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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

[Footnote] According to NLRB Annual Reports between 1993 and 2003, an average of 22,633 workers per year received back pay from their employers. 7

[Footnote] In 2005, this number hit 31,358. 8

[Footnote] 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

[Footnote]

[Footnote 6: American Rights at Work website, at http://www.americanrightsatwork.org/resources/23cite.cfm.]

[Footnote 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].]

[Footnote 8: Shaiken Testimony, at 1.]

[Footnote 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

[Footnote] 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

[Footnote] 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

[Footnote]

[Footnote 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].]

[Footnote 11: Michele Amber, `Union Membership Rates Dropped in 2006 to 12 Percent; Manufacturing Leads the Way,' BNA Daily Labor Report (January 26, 2007).]

[Footnote 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

[Footnote] Additionally, 75 percent of employers facing a union organizing drive hire anti-union consultants. 14

[Footnote] 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

[Footnote] More than half of all employers facing an organizing drive threaten to close all or part of their plants. 16

[Footnote]

[Footnote 13: Kate Bronfenbrenner, `Uneasy Terrain: The Impact of Capital Mobility on Workers, Wages and Union Organizing,' (September 6, 2000).]

[Footnote 14: Id.]

[Footnote 15: Id.]

[Footnote 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

[Footnote]

[Footnote 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

[Footnote] Companies intent on busting organizing drives pay top dollar to anti-union consulting and law firms. 19

[Footnote] 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

[Footnote] 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

[Footnote]

[Footnote 18: John Logan, `The Union Avoidance Industry in the United States,' British Journal of Industrial Relations (December 2006), at 651.]

[Footnote 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.]

[Footnote 20: John Logan, `The Fine Art of Union Busting,' New Labor Forum (Summer 2004), at 78.]

[Footnote 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

[Footnote] According to the report:

[Footnote 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

[Footnote]

[Footnote 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

[Footnote]

[Footnote 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

[Footnote] 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.

[Footnote 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

[Footnote] 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.

[Footnote 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

[Footnote] 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.'

[Footnote 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

[Footnote] 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.'

[Footnote 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

[Footnote] 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.'

[Footnote 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

[Footnote] 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.

[Footnote 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

[Footnote] 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

[Footnote] 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

[Footnote] 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

[Footnote]

[Footnote 31: Lawrence Mishel (with Matthew Walters), `How Unions Help All Workers,' Economic Policy Institute Briefing Paper (August 2003), at 1 [hereinafter Mishel].]

[Footnote 32: Henry S. Farber, `Are Unions Still a Threat? Wages and the Decline of Unions, 1973-2001,' Princeton University Working Paper (2002), at 1.]

[Footnote 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).]

[Footnote 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

[Footnote] 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

[Footnote] 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

[Footnote] Moreover, unions have been found to increase overall productivity. 38

[Footnote]

[Footnote 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).]

[Footnote 36: John E. Baugher & J. Timmons Roberts, `Workplace Hazards, Unions & Coping Styles,' Labor Studies Journal (Summer 2004).]

[Footnote 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).]

[Footnote 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

[Footnote] All Americans reap the benefits of these laws and programs, regardless of their union or nonunion status.

[Footnote 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

[Footnote] 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

[Footnote]

[Footnote 40: Shaiken Testimony, at 2.]

[Footnote 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

[Footnote]

[Footnote 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

[Footnote]

[Footnote 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.

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OPPOSITION TO THE BILL

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

[Footnote 1: of likely voters in all fifty states makes their views on this clear:]

[Footnote 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.

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AMENDMENTS

Amendments For H.R.800

1. H.AMDT.21 to H.R.800 Amendment sought to provide that nothing shall require an employer to employ any person who seeks or has sought employment with the employer in furtherance of such person's other employment or agency status.
Sponsor: Rep King, Steve [IA-5] (introduced 3/1/2007) Cosponsors (None)
Latest Major Action: 3/1/2007 House amendment not agreed to. Status: On agreeing to the King (IA) amendment (A001) Failed by recorded vote: 164 - 264 (Roll no. 114).

2. H.AMDT.22 to H.R.800 Amendment requires the National Labor Relations Board to promulgate standards and a model notice for an employee to put him or herself on a list to avoid union solicitation.
Sponsor: Rep Foxx, Virginia [NC-5] (introduced 3/1/2007) Cosponsors (None)
Latest Major Action: 3/1/2007 House amendment not agreed to. Status: On agreeing to the Foxx amendment (A002) Failed by recorded vote: 173 - 256 (Roll no. 115).

3. H.AMDT.23 to H.R.800 Amendment in the nature of a substitute sought to replace the language of the bill with the text of the "Secret Ballot Protection Act''.
Sponsor: Rep McKeon, Howard P. "Buck" [CA-25] (introduced 3/1/2007) Cosponsors (None)
Latest Major Action: 3/1/2007 House amendment not agreed to. Status: On agreeing to the McKeon amendment (A003) Failed by recorded vote: 173 - 256 (Roll no. 116).

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