countless other 
workers fired for organizing a union, Mr. Camilo was one of the 
lucky ones--he was only out of his job for a little over a 
year. But, as Mr. Camilo put it, even under such circumstances: 
``Getting a union shouldn't be so hard. We shouldn't have to 
pay such a high price in hardship when our employers break the 
law.'' The Blue Diamond Grower plant in Sacramento remains 
nonunion.
---------------------------------------------------------------------------
    \47\ Strengthening America's Middle Class through the Employee Free 
Choice Act, Hearing Before the Subcommittee on Health, Employment, 
Labor & Pensions, 110th Cong., 1st Sess. (2007) (written testimony of 
Ivo Camilo) [hereinafter Camilo Testimony].
---------------------------------------------------------------------------
    Stories like Mr. Ludlum's and Mr. Camilo's are far too 
common in the United States and are unacceptable in a democracy 
that respects fundamental human rights, including workers' 
freedom of association. While the hardship imposed by an 
unlawful firing on these individuals and their families is 
enough to demand action, these firings do not happen in a 
vacuum. The human rights violation is compounded by the fear 
and intimidation--fully intended by these unlawful acts--that 
spreads through the workplace when coworkers see pro-union 
activists fired or disciplined for speaking up. The firings 
have a chilling effect on any attempts to exercise workers' 
basic, federally-protected right to organize.
    The remedies for unlawful employer activity during 
organizing and first contract drives, when workers are just 
beginning to understand and exercise their rights, are simply 
insufficient to deter unlawful behavior. This problem was 
apparent to the Congress three decades ago when the U.S. House 
of Representatives passed H.R. 8410, the Labor Reform Act of 
1977, and the Senate came just two votes short of ending debate 
and passing the bill. The Labor Reform Act of 1977, like the 
Employee Free Choice Act, also stiffened penalties for workers' 
rights violations. In the years since, numerous studies have 
drawn similar conclusions. The 1994 Dunlop Commission, for 
example, found that unlawful employer activity had increased 
five-fold since the 1950s, affecting 1-in-20 union election 
campaigns in 1951-55 and 1-in-4 union election campaigns in 
1986-90.\48\ In 2000, Human Rights Watch pointed out: ``Many 
employers have come to view remedies like backpay for workers 
fired because of union activity as a routine cost of doing 
business, well worth it to get rid of organizing leaders and 
derail workers' organizing efforts.'' \49\
---------------------------------------------------------------------------
    \48\ Commission of the Future of Worker-Management Relations (``the 
Dunlop Commission''), Fact Finding Report (1994), at 70 [hereinafter 
Dunlop Fact Finding].
    \49\ Human Rights Watch Report.
---------------------------------------------------------------------------
    In protecting fundamental human rights of workers, the 
NLRA's remedial scheme fails miserably. Its offer of 
reinstatement and backpay, minus interim earnings, to workers 
whose Section 7 rights have been violated stands in stark 
contrast to other federal laborlaws. The Fair Labor Standards 
Act, for instance, provides for double backpay to workers who are not 
paid proper overtime. Anti-discrimination statutes, such as Title VII 
of the Civil Rights Act of 1964 and the Americans with Disabilities 
Act, provide for further compensatory damages, such as for emotional 
distress and inconvenience, as well as punitive damages. The remedial 
or punitive differences between the NLRA and these other statutes sends 
a disturbing message about the seriousness with which federal law 
treats workers' organizing and collective bargaining rights violations. 
This lack of serious treatment has resulted in employers running 
roughshod over workers' rights. It is time for the NLRA to be updated 
and strengthened.
    In the case of firings, it should be pointed out that, in 
addition to the problem of weak monetary penalties under the 
NLRA, the affirmative order of reinstatement is weakened by 
long delays. By the time the order is issued, the employee has 
likely moved on to other work or simply does not wish to return 
to the employer who treated him so unfairly.\50\ Under current 
law, the NLRB has the option--but not the requirement--to seek 
an injunction in federal court against unlawful employer 
activity.\51\ Such an injunction--known as a 10(j) injunction--
might order a fired worker reinstated pending the outcome of 
her unfair labor practice charge. That option is rarely 
utilized by the NLRB and is today more rarely utilized than 
ever before. In the first four years of the George W. Bush 
Administration, for example, the NLRB filed just 69 
injunctions, compared to 219 in President Clinton's first term 
and 142 in President Clinton's second term.\52\ By contrast, 
under current law, the NLRB is required to seek an injunction 
where there is reasonable cause to believe that a union has 
violated the NLRA's secondary boycott prohibitions.\53\ In 
other words, while the NLRA currently mandates that the NLRB 
seek an injunction when a business fears negative economic 
repercussions from an allegedly unlawful picketing, it does not 
mandate an injunction request when a working family fears 
negative economic repercussions from an allegedly unlawful 
firing. This imbalance is in need of correction.
---------------------------------------------------------------------------
    \50\ The Dunlop Commission found that most illegally discharged 
workers do not take up the offer of reinstatement. Dunlop Fact Finding, 
71-72.
    \51\ 29 U.S.C. 160(j).
    \52\ 42nd through 69th NLRB Annual Reports (fiscal years 1977-
2004); ``Workers Rights Under Attack by Bush Administration: President 
Bush's National Labor Relations Board Rolls Back Labor Protections,'' 
Report by Honorable George Miller, Senior Democratic Member, Committee 
on Education and the Workforce, U.S. House of Representatives (July 13, 
2006), at 18-19.
    \53\ 29 U.S.C. 160(l).
---------------------------------------------------------------------------
    Firings themselves are not the only labor law violations 
that anti-union employers find effective in battling organizing 
drives. Forms of fear and intimidation which fall short of 
firings or discipline are also frequently used. Although 
employers often illegally threaten to close plants, or 
unlawfully fire or discipline workers, the remedies under 
current law for such threats inadequate. Under current law, 
threats of that nature are punished merely with a cease and 
desist order and an order to post a notice in the workplace 
that the employer will not engage in those activities again. By 
the time the decision is issued and the order enforced--
sometimes years later--the damage to workers' organizing rights 
has been long done. There is no fine. No backpay is awarded 
unless a worker was actually fired or disciplined in some 
manner that resulted in a loss of pay.
    Penalties for employers' labor law violations must be 
enhanced and rendered more effective in deterring unlawful 
behavior. Even outright opponents of the Employee Free Choice 
Act have admitted as much. Lawrence B. Lindsey, an opponent of 
H.R. 800 and a visiting scholar at the American Enterprise 
Institute, wrote on February 2, 2007, that ``it would be 
reasonable to stiffen the penalties for employers who break the 
law.'' \54\
---------------------------------------------------------------------------
    \54\ Lawrence B. Lindsey, ``Abrogating Workers' Rights,'' Wall 
Street Journal (February 2, 2007).
---------------------------------------------------------------------------
    Accordingly, as explained in more detail in the Section-by-
Section Analysis of this Report, the Employee Free Choice Act 
increases the monetary penalty and injunctive remedies for 
illegal firings and discrimination against employees during any 
period while employees are attempting to organize a union or 
bargain a first contract. The Committee finds that seriously 
stiffening the penalties for violations of workers' fundamental 
human rights is absolutely necessary to restore workers' 
freedom to organize and collectively bargain.

              THE NEED FOR MAJORITY SIGN-UP CERTIFICATION

    Under current law, employees generally have two means to 
obtain union representation. The employer, however, decides 
which means will be used:
          1. NLRB Election Process. If 30% of the workforce 
        signs a petition or cards asking for union 
        representation or an election, the NLRB will conduct an 
        election. If a majority of those voting favor union 
        representation, the NLRB certifies the union, and the 
        employer must recognize and bargain with the union. 
        This election process sets up the union and the 
        employer as adversaries and is tilted dramatically in 
        favor of the employer.
          2.Voluntary recognition (card check or majority sign-
        up). If a majority of the workforce signs cards asking 
        for union representation, the employer may recognize 
        the union and begin bargaining. The employer, however, 
        is not required to recognize a union when a majority 
        signs cards. Instead, the employer may insist that the 
        employees undergo the NLRB election process described 
        above. Given the advantages afforded in that election 
        process, many employers do insist on an election,. 
        Under majority sign-up, a union is formed only if a 
        majority of all employees signs written authorization 
        forms (compared to a majority of those who actually 
        vote in an NLRB election). A worker who does not sign a 
        card is presumed to not support the union.
    Majority-sign up has always been allowed under the NLRA. 
Indeed, the original framers of the NLRA viewed NLRB secret 
ballot elections as a tool for deciding between unions (given 
both the phenomenon of company unions and the rivalry between 
the American Federation of Labor and the Congress of Industrial 
Organizations), not as a tool for deciding whether there would 
be collective bargaining in the workplace or not.\55\
---------------------------------------------------------------------------
    \55\ David Brody, ``Why U.S. Labor Law Has Become a Paper Tiger,'' 
New Labor Forum (Spring 2004).
---------------------------------------------------------------------------
    Today, many employers insist on NLRB elections because they 
are a tool for killing an organizing drive. In short, this 
election process is broken and undemocratic. In the NLRB 
election process, delays of months and even years are common in 
obtaining and certifying election results. Management has 
almost unlimited and mandatory access to employees, while union 
supporters have almost none. Management has total access to a 
complete and accurate list of employees at all times, while 
union supporters may have access very late in the process to a 
list that is often intentionally inaccurate. Under the NLRB 
election process, the union and employer are pitted against one 
another as campaign adversaries. One party--the employer--has 
inherently coercive power over those voters, controlling their 
work lives and having the authority to reward, punish, promote, 
or fire the voters.
    At the HELP Subcommittee hearing on February 8, 2007, 
Professor Lafer presented his research on the nature of NLRB 
elections and how they measure up to American standards for 
free, fair, and democratic elections. He testified: 
``Unfortunately, I must report that NLRB elections look more 
like the discredited practices of rogue regimes abroad than 
like anything we would call American.'' \56\
---------------------------------------------------------------------------
    \56\ Strengthening America's Middle Class through the Employee Free 
Choice Act, Hearing Before the Subcommittee on Health, Employment, 
Labor & Pensions, 110th Cong., 1st Sess. (2007) (written testimony of 
Gordon Lafer, at 1) [hereinafter Lafer Testimony].
---------------------------------------------------------------------------
    As Professor Lafer pointed out, American democratic 
elections involve, as a first step, obtaining a list of 
eligible voters. Under U.S. election law, both parties have 
equal access to the voter rolls. In NLRB elections, on the 
other hand, ``management has a complete list of employee 
contact information, and can use this for campaigning against 
unionization at any time--while employees have no equal right 
to such lists.'' Once an election petition is filed and an 
election scheduled, the union is entitled to an ``Excelsior 
List''--with employee names and addresses--with no right to 
apartment numbers, zip codes, or telephone numbers. On average, 
the Excelsior list is received less than 20 days before an 
election, even though the employer had total access to every 
employee for the entire period of the organizing drive. \57\
---------------------------------------------------------------------------
    \57\ Id. at 2.
---------------------------------------------------------------------------
    Professor Lafer also made the point that economic coercion 
is the hallmark of NLRB elections but entirely forbidden under 
American democratic standards. He quoted Alexander Hamilton, 
who warned that ``power over a man's purse is power over his 
will.'' Accordingly, under U.S. election law, it is unlawful 
for an employer to tell employees how to vote or suggest that 
the victory or loss of a particular candidate would result in 
job or business loss. In NLRB elections, however, the employer 
is free to tell its employees how to vote--and often does so in 
perfectly legal, mandatory captive audience meetings and what 
are termed ``eyeball to eyeball'' or one-on-one supervisor 
meetings with employees. Under the NLRA, an employer can 
``predict'' that a plant will close if the workers unionize, so 
long as it does not cross the line into ``threatening'' closure 
if they unionize. \58\
---------------------------------------------------------------------------
    \58\ Id. at 2-3.
---------------------------------------------------------------------------
    In NLRB elections, there is no such thing as free speech or 
equal access to the media, as American democracy understands 
them. Employers have total access to the eligible voters, as 
they convene everyday in the workplace. The union would be 
trespassing if it attempted to access the voters in the 
workplace. Relegated to standing on public sidewalks outside a 
worksite or making house calls, the union obviously would be 
trespassing if it attempted to access a voter at home--the only 
other place a voter is certain to be--when the voter tells a 
union organizer to leave. Pro-union workers also find their 
speech and access to the media circumscribed. Management can 
plaster a workplace with anti-union propaganda, wherever and 
whenever it wants. Pro-union workers cannot. Management can 
hand out leaflets and talk to employees whenever and wherever 
it wants. Pro-union workers can only talk about the union on 
non-work time. Management can force employees to attend mass 
captive audience meetings or one-on-one supervisory meetings 
against the union, under threat of discipline if they do not 
attend--and even under threat of discipline if they speak up 
during the meeting. Unions have no such ability to force 
workers to attend meetings--and certainly have no right to 
equal time at a company-sponsored captive audience meeting. 
According to Professor Lafer, ``in a typical campaign, most 
employees never even have a single conversation with a union 
representative.'' \59\
---------------------------------------------------------------------------
    \59\ Id. at 3-4.
---------------------------------------------------------------------------
    While much is made of the ``secret ballot'' in NLRB 
elections, these elections are fundamentally undemocratic. 
Moreover, the ``secret ballot'' is often not secret at all. As 
Professor Lafer explained in response to Congresswoman Linda 
Sanchez at the HELP Subcommittee hearing, employers often know 
how every employee is voting on election day. They engage in 
eyeball-to-eyeball or one-on-one supervisor meetings with 
employees to discern their union sentiments. They conduct 
interrogations of employees. They conduct surveillance of 
employees--which is perfectly legal, so long as it is not 
overt. In short, employers keep count of the votes.
    In recent years, because of increased anti-union activity--
both illegal and perfectly legal--by employers in the context 
of NLRB elections, unions have turned more and more to majority 
sign-up or card check agreements as a means to gain 
recognition. Many cutting-edge employers, such as Cingular 
Wireless, Kaiser Health, Marriott, and the National Linen 
Company, have embraced these agreements. Majority sign-up 
procedures have been shown to reduce conflict between workers 
and management, reduce employer coercion and interference, and 
allow workers to freely choose for themselves, whether to 
bargain with their employer for better wages and benefits.\60\
---------------------------------------------------------------------------
    \60\ See e.g., ``Partnerships that Work, In Focus: Cingular 
Wireless,'' American Rights at Work, Socially Responsible Business 
Program (2006) (quoting Rick Bradley, Executive Vice President of Human 
Resources at Cingular Wireless, regarding its majority sign-up 
agreement with the Communications Workers of America, ``We believe that 
employees should have a choice. . . . Making that choice available to 
them results, in part, in employees who are engaged in the business and 
who have a passion for customers.'').
---------------------------------------------------------------------------
    A recent survey of employees at worksites that had 
undergone organizing drives found that, across the board, 
coercion and pressure (both anti-union and pro-union) drop 
under majority sign-up or card check procedures, compared to 
the NLRB election process. Specifically, the survey revealed 
that ``NLRB elections invite far more exposure to coercion than 
card check campaigns.'' In NLRB elections, 46 percent of 
workers reported that management coerced them to oppose the 
union, compared to 23 percent of workers in card check 
campaigns. In NLRB elections, 22 percent of workers reported 
that they felt peer pressure from coworkers to support the 
union, compared to 17 percent in card check campaigns. In 
short, the majority sign-up process reduces both pressure and 
coercion, compared to NLRB elections.\61\
---------------------------------------------------------------------------
    \61\ Adrienne Eaton & Jill Kriesky, ``Fact Over Fiction: Opposition 
to Card Check Doesn't Add Up,'' American Rights at Work Issue Brief 
(March 2006).
---------------------------------------------------------------------------
    The HELP Subcommittee heard testimony on February 8, 2007, 
that affirmed these findings. Cingular Wireless employee Teresa 
Joyce testified about the differences between AT&T Wireless and 
Cingular Wireless, which signed a card check and neutrality 
agreement.\62\ When her worksite was owned by AT&T Wireless, 
management ``did everything they could to stop us from 
exercising our right to form a union. Our supervisors 
constantly threatened that AT&T Wireless would leave our town 
and that we would lose our jobs,'' she explained. When she and 
her coworkers tried to distribute union flyers in the break 
room, supervisors ``would immediately gather the information 
and dispose of it.'' She described efforts by management to 
keep employees uninformed or misinformed about the union and to 
``instill fear through constant threats and lies about the 
union.'' When Cingular Wireless bought AT&T Wireless and 
brought the facility under a card check agreement, however, 
``the harassment and intimidation stopped.'' Employees were 
allowed to distribute literature in the break room and even set 
up a table with literature about the union, the Communications 
Workers of America (CWA). Then, in 2005, a majority of the 
employees signed union authorization cards. Cingular Wireless 
recognized their union and soon bargained a contract with them. 
Ms. Joyce argued that all workers should be given the same free 
and fair opportunity she received with Cingular Wireless:
---------------------------------------------------------------------------
    \62\ Strengthening America's Middle Class through the Employee Free 
Choice Act, Hearing Before the Subcommittee on Health, Employment, 
Labor & Pensions, 110th Cong., 1st Sess. (2007) (written testimony of 
Teresa Joyce) [hereinafter Joyce Testimony].

          Cases such as mine, where the employer agrees to take 
        no position and allow their workers to freely choose 
        whether or not they want a union, are few and far 
        between . . . I had two uncles sacrifice their lives 
        for this great country during World War II. I lost a 
        cousin in the war in Iraq. I have another cousin in 
        Afghanistan and my daughter, Laura, and her husband 
        serve in the U.S. Navy. Every day they risk their lives 
        to protect our freedoms. Every day they work to spread 
        democratic principles and values to audiences abroad. 
        It's outrageous and it's shameful when the very 
        freedoms they fight to preserve are the very freedoms 
        that are routinely trampled on, here, at home.\63\
---------------------------------------------------------------------------
    \63\ Joyce Testimony, at 6.

    Not all workers enjoy the same freedoms that Ms. Joyce has 
had as an employee at Cingular Wireless. Current law allows 
workers to organize via majority sign-up only where the 
employer agrees to it. The critical change that the Employee 
Free Choice Act makes is providing the option of majority sign-
up to all workers. The bill would amend the NLRA by providing 
that if the NLRB finds that a majority of the employees in the 
proposed bargaining unit have signed union authorization cards, 
then the Board will certify the bargaining unit. In other 
words, the employer may not refuse to recognize the union and 
insist on an NLRB election when a majority of workers sign 
cards saying they want a union.
    H.R. 800 does not eliminate the NLRB election process, as 
some critics incorrectly claim. The election process would 
remain available as an option. If 30 percent of the bargaining 
unit signed cards or a petition asking for an NLRB election, 
they would have one. If, however, 50 percent plus one of the 
bargaining unit signed authorization cards asking for 
recognition of their union, and the NLRB verified their 
validity, their union would be certified and recognized. 
Instead of the employer having the authority to veto that 
majority employee choice, the choice of the employee majority 
would rule. More details on how this majority sign-up process 
works under the Employee Free Choice Act are provided in the 
Section-by-Section Analysis.
    It is also important to note that H.R. 800 does not change 
the process for decertifying or withdrawing recognition from a 
union. Under current law, majority sign-up is effectively 
already available to workers seeking to decertify or disband 
their union. In fact, the withdrawal of recognition doctrine 
requires an employer to withdraw recognition from a union--
which has the same effect as a decertification--when the 
employer has objective evidence that the union has in fact lost 
majority support. Such evidence might come in the form of cards 
or a petition against the union. In those cases, unless an 
election is pending, the employer is obligated to withdraw 
recognition.\64\ H.R. 800 does nothing to alter this doctrine.
---------------------------------------------------------------------------
    \64\ See Levitz Furniture Company of the Pacific, 333 NLRB No. 105 
(2001).
---------------------------------------------------------------------------
    Finally, it is important to note that the signed 
authorization cards in H.R. 800's majority sign-up process are 
not ``publicly signed,'' as some critics claim. These cards are 
treated no differently than signed authorization cards under 
the majority sign-up agreements that have been in existence 
since the NLRA's inception. And they are treated no differently 
than the cards or petitions that have been used to obtain an 
NLRB election.

     THE NEED FOR FIRST CONTRACT MEDIATION AND BINDING ARBITRATION

    Even when workers, against all odds, manage to win 
recognition of their union, the victory often proves a hollow 
one. For workers, the entire point of organizing is often to 
negotiate and adopt a collective bargaining agreement with the 
employer. But rather than bargaining in good faith with the 
intention of reaching a final contract, many employers delay 
and undermine the collective bargaining process to frustrate 
employee aspirations for a contract and ultimately bust the 
union.
     A 2001 report on the status of first contract negotiations 
following union election victories in 1998 and 1999 found that 
34 percent of those victories still had not resulted ina 
collective bargaining agreement--in some cases three years after the 
union's certification.\65\ While the parties have an obligation to 
bargain in good faith, this obligation is difficult to enforce. 
Employers easily drag their feet in negotiations in order to avoid 
reaching a contract. Employers do so to run out the clock because, 
after a year of bargaining without a contract, employees may decertify 
the union or the employer may unilaterally withdraw recognition, if 
there is a showing of lack of majority support for the union. As Human 
Rights Watch pointed out: ``The problem is especially acute in newly 
organized workplaces where the employer has fiercely resisted employee 
self-organization and resents their success.'' \66\
---------------------------------------------------------------------------
    \65\ Kate Bronfenbrenner, ``Uneasy Terrain: The Impact of Capital 
Mobility on Workers, Wages, and Union Organizing, Part II: First 
Contract Supplement,'' Submitted to the U.S. Trade Deficit Review 
Commission (June 1, 2001), at 7. The Dunlop Commission also found high 
rates of first contract failures. See Dunlop Fact Finding Report, at 
73.
    \66\ Human Rights Watch Report.
---------------------------------------------------------------------------
    First contract negotiations often become part and parcel of 
an employer's anti-union campaign. Rather than bargaining in 
good faith to reach an agreement, as one scholar points out:

          Consultants advise management on how to stall or 
        prolong the bargaining process, almost indefinitely--
        ``bargaining to the point of boredom,'' in consultant 
        parlance. Delays in bargaining allow more time for 
        labor turnover, create employee dissatisfaction with 
        the union and prevent the signing of a contract. 
        Without a contract, the union is unable to improve 
        working conditions, negotiate wage increases or 
        represent workers effectively with grievances; and by 
        exhausting every conceivable legal maneuver, certain 
        firms have successfully avoided signing contracts with 
        certified unions for several decades.\67\
---------------------------------------------------------------------------
    \67\ John Logan, ``Consultants, Lawyers and the `Union Free' 
Movement in the USA Since the 1970s,'' 33 Industrial Relations Journal 
197 (August 2002).

    Even the current Bush II National Labor Relations Board 
recognizes that ``[i]nitial contract bargaining constitutes a 
critical stage of the negotiation process because it forms the 
foundation for the parties' future labor-management 
relationship.'' \68\ In a memorandum, Bush II General Counsel 
Meisburg wrote in April 2006 that, ``when employees are 
bargaining for their first collective bargaining agreement, 
they are highly susceptible to unfair labor practices intended 
to undermine support for their bargaining representative.'' 
According to General Counsel Meisburg, ``our records indicate 
that in the initial period after election and certification, 
charges alleging that employers have refused to bargain are 
meritorious in more than a quarter of all newly-certified units 
(28%). Moreover, of all charges alleging employer refusals to 
bargain, almost half occur in initial contract bargaining 
situations (49.65%).'' These statistics are high despite the 
fact that proving a lack of good faith in bargaining is 
notoriously difficult.
---------------------------------------------------------------------------
    \68\ Ronald Meisburg, ``First Contract Bargaining Cases,'' General 
Counsel Memorandum, GC 06-05 (April 19, 2006).
---------------------------------------------------------------------------
    Under existing law, the Federal Mediation and Conciliation 
Service (FMCS) may provide mediation and conciliation services 
upon its own motion or upon request of one or more of the 
parties to the dispute, whenever it believes that the dispute 
threatens a substantial interruption to commerce. The NLRA 
currently does not provide for the use of binding arbitration 
to resolve disputes. When an employer bargains in bad faith or 
otherwise unlawfully refuses to bargain, the NLRA's remedy is 
merely an order from the NLRB to resume bargaining.
    The Employee Free Choice Act would provide for more 
meaningful good faith bargaining in first contract cases. As 
detailed in the Section-by-Section analysis, it would provide 
that the parties must begin bargaining within 10 days of 
receiving a written request to begin. Either party may request 
mediation of a first contract after 90 days of bargaining. If 
the mediation does not result in a contract within 30 days, the 
parties then go to binding arbitration. This process would only 
be available during the highly sensitive first contract 
negotiation. It would not be available for subsequent 
contracts. And the time frames are extendable by mutual 
agreement of the parties.
    To effectuate a fundamental purpose of the NLRA--
encouraging collective bargaining--it is critical that the law 
facilitate bargaining particularly in first contract 
situations. This stage serves as ``the foundation for the 
parties' future labor-management relationship,'' as NLRB 
General Counsel Meisburg has pointed out. Achieving a first 
contract fosters a productive and cooperative collective 
bargaining relationship.
    Binding contract arbitration has a proven track record. It 
has long been available for postal service union contracts. In 
Canadian provinces where binding contract arbitration is 
available, it has served to encourage labor and management to 
settle their agreement on their own terms, ``knowing that the 
alternative may be an imposed agreement.'' \69\ For example, in 
2002, Ontario saw a total of nine applications for first 
contract arbitration, and eight of those were withdrawn or 
settled. British Columbia saw a total of 16 applications, and 
15 were withdrawn or settled.\70\
---------------------------------------------------------------------------
    \69\ Alberta Federation of Labour Backgrounder--First Contract 
Arbitration (November 9, 2005), at 1.
    \70\ Id. at 2.
---------------------------------------------------------------------------

                      Section-by-Section Analysis

    Section 1. Provides that the short title of H.R. 800 is the 
``Employee Free Choice Act.''
    Section 2(a). Provides that Section 9(c) of the NLRA is 
amended to provide for a majority sign-up certification process 
for gaining union recognition.
    Specifically, whenever any employee, group of employees, 
individual, or labor organization files a petition alleging 
that a majority of employees in an appropriate bargaining unit 
wish to be represented by an individual or labor organization 
for collective bargaining purposes, the NLRB shall conduct an 
investigation. Such investigation shall involve determining 
whether a majority of employees in an appropriate bargaining 
unit have signed valid authorization cards. If the NLRB finds 
that they have, the NLRB shall certify their designated 
representative as their exclusive bargaining representative.
    Section 2(a) eliminates the employer's prerogative to deny 
recognition on the basis of a majority sign-up with cards and 
eliminates the employer's right to insist upon an NLRB election 
before recognizing a union. This Section does not eliminate the 
NLRB election process, which remains an option for employees as 
it is under current law. However, employees, individuals, or 
labor organizations may submit signed authorization cards to 
the NLRB, as part of a petition for certification, and gain 
recognition without undergoing the NLRB election process. 
Indeed, if a majority sign and submit valid authorization cards 
to the NLRB, notwithstanding any other provision in the NLRA, 
the NLRB must certify their union.
    Section 2(a) also directs the NLRB to establish guidelines 
and procedures for the designation of a bargaining 
representative under the majority sign-up process. Such 
guidelines and procedures must include model language for the 
authorization card to ensure that the purpose of the card will 
be clearly understood by employees, making clear, for example, 
that the card may be used to gain recognition of an exclusive 
bargaining representative without conducting an NLRB election. 
Such guidelines and procedures must also include procedures 
that the NLRB shall use to determine the validity of signed 
authorization cards. The Committee envisions that the NLRB will 
establish procedures similar to those currently used to hear 
election objections. Importantly, the Employee Free Choice Act 
of 2007, as introduced in the 110th, makes clear that the cards 
must be valid. An invalid card would be any card that is 
coerced, obtained by fraud, or inauthentic. Such invalid cards 
may not be counted toward a showing of majority support.
    Section 2(a) also makes clear that the NLRB cannot certify 
an exclusive bargaining representative via the majority sign-up 
process in cases where the employees in question already have a 
certified or otherwise already recognized exclusive bargaining 
representative. In those cases, where one union seeks to 
replace an existing union, the appropriate determination of 
employees' wishes is via an NLRB election under current rules. 
Indeed, conducting elections in cases of competing unions was 
the original intent of the NLRA's election process.\71\ This 
section does not change current law on decertification or the 
withdrawal of recognition doctrine.
---------------------------------------------------------------------------
    \71\ This long-standing rule, preserved by the Employee Free Choice 
Act, is consistent with the call for ``secret ballot elections'' in 
Mexico, made in 2001 by Members of Congress, in the unique context of 
Mexican labor law and in a situation where the workers were attempting 
to abandon an allegedly sham union controlled by the government and 
company and replace it with their own independent union.
---------------------------------------------------------------------------
    Section 2(b). Provides for conforming amendments in light 
of the new majority sign-up certification process. 
Specifically, under this Section, regional directors of the 
NLRB may be authorized to conduct majority sign-up processes, 
just as they are currently authorized to conduct NLRB 
elections. Also, under this Section, the prohibitions on 
recognitional picketing are adjusted to conform with the 
availability of the majority sign-up process for NLRB union 
certification.
    Section 3. Provides for the mediation and binding 
arbitration of initial collective bargaining agreements in 
order to facilitate a good faith bargaining relationship from 
the very beginning between the parties. This Section only 
applies in cases involving a newly certified or otherwise newly 
recognized exclusive bargaining representative and an employer 
negotiating an initial collective bargaining agreement. Under 
this Section, the parties must begin good faith collective 
bargaining within 10 days of receiving a request for bargaining 
from the other party. If the parties do not execute a 
collective bargaining agreement within 90 days of the start of 
bargaining, either party may request mediation from the FMCS. 
The FMCS is directed to use its best efforts, via mediation and 
conciliation, to then bring the parties to agreement. If, 30 
days after mediation request is made, there is still no first 
contract, the FMCS is directed to refer the contract 
negotiations to an arbitration board, under regulations as may 
be prescribed by the FMCS. The arbitration board must issue a 
decision settling the negotiations, binding on the parties for 
two years. The parties may amend the binding, arbitrated 
settlement agreement by written consent during that two year 
period. All time frames within this section may be extended by 
mutual agreement of the parties.
    Section 4(a)(1). Provides for mandatory requests for 
injunctions against employer unfair labor practices during 
organizing and first contract drives. Specifically, in cases 
where an employer is charged to have fired or otherwise 
discriminated against an employee in violation of the 
employee's Section 7 rights, or threatened to do so, or engaged 
in activities that significantly interfere with, restrain, or 
coerce employees in the exercise of their Section 7 rights, 
during an organizing or first contract drive, if the NLRB finds 
that there is reasonable cause to believe that the charge is 
true and a complaint should issue, the NLRB must petition the 
appropriate United States District Court and seek appropriate 
injunctive relief pending final adjudication of the matter.
    Section 4(a)(2). Provides for a conforming amendment to 
ensure that investigating and pursuing such unfair labor 
practice charges are given top priority at the NLRB, just as 
was required for other charges subject to mandatory 
injunctions, such as unlawful secondary boycott charges.
    Section 4(b)(1). Provides for treble backpay for employees 
discriminated against by an employer during an organizing or 
first contract drive. Specifically, an employee who lost pay 
under such circumstances is entitled to receive their backpay, 
plus two times that amount, as liquidated damages.
    Section 4(b)(2). Provides for civil penalties for employer 
unfair labor practices during organizing and first contract 
drives. Specifically, this Section subjects employers during 
organizing and first contract drives to civil penalties of up 
to $20,000 for each willful or repeated unfair labor practice, 
so long as those unfair labor practices constitute interfering, 
restraining, coercing, or discriminating against employees in 
the exercise of their Section 7 rights. The NLRB is directed to 
consider the gravity of the unfair labor practice and its 
impact on the charging party, other persons seeking to exercise 
rights under the NLRA, or the public interest when determining 
the amount of the civil penalty.
    Under this formulation, for example, the civil penalty 
should be larger for larger employers and smaller for smaller 
employers in order to act as an appropriate deterrent to 
unlawful behavior, i.e., to ensure the civil penalty has a 
positive impact on the exercise of Section 7 rights by other 
persons. In any event, these civil penalties are punitive in 
nature, not remedial, and are intended to serve as a deterrent 
to unlawful behavior.

                       Explanation of Amendments

    The Amendment in the Nature of a Substitute is explained in 
the body of this report.

              Application of Law to the Legislative Branch

    Section 102(b)(3) of Public Law 104-1 requires a 
description of the application of this bill to the legislative 
branch. The purpose of H.R. 800 is to strengthen and expand the 
middle class. The bill reforms the National Labor Relations Act 
to provide for union certification through simple majority 
sign-up procedures, first contract mediation and binding 
arbitration, and tougher penalties for violation of workers' 
rights during organizing and first contract drives. As the 
Congressional Accountability Act provides for the application 
of the Federal Labor Relations Act but not the application of 
the National Labor Relations Act, 29 U.S.C. 151 et seq., to the 
legislative branch, H.R. 800 has no application to the 
legislative branch.

                       Unfunded Mandate Statement

    Section 423 of the Congressional Budget and Impoundment 
Control Act (as amended by Section 101(a)(2) of the Unfunded 
Mandates Reform Act, P.L. 104-4) requires a statement of 
whether the provisions of the reported bill include unfunded 
mandates. CBO has determined that the requirement would 
increase the costs of an existing mandate and would thereby 
impose a mandate under the Unfunded Mandates Reform Act (UMRA). 
CBO estimates, however, that the direct cost of complying with 
the new requirements would be negligible. H.R. 800 contains no 
governmental mandates as defined in UMRA and would not affect 
the budgets of state, local, or tribal governments.

                           Earmark Statement

    H.R. 800 does not contain any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9(d), 9(e) or 9(f) of rule XXI.


                        Committee Correspondence

    None.

  Statement of Oversight Findings and Recommendations of the Committee

    In compliance with clause 3(c)(1) of rule XIII and clause 
2(b)(1) of rule X of the Rules of the House of Representatives, 
the Committee's oversight findings and recommendations are 
reflected in the body of this report.

               New Budget Authority and CBO Cost Estimate

    With respect to the requirements of clause 3(c)(2) of rule 
XIII of the Rules of the House of Representatives and section 
308(a) of the Congressional Budget Act of 1974 and with respect 
to requirements of 3(c)(3) of rule XIII of the House of 
Representatives and section 402 of the Congressional Budget Act 
of 1974, the Committee has received the following estimate for 
H.R. 800 from the Director of the Congressional Budget Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                 Washington, DC, February 16, 2007.
Hon. George Miller,
Chairman, Committee on Education and Labor,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 800, the Employee 
Free Choice Act of 2007.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Christina 
Hawley Anthony.
            Sincerely,
                                           Peter R. Orszag,
                                                          Director.
    Enclosure.

H.R. 800--Employee Free Choice Act of 2007

    H.R. 800 would amend the National Labor Relations Act to 
allow workers to unionize by signing a card or petition, in 
lieu of a secret-ballot election. The bill also would provide a 
time frame for employers to begin discussions with the workers' 
union. In addition, the bill would impose civil monetary 
penalties of up to $20,000 for repeated violations of fair 
labor practices. Enacting H.R. 800 could increase revenues from 
those penalties. However, CBO estimates that the amount is 
likely to be less than $500,000 annually.
    H.R. 800 would impose a mandate on private-sector employers 
by adding requirements under the National Labor Relations Act, 
including requiring that employers commence an initial 
agreement for collective bargaining no later than 10 days after 
receiving a request from an individual or a labor organization 
that has been newly organized or certified. CBO has determined 
that the requirement would increase the costs of an existing 
mandate and would thereby impose a mandate under the Unfunded 
Mandates Reform Act (UMRA). CBO estimates, however, that the 
direct cost of complying with the new requirements would be 
negligible. H.R. 800 contains no intergovernmental mandates as 
defined in UMRA, and would not affect the budgets of state, 
local, or tribal governments.
    The CBO staff contacts for this estimate are Christina 
Hawley Anthony (for federal costs) and Paige Shevlin (for 
private-sector mandates). This estimate was approved by Peter 
H. Fontaine, Deputy Assistant Director for Budget Analysis.

         Statement of General Performance Goals and Objectives

    In accordance with clause 3(c) of House rule XIII, the goal 
of H.R. 800 is to strengthen and expand America's middle class 
by restoring workers' freedom to organize and collectively 
bargain under the National Labor Relations Act. The bill 
reforms the National Labor Relations Act to provide for union 
certification through simple majority sign-up procedures, first 
contract mediation and binding arbitration, and tougher 
penalties for violation of workers' rights during organizing 
and first contract drives. The Employee Free Choice Act of 2007 
furthers the long-standing policy of the United States to 
encourage the practice and procedure of collective bargaining 
and to protect the exercise by workers of full freedom of 
association, self-organization, and designation of 
representatives of their own choosing, for the purpose of 
negotiating the terms and conditions of their employment or 
other mutual aid or protection.

                   Constitutional Authority Statement

    Under clause 3(d)(1) of rule XIII of the Rules of the House 
of Representatives, the Committee must include a statement 
citing the specific powers granted to Congress in the 
Constitution to enact the law proposed by H.R. 800. The 
Committee believes that the amendments made by this bill, which 
amend the National Labor Relations Act, are within Congress' 
authority under Article I, section 8, clause 1 and clause 3.

                           Committee Estimate

    Clause 3(d)(2) of rule XIII of the Rules of the House of 
Representatives requires an estimate and a comparison of the 
costs that would be incurred in carrying out H.R. 800. However, 
clause 3(d)(3)(B) of that rule provides that this requirement 
does not apply when the Committee has included in its report a 
timely submitted cost estimate of the bill prepared by the 
Director of the Congressional Budget Office under section 402 
of the Congressional Budget Act.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italics, existing law in which no change 
is proposed is shown in roman):

                      NATIONAL LABOR RELATIONS ACT



           *       *       *       *       *       *       *
                     national labor relations board

  Sec. 3. (a) * * *
  (b) The Board is authorized to delegate to any group of three 
or more members any or all of the powers which it may itself 
exercise. The Board is also authorized to delegate to its 
regional directors its powers under section 9 to determine the 
unit appropriate for the purpose of collective bargaining, to 
investigate and provide for hearings, and determine whether a 
question of representation exists, [and] to direct an election 
or take a secret ballot under subsection (c) or (e) of section 
9 [and certify the results thereof,], and to issue 
certifications as provided for in that section, except that 
upon the filing of a request therefor with the Board by any 
interested person, the Board may review any action of a 
regional director delegated to him under this paragraph, but 
such a review shall not, unless specifically ordered by the 
Board, operate as a stay of any action taken by the regional 
director. A vacancy in the Board shall not impair the right of 
the remaining members to exercise all of the powers of the 
Board, and three members of the Board shall, at all times, 
constitute a quorum of the Board, except that two members shall 
constitute a quorum of any group designated pursuant to the 
first sentence hereof. The Board shall have an official seal 
which shall be judicially noticed.

           *       *       *       *       *       *       *


                         unfair labor practices

  Sec. 8. (a) * * *
  (b) It shall be an unfair labor practice for a labor 
organization or its agents--
          (1) * * *

           *       *       *       *       *       *       *

          (7) to picket or cause to be picketed, or threaten to 
        picket or cause to be picketed, any employer where an 
        object thereof is forcing or requiring an employer to 
        recognize or bargain with a labor organization as the 
        representative of his employees, or forcing or 
        requiring the employees of an employer to accept or 
        select such labor organization as their collective 
        bargaining representative, unless such labor 
        organization is currently certified as the 
        representative of such employees:
                  (A) * * *
                  (B) where within the preceding twelve months 
                a valid election under section 9(c) of this Act 
                has been conducted or a petition has been filed 
                under section 9(c)(6), or
                  (C) where such picketing has been conducted 
                without a petition under section 9(c) being 
                filed within a reasonable period of time not to 
                exceed thirty days from the commencement of 
                such picketing: Provided, That [when such a 
                petition has been filed] when such a petition 
                other than a petition under section 9(c)(6) has 
                been filed the Board shall forthwith, without 
                regard to the provisions of section 9(c)(1) or 
                the absence of a showing of a substantial 
                interest on the part of the labor organization, 
                direct an election in such unit as the Board 
                finds to be appropriate and shall certify the 
                results thereof: Provided further, That nothing 
                in this subparagraph (C) shall be construed to 
                prohibit any picketing or other publicity for 
                the purpose of truthfully advising the public 
                (including consumers) that an employer does not 
                employ members of, or have a contract with, a 
                labor organization, unless an effect of such 
                picketing is to induce any individual employed 
                by any other person in the course of his 
                employment, not to pick up, deliver or 
                transport any goods or not to perform any 
                services.

           *       *       *       *       *       *       *

  (h) Whenever collective bargaining is for the purpose of 
establishing an initial agreement following certification or 
recognition, the provisions of subsection (d) shall be modified 
as follows:
          (1) Not later than 10 days after receiving a written 
        request for collective bargaining from an individual or 
        labor organization that has been newly organized or 
        certified as a representative as defined in section 
        9(a), or within such further period as the parties 
        agree upon, the parties shall meet and commence to 
        bargain collectively and shall make every reasonable 
        effort to conclude and sign a collective bargaining 
        agreement.
          (2) If after the expiration of the 90-day period 
        beginning on the date on which bargaining is commenced, 
        or such additional period as the parties may agree 
        upon, the parties have failed to reach an agreement, 
        either party may notify the Federal Mediation and 
        Conciliation Service of the existence of a dispute and 
        request mediation. Whenever such a request is received, 
        it shall be the duty of the Service promptly to put 
        itself in communication with the parties and to use its 
        best efforts, by mediation and conciliation, to bring 
        them to agreement.
          (3) If after the expiration of the 30-day period 
        beginning on the date on which the request for 
        mediation is made under paragraph (2), or such 
        additional period as the parties may agree upon, the 
        Service is not able to bring the parties to agreement 
        by conciliation, the Service shall refer the dispute to 
        an arbitration board established in accordance with 
        such regulations as may be prescribed by the Service. 
        The arbitration panel shall render a decision settling 
        the dispute and such decision shall be binding upon the 
        parties for a period of 2 years, unless amended during 
        such period by written consent of the parties.

                     representatives and elections

  Sec. 9. (a) * * *

           *       *       *       *       *       *       *

  (c)(1) * * *

           *       *       *       *       *       *       *

  (6) Notwithstanding any other provision of this section, 
whenever a petition shall have been filed by an employee or 
group of employees or any individual or labor organization 
acting in their behalf alleging that a majority of employees in 
a unit appropriate for the purposes of collective bargaining 
wish to be represented by an individual or labor organization 
for such purposes, the Board shall investigate the petition. If 
the Board finds that a majority of the employees in a unit 
appropriate for bargaining has signed valid authorizations 
designating the individual or labor organization specified in 
the petition as their bargaining representative and that no 
other individual or labor organization is currently certified 
or recognized as the exclusive representative of any of the 
employees in the unit, the Board shall not direct an election 
but shall certify the individual or labor organization as the 
representative described in subsection (a).
  (7) The Board shall develop guidelines and procedures for the 
designation by employees of a bargaining representative in the 
manner described in paragraph (6). Such guidelines and 
procedures shall include--
          (A) model collective bargaining authorization 
        language that may be used for purposes of making the 
        designations described in paragraph (6); and
          (B) procedures to be used by the Board to establish 
        the validity of signed authorizations designating 
        bargaining representatives.

           *       *       *       *       *       *       *


                  prevention of unfair labor practices

  Sec. 10. (a) * * *

           *       *       *       *       *       *       *

  (c) The testimony taken by such member, agent, or agency or 
the Board shall be reduced to writing and filed with the Board. 
Thereafter, in its discretion, the Board upon notice may take 
further testimony or hear argument. If upon the preponderance 
of the testimony taken the Board shall be of the opinion that 
any person named in the complaint has engaged in or is engaging 
in any such unfair labor practice, then the Board shall state 
its findings of fact and shall issue and cause to be served on 
such person an order requiring such person to cease and desist 
from such unfair labor practice, and to take such affirmative 
action including reinstatement of employees with or without 
back pay, as will effectuate the policies of this Act: 
Provided, That where an order directs reinstatement of an 
employee, back pay may be required of the employer or labor 
organization, as the case may be, responsible for the 
discrimination suffered by him: [And provided further,] 
Provided further, That if the Board finds that an employer has 
discriminated against an employee in violation of subsection 
(a)(3) of section 8 while employees of the employer were 
seeking representation by a labor organization, or during the 
period after a labor organization was recognized as a 
representative defined in subsection (a) of section 9 until the 
first collective bargaining contract was entered into between 
the employer and the representative, the Board in such order 
shall award the employee back pay and, in addition, 2 times 
that amount as liquidated damages: Provided further, That in 
determining whether a complaint shall issue alleging a 
violation of section 8(a)(1) or section 8(a)(2), and in 
deciding such cases, the same regulations and rules of 
decisions shall apply irrespective of whether or not the labor 
organization affected is affiliated with a labor organization 
national or international in scope. Such order may further 
require such person to make reports from time to time showing 
the extent to which it has complied with the order. If upon the 
preponderance of the testimony taken the Board shall not be of 
the opinion that the person named in the complaint has engaged 
in or is engaging in any such unfair labor practice, then the 
Board shall state its findings of fact and shall issue an order 
dismissing the said complaint. No order of the Board shall 
require the reinstatement of any individual as an employee who 
has been suspended or discharged, or the payment to him of any 
back pay, if such individual was suspended or discharged for 
cause. In case the evidence is presented before a member of the 
Board, or before an examiner or examiners thereof, such member, 
or such examiner or examiners, as the case may be, shall issue 
and cause to be served on the parties to the proceeding a 
proposed report, together with a recommended order, which shall 
be filed with the Board, and if no exceptions are filed within 
twenty days after service thereof upon such parties, or within 
such further period as the Board may authorize, such 
recommended order shall become the order of the Board and 
become effective as therein prescribed.

           *       *       *       *       *       *       *

  (l) [Whenever it is charged that any person has engaged in an 
unfair labor practice within the meaning of paragraph (4)(A), 
(B), or (C) of section 8(b), or section 8(e) or section 
8(b)(7), the preliminary investigation of such charge shall be 
made forthwith and given priority over all other cases except 
cases of like character in the office where it is filed or to 
which it is referred.] (1) Whenever it is charged--
          (A) that any employer--
                  (i) discharged or otherwise discriminated 
                against an employee in violation of subsection 
                (a)(3) of section 8;
                  (ii) threatened to discharge or to otherwise 
                discriminate against an employee in violation 
                of subsection (a)(1) of section 8; or
                  (iii) engaged in any other unfair labor 
                practice within the meaning of subsection 
                (a)(1) that significantly interferes with, 
                restrains, or coerces employees in the exercise 
                of the rights guaranteed in section 7;
        while employees of that employer were seeking 
        representation by a labor organization or during the 
        period after a labor organization was recognized as a 
        representative defined in section 9(a) until the first 
        collective bargaining contract is entered into between 
        the employer and the representative; or
          (B) that any person has engaged in an unfair labor 
        practice within the meaning of subparagraph (A), (B) or 
        (C) of section 8(b)(4), section 8(e), or section 
        8(b)(7);
the preliminary investigation of such charge shall be made 
forthwith and given priority over all other cases except cases 
of like character in the office where it is filed or to which 
it is referred.
  (2) If, after such investigation, the officer or regional 
attorney to whom the matter may be referred has reasonable 
cause to believe such charge is true and that a complaint 
should issue, he shall, on behalf of the Board, petition any 
district court of the United States (including the United 
States District Court for the District of Columbia) within any 
district where the unfair labor practice in question has 
occurred, is alleged to have occurred, or wherein such person 
resides or transacts business, for appropriate injunctive 
relief pending the final adjudication of the Board with respect 
to such matter. Upon the filing of any such petition the 
district court shall have jurisdiction to grant such injunctive 
relief or temporary restraining order as it deems just and 
proper, notwithstanding any other provision of law: Provided 
further, That no temporary restraining order shall be issued 
without notice unless a petition alleges that substantial and 
irreparable injury to the charging party will be unavoidable 
and such temporary restaining order shall be effective for no 
longer than five days and will become void at the expiration of 
such period: Provided further, That such officer or regional 
attorney shall not apply for any restraining order under 
section 8(b)(7) if a charge against the employer under section 
8(a)(2) has been filed and after the preliminary investigation, 
he has reasonable cause to believe that such charge is true and 
that a complaint should issue. Upon filing of any such petition 
other courts shall cause notice thereof to be served upon any 
person involved in the charge and such person, including the 
charging party, shall be given an opportunity to appear by 
counsel and present any relevant testimony: Provided further, 
That for the purposes of this subsection district courts shall 
be deemed to have jurisdiction of a labor organization (1) in 
the district in which such organization maintains its principal 
office, or (2) in any district in which its duly authorized 
officers or agents are engaged in promoting or protecting the 
interests of employee members. The service of legal process 
upon such officer or agent shall constitute service upon the 
labor organization and make such organization a party to the 
suit. In situations where such relief is appropriate the 
procedure specified herein shall apply to charges with respect 
to section 8(b)(4)(D).
  (m) Whenever it is charged that any person has engaged in an 
unfair labor practice within the meaning of subsection (a)(3) 
or (b)(2) of section 8 under circumstances not subject to 
section 10(l), such charge shall be given priority over all 
other cases except cases of like character in the office where 
it is filed or to which it is referred and cases given priority 
under subsection (i).

           *       *       *       *       *       *       *

  Sec. 12. [Any] (a) Any person who shall willfully resist, 
prevent, impede, or interfere with any member of the Board or 
any of its agents or agencies in the performance of duties 
pursuant to this Act shall be punished by a fine of not more 
than $5,000 or by imprisonment for not more than one year, or 
both.
  (b) Any employer who willfully or repeatedly commits any 
unfair labor practice within the meaning of subsections (a)(1) 
or (a)(3) of section 8 while employees of the employer are 
seeking representation by a labor organization or during the 
period after a labor organization has been recognized as a 
representative defined in subsection (a) of section 9 until the 
first collective bargaining contract is entered into between 
the employer and the representative shall, in addition to any 
make-whole remedy ordered, be subject to a civil penalty of not 
to exceed $20,000 for each violation. In determining the amount 
of any penalty under this section, the Board shall consider the 
gravity of the unfair labor practice and the impact of the 
unfair labor practice on the charging party, on other persons 
seeking to exercise rights guaranteed by this Act, or on the 
public interest.

           *       *       *       *       *       *       *


                             MINORITY VIEWS

                              INTRODUCTION

    The right to a private ballot is the cornerstone of our 
democracy. For centuries, Americans--regardless of race, creed, 
or gender--have fought for the right to vote, and the right to 
keep that vote to themselves. In the context of the question of 
whether employees wish to form and join a union, the right to 
vote on that question--free of harassment, coercion, or 
intimidation--and the right to have one's vote known only to 
oneself--not an employer, not a coworker, and not a union--has 
been among the most vital protections our federal labor law 
provides to workers.
    H.R. 800, the deceptively-named ``Employee Free Choice 
Act,'' would strip that right from every American worker. 
Moreover, the bill makes changes to federal labor law's scheme 
of penalties and remedies that are one-sided, unnecessary, and 
unprecedented. Finally, H.R. 800, for the first time in labor 
law's history, imposes a one-size-fits-all scheme of mandatory, 
binding interest arbitration with respect to initial contracts, 
on bargaining parties, again stripping American workers of the 
right to vote on the terms and conditions of their employment. 
For these reasons, we oppose this legislation.

                    THE ``EMPLOYEE FREE CHOICE ACT''

    H.R. 800 represents a three-pronged attack on worker 
rights, each prong of which should be rejected. Specifically, 
the bill:
    Strips Workers of the Right to Private Ballot Elections. 
Current law protects employees from harassment, intimidation, 
and coercion, and ensures that their voices are heard on the 
vital question of whether to form and join a union, by 
providing for a federally-supervised private ballot election 
conducted and supervised with rigorous scrutiny by the National 
Labor Relations Board (the ``NLRB'' or the ``Board''). Simply 
put, H.R. 800 would strip American workers of this right. 
Although bill supporters have attempted to dissemble and 
characterize mandatory ``card check recognition'' as something 
that has been in the law for 60 years, that is simply not the 
case. As noted in the Majority's own views, supra, H.R. 800 
provides that if a union presents a majority of signed union 
authorization cards to the Board, the union must be certified, 
and the right of employees to a private ballot election is 
immediately and absolutely extinguished. This change in the law 
is unprecedented, unwise, and unsupportable.
    Strips Workers of the Right to Vote on Their Collective 
Bargaining Agreement. H.R. 800, for the first time in the 
history of federal labor law, provides that if an employer and 
a union are unable to reach agreement on a first contract 
within 90 days, the Federal Mediation and Conciliation Service 
is provided 30 additional days to do so. If the parties cannot 
reach agreement, the matter is removed entirely from the hands 
of the employer and the union and a federal arbitrator is 
charged to set the terms and conditions of employment for all 
covered employees for two years. Wholly missing from this 
equation is the voice of workers, and the ability of the men 
and women who will be forced to live with this contract for two 
years, to express their views. This provision rewards bad 
behavior, and allows parties to overpromise, posture, and 
bargain in bad faith, while devolving all responsibility for 
the outcome onto a federal bureaucrat. Employers lose, unions 
lose, but most importantly, workers lose.
    Imposes One-Sided and Unwarranted Penalties on Employers, 
but Not Unions. Federal labor law embodied in the National 
Labor Relations Act (``NLRA'' or the ``Act'') is a balanced 
system of rights, responsibilities, and penalties that mete out 
justice to employers and unions on a fair and level basis. H.R. 
800's provisions regarding remedies would, for the first time, 
require the NLRB to seek mandatory injunctive relief, and 
impose triple backpay and civil penalties, on employers who 
violate specified sections of the NLRA. Wholly missing from the 
bill's proposal is any provision applying these same penalties 
to unions who violate the Act. Put more simply, under the bill, 
an employer who violates the rights of an employee faces harsh 
and immediate punishment, while unions who engage in exactly 
the same behavior are not. These provisions unfairly tip the 
balance of law in favor of one side, and should be rejected.

                            REPUBLICAN VIEWS

The right to a secret ballot is sacrosanct
    Republican Members of the Committee could not be more clear 
or resolute on this point: the right to a federally-supervised 
private ballot election represents perhaps the greatest 
protection American workers are afforded under federal labor 
law. We cannot and will not support efforts to strip workers of 
this right. Nor, would it appear, do American workers want us 
to. They too recognize the importance of this right, and in 
overwhelming numbers reject efforts for it to be eliminated. A 
January 2007 polling \1\ of likely voters in all fifty states 
makes their views on this clear:
---------------------------------------------------------------------------
    \1\ Polling conducted by McLaughlin & Associates of Alexandria, 
Virginia, of 1,000 likely general election voters in the United States, 
January 28-31, 2007.
---------------------------------------------------------------------------
           Almost 9 in 10 voters (87 percent) agree 
        that ``every worker should continue to have the right 
        to a federally supervised secret ballot election when 
        deciding whether to organize a union'';
           Four in five voters (79 percent) oppose the 
        Employee Free Choice Act;
           When asked to make a choice as to whether a 
        worker's vote to organize a union should remain private 
        or be public information, 9 in 10 voters (89 percent) 
        say it should remain private; and
           Nine in ten voters (89 percent) believe 
        having a federally-supervised secret ballot election is 
        the best way to protect the individual rights of 
        workers. Only 6 percent think that the Employee Free 
        Choice Act's card signing process is better.
    The American public recognizes that the private ballot 
should be sacred, and that a federally-supervised private 
ballot election conducted by the NLRB is the best way to ensure 
that the rights of all workers are protected, and that the 
outcome reflects an employee's true sentiments with respect to 
the question of unionization. They are not alone. The Supreme 
Court, federal appeals courts, and the National Labor Relations 
Board itself each recognize that a federally-monitored private 
ballot election provides workers with the most protection, and 
is the only true way to ascertain whether a majority of workers 
support unionization:

          [A secret ballot election is the] ``most 
        satisfactory--indeed the preferred--method of 
        ascertaining whether a union has majority support.'' 
        Gissel Packing, 395 U.S. 395 U.S. 575, 602 (1969).
          [Card checks are] ``admittedly inferior to the 
        election process.'' Id.
          ``[I]t is beyond dispute that secret election is a 
        more accurate reflection of the employees' true desires 
        than a check of authorization cards collected at the 
        behest of a union organizer.'' NLRB v. Flomatic Corp., 
        347 F.2d 74, 78 (2d Cir. 1965).
          ``It would be difficult to imagine a more unreliable 
        method of ascertaining the real wishes of employees 
        than a `card check,' unless it were an employer's 
        request for an open show of hands.'' NLRB v. S. S. 
        Logan Packing Co., 386 F.2d 562,565 (4th Cir. 1967).
          ``An election is the preferred method of determining 
        the choice by employees of a collective bargaining 
        representative.'' United Services for the Handicapped 
        v. NLRB, 678 F.2d 661, 664 (6th Cir. 1982).
          ``Workers sometimes sign union authorization cards 
        not because they intend to vote for the union in the 
        election but to avoid offending the person who asks 
        them to sign, often a fellow worker, or simply to get 
        the person off their back, since signing commits the 
        worker to nothing (except that if enough workers sign, 
        the employer may decide to recognize the union without 
        an election).'' NLRB v. Village IX, Inc., 723 F.2d 
        1360, 1371 (7th Cir. 1983).
          ``Freedom of choice is `a matter at the very center 
        of our national labor relations policy,' . . . and a 
        secret election is the preferred method of gauging 
        choice.'' Avecor, Inc. v. NLRB, 931 F.2d 924, 934 (D.C. 
        Cir. 1991) (citations omitted).

    Unions themselves appear to recognize the importance of the 
private ballot, and the critical protections they provide for 
worker rights--at least when the issue is a question of whether 
to decertify a union. The United Food and Commercial Workers 
were direct and succinct in their assertion that secret ballot 
elections run by the National Labor Relations Board are far 
superior to ``card check'' schemes:

          ``Board elections are the preferred means of testing 
        employees' support.'' Brief of United Food and 
        Commercial Workers (UFCW), Levitz Furniture Co. of the 
        Pacific, 333 NLRB 717, 725 (2001).

    In the 109th Congress, former NLRB Member John Raudabaugh 
testified at length as to the superiority of the secret ballot 
election, its recognition by courts as the preferred means of 
testing employee support, and perhaps most important, the 
rigorous and scrupulous regulation of these elections by the 
federal labor board. As Mr. Raudabaugh explained,

          Under current law, employee designation or selection 
        may be by a Board supervised secret-ballot election or 
        by voluntary recognition based on polls, petitions, or 
        union authorization cards. 29 U.S.C. '' 159 (a), (c) 
        (2004). Of these various methods, the United States 
        Supreme Court and the Board have long recognized that a 
        Board conducted secret-ballot election is the most 
        satisfactory, indeed preferred method of ascertaining 
        employee support for a union. (emphasis added).

    Mr. Raudabaugh continued:

          As the Board announced in General Shoe Corp., 77 NLRB 
        124 (1948), ``In election proceedings, it is the 
        Board's function to provide a laboratory in which an 
        experiment may be conducted, under conditions as nearly 
        ideal as possible, to determine the uninhibited desires 
        of the employees. . . .Conduct that creates an 
        atmosphere which renders improbable a free choice will 
        sometimes warrant invalidating an election, even though 
        that conduct may not constitute an unfair labor 
        practice. An election can serve its true purpose only 
        if the surrounding conditions enable employees to 
        register a free and untrammeled choice for or against a 
        bargaining representative.''
          The Board's ``laboratory conditions'' doctrine sets a 
        considerably more restrictive standard for monitoring 
        election related misconduct impairing free choice than 
        the unfair labor practice prohibitions of interference, 
        restraint and/or coercion. Over many years, the Board 
        has developed specific rules and multi-factored tests 
        to evaluate and rule on election objections. In 
        contrast, recognition based on methods other than a 
        Board conducted secret-ballot election is without these 
        ``laboratory conditions'' protections and unless the 
        interfering conduct amounts to an unfair labor 
        practice, there is no remedy for compromising employee 
        free choice (emphasis added; citations omitted).

    Very few points of labor law are black and white. This is 
one of those few. Courts, agencies, experts, lawmakers, and 
most important, American workers, recognize that the secret 
ballot election process is the only way to ensure that workers 
are given true ``choice'' in determining whether to form and 
join a union. Again, in the very words of organized labor:

          [A representation election] ''is a solemn . . . 
        occasion, conducted under safeguards to voluntary 
        choice,'' . . . [Other means of decision-making] are 
        ``not comparable to the privacy and independence of the 
        voting booth,'' and [the secret ballot] election system 
        provides the surest means of avoiding decisions which 
        are ``the result of group pressures and not individual 
        decision[s].'' Joint Brief of the United Automobile, 
        Aerospace, and Agricultural Implement Workers of 
        America, the United Food and Commercial Workers, and 
        the AFL-CIO, Chelsea Industries and Levitz Furniture 
        Co. of the Pacific, Inc., Nos. 7-CA-36846, 7-CA-37016 
        and 20-CA-26596 (NLRB) at 13 (May 18, 1998) (citations 
        omitted).

    Finally, it bears note that some of the very same Members 
of Congress who support this bill have made clear their belief 
that the right to a secret ballot ought to be protected in 
other countries--but not here. No amount of contextualizing, 
pigeonholing, or explanation can deny the inconsistency in 
these Members arguments. As they wrote:

                                                   August 29, 2001.
Junta Local de Conciliacion y Arbitraje del Estado de Puebla,
Lic. Armando Poxqui Quintero, 7 Norte, Numero 1006 Altos,
Colonia Centro, Puebla, Mexico C.P.
    Dear Members of the Junta Local de Conciliacion y Arbitraje 
of the State of Puebla: As members of Congress of the United 
States who are deeply concerned with international labor 
standards and the role of labor rights in international trade 
agreements, we are writing to encourage you to use the secret 
ballot in all union recognition elections.
    We understand that the secret ballot is allowed for, but 
not required by, Mexican labor law. However, we feel that the 
secret ballot is absolutely necessary in order to ensure that 
workers are not intimidated into voting for a union they might 
not otherwise choose.
    We respect Mexico as an important neighbor and trading 
partner, and we feel that the increased use of the secret 
ballot in union recognition elections will help bring real 
democracy to the Mexican workplace.
            Sincerely,
                    George Miller, Marcy Kaptur, Bernard Sanders, 
                            William J. Coyne, Lane Evans, Bob Filner, 
                            Martin Olav Sabo, Barney Frank, Joe Baca, 
                            Zoe Lofgren, Dennis J. Kucinich, Calvin M. 
                            Dooley, Fortney Peter Stark, Barbara Lee, 
                            James P. McGovern, Lloyd Doggett.
    (Emphasis added).

    The Republican Members of the Committee could not say it 
better.

The One-Sided Penalty Provisions of the Bill Are Unjust and 
        Unwarranted, and Its Mandatory Arbitration Provisions Further 
        Strip Workers of Rights

    Extended discussion of the other flaws in this bill is not 
necessary. As noted above, the bill's penalty provisions are, 
simply put, a one-sided swipe at only one side of the 
bargaining equation, namely, employers. Neither the bill nor 
its supporters attempt to disguise this fact. Indeed, as 
detailed below, Committee Democrats unanimously opposed an 
effort to bring some fairness to this provision in rejecting an 
amendment that would have provided that the enhanced penalties 
contained in the bill would apply to union violations as well 
as employer violations of the Act. Under H.R. 800, if an 
employer engages in a variety of specified behavior, it is 
immediately subject to new and severe labor law penalties. A 
union engaging in exactly the same behavior is exempted. That's 
not fair, that's not right, and that's not good policy.
    Nor do Republicans support the bill's effort to take away a 
worker's right to vote on his or her contract. As the Supreme 
Court has noted, the Act is founded on the notion that the 
parties, not the government, should determine the applicable 
terms and conditions of employment:

          The object of this Act was not to allow governmental 
        regulation of the terms and conditions of employment, 
        but rather to ensure that employer and their employees 
        could work together to establish mutually satisfactory 
        conditions. The basic theme of the Act was that through 
        collective bargaining the passions, arguments, and 
        struggles of prior years would be channeled into 
        constructive, open discussions leading, it was hoped, 
        to mutual agreement. But it was recognized from the 
        beginning that agreement might in some cases be 
        impossible, and it was never intended that the 
        Government would in such cases step in, become a party 
        to the negotiations and impose its own views of a 
        desirable settlement. H K. Porter v. NLRB, 397 U.S. 99, 
        103-04 (1970) (emphasis added).

    Current law embodies a delicate balance with respect to the 
parameters within which unions and employers negotiate the 
terms and conditions of employment for workers in a particular 
bargaining unit. H.R. 800 would dramatically upset that balance 
by imposing, via government fiat, mandatory binding 
arbitration--essentially rendering the collective bargaining 
process nearly useless.
    As federal labor law expert and former NLRB Member Charles 
Cohen testified:

          [T]his interest arbitration requirement is unwise 
        public policy. With respect to employees, it would 
        parlay the taking away of a vote on representation with 
        the taking away of a vote on ratification. This is 
        because the contract mandated by the interest 
        arbitrator renders moot employee endorsement. Likewise, 
        it is the employer that must run the business, remain 
        competitive, and pay the employees each week. The union 
        has the opportunity to influence the employer's 
        thinking by engaging in economic warfare. But, the 
        actual agreement is forged in the crucible of what the 
        business can sustain.

Testimony of Charles Cohen, Subcommittee on Health, Employment, 
Labor, and Pensions Hearing ``Strengthening the Middle Class 
Through the Employee Free Choice Act'' (February 8, 2007).
    Apart from eliminating their right to vote with a secret 
ballot on the question of unionization, it is hard to imagine a 
more undemocratic provision, or a rule that provides employees 
with less ``choice.''
    For all of these reasons, we oppose this legislation.

                  COMMITTEE CONSIDERATION OF H.R. 800

    In light of the significant problems in H.R. 800 discussed 
above, during the Committee's consideration of the legislation 
on February 14, 2007, Committee Republicans offered a series of 
amendments designed to protect the rights of workers and ensure 
that federal labor law remains fair, balanced, and equitable 
with respect to all parties. Despite the Majority's rhetorical 
flourishes about protecting the rights of workers, each of 
these amendments met with unanimous Democrat opposition.
    The Committee's Senior Republican Member, Mr. McKeon, 
offered an amendment in the nature of a substitute which would 
have ensured that employees remain free of harassment, 
intimidation, or coercion by any party--union, employer, or co-
worker--by affirmatively prohibiting the use of card check 
recognition, and providing that a union may only be recognized 
and certified after a secret ballot election conducted by the 
NLRB. The McKeon Amendment embodied the text of H.R. 866, the 
Secret Ballot Protection Act, sponsored by the late Honorable 
Charlie Norwood, who chaired the Education and Workforce 
Subcommittee on Workforce Protections in the 107th, 108th, and 
109th Congresses. All Committee Democrats voted against this 
proposal.
    Health, Education, Labor and Pensions Subcommittee Ranking 
Republican Mr. Kline offered an amendment that would have 
provided equity and fairness to the card check process by 
allowing employees who wish to decertify a union as their 
bargaining agent to do so by way of a card check 
decertification. All Committee Democrats voted against this 
proposal.
    Dr. Boustany offered an amendment to ensure that workers 
are afforded the opportunity to sign cards free of harassment 
and coercion, and that they have a neutral party from whom to 
seek information, by requiring that an authorization card is 
not valid unless signed in the presence of an NLRB 
representative. All Committee Democrats voted against this 
proposal.
    Mr. Davis of Tennessee offered an amendment to provide 
fairness and equity in H.R. 800's remedial scheme, by ensuring 
that the bill's new civil penalty provisions would apply 
equally to employers and unions who violate the National Labor 
Relations Act. All Committee Democrats voted against this 
proposal.
    Mr. Walberg offered an amendment designed to ensure that 
workers--whose economic livelihood and survival bear the 
greatest risk when union leadership calls a strike--are able to 
choose for themselves whether to strike, by providing that a 
union may not commence strike unless its members voted on 
management's last, best contract offer. All Committee Democrats 
voted against this proposal.
    In light of the evidence the Subcommittee heard at its 
hearing on February 8, 2007 on H.R. 800 from employees who had 
been badgered and harassed by union organizers, Ms. Foxx 
offered an amendment to ensure that workers are free of 
intimidation, harassment, and coercion by allowing workers to 
notify a union that they did not wish to be contacted in 
connection with a recognition drive and requiring the union to 
honor the worker's request. All Committee Democrats voted 
against this proposal.
    At that same hearing, the Subcommittee also heard testimony 
that union organizers are routinely trained to ignore requests 
from employees to return signed authorization cards, despite 
employees' requests to do so, and that thereafter unions use 
these cards to seek recognition as a bargaining representative 
of these employees. See Testimony of Jennifer Jason, 
Subcommittee on Health, Employment, Labor, and Pensions Hearing 
``Strengthening the Middle Class Through the Employee Free 
Choice Act'' (February 8, 2007) (``I know many workers who 
later, upon reflection, knew that they had been manipulated and 
asked for their card to be returned to them. The union's 
strategy, of course, was never to return or destroy such cards, 
but to include them in the official count towards the majority. 
This is why it is imperative that workers have the time and the 
space to make a reasoned decision based on the facts and their 
true feelings.''). In light of this testimony, Dr. Price 
offered an amendment which would have made it an unfair labor 
practice for a union to fail to return a signed authorization 
card within five days of an employee's request, and prohibited 
the union from using them to establish a card check majority or 
for any other purpose. All Committee Democrats voted against 
the proposal.
    Over the years, the Committee has heard ample testimony as 
to the union practice of ``salting'' a workforce. To ensure 
that newly-hired union organizers who have no interest in the 
long-term well-being of a company and no vested interest in 
their employment could not bind their bona fide coworkers to 
union representation, Mr. Ehlers offered an amendment to 
protect the right of bona fide workers. The Ehlers Amendment 
would simply have provided that a worker be employed with a 
company for 180 days before being eligible to sign a union 
authorization card. All Committee Democrats voted against this 
proposal.
    To ensure that the safety and well-being of all workers are 
protected from the very real threat of union violence, Mr. 
Wilson of South Carolina offered an amendment that would have 
enhanced the NLRB's authority with respect to union organizers 
and labor organizations engaged in or encouraging violent and 
dangerous behavior, prohibited the NLRB from ordering 
reinstatement of an organizer or employee who has engaged or is 
engaging in union violence, and required the NLRB to decertify 
any union found to engage in or encourage the use of violence. 
All Committee Democrats voted against this proposal.
    To protect the right of all workers to be protected from 
forced unionism, Mr. Wilson also offered an amendment which 
would have ensured that no employee can be forced to join a 
union or pay union dues or agency fees. This legislation, based 
on the National Right to Work Act that Mr. Wilson of South 
Carolina has previously sponsored, simply amends the National 
Labor Relations Act to prohibit the use of ``union security 
agreements'' and provide that employees may not be required to 
use their hard-earned pay to pay union dues, simply as a 
condition of keeping their job. All Committee Democrats voted 
against this proposal.
    To address one of the widest-spread problems facing the 
United States--the flagrant violation of its immigration laws, 
and the massive and growing crisis of illegal immigration, Mr. 
Marchant offered an amendment that would have simply required 
that to be considered valid by the Board, a signed 
authorization card be accompanied by an attestation (supported 
by documentary evidence) that the employee was, in fact, a 
legal resident of the United States. Notably, the Marchant 
Amendment would have required no more of unions than is already 
required of employers under federal immigration law, and simply 
would have insured that illegal aliens are not given the right 
to dictate the terms and conditions of legal coworkers. All 
Committee Democrats voted against this proposal.
    Mr. Kline offered an amendment recognizing the special and 
sovereign nature of our nation's Indian tribes, which would 
have provided that the card check provisions contained in H.R. 
800 could not be used to organize employees working for 
businesses owned by Indian tribes and operating on their tribal 
lands. The Kline Amendment would have simply provided that much 
in the way federal labor law does not mandate ``card check'' 
agreements for sovereign state and local governments, it should 
not do so for sovereign Indian tribes. All Committee Democrats 
voted against this proposal.
    Finally, recognizing the wholesale and unprecedented change 
to federal labor law embodied in H.R. 800's provisions 
mandating binding first-contract interest arbitration, Mrs. 
Biggert offered an amendment to strike that section of the 
bill. The Biggert Amendment would have at least ensured that 
while employees may be stripped of a right to vote on whether 
to unionize via H.R. 800's ``card check'' provisions, their 
right to vote on a collective bargaining agreement governing 
the terms and conditions of their employment could not be taken 
away. All Committee Democrats opposed this proposal.
    Given the irremediable flaws in this politically-motivated 
legislation, Committee Republicans were unanimous in opposing 
this bill, and voting against reporting this measure to the 
full House of Representatives.

                               CONCLUSION

    Despite its contortionist title, the so-called ``Employee 
Free Choice Act'' represents an egregious and frontal assault 
on worker rights, the likes of which have not come before the 
Committee in more than a decade. The bill would strip American 
workers of their right to vote their conscience on the question 
of unionization in a federally-supervised private ballot 
election. Instead, the bill is an open invitation to subject 
workers to intimidation, harassment, and deception until they 
``sign the card.'' The bill's provisions increasing damages, 
penalties, and remedies are unwarranted and one-sided, and 
unfairly tip the balance of labor law in the direction of one 
party. Finally, H.R. 800's mandatory, binding arbitration 
provisions would strip workers of the right to vote on the 
terms of a collective bargaining agreement, and would serve 
only to foster more over-promising and misleading claims, with 
even less fear of repercussion.
    H.R. 800 represents the worst sort of legislation, and we 
respectfully oppose it.
                                   Howard P. McKeon.
                                   Tom Petri.
                                   Peter Hoekstra.
                                   Mike Castle.
                                   Mark Souder.
                                   Vernon J. Ehlers.
                                   Todd R. Platts.
                                   Ric Keller.
                                   Joe Wilson.
                                   John Kline.
                                   Cathy McMorris Rodgers.
                                   K. Marchant.
                                   Tom Price.
                                   Luis Fortuno.
                                   C. W. Boustany, Jr.
                                   Virginia Foxx.
                                   Rob Bishop.
                                   David Davis.
                                   Tim Walberg.

                                  
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