<DOC>
[108th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:93255.wais]
DEVELOPMENTS IN LABOR LAW: EXAMINING TRENDS AND TACTICS IN LABOR
ORGANIZATION CAMPAIGNS
=======================================================================
HEARING
before the
SUBCOMMITTEE ON EMPLOYER-EMPLOYEE RELATIONS
of the
COMMITTEE ON EDUCATION
AND THE WORKFORCE
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
__________
April 22, 2004
__________
Serial No. 108-52
__________
Printed for the use of the Committee on Education and the Workforce
Available via the World Wide Web: http://www.access.gpo.gov/congress/
house
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______
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COMMITTEE ON EDUCATION AND THE WORKFORCE
JOHN A. BOEHNER, Ohio, Chairman
Thomas E. Petri, Wisconsin, Vice George Miller, California
Chairman Dale E. Kildee, Michigan
Cass Ballenger, North Carolina Major R. Owens, New York
Peter Hoekstra, Michigan Donald M. Payne, New Jersey
Howard P. ``Buck'' McKeon, Robert E. Andrews, New Jersey
California Lynn C. Woolsey, California
Michael N. Castle, Delaware Ruben Hinojosa, Texas
Sam Johnson, Texas Carolyn McCarthy, New York
James C. Greenwood, Pennsylvania John F. Tierney, Massachusetts
Charlie Norwood, Georgia Ron Kind, Wisconsin
Fred Upton, Michigan Dennis J. Kucinich, Ohio
Vernon J. Ehlers, Michigan David Wu, Oregon
Jim DeMint, South Carolina Rush D. Holt, New Jersey
Johnny Isakson, Georgia Susan A. Davis, California
Judy Biggert, Illinois Betty McCollum, Minnesota
Todd Russell Platts, Pennsylvania Danny K. Davis, Illinois
Patrick J. Tiberi, Ohio Ed Case, Hawaii
Ric Keller, Florida Raul M. Grijalva, Arizona
Tom Osborne, Nebraska Denise L. Majette, Georgia
Joe Wilson, South Carolina Chris Van Hollen, Maryland
Tom Cole, Oklahoma Tim Ryan, Ohio
Jon C. Porter, Nevada Timothy H. Bishop, New York
John Kline, Minnesota
John R. Carter, Texas
Marilyn N. Musgrave, Colorado
Marsha Blackburn, Tennessee
Phil Gingrey, Georgia
Max Burns, Georgia
Paula Nowakowski, Staff Director
John Lawrence, Minority Staff Director
------
SUBCOMMITTEE ON EMPLOYER-EMPLOYEE RELATIONS
SAM JOHNSON, Texas, Chairman
Jim DeMint, South Carolina, Vice Robert E. Andrews, New Jersey
Chairman Donald M. Payne, New Jersey
John A. Boehner, Ohio Carolyn McCarthy, New York
Cass Ballenger, North Carolina Dale E. Kildee, Michigan
Howard P. ``Buck'' McKeon, John F. Tierney, Massachusetts
California David Wu, Oregon
Todd Russell Platts, Pennsylvania Rush D. Holt, New Jersey
Patrick J. Tiberi, Ohio Betty McCollum, Minnesota
Joe Wilson, South Carolina Ed Case, Hawaii
Tom Cole, Oklahoma Raul M. Grijalva, Arizona
John Kline, Minnesota George Miller, California, ex
John R. Carter, Texas officio
Marilyn N. Musgrave, Colorado
Marsha Blackburn, Tennessee
------
C O N T E N T S
----------
Page
Hearing held on April 22, 2004................................... 1
Statement of Members:
Andrews, Hon. Robert E., Ranking Member, Subcommittee on
Employer-Employee Relations, Committee on Education and the
Workforce.................................................. 4
National Labor Relations Board cases, submitted for the
record................................................. 38
Johnson, Hon. Sam, Chairman, Subcommittee on Employer-
Employee Relations, Committee on Education and the
Workforce.................................................. 2
Prepared statement of.................................... 3
Statement of Witnesses:
Cohen, Charles I., Esq., Partner, Morgan Lewis, Counselors at
Law, and Chairman, U.S. Chamber of Commerce, National Labor
Relations Board Subcommittee, Washington, DC, on behalf of
the U.S. Chamber of Commerce............................... 7
Prepared statement of.................................... 9
Letter submitted for the record.......................... 178
Jacob III, Clyde H., Esq., Partner (Labor & Employment),
Jones Walker, New Orleans, LA.............................. 17
Prepared statement of.................................... 19
Letter submitted for the record.......................... 192
Schiffer, Nancy, Esq., Associate General Counsel, AFL-CIO,
Washington, DC............................................. 13
Prepared statement of.................................... 14
Letter submitted for the record.......................... 60
Additional material supplied:
Taubman, Glenn M., Staff Attorney, National Right to Work
Legal Defense Foundation, Inc., Springfield, VA, Statement
submitted for the record................................... 138
DEVELOPMENTS IN LABOR LAW: EXAMINING TRENDS AND TACTICS IN LABOR
ORGANIZATION CAMPAIGNS
----------
Thursday, April 22, 2004
U.S. House of Representatives
Subcommittee on Employer-Employee Relations
Committee on Education and the Workforce
Washington, DC
----------
The Subcommittee met, pursuant to notice, at 10:58 a.m., in
room 2181, Rayburn House Office Building, Hon. Sam Johnson
[Chairman of the Subcommittee] presiding.
Present: Representatives Johnson, Ballenger, Kline,
Andrews, Payne, McCarthy, Kildee, Tierney, Holt, and McCollum.
Staff present: Kevin Frank, Professional Staff Member; Ed
Gilroy, Director of Workforce Policy; Don McIntosh, Staff
Assistant; Jim Paretti, Professional Staff Member; Molly Salmi,
Director of Workforce Policy; Deborah Samantar, Committee
Clerk; Kevin Smith, Senior Communications Counselor; Loren
Sweatt, Professional Staff Member; Jody Calemine, Minority
Counsel Employer-Employee Relations; Margo Hennigan, Minority
Legislative Assistant/Labor; Peter Rutledge, Minority Senior
Legislative Associate/Labor; and Marsha Renwanz, Minority
Legislative Associate/Labor.
Chairman Johnson. A quorum being present, the Subcommittee
on Employer/Employee Relations of the Committee on the
Education and the Workforce will come to order.
We're hearing today testimony on the developments in labor
law, examining trends and tactics in labor organization
campaigns. Under Committee rule 12B, opening statements are
limited to the Chairman and ranking minority member of the
Subcommittee, Mr. Rob Andrews.
Therefore, if other members have statements, they will be
included in the hearing. With that, I ask unanimous consent for
the hearing record to remain open for 14 days till our member
statements and other extraneous material referenced during the
hearing to be submitted in the official hearing record. Hearing
no objection, so ordered.
STATEMENT OF HON. SAM JOHNSON, CHAIRMAN, SUBCOMMITTEE ON
EMPLOYER-EMPLOYEE RELATIONS, COMMITTEE ON EDUCATION AND THE
WORKFORCE
Chairman Johnson. Good morning to you all. Thank you for
being here. It's an honor to chair today's hearing,
Developments in Labor Law: Examining Trends and Tactics in
Labor Organization Campaigns. This is the first in a series of
hearings that this Subcommittee will hold this year, both in
Washington and in the country, in a comprehensive review of our
nation's labor laws.
As we all know, the cornerstone of our nation's labor
policy, the National Labor Relations Act, dates back to the
Great Depression. Other laws, such as Labor Management
Reporting and Disclosure Act, have now passed the half-century
mark. The substance of most of these laws remains largely
unchanged. Yet, the labor market reflects a vastly different
and modern era.
It's our intent that these hearings examine what is working
and what is not. Where Federal labor law is played out as
Congress intended, where it has fallen short, and where and how
these laws might be changed to better address the 21st Century
workforce.
As we examine the trends in labor law, it's fitting that
this morning's hearing focuses on a relatively new trend. More
and more employers are being forced to recognize labor unions
without first holding a secret ballot employee election. The
election process that is guaranteed in law and administered by
the National Labor Relations Board.
Since enactment of the law in 1939, most common means by
which a union has sought to represent employees is through
secret-ballot elections administered by the NLRB. If the
interest is there, the union then petitions for an election,
the employer and union deliver their arguments, and then the
employees decide by way of secret ballot whether or not to
unionize.
To ensure a free and fair process, the election is
administered and supervised by the National Labor Relations
Board. To prevent intimidation or harassment, the law
establishes that neither the union nor an employer may coerce,
harass, or restrain employees in exercising their right to
choose whether or not to support the union.
Perhaps most important is that the employee's choice is
made in the privacy of a voting booth with neither the employer
nor the union knowing how any individual voted. You can call me
old fashioned if you want to, but that sounds like a pretty
good fair system to me.
In the last 10 years, however, we've seen an increased
effort by labor to seek union recognition outside the secret-
ballot process. Indeed, the use of so-called card-check
agreements has become a critical component of labor organizing
strategy. Under a card-check system, a union gathers
authorization cards signed by workers, which supposedly express
their desire to unionize.
Under current law, an employer may voluntarily recognize
unions based on card checks but it's not required. An employer
can always insist upon an election administered by NLRB.
However, employers are often pressured into accepting card
checks by union picketing, threats, or comprehensive corporate
campaigns to discredit or smear the employer publicly.
It's no secret that corporate campaigns have become a key
weapon in organized labor's arsenal of tactics. Unlike the
traditional bargaining process, corporate campaigns center on
making the employer look bad in the public eye. These campaigns
often include intensely negative media campaigns, frivolous
litigation, and picketing. Unions have even gone so far as to
engage in other secondary activity on suppliers, distributors,
and other businesses wholly unrelated to the election at hand.
Increased use of these card checks and pressures that
result from these corporate campaigns raise red flags for a
number of reasons. First, their very nature card checks leave
the employers--employees vulnerable to harassment,
intimidation, and union pressure.
Secret ballots are more accurate indicators than
authorization cards. One court noted 18 percent of those who
sign authorization cards do not want the union. It seems to me
secret-ballot election taken with protections of law is
something that works well, and that's what we should attempt to
make sure occurs in the future.
With that said, our witnesses are three of the nation's
finest minds in the area of labor law, who will give us their
analysis of the legal matters raised in these questions. And I
welcome my witnesses and their testimony.
I now yield to the distinguished minority member, Mr. Rob
Andrews, for any comments he wishes to make.
[The prepared statement of Chairman Johnson follows:]
Statement of Hon. Sam Johnson, Chairman, Subcommittee on Employer-
Employee Relations, Committee on Education and the Workforce
Good morning: It is an honor to chair today's hearing,
``Developments in Labor Law: Examining Trends and Tactics in Labor
Organization Campaigns.''
This is the first in a series of hearings that this Subcommittee
will hold this year, both in Washington and throughout the country, in
a comprehensive review of our nation's labor laws.
As we all know, the cornerstone of our nation's labor policy, the
National Labor Relations Act, dates back to The Great Depression.
Other laws, such as the Labor-Management Reporting and Disclosure
Act, have now passed the half-century mark.
The substance of most of these laws remains largely unchanged. Yet,
the labor market reflects a vastly different and modern era.
It is our intent that these hearings examine what is working and
what is not: where federal labor law is played out as congress
intended, where it has fallen short, and where and how these laws might
be changed to better address a 21st century workforce.
As we examine trends in labor law, it is fitting that this
morning's hearing focuses on a relatively new trend:
More and more, employers are being forced to recognize labor unions
without first holding a secret-ballot employee election--the election
process that is guaranteed in law and administered by the National
Labor Relations Board.
Since enactment of the law in 1939, the most common means by which
a union has sought to represent employees is through secret-ballot
elections administered by the National Labor Relations Board.
If the interest is there, the union then petitions for an election,
the employer and union deliver their arguments, and then the employees
decide by way of a secret-ballot election whether or not to unionize.
To ensure a free and fair process, the election is administered and
supervised by the National Labor Relations Board.
To prevent intimidation or harassment, the law establishes that
neither the union nor an employer may coerce, harass or restrain
employees in exercising their right to choose whether or not to support
the union.
Perhaps most important is that the employee's choice is made in the
privacy of a voting booth, with neither the employer nor the union
knowing how any individual voted.
Now call me old-fashioned but that sounds like a good and fair
system to me.
In the last ten years, however, we have seen an increased effort by
labor to seek union recognition outside of the secret-ballot process.
Indeed, the use of so-called ``card check agreements'' has become a
critical component of labor's organizing strategy.
Under a ``card check'' system, a union gathers ``authorization
cards'' signed by workers which supposedly express their desire to
unionize.
Under current law, an employer may voluntarily recognize unions
based on card checks, but it is not required.
An employer can always insist upon an election administered by the
NLRB. However, employers are often pressured into accepting ``card
checks'' by union picketing, threats, or comprehensive ``corporate
campaigns'' to discredit or smear the employer publicly.
It is no secret that corporate campaigns have become a key weapon
in organized labor's arsenal of tactics. Unlike the traditional
bargaining process, corporate campaigns center on making the employer
look bad in the public eye.
These campaigns often include intensely negative media campaigns,
frivolous litigation, and picketing.
Unions have even gone so far as to engage in other secondary
activity on suppliers, distributors, and other businesses wholly
unrelated to the election at hand.
The increased use of these card checks, and the pressures that
result from these corporate campaigns raise red flags for a number of
reasons.
First, by their very nature, card checks leave employees vulnerable
to harassment, intimidation, and union pressure. Card checks strip
workers of the right to choose, freely and anonymously.
Equally important, the evidence suggests that secret ballot
elections are more accurate indicators than authorization cards of
whether employees actually wish to be recognized by a union.
As one court noted, ``18 percent of those who sign authorization
cards do not want the union.''
As we embark on these hearings, I am reminded of the old saying
``if it ain't broke, don't fix it.''
At least from where I'm sitting, it seems to me that the secret-
ballot election, taken with the protections in law against harassment
and retaliation, is something that works well.
It seems to me that a secret-ballot election is the only way, in
fact, to protect the integrity of a worker's right to vote their
conscience without fear of harassment, intimidation, retaliation,
misinformation, or worse.
With that said, our witnesses today are three of the nation's
finest minds in the area of labor law, who will give us their analysis
of the legal issues raised on these important matters.
I welcome our witnesses and look forward to their testimony today.
______
STATEMENT OF HON. ROBERT E. ANDREWS, RANKING MEMBER,
SUBCOMMITTEE ON EMPLOYER-EMPLOYEE RELATIONS, COMMITTEE ON
EDUCATION AND THE WORKFORCE
Mr. Andrews. Thank you, Mr. Chairman, and good morning. We
start from a common principle that no person should be coerced
into making a decision against his or her own will as to
whether to join a union. I think that's the principle for which
there is unanimity.
My concern is that this hearing is going to build an
inadequate and incomplete record on the question of coercion of
people when they choose to join or not join a union.
I fear that this record will be incomplete in three key
respects. First, is that we heard the Chairman make a number of
conclusory statements about widespread and rampant coercion by
unions in the context of card check--card signings by union
members. I look forward to hearing that record amplified during
this hearing. I think if we're going to make such statements,
it's the obligation of those who would support those statements
to give evidence and factual statements that would back that
up. It's rather easy to make these conclusory statements. I'll
be anxious to see the record that supports that conclusion.
Second, you know, coercion is a two-way street when it
happens, and the focus should not simply be on the act that is
the terminal act of deciding whether or not a union comes in,
whether that's a vote cast or a card signed, but it ought to be
the entire context of the employer/employee relationship
leading up to that.
This record should also include discussions of one-on-one
meetings, captive-audience meetings, examinations of in-house
public relations and persuasion campaigns by employers. I do
not submit that all employers engage in coercive tactics within
an organizing drive context but some certainly do, and it's
important that the record bear out those facts, as well as
facts about alleged coercion on the union's side.
Finally, there's an important omission from the hearing as
far as I can tell, and that is the question of what happens
when there's been a fair election and the employees have opted
to be collectively bargained represented by a union and the
employer fails to negotiate in good faith for the first
contract.
What remedies exist when an employer has fought and lost
the election and just chooses not to recognize it, not by
appealing the result of the election, but by interminably
dragging out the bargaining process in bad faith.
What kind of economic sanctions militate against that
result. It can lead us through a situation where winning an
election really isn't winning at all, because the time that
lapses from the victory in the election to the conclusion of
the first contract is intolerably long and, in fact, costs the
people in the union--the workers in the union--a significant
amount, because there's no raise or no increase in benefits
while that is going on.
So I do accept the notion that it's our responsibility to
look at coercion from any side; from all sides when a worker is
about to choose whether to join a union or not.
But any examination of coercion bears with it the
responsibility of laying out on the record facts of coercive
practices, carries with the responsibility of examining
coercive practices by employers in the work place leading up to
the decision, and I believe carries with it the responsibility
of understanding what I believe is the course of practice of
ignoring the result of a freely chosen union election in
refusing to bargain in good faith with the duly elected
representatives of the workers.
I don't see anything suggesting we're going to raise those
questions. We certainly will take an opportunity to do so
during the discussion with the panel. So I do look forward to
hearing from the witnesses and thank the Chairman for his
courtesies.
Chairman Johnson. Thank you, Mr. Andrews. I appreciate your
confidence and, you know, I think you and I both look for open
discussion in trying to find out the real facts. Despite the
fact that you're a lawyer, you're a good guy.
Mr. Andrews. Flattery will get you everywhere.
Chairman Johnson. We have a very distinguished panel of
witnesses before us today, and I thank you all for coming, and
I'm going to introduce you each. I'm quite impressed by the
backgrounds of all three of you.
Mr. Charles Cohen is a partner in the labor and employment
practice of Morgan Lewis, one of the country's leading labor
law firms. Mr. Cohen's practice focuses on representing senior
management in complex labor and employment law matters in the
private sector.
From '94 to '96, Mr. Cohen served as a member of the
National Labor Relations Board. Prior to that, Presidential
appointment. He had in-depth executive and staff labor law
experience with the NLRB, as well as private practice.
He has a comprehensive background in collective bargaining
issues and all facets of labor and employee relations. Mr.
Cohen also serves as chair of the United States Chamber of
Commerce, NLRB Subcommittee, and is a fellow of the College of
Labor and Employment Lawyers.
Mr. Cohen is testifying today on behalf of the U.S. Chamber
of Commerce.
Our second witness, Ms. Nancy Schiffer, has been an
associate general counsel with the American Federation of Labor
Congress of Industrial Organization since 2000. Her areas of
responsibility involve NLRB and organizing-related projects.
Prior to coming to the AFL-CIO, Ms. Schiffer was deputy
general counsel of the United Auto Workers in Detroit,
Michigan. In addition to her administrative responsibilities
there, her practice areas included NLRB, organizing, collective
bargaining, and contract enforcement, arbitration, strikes, and
lock outs, plant closings, relocations, and retiree health
insurance litigation.
She practiced with a union-side labor firm from '79 till
'82, and prior to that, with the National Labor Relations
Board, Detroit Regional Offices, a field attorney. Ms. Schiffer
is a member of the ABA Labor and Employment Law Section and its
committee on practice and procedures under the NLRB.
Our third witness, Mr. Clyde Jacob, is a partner in the
labor and employment section of Jones Walker, the leading
national law firm. Mr. Jacob's experience spans over 25 years,
exclusively in the field of labor and employment relations,
representing management.
He has represented employers in responding to union
organizing, boycotts, National Labor Relations Board,
representation cases in corporate campaigns throughout the
United States, Puerto Rico, Brazil, Norway, the United Kingdom,
Singapore, and Nigeria.
Before the witnesses begin their testimony, I would like to
remind members that we will be asking questions after the
entire panel has testified. In addition, Committee rule two
imposes a 5-minute limit on all questions.
And we also would like to adhere to a 5-minute rule on your
testimony initially, if you don't mind. The lights down there
that you saw them function for us they come on green when you
first start, and then you'll see a yellow light with 1 minute
remaining, and if you would conclude your remarks when the red
light comes on.
I'd like to recognize the first witness now for your
testimony. You may begin, sir.
STATEMENT OF CHARLES I. COHEN, ESQ., PARTNER, MORGAN LEWIS,
COUNSELORS AT LAW, AND CHAIRMAN, U.S. CHAMBER OF COMMERCE,
NATIONAL LABOR RELATIONS BOARD SUBCOMMITTEE, WASHINGTON, DC, ON
BEHALF OF THE U.S. CHAMBER OF COMMERCE
Mr. Cohen. Chairman Johnson, Mr. Andrews, and members of
the Subcommittee, I am pleased and honored to be here today.
Thank you for your kind invitation.
At the head of the National Labor Relations Act is the
secret-ballot election process, administered by the National
Labor Relations Board. If a group of employees in an
appropriate collective bargaining unit wishes to select a union
to represent them, the board will hold a secret-ballot
election, based on a petition supported by at least 30 percent
of the employees in the unit.
The board administers the election by bringing portable
voting booths, ballots, and a ballot box to the work place. The
election process occurs outside the presence of any supervisors
or managerial representatives of the employer.
No campaigning of any kind may occur in the voting area.
The only people who are allowed in the voting area are the NLRB
agent, the employees who are voting, and certain designated
employee observers.
As the Supreme Court and numbers of Courts of Appeal have
stated, a secret-ballot election is the preferred method of
ascertaining whether a union has majority support. Although
authorization cards may adequately reflect employee sentiment
when the election process has been impeded, the Supreme Court
recognized that cards are admittedly inferior to the election
process.
Yet, one of the highest priorities of unions today is to
obtain agreements from employers, which would allow the union
to become the exclusive bargaining representative of a group of
employees without ever seeking an NLRB supervised election.
These agreements, which are often referred to as neutrality
or chard-check agreements, come in a variety of forms. In some
cases the agreement calls for the employer to recognize the
union if it produces signed authorization cards from a majority
of employees. In many cases the agreement includes other
provisions, which are designed to facilitate the union's
organizing campaign, such as limitations or a gag order on
employer communications to employees about the union.
An agreement to provide the union with a list of names and
home addresses of employees in the unit. An agreement to allow
the union access to the employer's facility to distribute
literature and meet with employees. And an agreement to extend
recognition based on card checks rather than a secret-ballot
election.
Whatever form the agreement may take the basic goal is the
same. To establish a procedure which allows the union to be
recognized without the involvement or sanction of the NLRB.
Neutrality agreements and card-check agreements, therefore,
present a direct threat to the jurisdiction of the NLRB and its
crown jewel the secret-ballot election process. There are many
explanations for the precipitous decline of union density. The
globalization of U.S. corporations, the increasing regulation
of the work place through Federal legislation, rather than
collective bargaining, and the changing culture of the American
work place.
While unions may not disagree with these explanations to
varying degrees, they claim that the NLRB's election process
and the current law is to blame. They argue that the election
process is slow and ineffective, and that this alternate
procedure is needed.
I believe there are two basic problems with this argument.
First, it is not supported by the facts. The NLRB's election
process is efficient and fair, as demonstrated by hard
statistics cited in my statement. Second, neutrality card-check
agreements limit employee free choice, and are generally the
product of damaging leverage exerted by the union against the
employer.
To be sure, there are horror stories of employers who abuse
the system and commit egregious unfair labor practices in order
to prevail in an election. In such cases the law provides
remedies for the employers' unlawful behavior, including even
bargaining orders based on authorization card majorities. But
these situations are the exception rather than the norm. In the
overwhelming majority of cases where employees choose not to be
represented by a union, they do so based on the information
that is presented by both sides during the campaign process.
An important problem with neutrality card-check agreements
is the method by which they are negotiated. They are typically
a function of leverage rather than a groundswell from the
employees to have the system determined by that.
There is no cause, I submit, for abandoning secret-ballot
election process, which the board has administered for seven
decades. The Act's system of industrial democracy has withstood
the test of time, because its focus is on the true
beneficiaries of the Act, the employees.
In my view the Miller-Kennedy Bill is not sound public
policy, because it would deprive employees of the fundamental
right to determine the important question of union
representation by casting their vote in a board-supervised
secret-ballot election. Indeed, it would be unwise public
policy to abandon government-supervised secret-ballot elections
in favor of mandatory card check. I would think that that
would, in fact, be a self-evident proposition that a secret-
ballot government election would be preferable.
I'm aware that the Committee has previously considered
quite opposite legislation, which would require the union
representation for currently unrepresented groups of employees
be determined by a secret-ballot election. Without the
increasing use of corporate campaigns and neutrality/card check
agreements over the last decade--a trend which has eroded
employee free choice and which reflects a shift in focus from
organizing employees to organizing employers often as a result
of corporate campaigns--such legislation would not be needed.
But in light of this trend, such legislation in my view is
necessary to protect the interests of employees the Act is
intended to benefit by ensuring that the right to vote is not
compromised by agreements which are the product of external
pressure on their employer.
This concludes my oral presentation.
[The prepared statement of Mr. Cohen follows:]
Statement of Charles I. Cohen, Esq., Partner, Morgan Lewis, Counselors
at Law, and Chairman, U.S. Chamber of Commerce, National Labor
Relations Board Subcommittee, Washington, DC
Chairman Johnson and Members of the Subcommittee, I am pleased and
honored to be here today. Thank you for your kind invitation.
By way of introduction, I was appointed by President Clinton,
confirmed by the Senate, and served as a Member of the National Labor
Relations Board from March 1994 until my term expired in August 1996.
Before becoming a Member of the Board, I worked for the NLRB in various
capacities from 1971 to 1979 and as a labor lawyer representing
management in private practice from 1979 to 1994. Since leaving the
Board in 1996, I have returned to private practice and am a Senior
Partner in the law firm of Morgan, Lewis & Bockius LLP. I am a member
of the Labor Relations Committee of the U.S. Chamber of Commerce, and
Chair of its NLRB subcommittee, and am testifying today on behalf of
the U.S. Chamber of Commerce.
The National Labor Relations Act was enacted in 1935 and has been
substantially amended only twice--once in 1947 and once in 1959. The
Act establishes a system of industrial democracy which is similar in
many respects to our system of political democracy. At the heart of the
Act is the secret ballot election process administered by the National
Labor Relations Board. In order to understand how recent trends in
organizing are diluting this central feature of the Act, some
background is necessary.
The NLRB's Secret Ballot Election Process
If a group of employees in an appropriate collective bargaining
unit wishes to select a union to represent itself, the Board will hold
a secret ballot election based on a petition supported by at least 30%
of employees in the unit. The Board administers the election by
bringing portable voting booths, ballots, and a ballot box to the
workplace. The election process occurs outside the presence of any
supervisors or managerial representatives of the employer. No
campaigning of any kind may occur in the voting area. The only people
who are allowed in the voting area are the NLRB agent, the employees
who are voting, and certain designated employee observers.
The ultimate question of union representation is determined by
majority rule, based on the number of valid votes cast rather than the
number of employees in the unit. If a majority of votes are cast in
favor of the union, the Board will certify the union as the exclusive
bargaining representative of all employees in the collective bargaining
unit. Once a union is certified by the Board, it becomes the exclusive
representative of all of the unit employees, whether or not they voted
for the union. The employer is obligated to bargain with the union in
good faith with respect to all matters relating to wages, hours, and
working conditions of the bargaining unit employees.
The Board is empowered to prosecute employers who engage in conduct
that interferes with employee free choice in the election process, and
may order a new election if such employer interference with the
election process has occurred. The Board will also order the employer
to remedy such unfair labor practices, for example by ordering the
employer to reinstate and compensate an employee who was unlawfully
discharged during the election campaign. In extreme cases, the Board
may even order an employer to bargain with the union without a new
election, if the Board finds that its traditional remedies would not be
sufficient to ensure a fair rerun election and if there is a showing
that a majority of employees at one point desired union representation.
The Supreme Court affirmed the Board's power to issue this
extraordinary remedy in NLRB v. Gissel Packing Co., 395 U.S. 575
(1969). When issuing a Gissel bargaining order, the Board will
determine whether majority support for the union existed by checking
authorization cards signed by employees during the organizing process.
As the Board and the Supreme Court have acknowledged, the use of
authorization cards to determine majority support is the method of last
resort. 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. at 602. Although authorization
cards may adequately reflect employee sentiment when the election
process has been impeded, the Board and the Court in Gissel recognized
that cards are ``admittedly inferior to the election process.'' Id.
Other federal courts of appeal have expressed the same view:
<bullet> ``[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).
<bullet> ``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. The one is no more reliable than the other...Overwhelming
majorities of cards may indicate the probable outcome of an election,
but it is no more than an indication, and close card majorities prove
nothing.'' NLRB v. S. S. Logan Packing Co., 386 F.2d 562, 565 (4th Cir.
1967).
<bullet> ``The conflicting testimony in this case demonstrates
that authorization cards are often a hazardous basis upon which to
ground a union majority.'' J. P. Stevens & Co. v. NLRB, 441 F.2d 514,
522 (5th Cir. 1971).
<bullet> ``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).
<bullet> ``Although the union in this case had a card majority, by
itself this has little significance. 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).
<bullet> ``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).
Having recognized in Gissel that a secret ballot election is the
superior method for determining whether a union has majority support,
the Supreme Court in Linden Lumber v. NLRB, 419 U.S. 301 (1974), held
that an employer may lawfully refuse to recognize a union based on
authorization cards and insist on a Board-supervised secret ballot
election. The only exceptions to an employer's right to insist on an
election are when the employer, as in the Gissel situation, has engaged
in unfair labor practices that impair the electoral process or when the
employer has agreed to recognize the union based on a check of
authorization cards. Thus, an employer can agree to forgo a secret
ballot election and abide by the less reliable card check method of
determining union representation.
The Increasing Use of Neutrality/Card Check Agreements in Organizing
Campaigns
One of the highest priorities of unions today is to obtain
agreements from employers which would allow the union to become the
exclusive bargaining representative of a group of employees without
ever seeking an NLRB-supervised election. These agreements, which are
often referred to as ``neutrality'' or ``card check'' agreements, come
in a variety of forms. In so me cases, the agreement simply calls for
the employer to recognize the union if it produces signed authorization
cards from a majority of employees. In many cases, the agreement
includes other provisions which are designed to facilitate the union's
organizing campaign, such as:
<bullet> An agreement to provide the union with a list of the
names and addresses of employees in the agreed-upon unit;
<bullet> An agreement to allow the union access to the employer's
facilities to distribute literature and meet with employees;
<bullet> Limitations or a ``gag order'' on employer communications
to employees about the union;
<bullet> An agreement to start contract negotiations for the
newly-organized unit within a specified (and short) time frame, and to
submit open issues to binding interest arbitration if no agreement is
reached within that time frame; and
<bullet> An agreement to extend coverage of the neutrality/card
check agreement to companies affiliated with the employer.
Whatever form the agreement may take, the basic goal is the same:
to establish a procedure which allows the union to be recognized
without the involvement or sanction of the National Labor Relations
Board. Neutrality and card check agreements therefore present a direct
threat to the jurisdiction of the Board and its crown jewel, the secret
ballot election process. I have written two law review articles
discussing this trend. See Charles I. Cohen, Neutrality Agreements:
Will the NLRB Sanction Its Own Obsolescence?, The Labor Lawyer (Fall,
2000); Charles I. Cohen and Jonathan C. Fritts, The Developing Law of
Neutrality Agreements, Labor Law Journal (Winter, 2003).
The motivating force behind neutrality/card check agreements is the
steady decline in union membership among the private sector workforce
in the United States. Unions today represent only about eight percent
of the private sector workforce, about half of the rate twenty years
ago. See U.S. Department of Labor, Bureau of Labor Statistics, Union
Members in 2003 (Jan. 21, 2004), available at http://www.bls.gov/
news.release/pdf/union2.pdf. There are many explanations for this
precipitous decline: the globalization of U.S. corporations, the
increasing regulation of the workplace through federal legislation
rather than collective bargaining, and the changing culture of the
American workplace. While unions may not disagree with these
explanations to varying degrees, they claim that the NLRB's election
process is also to blame. Unions argue that the NLRB's election process
is slow and ineffective, and therefore an alternative process is
needed--namely, neutrality/card check agreements.
I believe there are two basic problems with this argument. First,
it is not supported by the facts. The NLRB's election process is
efficient and fair, as demonstrated by hard statistics. Second,
neutrality/card check agreements limit employee free choice and are
generally the product of damaging leverage exerted by the union against
the employer.
The NLRB's Election Process Is Efficient and Fair
The standard union criticisms of the NLRB's election process are
more rhetorical than factual. Unions argue that the NLRB's election
process is slow and allows employers to exert undue influence over
employees during the pre-election period. Both of these arguments are
not supported by the facts.
The NLRB's election process is not slow. In fiscal year 2003, 92.5%
of all initial representation elections were conducted within 56 days
of the filing of the petition. Memorandum GC-04-01, Summary of
Operations (Fiscal Year 2003), at p. 5 (December 5, 2003), available at
http://www.nlrb.gov/nlrb/shared_files/gcmemo/gcmemo/gc04-
01.pdf?useShared=/nlrb/about/reports/gcmemo/default.asp. During that
same time period, the median time to proceed to an election from the
filing of a petition was 40 days. Id. Based on my experience over the
past 30 years, these statistics demonstrate that the Board's election
process has become even more efficient over time.
Unions are currently winning over 50% of NLRB secret ballot
elections involving new organizing. This is the category of elections
that unions are seeking to replace with neutrality/card check
agreements, and it is also the same category of elections that would be
replaced by the Miller-Kennedy bill. If anything, unions' win rate in
representation elections is on the rise. The NLRB's most recent
election report shows that unions won 58.9% of all elections involving
new organizing. See NLRB Election Report; 6-Months Summary--April 2003
through September 2003 and Cases Closed September 2003, at p. 19 (March
26, 2004).
This figure is about the same as it was 40 years ago. In 1965,
unions won 61.8% of elections in RC cases (cases which typically
involve initial organizing efforts, as opposed to decertification
elections or employer petitions). See Thirtieth Annual Report of the
National Labor Relations Board, at p. 198 (1965). After 1965, unions'
election win rate declined before rising back to the level where it is
today:
<bullet> In 1975, unions won 50.4% of elections in RC cases. See
Fortieth Annual Report of the National Labor Relations Board, at p. 233
(1975).
<bullet> In 1985, unions won 48% of elections in RC cases. See
Fiftieth Annual Report of the National Labor Relations Board, at p. 176
(1985).
<bullet> In 1995, unions won 50.9% of elections in RC cases. See
Sixtieth Annual Report of the National Labor Relations Board, at p. 153
(1995).
These statistics undermine any argument that the NLRB's election
process unduly favors employers, or that the recent decline in union
membership among the private sector workforce is attributable to
inherent flaws in the NLRB's election process. Unions are winning NLRB
elections at the same or higher rate now than they have in almost forty
years. To be sure, there are ``horror stories'' of employers who abuse
the system and commit egregious unfair labor practices in order to
prevail in an election. In such cases, the law provides remedies for
the employer's unlawful behavior, including Gissel bargaining orders.
But these situations are the exception rather than the norm. In the
overwhelming majority of cases where employees choose not to be
represented by a union, they do so based on the information that is
presented by both sides during the campaign process.
Problems with Neutrality/Card Check Agreements
The fundamental right protected by the National Labor Relations Act
is the right of employees to choose freely whether to be represented by
a union. 29 U.S.C. Sec. 157. Neutrality/card check agreements limit
employee free choice by restraining employer free speech. Section 8(c)
of the Act protects the right of employers to engage in free speech
concerning union representation, as long as the employer's speech does
not contain a threat of reprisal or a promise of benefit. 29 U.S.C.
Sec. 158(c). Unions, through neutrality/card check agreements, seek to
restrain lawful employer speech by prohibiting the employer from
providing employees with any information that is unfavorable to the
union during the organizing campaign. Such restrictions or ``gag
orders'' on lawful employer speech limit employee free choice by
limiting the information upon which employees make their decision.
A second problem with neutrality/card check agreements is the
method by which they are negotiated. In my experience, neutrality/card
check agreements are almost always the product of external leverage by
unions, rather than an internal groundswell from unrepresented
employees. The leverage applied by the union can come from a variety of
sources. In many cases, the union has leverage because it represents
employees at some of the employer's locations. The union may be able to
use leverage it has in negotiations for employees in an existing
bargaining unit, in order to win a neutrality/card check agreement that
will facilitate organizing at other locations. Bargaining over a
neutrality/card check agreement, however, has little or nothing to do
with the employees in the existing bargaining unit, and it detracts
from the negotiation of the core issues at hand--wages, hours, and
working conditions for the employees the union already represents.
In other cases, the union exerts pressure on the employer through
political or regulatory channels. For example, if the employer needs
regulatory approval in order to begin operating at a certain location,
the union may use its political influence to force the employer to
enter into a neutrality/card check agreement for employees who will be
working at that location. Political or regulatory pressure may be
coupled with other forms of public relations pressure in order to exert
additional leverage on the employer. In general, this combination of
political, regulatory, public relations and other forms of non-
conventional pressure has become known as a ``corporate campaign,'' and
it is this type of conduct--rather than employee free choice--that has
produced these agreements.
Thus, when a union succeeds in obtaining a neutrality/card check
agreement, it generally does so by exerting pressure on the company
through forces beyond the group of employees sought to be organized.
The pressure comes from employees at other locations, and/or it comes
from politicians, regulators, customers, investors, and the public at
large. It is a strategy of ``bargaining to organize,'' meaning that the
target of the campaign is the employer rather than the employees the
union is seeking to organize.
The strategy of ``bargaining to organize'' stands in stark contrast
to the model of organizing under the National Labor Relations Act.
Under the Act, the pressure to organize comes from within--it starts
with the employees themselves. If a sufficient number of employees
(30%) desire union representation, they may petition the NLRB to hold a
secret ballot election. If a majority votes in favor of union
representation, the NLRB certifies the union as the employees'
exclusive representative and the collective bargaining process begins
at that point.
At all times, the focus is on the employees, rather than on the
employer or the union. There is no cause for abandoning the secret
ballot election process that the Board has administered for seven
decades. The Act's system of industrial democracy has withstood the
test of time because its focus is on the true beneficiaries of the
Act--the employees. In my view, the Miller-Kennedy bill is not sound
public policy because it would deprive employees of the fundamental
right to determine the important question of union representation by
casting their vote in a Board-supervised secret ballot election.
Indeed, that it would be unwise public policy to abandon government-
supervised secret ballot elections in favor of mandatory card check
appears to me to be a self-evident proposition.
I am aware that this Committee has previously considered quite
opposite legislation which would require that union representation for
currently unrepresented groups of employees be determined by a secret
ballot election. Without the increasing use of corporate campaigns and
neutrality/card check agreements over the last decade--a trend which
has eroded employee free choice and which reflects a shift in focus
from organizing employees to organizing employers--such legislation
would not be needed. But, in light of this trend, such legislation, in
my view, is necessary to protect the interests of the employees the Act
is intended to benefit, by ensuring that their right to vote is not
compromised by agreements which are the product of external pressure on
their employer.
This concludes my prepared testimony. I look forward to discussing
my comments in more detail during the question and answer period, but
before that, I would again like to thank the Subcommittee for inviting
me here today, and for its attention to these very important
developments regarding labor law in the 21st century.
______
Chairman Johnson. Thank you, sir. We appreciate that. Ms.
Schiffer, you may begin.
STATEMENT OF NANCY SCHIFFER, ASSOCIATE GENERAL COUNSEL, AFL-CIO
Ms. Schiffer. Thank you. Chairman Johnson, Mr. Andrews,
members of the Subcommittee, thank you for inviting me here
today, and good morning.
My name is Nancy Schiffer. I am associate general counsel
at the AFL-CIO, but I'm also a union member. I'm a member of
the National Writers Union, which is Local 1981 of the United
Auto Workers. I've submitted written testimony. I will not
recite that now.
What I'd like to do is give some context to this discussion
by describing for you what an NLRB election representation
process is like for workers. And I've selected a particular
case that I was very much involved with, and I've--and,
coincidentally, it involves a case that Mr. Clyde Jacob cited
in his written testimony. And so it will be illustrative in
that regard, as well.
This employer was a retail store called Hudsons. It was to
Detroit what Macy's has been to New York City. It was the store
with everything, including the real Santa. But it was sold and
things changed, and the workers contacted the UAW about forming
a union.
At the first meeting, which was advertised by word of
mouth, there were over a hundred workers. An NLRB petition was
filed, and the employer apparently, assuming that they would
win handily, agreed to have an election. An election was held
fairly promptly, and they were quite surprised when in May 1990
the workers chose to unionize by a vote margin of 95 votes out
of 453.
This is where I'd like you now to recall Mr. Charles
Cohen's statistics about how quickly elections are conducted
and how unions are successful about 50 percent of the time,
because, in fact, both are true in this scenario. There was a
quick election and the union won, and, yet, this case, as you
will see, remains a poster child for labor law reform.
The employer challenged the election, and while that case
was pending about a year after the election, the employer
claimed that it had evidence from one of the union's two
initial supporters that the authorization cards used to support
the NLRB petition had been forged. These cards had not been
used to obtain recognition but only to initiate the NLRB
representation process.
The board denied the employer hearing on this issue, but
the 6th Circuit Court of Appeals was more receptive. It
remanded the issue of possible forged cards back to the Board
for a hearing. After the hearing, the judge said, ``The whole
basis of the company's motion to reopen the record, that is,
that the union used forged authorization cards to portray a
false picture of majority support is grounded on fabricated
evidence.''
There were no forged cards, and in the other two cases that
Mr. Clyde Jacob cites in his written testimony, there were also
no forged cards. The company appealed this decision to the
board. They lost. They went back to the 6th Circuit Court of
Appeals. They lost. They filed a petition for--with the Supreme
Court of the United States. It was denied.
Now, we're in October 1996, and six and a half years after
workers voted by an almost 100-vote margin to organize they
finally get to the bargaining table. And what do you suppose
happens to workers' support for their union during six and a
half years while the employer gains the NLRB process to deny
them the benefits of why they voted for a union. They're denied
their right to bargain. They become disillusioned. They give up
on their supposedly federally protected right to form a union
and engage in collective bargaining.
And in this particular case the woman who had been elected
to serve as bargaining chair, died of a massive heart attack 2
weeks before we got to the bargaining table for the first
meeting.
Meanwhile back on the campaign, a union election held at a
nearby mall store was set aside because of employer misconduct
in the election campaign. The remedy; the employer had to post
a notice to employees that listed these violations and
contained a promise not to commit the violations again. That
was the remedy; the posted piece of paper on the bulletin
board. While that notice was posted during the 60-day notice
period, the employer violated almost every single provision of
the notice that it had agreed it wouldn't violate again.
So how effective is this as a remedy for workers? How does
this protect the worker's free choice? Do workers have a free
choice when their employer has threatened to relocate the store
if the union wins? This is what happened. The cook in the
restaurant was told by her manager--called in to the office and
said, ``If the union gets in here, you could lose your job.
People could be bumped off their jobs and the store can
close.''
Do workers have free choice when they see that the NLRB
process just doesn't work. A sales employee in the deli
department was told by her manager that look at what happened
at the Hudsons' West Land store. They voted for a union years
ago and nothing has happened there at all.
Do workers have free choice when they see that union
supporters are being followed, spied on, harassed, and
videotaped, and that's what happened in these stores.
Employees' supporters were followed into the bathrooms, in and
out of the stores, in and out of the parking lot. They were
videotaped, sometimes in the store, sometimes in front of the
store in the mall. Not all the employers' wrongdoing came to
light.
I talked to workers in that campaign that were afraid to
testify. They were afraid that they would lose their health
insurance benefit for their children. So does the election
process--the so-called secret-ballot process provide these
workers with a free choice? No, it does not. And does it keep
the focus on the workers? No, it doesn't. The only way it keeps
the focus on workers is with video cameras and threats and
promises and harassment, and this, to me, doesn't seem like the
kind of focus the Act intended. Thank you.
[The prepared statement of Ms. Schiffer follows:]
Statement of Nancy Schiffer, Esq., Associate General Counsel, AFL-CIO,
Washington, DC
Thank you for inviting me to testify before the Subcommittee today,
my name is Nancy Schiffer, I am the AFL-CIO Associate General Counsel.
Although the notices of today's hearing do not specify a pending
legislative initiative, it gives me an opportunity to speak to pending
labor law reform legislation introduced in the 108th Congress by
Representative George Miller and Senator Edward Kennedy, the Employee
Free Choice Act H.R. 3619 and S. 1925, these members have been joined
by over 200 of their colleagues as co-sponsors, 180 Representatives and
30 Senators.
The National Labor Relations Act's (NLRA) stated purpose and intent
was not simply to permit, but explicitly to encourage worker self-
organization for representation in collective bargaining with their
employers. Even with the changes to the law that were effected by the
Taft Hartley Amendment in 1947, this continued to be our nation's
official, primary goal of its labor-relations policy, as reflected in
the preamble of the Act. Unfortunately, in recent times the Act has
been too often hijacked by employers and their agents who espouse a
``union-free environment'', to the detriment of working families.
Today U.S. workers have effectively lost their internationally
recognized right to form a union for the purpose of self-organization
to advance their common interests in the workplace. Yet, just as much
as when the NLRA was passed, workers today need and try to form unions
to gain an independent voice in the workplace, and to ensure they are
rewarded and fairly compensated for their labor, that the gains of
their productivity are shared equitably. Indeed, as U.S. workers today
face wage depression, they need unions and collective bargaining more
than every, as an ever-increasing number of them are uninsured and must
rely on publicly financed health care services because they lack
employer provided health care. Similarly, fewer and fewer workers have
guaranteed pensions.
Meanwhile, union workers earn 27% more than non-union workers.
Union workers are 53% more likely to have medical insurance through
their job. Union workers are nearly four times as likely to have a
guaranteed pension, according to the U.S. Department of Labor, Bureau
of Labor Statistics. And recent surveys show that some 42 million non-
union workers would like to have a union.
The bitter reality, however, is that U.S. workers typically face
insurmountable employer opposition today when they seek to form a
union. According to NLRB statistics, in 1969, the number of workers who
suffered retaliation for union activities was just over 6,000. By the
1990s, more than 20,000 workers each year were victims of
discrimination when they tried to organize a union. Sadly, it has too
often become an acceptable business practice to threaten, intimidate
and discharge workers who seek to join with their fellow workers for
self-representation. And as employers and their union busting
consultants know full well, the discharge of one worker has a chilling
effect on an entire organizing campaign, when workers have no job
protection or recourse.
Furthermore, even without firing workers who try to organize, the
well-advised employer knows how to manipulate the NLRB election process
in such a way as to turn the concept of democratic free choice on its
head. To appreciate how easy this is to do, consider the differences
between an NLRB election and an American civic election. First, imagine
a regular civic election for political office where only the incumbent
has the voter file, and with it, unfettered, unregulated access to the
voters. The challenger, meanwhile, must rely on personal introductions
outside the boundaries of the state or district involved, or must stand
by the border to that district as voters drive by and try to flag them
down. Imagine further the election being held the incumbent candidate's
party offices, with voters escorted to the polls by the incumbent's
staff. Imagine finally that during the entire course of the campaign,
the incumbent has sole authority to electioneer among voters during at
their place of employment and during their work time, and further has
the right to have these voters deported (or fired) if they refuse to
listen to this one-sided electioneering.
Needless to say, NLRB elections are conducted in an inherently
coercive environment--the workplace. The employer, not the union, has
ultimate power over employees. Only the employer has the ability to
withhold wages or grant increases in salary, assign work and shifts,
and ultimately discharge workers--the capital punishment of the
workplace.
In the end, even when conducted by NLRB staff as professionally as
possible, elections under the NLRA are not democratic, because the
workplace is not democratic.
The Employee Free Choice Act is intended to remove these obstacles
and at the same time improve cooperation between employees and
employers by eliminating the requirement of mandatory voting when the
majority of workers has already expressed its decision to self-
organize. Under current laws, it is perfectly legal for a majority of
employees to choose union representation without the need for an
election; however, as it now stands, their employee has the right to
veto their decision, absent an NLRB election. In civil society we
regularly encourage participation and membership in other
organizations: book and sporting clubs, religious organizations, and
advocacy groups which further our collective and individual interests.
In keeping with one long-declared federal policy of encouraging workers
to organize and bargain collectively, we should make it no more
difficult for them to form labor unions.
The Employee Free Choice Act would restore the original intent of
our nation's public policy under the National Labor Relations Act by
doing three things.
First, the legislation would provide for majority verification of a
union when employees express their desire by signing authorizations.
When the NLRB finds that a majority of employees have signed
authorizations, their employer would be required to recognize and
bargain with the employees' union. This procedure, commonly known as
``card check'' has always been legal under the NLRA. However under
current law, private sector employers can insist on an NLRB-supervised
election process, even after a majority of workers have demonstrated
their desire by signing authorizations. Majority verification through
authorizations is more democratic than NLRB elections, because it
requires a true majority of the eligible voters. In NLRB elections,
like political elections, there is no guarantee that all who are
eligible to vote will vote. Under majority verification the workers
must show that a majority of workers have signed authorizations.
In an NLRB election, which can often take several months or more,
the employer is free to wage a campaign where employees are
intimidated, threatened, spied upon, harassed, and--in a quarter of all
cases--fired, in order to suppress the formation of a union. No less an
authority than Human Rights Watch finds that the fundamental human
right of America's workers to form unions is seriously infringed upon
as a result. The Employee Free Choice Act will enable workers to form
unions without going through the meat-grinder of an NLRB election
campaign, once a majority of workers sign authorizations demonstrating
their desire to form a union.
Second, the Employee Free Choice Act would provide for first
contract mediation and arbitration conducted by the Federal Mediation
and Conciliation Service (FMCS). Employers who never wanted a union in
the first instance too often deny workers the benefits of collective
bargaining by refusing to bargain a contract, and current law provides
no meaningful remedy. The legislation will give both parties access to
mediation and after that, binding arbitration, if a first contract has
not been negotiated voluntarily within a reasonable period.
Finally, the legislation would create meaningful penalties for
violations of the Act. The bill would not restrict employer free
speech, but would ensure the employer speech is not coercive or
threatening, or intended to deter employee free choice. Under current
law discipline or discharge of workers for union activity, threats to
close or move the workplace, harassment and intimidation of workers at
``captive audience'' or one-on-one meetings with supervisors on work
time, interrogation and surveillance of workers suspected of wanting to
form a union are all technically illegal under the NLRA. However, there
are no real penalties for these and other forms of illegal employer
conduct to serve as a deterrent.
For example, the number of instances of illegal discipline or
discharge of workers for union activity documented by the NLRB
skyrocketed from 1,000 per year in the early 1950s to 15,000-25,000
annually in recent years. In the case of an employer who has been found
to have discharged a worker in violation of the Act, the only penalty
is back pay--less mitigation for earnings received while the case was
pending. On average, for the employer, this means merely a $3,000
penalty and a cease-and-desist posting. Since employers know they face
such an insignificant cost, if they are found to have violated workers
rights, violations to thwart organizing campaigns have increasingly
become seen as an acceptable cost of doing business.
The Employee Free Choice Act would provide for triple back pay
awards to workers found to have been illegally fired. The legislation
changes the penalty for threats and other illegal employer conduct from
posting a cease-and-desist order in the workplace to fines of up to
$20,000 per infraction. The bill provides for the same kind of timely
injunctive relief against egregious illegal employer conduct that
employers have enjoyed since 1947 against illegal union conduct.
The Employee Free Choice Act is needed to address a severe
violation of human rights: the pervasive denial of America's workers'
freedom to form unions and bargain collectively. The harm caused by
this denial of fundamental rights is serious, not only for workers and
their families but for the entire nation. It suppresses wages, health
care and pension coverage, as well as justice and dignity on the job,
for union and non-union workers alike. It widens race and gender pay
gaps, worsens economic inequality, harms political participation,
erodes the safety net, and coarsens our society.
Individual U.S. workers, now more than ever, should have the
freedom to join with their fellow workers for self-representation to
achieve better wages, pensions and benefits. Employers interference in
their employees' decision whether to seek union representation should
not be tolerated. In the past decade we have seen significant wage and
earning erosion, job loss, and corporate scandals that have devastated
worker pensions and job security. It is time to restore the rights of
workers to choose to self-organize and join a union for the purposes of
collective bargaining.
The Employee Free Choice Act would reform the NLRA so that when a
majority of workers demonstrate their choice to form a union their
representative can be certified by the NLRB without the need for the
NLRB election process. The legislation would also guarantee effective
and efficient collective bargaining, and create real penalties as a
determent to unlawful employer conduct. We urge your support of the
Employee Free Choice Act, S. 1925/H.R. 3619. Thank you for this
opportunity to address the committee.
______
Chairman Johnson. Thank you, ma'am. I appreciate your
testimony.
Mr. Jacob, you may proceed. Thank you.
STATEMENT OF CLYDE H. JACOB, III, PARTNER, JONES WALKER, NEW
ORLEANS, LOUISIANA
Mr. Jacob. Chairman Johnson and members of the
Subcommittee, I am pleased and honored to be here today. Thank
you for your kind invitation.
As you've heard this morning, union authorization cards
begin the legal process under section nine of the National
Labor Relations Act for a labor union to represent an
appropriate unit of employees at an employer. While cards are
an integral part of the legal representation process, they
should not be final arbiter of employee representation. The
circumstances surrounding the solicitation of cards does not
insure a creditable process, free of pressure and intimidation,
as do government-conducted secret-ballot elections.
Let me relate to you a case example that I believe shows
why legislation to require secret-ballot elections is necessary
to ensure a private, uncoerced, and creditable legal process
for employees to choose whether or not they genuinely want to
be represented by a particular labor union.
In May of 2000, a new union federation was formed and
headquartered in Houma, Louisiana, and it was called the
Offshore Mariners United or OMU. The OMU planned to organize
the vessel personnel who work on the boats, which service the
offshore oil and gas industry in the Gulf of Mexico and beyond.
The campaign lasted for over 3 years, ending this past
summer when the OMU closed its offices. Union cards were
solicited from the employees of various boat companies, and one
company, Trico Marine Services, Inc., became the principle
target of the organizing campaign.
Let me share with you some of the voluntary reports, which
employees made about their experiences in the card solicitation
process. Some employees when solicited at their homes by union
representatives said no to signing a card. Yet, they reported
repeated, frequent home visits by union representatives
continuing to try to secure their signatures. After eight
visits, one vessel officer had an arrest warrant issued against
a union organizer.
Another employee reported that union representatives exited
their vehicle, approached his home with a video camera,
recorded him, which he believed made him a marked man. A vessel
captain reported that while he was stationed in Brazil union
representatives visited his home, knocked on his door, and when
his wife, who was at home did not answer, proceeded to circle
the home for an extended time, looking into and knocking on the
windows.
In an unfortunate incident, a fight broke out between a
vessel officer and a union organizer at the officer's home. In
another unusual event, union organizers in a recreation boat
trolled next to company vessels with a six-foot blonde female
passenger in a bikini who beckoned the mariners like a siren to
invite her boat over, at which point union cards were
solicited. Employees volunteered that they signed cards just to
stop the pressure and harassment.
One has to ask whether cards solicited under such
conditions can, with confidence, be considered reliable
indicators of employees' sentiment on which to base union
representation.
Misrepresentations were made by the union representatives
to persuade Trico employees to sign cards. In an ironic twist,
a representation was made to employees to go ahead and sign
cards, and if they later changed their minds, they could vote
differently in the election. Of course, the OMU had no
intention of gaining representation through an election.
Instead its plan was to gain representation through obtaining
union cards from a majority of the employees and forcing the
company with public pressure and harassment to recognize the
OMU.
This plan came to light when the OMU offered the company a
neutrality agreement, an agreement under which the company
would facilitate the union's organizing effort and which
insisted upon representation based solely on a card check.
Trico Marine would not sign that agreement, and it faced all
manner of attacks on the corporation, including disruption of
its annual meeting, the meetings of its customers, veiled
threats to customers and suppliers, attempts to hurt the
company with the investment community, the disruption of trade
shows and conventions at which the company attended or was
featured, and threatened secondary boycotts of the company's
subsidiaries in other parts of the world, including Norway,
Nigeria, Brazil, and Southeast Asia.
If the National Labor Relations Act would have permitted
Trico to file its own petition for a secret-ballot election to
resolve the matter and end this protracted harassment, it would
have. Unfortunately, the law provides very limited
circumstances.
There are also problems with forgery with cards, and I've
also given some case examples of that. Another factor that
contributes to the high risk to employer rights of relying
exclusively upon union cards is the refusal of labor unions to
return the cards when employees want their cards. This problem
is further compounded by the law, which does not require a
union to return a requested authorization.
Attached as an exhibit to my testimony is a letter from the
NLRB's 15th regional office to an offshore vessel employee,
whose name has been redacted, acknowledging that it has no
authority to require the return of his signed union card, or to
rectify the misrepresentations that were made to him.
In my experience the risk of harassment, intimidation, and
forgery in the card solicitation process is too substantial to
permit union cards to be a method under the Act by which a
union can establish legal representation. The quiet, sober, and
private atmosphere of the voting booth should be the preferred
method in all cases.
Union authorization cards play an integral role in our
nation's labor laws on union organizing. They begin the
representation process, but they should never be the end of
that process. That should always belong to the democratic
secret ballot. Legislation is definitely needed to insure this.
Thank you for the opportunity to address the Subcommittee.
[The prepared statement of Mr. Jacob follows:]
Statement of Clyde H. Jacob III, Esq., Partner (Labor & Employment)
Jones Walker, New Orleans, LA
Mr. Chairman, members of the Subcommittee on Employer-Employee
Relations, I am pleased and honored to be here today. Thank you for
your kind invitation. My name is Clyde Jacob, and I am a partner with
the Jones Walker law firm in New Orleans, Louisiana. For almost 25
years, my practice has been devoted to labor and employment law. My
clients have included Fortune 500 companies and small, local
businesses, and my work in the labor law field has taken me around the
country as well as overseas.
Union authorization cards begin the legal process under section 9
of the National Labor Relations Act for a labor union to represent an
appropriate unit of employees at an employer. Union representatives or
employees of a company solicit employees to sign cards, and once 30% of
the employees in an appropriate unit sign cards, a labor union has the
right to invoke the legal machinery of the Act, petitioning for a
secret ballot election conducted by the National Labor Relations Board
(NLRB), usually within 50 days or less. While the cards are an integral
part of the legal representation process, they should not be the final
arbiter of employee representation. The circumstances surrounding the
solicitation of cards does not ensure a credible process, free of
pressure and intimidation, as do government conducted secret ballot
elections.
Let me relate to you a case example that I believe shows why
legislation to require secret ballot elections is necessary to ensure a
private, uncoerced, and credible legal process for employees to choose
whether or not they genuinely want to be represented by a particular
labor union.
In May of 2000, a new union federation was formed and headquartered
in Houma, Louisiana, and it was called Offshore Mariners United or OMU.
With the help of the AFL-CIO's Department of Corporate Affairs, Center
for Strategic Research, the OMU planned to organize the vessel
personnel who work on the boats which service the offshore oil and gas
industry in the Gulf of Mexico and beyond. The campaign lasted for over
three years, ending this past summer when OMU closed its offices. Union
cards were solicited from the employees of the various boat companies,
and one company, Trico Marine Services, Inc., became the principal
target of the organizing campaign. Employees of Trico Marine reported
to the company of abusive, coercive, and intimidating tactics in the
card solicitation process. Let me share with you some of the voluntary
reports which employees made about their experience in the card
solicitation process which occurred throughout the Gulf South in small
towns and rural communities.
Some employees, when solicited at their homes by union
representatives, said, ``No,'' to signing a card; yet, they reported
repeated, frequent home visits by union representatives continuing to
try to secure their signatures, and they complained to the company of
this harassment. After 8 visits, one vessel officer in southern
Louisiana had an arrest warrant issued against a union organizer. One
employee reported that the union representatives exited their vehicle
and approached his home with a video camera recording him, which he
believed made him a marked man. A vessel captain reported that while he
was stationed in Brazil, union representatives visited his home,
knocked on his door, and when his wife, who was home, did not answer,
proceeded to circle the home for an extended time looking into and
knocking on the windows. In an unfortunate incident, a fight broke out
between a vessel officer and a union organizer at the officer's home.
In another unusual event, union organizers in a recreation boat trolled
next to company vessels with a 6 foot blonde female passenger in a
bikini, beckoning mariners like a siren to invite her boat over, at
which point union authorization cards were solicited. Employees
volunteered that they signed cards just to stop the pressure and
harassment. One has to ask whether cards solicited under such
conditions can, with confidence, be considered reliable indicators of
employee sentiment on which to base union representation.
Untrue statements were made by union representatives to persuade
Trico employees to sign authorization cards. In an ironic twist, a
representation was made to employees to go ahead and sign cards, and if
they later changed their minds, they could vote differently in the
election. Of course, the OMU had no intention of gaining representation
through a NLRB conducted secret ballot election. Instead, its plan was
to gain representation through obtaining union cards from a majority of
the employees and forcing the company through public pressure and
harassment to recognize the OMU. This plan came to light when the OMU
offered the company a neutrality agreement, an agreement under which
the company would facilitate the union's organizing effort. It was
entitled, ``Constructive Resolution Agreement,'' and it insisted upon
representation based solely on union authorization cards from a
majority of the employees.
Trico Marine would not sign the neutrality agreement, which relied
only on authorization cards for legal recognition. As a consequence, it
faced all manner of attacks on the corporation, including the
disruption of its annual meetings and the meetings of its customers,
veiled threats to customers and suppliers, attempts to hurt the company
within the investment community, the disruption of trade shows and
conventions at which the company attended or was featured, and
threatened secondary boycotts of the company's subsidiaries in other
parts of the world, including Norway, Nigeria, Brazil, and Southeast
Asia. If the NLRA would have permitted, Trico would have filed its own
petition for a secret ballot election to resolve the matter and end the
protracted harassment. Unfortunately, the law provides a very limited
circumstance for this to occur.
A serious problem with reliance upon union authorization cards as a
method of gaining legal representation under the NLRA is the
possibility of forged employee signatures on the cards. There was never
any confirmation that this occurred during the OMU's campaign in the
Gulf South; however, this has been an issue in other cases, and I have
referenced reported decisions on this. Dayton Hudson v. NLRB et al., 79
F.3d 546; Krispy Kreme Doughnut Corp. v. NLRB, et al., 732 F.2d 1288,
1293 (6th Cir. 1984); Perdue Farms, Inc. v. NLRB, et al., 927 F. Supp.
897 (E.D. N.C. 1996), rev'd on other grounds, 108 F.3d 519 (4th cir.
1997).
While I have discussed the pressure, intimidation, and distortions
that can accompany the card signing process, there is another factor
that contributes to the high risk to employee rights of relying upon
union cards as a method for determining legal representation--it is the
refusal of labor unions to return cards when employees have sought
their return. This problem is further compounded by the law under the
Act which does not require a union to return a requested authorization
card. Attached as Exhibit No. 1 to my testimony is a letter from the
NLRB's 15th Regional Office to an offshore vessel employee, whose name
has been redacted, acknowledging that it has no authority to require
the return of his signed union card, nor to rectify misrepresentations.
In my experience, the risk of harassment, intimidation, and forgery
in the card solicitation process is too substantial to permit union
cards to be a method under the Act by which a union can establish legal
representation. The quiet, sober, and private atmosphere of the voting
booth should be the preferred method in all cases.
Union authorization cards play an integral role in our nation's
labor laws on union organizing. They begin the representation process--
but they should never be the end of that process--that should always
belong to the democratic secret ballot. Legislation is definitely
needed to ensure this.
Thank you for the opportunity to address the subcommittee. I would
respectfully request that my written testimony be included in the
record, and I would be glad to answer any questions.
[An attachment to Mr. Jacob's statement has been retained in the
Committee's official files.]
______
Chairman Johnson. Thank you, sir. We appreciate you all's
testimony. It sounds like there's some disagreement out there.
My judge over here even shook his head.
Mr. Cohen, I have a question about the treatment of card
checks under the law. I understand that under current law an
employer may agree to recognize a union based on a card check,
but it may also refuse to do so and insist on an election. I
understand further that the Board holds that recognition of a
union pursuant to a card-check system is lawful, and that a
union, which is recognized in such a way is a bona fide
collective bargaining agent for the employees.
My question is this is the validity of unions recognized by
a card check system a function of the NLRA? That is does the
Act compel such recognition, or is it subject to differing
interpretation by case law?
Mr. Cohen. Mr. Chairman, the Supreme Court called Lyndon-
Lumber established that voluntary recognition based on
authorization cards is a permissible, lawful means for the
employer in the union to establish that agreement. So I think
we find the law in that posture as we speak, and one would not
expect the prosecutor of the National Labor Relations Board,
the general counsel, to be attacking a principle such as that.
If there were to be a change, that would be the kind of
change that one would expect would need to come from Congress;
the change the law because of a disagreement with the Supreme
Court law and as that law has been interpreted by the NLRB.
There are areas, however, where coercion, of course, is not
permissible on either side. Under the law, today, an employer
cannot coerce, a union cannot coerce, and if there are facts of
coercion, one would expect those cases to be prosecuted, as
well. But the basic notion of card check recognition is one
which is established and embedded in the law as we speak.
Chairman Johnson. How would you suggest we change the law,
if we change it?
Mr. Cohen. If we were to change it, I believe it would be
based on the changed circumstances, and that is it is one thing
for an employer to deal with the union and say to the union if
a majority of the work force desires representation that the
employer will forego its right to have an election and do it
based on authorization cards. And that's where we were
approximately 10 years ago.
The problem as I see it is that over the last 10 years
there has been a vast increase in this kind of activity, but it
hasn't just been that activity. It's been that activity coupled
with corporate campaigns, neutrality agreements, access, et
cetera, so that there is in my opinion an element of the union
not getting these kinds of agreements, because it's something
the employer wishes to do. But, rather, it's because there's
been a corporate campaign. There's been a leveraging of the
union's existing bargaining relationships, such that the
employer knows it won't get the next collective bargaining
agreement, something of important value to it, unless it gives
this for an unrelated group of employees. It comes from a
variety of sources, and I think if the legislation were to be
enacted by Congress, it would be as a result of these changed
facts over the last decade.
Chairman Johnson. Ms. Schiffer, you talked about a delay in
getting an employer contract after the election or after the
fact, and how do you think we can resolve that delay problem,
because you know and I know that both sides are going to drag
their feet if they can.
Ms. Schiffer. I think there's a good solution to that in
the Employee Free Choice Act that's been introduced in both
Houses, which provides for first contract arbitration. And that
that would be a way to ensure that workers really get the
benefit of what they've--when they select employee--a union to
represent them.
I'd like to, if I could, go back to one thing that Mr.
Cohen just said in his response. Is that--
Chairman Johnson. Go ahead.
Ms. Schiffer. There has been research done on what we call
card check neutrality agreements by two professors, one from
Rutgers, one from West Virginia University, which I can provide
you with the research. But they--their research shows that
corporate campaigns are ``not a frequently used strategy to
secure these agreements.''
They say that they're often secured the good old-fashioned
way through a work stoppage, which, I think, is for the most
part still lawful; parts of it. And that at least a third of
such agreements are reached within the context of a broader
labor management partnership, in which employers agree to an
organizing process that will be less disruptive than the NLRA
representation process.
And when these are agreed to, they are sometime card
checked. They are sometimes neutrality. Some of them don't
involve card checks. Some of them involve a privately conducted
election. Some of them don't involve neutrality. Some of them
involve a code of conduct where both parties agree as to how
they will be bound, and they agree to an arbitration process
that will immediately resolve any disputes. So they don't have
to wait six and a half years to get to the bargaining table.
Chairman Johnson. Mr. Jacob, did you want to comment? You
looked fidgety down there.
Mr. Jacob. Thank you for your observation.
Chairman Johnson. Punch the button again. Turn the
microphone on.
Mr. Jacob. Thank you for your observation. I would say that
when you find this delay after a union has been elected quite
often there is a reason for it. It's because the union has made
very over-the-top type of promises to the employees to get them
to vote. And so quite often you will have a longer period.
And it's hard to have a one size fits all for contract
negotiations. Look at this past summer with the very tough
negotiations that went on out in California with the
supermarkets that were out there. I mean, if you try to squeeze
negotiations into a tight little pen, you're really going to
upset the economic system that we have in play that is a very
fair economic system.
Mr. Cohen. Mr. Chairman, could I make one--
Chairman Johnson. Go ahead, yes.
Mr. Cohen. Thank you. It has to do to the notion that Ms.
Schiffer raised concerning first contract arbitration. We've
had a principle in this country and it's been embedded in our
labor laws since 1947. That doesn't require the employer to
agree to a particular substantive term. The notion is it's the
employer that has to meet payroll. It's the employer that has
to compete with the competition and must ultimately have the
say as to what the contract term that it will agree to.
To be sure, it can be as a result of economic warfare; the
strike, the work stoppage. That's fine. The notion of turning
that over to an arbitrator to have the arbitrator either split
the baby or decide in some fashion what the agreement would be.
Just imagine if in the West Coast supermarket situation the
arbitrator were to decide that these employees ought to be
given full benefits for whatever. The employer, of course, has
to compete with non-union competition up and down line.
So while it may sound nice and equitable to have an
arbitrator--a neutral third person--decide a dispute, when
you're talking about the terms of a labor contract it is truly
an unacceptable kind of resolution in my judgment.
Chairman Johnson. Thank you. Mr. Andrews, do you care to
question?
Mr. Andrews. Thank you. Mr. Jacob, in your testimony
regarding the Trico organizing campaign, your testimony is
limited to that campaign, correct?
Mr. Jacob. Yes, it is.
Mr. Andrews. You didn't study any other organizing
campaigns or research any other ones in your testimony today?
Mr. Jacob. I have been involved in many, many campaigns in
my career, but that focus was the Trico, yes.
Mr. Andrews. Your testimony is about Trico. On page--
they're not numbered--where you tell the incident about eight
visits from a union organizer to a vessel officer in Southern
Louisiana, do you know if that organizer had access to the work
place to visit the vessel officer in the work place?
Mr. Jacob. The work place for boats that are quite often
out at sea, and so the union was able to get the home addresses
and phone numbers.
Mr. Andrews. So was the union organizer permitted to board
the ship when it was in port if the officer was working on the
ship there?
Mr. Jacob. No, he was not.
Mr. Andrews. So where was the union organizer supposed to
visit the vessel officer to make his pitch?
Mr. Jacob. At the vessel officers' homes. At meetings that
were held in the community--
Mr. Andrews. So there were eight visits. And you indicate
that an arrest warrant was issued against the organizer. What
was the disposition of that case? Was the union organizer
arrested?
Mr. Jacob. It just went away.
Mr. Andrews. Did it go away, because the complainant
dropped charges? What happened?
Mr. Jacob. The complainant just eventually dropped charges,
and the whole issue just dissolved.
Mr. Andrews. So there was a warrant issued but there was
never a prosecution?
Mr. Jacob. That's correct.
Mr. Andrews. The other stories that are reported here about
people visiting homes of vessel officers when they're in Brazil
and so on and so forth were there any criminal charges filed as
a result of any of those incidents?
Mr. Jacob. No.
Mr. Andrews. Were there any civil charges filed as a result
of those incidents?
Mr. Jacob. No.
Mr. Andrews. Were there any charges filed with the National
Labor Relations Board or any administrative agency as a result
of these incidents?
Mr. Jacob. No.
Mr. Andrews. OK. Let me ask you a question about the
exhibit that you've attached, the letter from Mr. Wells. And as
I understand the facts, which I can imply from reading Mr.
Wells' letter, an individual who is a part of the group that
they're trying to organize signs a card and then decides that
he doesn't want--he wants to revoke his signature of the card.
He wants his card back, correct?
Mr. Jacob. He liked to get his card back.
Mr. Andrews. Right. So did the employee advise the union
that he wanted his card back, because he wanted to revoke his
consent to the union?
Mr. Jacob. Yes, that was my understanding.
Mr. Andrews. Now, if this had gone to a count--if we're
going to count the number of cards, either for the purpose of
certifying the election or under a voluntary agreement for
certifying the union, would this individual's card have
counted?
Mr. Jacob. I believe it would have.
Mr. Andrews. You think it would have?
Mr. Jacob. Yes.
Mr. Andrews. I would disagree with that conclusion, and I
would point--I would ask unanimous consent to enter into the
record three cases.
Chairman Johnson. Without objection.
Mr. Andrews. One is involving Emerald Industries. It is
case number 9-CA-37493, in which the general counsel of the
NLRB found that the employer lawfully refused to recognize a
union in a card check when it was shown that the union had lost
its majority because of revocation letters signed by employees.
So whether it was revocation by the employees, the card didn't
count, irrespective of who physically had the possession of the
card.
Second, there's a case called King Supers, Inc., case
27CA12362, going back to 1993, where the general counsel found
that six employee card rescissions negated the union's majority
status before the card check occurred. Again, irrespective of
the physical custody of the card.
And then, finally, a case from just last September under
the heading of Le Marquis Hotel, 340 NLRB number 64, in which
case there were two--as I understand it, two competing unions.
Employees signed cards for both unions, and it was held that
the card for the first union was invalid, because the act of
signing the second one indicated revocation.
Now, I guess, my point to you is that it seems to me that
irrespective of who had physical custody of the card that the
fact that the employee had made evidence of his desire to
revoke his consent to the card means his vote doesn't count or
the card doesn't count. Isn't that right?
Mr. Jacob. I guess my experience has been is that employees
do seek to get their cards back. The unions don't give it to
them, and then election moves forward quite often when
employees have cards that have not been given back.
Mr. Andrews. But if the employer contests the certification
of the election on grounds that the card was revoked, these
cases say the card was revoked, right? That means you fall
below the threshold the statute requires there's no election or
there's no certification?
Mr. Jacob. My experience is that elections have gone
forward. That the Board regional offices will not accept an
employer argument that we've got a number of employees who
would like to get their cards back, and the Board tells us it's
a showing of--
Mr. Andrews. Mr. Jacob, I would ask if you would supplement
the record by giving us cases that cite that instance.
Mr. Jacob. I would be happy to supplement the record.
Mr. Andrews. Thank you, Mr. Chairman.
Chairman Johnson. Thank you, Mr. Andrews. Mr. Kline, do you
wish to comment?
Mr. Kline. Yes, thank you, Mr. Chairman, and thank you,
lady and gentlemen, for being here today. It is clear, as the
Chairman said, there is some disagreement. It seems to me that
we are looking for a way to allow workers to decide to unionize
in a fair way; fair to both employers and employees. And,
clearly, there is disagreement as to what that would be.
Mr. Cohen, data from the National Labor Relations Board
indicates that during a period spanning 1999 to 2003 of the
roughly 14,000 elections held by the Board objections were only
filed in 3 percent of them. And half of those objections came
from the employer. What does that indicate to you the fact that
unions filed objections in less than 2 percent of the
elections?
Mr. Cohen. Mr. Kline, it would indicate to me that the
system is working indeed.
Mr. Kline. It would seem so. Thank you. Mr. Jacob, a
question for you, and, of course, I welcome, Mr. Cohen, any
comments that you would have on this.
In her testimony today Ms. Schiffer--and I thank her for
her testimony. It was, in fact, quite enlightening -- Ms.
Schiffer stated that 20,000 employees, I think is the number,
allege that they were the victims of discrimination every year.
And, Mr. Jacob, I'm curious in your experience how many of
these allegations generally contain any real merit, and how
many times are they filed simply to get back at an employer?
Mr. Jacob. My experience is that many are filed. Many are
dismissed. Many are withdrawn by charging parties, and some
moved forward. So I don't think that you can say that all
20,000 are valid, you know, legitimate charges.
Mr. Kline. And do you have some case study that you could
submit to the record--
Mr. Jacob. Really I'm basing it just on my experience. Of
the number of charges that I handle, I see every type of result
coming from it, including some that go to trial, some that get
dismissed, some that are withdrawn.
Mr. Kline. I see. And, Mr. Cohen, do you have anything to
add to that?
Mr. Cohen. Yes. I would mention that historically--and I
did start working for the NLRB myself back in 1971, so I've
been there on two different stints; one time for 8 years, one
time for two and a half years.
There's something known as the merit factor, which has
remained relatively constant over the decades, and that is of
all the unfair labor practice charges, which are filed, 2/3 of
them are typically either dismissed or withdrawn, and the
remaining 1/3 are deemed to have merit. And of that 1/3,
significantly 90 percent of the so-called meritorious cases
settle before an NLRB hearing on the matter. So they're then
resolved.
To be sure, certain ones are litigated. To be sure, certain
ones go through the court system. And, obviously, to go through
the court system, takes time. But that would be the basic
yardstick, which, again, hasn't changed over the decades.
Ms. Schiffer. Mr. Kline, if I could.
Mr. Kline. Yes, certainly.
Ms. Schiffer. In my testimony I believe that these figures
are not charges filed but adjudicated cases. So that this merit
factor in terms of going forward with the charge or the merit
factor in terms of whether the case is won or lost is not in
play. And I would be happy to supplement the record to make
that more clear.
Mr. Kline. Yes, I'd like to see that. It's 20,000
adjudicated cases you're talking about?
Ms. Schiffer. Not cases. Workers.
Mr. Kline. Workers. I see. OK, thank you very much.
Ms. Schiffer. And I would like to go back, if I could, to
one issue you raised with Mr. Cohen. These numbers in terms of
number of objections filed. I'd like to go back to one thing I
mentioned but very briefly in my testimony, and it's really
illustrative and it's something that I've had to do over and
over and over again in my practice, representing workers and
unions. And that is talking to workers who say I know what
happened to me was wrong. I want to testify about it, because I
know the employer gets away with it if I don't but I can't.
And I will always have this memory vividly where I was
standing in my house when I had this phone call with a woman
who said I have a 10 year old son. He's asthmatic. If I lose my
job, I can't afford his medications. I cannot testify. And this
is a point the needs to be kept in mind when we say, oh, well,
unions don't file anything so it must be OK. We can't file
unless we have witnesses, and workers are out witnesses, and
they have to be willing to put, not only their careers, but
their families' welfare on the line.
Mr. Kline. Thank you. And my guess--I have just one moment
left. And my guess would be that there are some similar heart-
wrenching stories of union workers who were asked to sign a
card and had no choice, and I'd be interested in any comment
from Mr. Jacob or Mr. Cohen to that effect.
Mr. Jacob. Well, I believe ultimately we all have--excuse
me--we all have choices, but I do know that often times people
sign cards who do not wish to sign cards. And that's why a
secret ballot election is really the ultimate crown jewel, as
Chuck Cohen has said, for resolving questions of
representation.
Mr. Kline. Thank you. Mr. Chairman, I yield back.
Chairman Johnson. The gentleman's time has expired. Mr.
Kildee, do you care to question?
Mr. Kildee. Yes, thank you, Mr. Chairman. First of all,
according to such scholars as Kate Ruffenbrenner and John
Logan, the National Labor Relations Board election process very
often exposes workers to weeks and very often months of
employer threats, surveillance, coercion, firings, and
intimidation. As a matter of fact, when my dad sought to join
the union back in 1935 in Flint, Michigan, the site of the sit-
down strike, he had to face goon squads with blackjacks, and
we've become more sophisticated in those years since then.
Now, it's lawyers and labor consultants with briefcases
that generally stand in the way of organizing. And I
certainly--I prefer that, the briefcases to the blackjack, but
it can be very effectively also in blocking the right of
workers to join a union.
The situation is so bad that the human rights watch finds
the United States to be in serious violation of international
human rights with respect to the protection of workers' freedom
of association. And that should concern us, because the human
rights watch is a very respected group.
But I do think that from the time of 1936 to now human
nature being what it is very often employers want to run their
business without any input from the workers or even input as to
the wages and hours, and that they've changed maybe tactics and
become a little more sophisticated, but their just as effective
as they were back in 1936.
I can recall my good friend Walter Reuther being half
beaten to death in the battle of the overpass with the goon
squads and the blackjacks back in that time. So I think we have
to be concerned to make sure that workers are not intimidated
in seeking collective bargaining. Collective bargaining has
changed. It's certainly changed the quality of life in Flint,
Michigan, and changed the quality of life in the Kildee
household.
Let me ask a question. I'll ask Ms. Schiffer. Mr. Cohen has
characterized card check agreements on page six, arising from
corporate campaigns, including a number of elements. And that
employers are essentially forced into signing these agreements.
Would you care to comment on that?
Ms. Schiffer. Yes. We use the term card check to cover a
whole wide variety of agreements between--agreements about
alternatives to the NLRB representation process. And they may
include card check. They may not. They may include a private
election. Some of them actually include an NLRB election but
only that part. Some of them do include card check.
Typically, there are bilateral restrictions on both the
union and the employer on conduct and speech, and the point is
that the parties have a code of conduct. They know that they
can this way avoid the divisive and the really confrontational
process that is inherent--that's encouraged by the NLRB
representation process.
And so these alternatives accord a workforce an alternative
to that kind of polarization that the NLRB process encourages.
It also, as a matter of fact, saves employers millions of
dollars in anti-union consultant fees; a whole cottage industry
blown up to take advantage of the NLRB process.
And with a much shortened process, the parties can get on
to issues that they're both interested in. Work place issues,
quality issues, productivity issues, business success issues,
instead of going through one of these years' long fight.
Mr. Kildee. Let me ask you another part of this hearing
today is corporate campaigns. How often are corporate campaigns
used? Is this a frequent strategy to secure neutrality?
Ms. Schiffer. Research has been done by professors Adrienne
Eaton, who is at Rutgers University, and Jill Kriesky, who's at
West Virginia University. And they studied these types of
agreements. And their research indicated that, in fact,
corporate campaigns are not frequently used as a strategy to
secure. That often it's traditional worker leverage in the form
of a strike; a work stoppage. And that for many such agreements
the part of an overall labor/management partnership where the
parties can agree on a code of conduct to regulate the
organizing process.
Mr. Kildee. Thank you very much, Ms. Schiffer.
Chairman Johnson. Thank you, Mr. Kildee. Mr. Tierney, do
you care to question?
Mr. Tierney. I do. Thank you, Mr. Chairman.
Chairman Johnson. You're recognized for five.
Mr. Tierney. I thank you. Ms. Schiffer, maybe you can help
clarify something for me. We're all talking--at least all three
of the witnesses have talked about their great concern for
participation of the employee. On a card check process it's a
majority of employees that have to sign the cards in order for
the union to be acknowledged; am I correct?
Ms. Schiffer. That's right.
Mr. Tierney. But in an election it's just a majority of
those voting?
Ms. Schiffer. That's correct. It doesn't have to be a
majority of the workforce.
Mr. Tierney. Do we have any statistics as to--on elections
generally how many times an actual majority of the employees
vote or participate in the election?
Ms. Schiffer. I don't have those statistics.
Mr. Tierney. Let me go over some other statistics and ask
you if you're familiar with those in terms of the elections
versus the card. Are you aware that 25 percent of employers are
found to have illegally fired or disciplined at least one
worker for union activity during organizing campaigns?
Ms. Schiffer. Yeah, I've had a lot of experience with that,
unfortunately.
Mr. Tierney. Are you aware that 75 percent of employers
hired consultants or union busters to help them fight union
organizing drives?
Ms. Schiffer. Employers spend millions of dollars on anti-
union consultants.
Mr. Tierney. Are you aware that 78 percent of employers
force employees to attend one-on-one meetings with their own
supervisors against the union?
Ms. Schiffer. That's one of the most common techniques,
because the employer has literally full-time access to workers.
Mr. Tierney. And are you aware that 92 percent of employers
force employees to attend mandatory closed-door meetings
against the union?
Ms. Schiffer. Right. Another extremely frequently used
tactics where employees have to be there. They can be told that
they cannot speak, they cannot ask questions, and they can, in
fact, be fired if the employer says that and they still try to
ask a question just trying to get information.
Mr. Tierney. Are you aware of the finding that 52 percent
of employers threaten to call immigration officials during
organizing drives that include undocumented employees?
Ms. Schiffer. When we have workforces trying to organize,
who include undocumented workers, it's a threat over them that
is just unequaled.
Mr. Tierney. And are you aware that there's findings that
51 percent of the companies threaten to close the plant if the
union wins the election?
Ms. Schiffer. Yes. And, in fact, the percentage of plants
that actually close when they're organized is almost
negligible, and, yet, this many employers threaten that they
will.
Mr. Tierney. In 1998, there were 24,000 cases won by
workers who had illegally been discriminated against for
engaging in legally protected union activities. Do you have
anymore recent figures--knowledge of more recent figures than
those from 1998?
Ms. Schiffer. I don't believe that I do, but if I do, we'll
supplement the record.
Mr. Tierney. Now, one of the concerns in my district at
least and in Massachusetts generally is the concern that even
after unions have won an election they have an awful difficult
time getting to their first contract, and I think the
statistics show that in 32 percent of the times elections by
workers to have a union occur but 2 years later they still
don't have any contract.
Now, Mr. Cohen, you had discussed earlier the employee Free
Choice Act. To get to the first contract, is what we're talking
about and that provision of the law that indicates that after
90 days if no agreement can be reached either party may
petition for a mediation or conciliation. Am I right? All
right. And if that doesn't work or come to a resolve, then 30
days after that 90-day period it can go to arbitration for the
first 2-year contract?
Ms. Schiffer. Yes, for the first contract.
Mr. Tierney. And then after that they're back on track, but
I think it addresses the issue that seems to be almost too
prevalent here. A third of the contracts still aren't done
after 2 years when people elect to have a union. And I think
that speaks volumes to the fact that, you know, this is a
process that's not working right now. That the NLRB is not
living up to its requirements on elections, and that in a
country that has freedom of association we should encourage
people to work agreements, freedom to contract. But if an
employer wants to reach an agreement, then certainly should be
able to reach an agreement and come to a peaceful resolution of
this to move forward.
And, last, I think that what these companies are concerned
about, you know, corporate activities or unions getting
involved in their corporate board meetings and things of that
nature. Most of these unions or many of them have investments
in those companies, and they have a great interest that that
company provide in a lawful way and avoid corporate scandals or
whatever, and, hopefully, that's why they would get involved
and try to make this thing work out under the law. And so I
thank you for your testimony today and I yield back the balance
of my time.
Chairman Johnson. Thank you. Mr. Cohen, did you want to
make a comment? You acted like it.
Mr. Cohen. Just two brief things.
Mr. Tierney. Am I yielding my time to the chair or are you
just giving me more time, Mr. Chair? Exercising a prerogative.
Chairman Johnson. I'll usurp a little. Is that OK?
Mr. Tierney. As long as it's reciprocal. We'd love the same
opportunity.
Chairman Johnson. Thank you.
Mr. Tierney. Thank you.
Mr. Cohen. I believe the record ought to reflect that,
again, one of the very strong points about the NLRB election
process is that voter turnout is typically exceedingly high,
and I am going to have to somewhat speculate here, but I
believe it's up in the 80-percent range. And, obviously, when
we compare that to the statistics for the political situation,
it's a very healthy--
Chairman Johnson. Yeah. Can you get us some statistics on
that, because I think his question was a good one.
Mr. Cohen. Would be happy to. And the NLRB in their annual
reports would have those statistics I feel very confident.
Chairman Johnson. Please forward them to the Committee and
both sides.
Mr. Tierney. Thank you. Then I'll just follow up with one
on that. Do you at all have any information that would call
into the question the statistic that 32 percent of the
elections in which voters--workers vote and a union still has
no contract after 2 years?
Mr. Cohen. I don't have anything specific, but I would
mention--and I don't have the study in front of me, but I
believe one of the studies that you were referring to was the
Bronfenbrenner study, and it's my recollection that that study
was done by interviewing union organizers alone. In other
words, at the conclusion of an organizing campaign, the
academic study goes and talks to union organizers to come up
with these kinds of statistics. And I believe the unreliability
of that type of a method speaks for itself.
Mr. Tierney. Well, I'm not sure it does. So why don't you
tell me how--do you thing all those people are lying?
Mr. Cohen. Not necessarily lying. But there are
perceptions. I think--
Mr. Tierney. A perception of whether or not you have a
contract? That seems to be something you can determine without
perception.
Mr. Cohen. Perception about employees who have been
discriminated against.
Mr. Tierney. But my question here was whether or not a
third of those contracts remain uncompleted after a 2-year
period. That's no perception. It's either it has been done or
it hasn't been done.
Mr. Cohen. I don't have an answer to that, Mr. Tierney.
Mr. Tierney. Thank you.
Chairman Johnson. Can you find that out for us too?
Mr. Cohen. I can attempt to, yes.
Chairman Johnson. OK, thank you. Thank you.
Ms. Schiffer. It may be helpful to Committee to have Dr.
Bronfenbrenner testify here.
Chairman Johnson. Ms. McCollum, do you care to question?
Ms. McCollum. Thank you, Mr. Chair. Have any of the
witnesses ever attempted to deliver union cards at the 30-
percent level, which requests an election? Have any of you ever
participated in doing that, or either not accepting the cards
or taking the cards?
Mr. Cohen. It's my experience that unions don't petition
with just 30 percent. They have typically greater than 50
percent. Often 60, 70 percent before they go to the NLRB to
file.
Mr. Jacob. Likewise it's been my experience too.
Ms. McCollum. Well, Mr. Chair, I'm going to--I've been in
Congress just a short while, and I haven't done this in a
Committee before, but rather than ask a question now, I'm just
going to--not state opinion--but state first-hand witnessing.
I have been with unions when they have tried to deliver
cards and management has been present to receive them and
management has refused to come out and meet with the unions to
receive the cards. Then I have been present over an hour when
there is someone that says that they will meet with the union
organizers. They are not management from the store. When I ask
them where they're from, they've been flown in from another
area, and they use intimidation. They use intimidation so that
the cards are not delivered, and as we heard the gentleman
speak, well over 30 percent of the employees have asked.
Now, about these cards. Employees know that the employer is
going to know who signs a union card. It takes a tremendous
amount of courage in many instances to put your name on a card.
And then the meetings start. And I'm not speaking from anything
by personal experience in management. Then the meetings start
one on one.
Well, do you know if we do this we're going to have to lay
people off or your hours are going to have be cut. Are you sure
you want to do this? Is this in your best interest? You know,
we were thinking of maybe having you go into a more supervisory
position. Maybe you want to think about this, and you need to
decide if it's in your family's best interest.
Managers are brought in. Your expectation here is not to be
neutral. Your expectation in management is to support the
company and the company does not want a union. And that's what
you're to do. You're to speak against unions.
Then there are the union organizers who come in. I sold
film to them, thousand-speed film. Why do you need thousand-
speed film, I said. Well, we're going to photograph the workers
while they're working to find out who's saying what to who. I
was in meetings when people spoke very openly about filming
people when they came out to the VFWs after the union meetings,
because we want to find out who the agitators are.
Then there's election day. Yeah. Everybody shows up. Thank
heavens it's a secret ballot, because the employer knows
whether or not you've shown up, as well as the union organizer.
And the people do show up to vote. And that's a good thing.
First contract. Took the union quite a while. Cards were
contested. Peoples' job classifications were even changed so
that they could throw out cards.
Then first contract came and it was the last management
meeting I attended, because, quite frankly, we had had enough
of each other. The attorneys came in. Here is how it works. If
we don't get a first contract, the union loses confidence with
its members and it's all over. And other people won't be
tempted to look at organizing, so we're going to make this
difficult, and we have the resources, the time, and the energy
and the money to do it.
I just think we need to be straight here. There are some
employers out here who follow the letter in the spirit of the
law. And many times people choose not to organize. There are
employers that follow the letter in the spirit of the law and
they work with their unions, not always in harmony. Not always
it's a wonderful life, but they work together. And then there
are employers that use fear and intimidation time and time and
time again.
And that's why when employees show up to vote their vote
counts, but that's why also we have to use a secret ballot,
because people are afraid at times to put their name on the
line on a card, because the employer is going to be calling
them into their office.
Chairman Johnson. Thank you, Ms. McCollum. Mr. Ballenger,
do you care to question?
Mr. Ballenger. Yes, sir. And I'd like to apologize to the
panel. I happen to be Chairman of the Western Hemisphere, and I
had to meet with the OAS for just a second.
I am, as some people know, a manufacturer myself, and I'd
like to ask Mr. Cohen if he'd like to comment on Ms. McCollum--
what are the reasons an employer--and I understand most of
them--would not accept cards. Would you explain that.
Mr. Cohen. Sure. I believe that as a general rule employers
would be well advised to refuse to look at cards, and the
reason for that is there is a process--the employer has a right
that's guaranteed under the law to have a secret-ballot
election. But the employer can agree to look at the cards and
then be bound by the determination if, in fact, there's a
majority.
So if I were an employer, I would personally say I don't
want to see the cards. You've got a process. I don't want to
compromise anybody's integrity. I want to protect their
secrecy. Let it be. So, therefore, just file your petition, if
that's what you want. You will have a secret-ballot election,
and I believe we're in agreement on that if I might presume
that. The importance of that secret-ballot election to the
employee. I don't think the employee is entitled to anything
less than that.
Mr. Ballenger. Just following up on--Ms. Schiffer, if I
may, what is the AFL-CIO's position with respect to the
decertification proceedings? Put another way when employees are
trying to vote out the union does the AFL-CIO maintain that a
secret ballot is and I quote, ``not comparable to the privacy
and independence of the voting booth and that the secret-ballot
election system provides the surest means of avoiding
decisions, which are the result of group pressures and not
individual decisions.'' And I'm quoting from a brief of the
AFL-CIO filed in 1998. And I think Ms. McCollum kind of made a
similar statement. Can I throw that at you.
Ms. Schiffer. I'm familiar with the brief, even though it
was filed a couple of years before I was associated with the
AFL-CIO. In that particular case the AFL-CIO and other unions
were trying to make the point that if as is now the law an
employer can require the NLRB representation process in order
for workers to become organized then it ought to be the same
procedure when workers want to no longer be part of a union.
And so what they AFL-CIO was urging in that case was that
there be a similar process for the--if you will--for the
marriage as for the divorce. And that was the point.
I would like to go back to one thing that Mr. Cohen said in
response to your question. And point out that the process as it
is now when workers want to form a union is that the employer
chooses whether to force the NLRB representation process. The
employer has that right to refuse to recognize a union, even if
100 percent of the workforce--there's not even a union there--a
100 percent of the workforce go into the office and say we want
to have a union. The employer can say I don't care. We have to
go through this other process.
Mr. Ballenger. Well, then, obviously, the employer has no
idea whether that's 100 percent is there or not there. You can
give me a stack of cards this high or this high and say, well,
we need it and the first thing I would say--and I agree with
Mr. Cohen--the first thing I would say is I don't look at the
cards. Why should I commit myself by law by accepting the cards
when all of a sudden there is no contest after that.
Ms. Schiffer. Even if all of the workers say that they want
to be represented--and I would just like to make the point, and
I think I did in my oral testimony. That the NLRB's election
process is a--it's just that, a process. And in order to get to
that secret-ballot election, the employees have to go through
this--and very confrontational, very difficult process.
And so the point of my testimony really was to suggest that
is there really a free choice that's exercised in that ballot
box. Is it really inherently valid that after employees have
been threatened, spied on, harassed, that their choice in the
poling booth is going to be more legitimate than when they sign
a card.
Mr. Ballenger. Let me just say having seen occurrences many
times where the brutalization of management by unions in the
news media it's not a one-way street you're speaking about.
Unions are not milk toast in a situation like this. It's not--
I'd just like to say that you can get beat up pretty badly by
dragging your feet a little bit on an election.
Ms. Schiffer. But we're talking here about workers and
their employer holds that sort of life or death, you have a job
or you don't have a job.
Mr. Ballenger. No, I agree with you. Anybody that's--people
deserve a union if they--I mean, management deserves a union if
they don't treat their employees properly.
Ms. Schiffer. What I'm saying is that they're inherently,
because of the employer's power over its workers, a difference
in the kind of coercion that can be exercised the employer to
employee.
Mr. Ballenger. Well, is there something like a critical
period involved in this timing of the cards being presented and
so forth and so on? Is there not--I mean, there are--the law
regulates--Mr. Cohen, you are leaning forward like you had an
answer to what I was going to ask.
Mr. Cohen. Well, if I'm anticipating it correctly. The NLRB
once a petition is filed approximately 90 percent of the cases
go to an election by agreement.
Mr. Ballenger. Right.
Mr. Cohen. In other words, without legal--further legal
proceedings. And in those cases I believe the median time is
either 40 or 42 days to the conduct of an election, which I
submit is a quite short period of time, particularly, for the
employees to have an opportunity to come to realize what the
benefits might well be of unionization and what the downside of
it might be, as well.
As to those cases that go to hearing, I believe if one were
to lump it all together, that the--90 percent of the cases
still go to an election within 60 days from the filing of a
petition. So I think it's a situation where the NLRB very much
holds employers' feet to the fire and performs very admirably.
Mr. Ballenger. I think the NLRB--the appointment to the
NLRB is a very vital thing to the strength of the unions in
this country and they pretty well call the shots. I don't know
whether--maybe I come from a conservative area of the United
States that sees that. But your 42 days I think we're debating
on the floor the idea of if Congress were to lose 100 members
in some disaster that to have 45 days to have a nationwide
election. I think 42 days is pretty sharp. Excuse me, Sam. I
didn't mean to go so long.
Ms. McCollum. Mr. Chair, my name has been mentioned twice,
and people are deciding what I've said. So if I could clarify
something, Mr. Chair.
Chairman Johnson. What did you really say?
Ms. McCollum. I really said what I meant. And that is when
unions do try to deliver cards they are met with the first
taste of what the intimidation is going to be like forward--in
going forward with the union organizing campaign. And that by
changing the rules to accept cards will give employees another
option in which to have their voices heard and to have
management know that they want to go forward with having a
union.
And that if the coercion and the intimidation continues,
yes. Then let's have a secret ballot. Thank you, Mr. Chairman.
Chairman Johnson. Thank you, Ms. McCollum. Mr. Payne, do
you care to question?
Mr. Payne. Well, I'm sorry that I missed most of the
testimony, but I just want to maybe ask Mr. Cohen a question. A
lot of times when we hear about organizing of labor unions it
tends to be characterized that the organizers are the ones that
have the strongest hand, intimidation, the strong arming, the
power over the employee. And I wonder if in your opinion is
that what you also contend? That the union organizers have a
stronger hand, because I've heard sort of just the reverse, and
maybe Ms. Schiffer might want to just mention that it's just
the reverse.
I usually hear these horror stories about how intimidating
the organizers are and hear very little about the power of the
employer who can tell you you got a job, don't have a job,
don't want you to do the wrong thing, we might have to lay off
if the union comes in. So what is the general perception that
you have as to, say, a normal organizing campaign.
Mr. Cohen. Mr. Payne, I would say that there can certainly
and have been horror stories on both sides of this, but in my
experience the decision as to whether employees choose to
unionize or not does not turn on characterizations of power,
intimidation, things of that. We are operating today in a
global economy. What the employer is trying to do is produce
its product, deal with the competition, make a profit to be
sure, and that's where job security in my experience comes
from.
I think there was a time when it would have been much more
frequent to characterize the union organizers as intimidators,
et cetera. It's been my experience over the last couple of
decades that that argument doesn't resonant particularly well.
Mr. Payne. Well, that's good. Another reason I raise the
question because there is still some of the, you know,
policymakers like us that still have that Draconian 1920 image.
And I wish more of them were here to hear you. But thank you
very much. I have no other question.
Chairman Johnson. Thank you, Mr. Payne. I appreciate that.
Mr. Holt, do you care to question?
Mr. Holt. Yes, thank you, Mr. Chairman. Mr. Cohen, I
believe you said that bargaining over a neutrality card check
agreement has--I believe your words were--little or nothing to
do with employees in the bargaining unit, and that it would
detract from core issues like wages and working conditions.
That strikes me as missing the point. It seems to me it has
everything to do with the bargaining--with the employees in the
bargaining unit.
Wouldn't--were you saying that it makes little or not
difference to the employees in the bargaining unit whether they
have the power to represent 10 percent of the workforce or 100
percent of the workforce? Doesn't that have everything to do
with whether they are in a position to bargain?
Mr. Cohen. Mr. Holt, it can be an important piece of it,
but our laws are structured on the basis of bargaining in a
collective bargaining unit of the recognized or certified
bargaining unit. The employer is under an obligation to
recognize and bargain with the union as the representative as
to all the wages, hours, and terms and conditions of employment
of that precise group.
If the union is trying to establish a separate collective
bargaining unit and wants to use its leverage in unit ``A'' in
order to get unit ``B'' easier to it, I would submit--and the
law is not perfectly clear in this area--that that ought to be
a so-called non-mandatory subjective bargaining and something
about which the union should not be permitted to bargain to
impasse or to strike over.
And, in fact, Ms. Schiffer I believe twice mentioned a
study that unions go about getting these agreements by good old
fashioned work stoppages. Frankly, that troubles me a good
deal, because we are typically dealing with out-of-unit
personnel. But in an aggregate sense, of course, if a union has
a 100 percent representation it will have--
Mr. Holt. So you are really asking for a fundamental change
in the NLRB. And so I guess that leads to the question what has
changed? A couple of you have mentioned that we now live in a
global economy. Does that mean the workers have the employer
over a barrel as opposed to the other way around? I'm not sure
that the fundamental relationship between employers and workers
has changed since 1938.
Yes, we have a world economy, but the reason for the NLRB
was to protect those workers' rights. Am I right that you're
looking for a fundamental change, and if so, why? And I suppose
maybe the other witnesses have a comment on this.
Mr. Cohen. I don't believe that I am advocating a
fundamental change. What we have right now is a system where
the norm has historically been secret-ballot elections. I
believe it is most imperative to preserve and to not overturn
it to instead have card-check recognition be mandated as the
Miller-Kennedy would do. I think that would be very bad public
policy.
In terms of the increased use of neutrality agreement card
check recognition, I believe that there has been a change in
the way voluntary--so-called voluntary recognition has been--
had this increased use of it. And that's where the legislative
change might well be called for.
I believe that the Miller-Kennedy Bill would be radical
legislative change.
Mr. Holt. Ms. Schiffer or Mr. Jacob, in the few seconds
remaining, would either of you care to comment?
Ms. Schiffer. I think that the change has been that the
NLRB representation process has become really a confrontational
mechanism that forces workers through this sort of endurance
process in order to be able to form union. And unless the
employer chooses--it's the employer's choice to enter into an
alternative process. That this is the only way workers can form
a union, and the process has become so gamed by employers as to
create delay. It has such weak remedies that it does not
anymore protect the right of workers to organize. And that's
what has changed.
Mr. Jacob. The one observation I would make with respect to
secret-ballot elections is that if you go to the numbers you
will find that the labor unions in the U.S. win on average 50
percent or more per year going back many, many years. Batting
.500 would be remarkable in the major leagues.
Mr. Holt. That's in those situations where the union has
chosen to try to organize?
Mr. Jacob. That's in those situations where the union has
chosen to go to secret-ballot elections conducted by the
National Labor Relations Board they prevailed--I think
currently it's over 50 percent of the time.
Chairman Johnson. Thank you, Mr. Holt.
Mr. Holt. OK, thank you, Mr. Chairman.
Chairman Johnson. Thank you. You know today is bring your
children to work day across the country, and there are a few of
them in the audience. Would all of the children who are here as
part of their parents' bring your children to work day please
stand up. Mr. Andrews, do you care to comment?
Mr. Andrews. I do. I want to welcome all of the
participants and introduce two of my friends from Marlton, New
Jersey, Ms. Nicole Gerbreen. Nicole, can you raise your hand.
And her sister Amira Gerbreen and my daughter Jacqueline
Andrews and my daughter Josie Andrews. And maybe this young man
can introduce himself too. It's nice to have you with us today.
Thank you very much.
Chairman Johnson. We're glad to have you all here. I want
to thank the witnesses for your time and testimony and for the
members' participation. And I want to tell you you've been a
good panel and the discussion and cross talk has been good for
all of us. If there's no further business, the Subcommittee
stands adjourned.
[Whereupon, at 12:28 p.m., the Subcommittee was adjourned.]
[Additional material submitted for the record follows:]
National Labor Relations Board Cases, Submitted for the Record by
Ranking Member Robert Andrews: (1) #9-CA-37493 (2) #27CA12362 (3)
#340NLRB64
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Letter from Nancy Schiffer with Attachments, Submitted for the Record
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Statement of Glenn M. Taubman, Staff Attorney, National Right to Work
Legal Defense Foundation, Inc., Springfield, VA, Submitted for the
Record
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Letter from Charles I. Cohen, Morgan, Lewis & Bockius, LLP, Washington,
DC, Submitted for the Record
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Letter from Clyde H. Jacob III, Jones, Walker, Waechter, Poitevent,
Carrere & Degnegre LLP, New Orleans, LA, Submitted for the Record
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<all>