[House Hearing, 110 Congress]
[From the U.S. Government Printing Office]



 
 STRENGTHENING AMERICA'S MIDDLE CLASS THROUGH THE EMPLOYEE FREE CHOICE 
                                  ACT

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



                                HEARING

                               before the

                        SUBCOMMITTEE ON HEALTH,
                     EMPLOYMENT, LABOR AND PENSIONS

                              COMMITTEE ON
                          EDUCATION AND LABOR

                     U.S. House of Representatives

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

            HEARING HELD IN WASHINGTON, DC, FEBRUARY 8, 2007

                               __________

                            Serial No. 110-4

                               __________

      Printed for the use of the Committee on Education and Labor


                       Available on the Internet:
      http://www.gpoaccess.gov/congress/house/education/index.html



                    U.S. GOVERNMENT PRINTING OFFICE

32-906 PDF                  WASHINGTON : 2007
------------------------------------------------------------------
For sale by Superintendent of Documents, U.S. Government Printing 
Office Internet: bookstore.gpo.gov  Phone: toll free (866) 512-1800;
DC area (202) 512-1800 Fax:  (202) 512-2250. Mail:  Stop SSOP, 
Washington, DC 20402-0001



                    COMMITTEE ON EDUCATION AND LABOR

                  GEORGE MILLER, California, Chairman

Dale E. Kildee, Michigan, Vice       Howard P. ``Buck'' McKeon, 
    Chairman                             California,
Donald M. Payne, New Jersey            Ranking Minority Member
Robert E. Andrews, New Jersey        Thomas E. Petri, Wisconsin
Robert C. ``Bobby'' Scott, Virginia  Peter Hoekstra, Michigan
Lynn C. Woolsey, California          Michael N. Castle, Delaware
Ruben Hinojosa, Texas                Mark E. Souder, Indiana
Carolyn McCarthy, New York           Vernon J. Ehlers, Michigan
John F. Tierney, Massachusetts       Judy Biggert, Illinois
Dennis J. Kucinich, Ohio             Todd Russell Platts, Pennsylvania
David Wu, Oregon                     Ric Keller, Florida
Rush D. Holt, New Jersey             Joe Wilson, South Carolina
Susan A. Davis, California           John Kline, Minnesota
Danny K. Davis, Illinois             Bob Inglis, South Carolina
Raul M. Grijalva, Arizona            Cathy McMorris Rodgers, Washington
Timothy H. Bishop, New York          Kenny Marchant, Texas
Linda T. Sanchez, California         Tom Price, Georgia
John P. Sarbanes, Maryland           Luis G. Fortuno, Puerto Rico
Joe Sestak, Pennsylvania             Charles W. Boustany, Jr., 
David Loebsack, Iowa                     Louisiana
Mazie Hirono, Hawaii                 Virginia Foxx, North Carolina
Jason Altmire, Pennsylvania          John R. ``Randy'' Kuhl, Jr., New 
John A. Yarmuth, Kentucky                York
Phil Hare, Illinois                  Rob Bishop, Utah
Yvette D. Clarke, New York           David Davis, Tennessee
Joe Courtney, Connecticut            Timothy Walberg, Michigan
Carol Shea-Porter, New Hampshire

                     Mark Zuckerman, Staff Director
                   Vic Klatt, Minority Staff Director
                                 ------                                

         SUBCOMMITTEE ON HEALTH, EMPLOYMENT, LABOR AND PENSIONS

                ROBERT E. ANDREWS, New Jersey, Chairman

George Miller, California            John Kline, Minnesota,
Dale E. Kildee, Michigan               Ranking Minority Member
Carolyn McCarthy, New York           Howard P. ``Buck'' McKeon, 
John F. Tierney, Massachusetts           California
David Wu, Oregon                     Kenny Marchant, Texas
Rush D. Holt, New Jersey             Charles W. Boustany, Jr., 
Linda T. Sanchez, California             Louisiana
Joe Sestak, Pennsylvania             David Davis, Tennessee
David Loebsack, Iowa                 Peter Hoekstra, Michigan
Phil Hare, Illinois                  Cathy McMorris Rodgers, Washington
Yvette D. Clarke, New York           Tom Price, Georgia
Joe Courtney, Connecticut            Virginia Foxx, North Carolina
                                     Timothy Walberg, Michigan


                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on February 8, 2007.................................     1
Statement of Members:
    Andrews, Hon. Robert E., Chairman, Subcommittee on Health, 
      Employment, Labor and Pensions.............................     1
    Kline, Hon. John, Senior Republican Member, Subcommittee on 
      Health, Employment, Labor and Pensions.....................     3
    Marchant, Hon. Kenny, a Representative in Congress from the 
      State of Texas, prepared statement of......................     3

Statement of Witnesses:
    Camilo, Ivo, retired employee of Blue Diamond Growers........    26
        Prepared statement of....................................    28
    Cohen, Charles, Chamber of Commerce..........................    77
        Prepared statement of....................................    79
    Jason, Jennifer, former UNITE HERE organizer.................    29
        Prepared statement of....................................    31
    Joyce, Teresa, employee of Cingular Wireless.................    33
        Prepared statement of....................................    35
    Lafer, Gordon, professor, University of Oregon...............    84
        Prepared statement of....................................    86
    Ludlum, Keith, employee of Smithfield Foods..................    20
        Prepared statement of....................................    21
    Shaiken, Harley, professor, University of California-Berkeley    69
        Prepared statement of....................................    70
    Schiffer, Nancy, lawyer, AFL-CIO.............................    61
        Prepared statement of....................................    62
        AFL-CIO Fact Sheet.......................................    68

Additional Statements and Supplemental Materials:
    Congressional letter to Junta Local de Conciliacion y 
      Arbitraje del Estado de Puebla, Puebla, Mexico.............    15
    HR Policy Association........................................    13
    Ivey, Mike, materials handler, Freightliner Custom Chassis 
      Corp.......................................................     4
    Mayhew, Karen M., employee of Kaiser Permanente..............     5
    Mix, Mark, president of the National Right to Work Committee.     8
    Smithfield Packing Co........................................    11
    Torres, Ricardo, former union organizer for the United 
      Steelworkers...............................................     6
    Zogby Intl. poll, ``A Nationwide Survey of Union Members and 
      Their Views on Labor Unions''..............................    15


 STRENGTHENING AMERICA'S MIDDLE CLASS THROUGH THE EMPLOYEE FREE CHOICE 
                                  ACT

                              ----------                              


                       Thursday, February 8, 2007

                     U.S. House of Representatives

         Subcommittee on Health, Employment, Labor and Pensions

                    Committee on Education and Labor

                             Washington, DC

                              ----------                              

    The subcommittee met, pursuant to call, at 10:30 a.m., in 
room 2175, Rayburn House Office Building, Hon. Robert Andrews 
[chairman of the subcommittee] presiding.
    Present: Representatives Andrews, Miller, Kildee, McCarthy, 
Tierney, Wu, Holt, Sanchez, Sestak, Loebsack, Hare, Clarke, 
Courtney, Kline, McKeon, Marchant, Boustany, Hoekstra, McMorris 
Rodgers, Foxx, and Walberg.
    Staff present: Tylease Alli, Hearing Clerk; Jordan Barab; 
Jody Calemine, Labor Policy Deputy Director; Carlos Fenwick, 
Policy Advisor for Subcommittee on Health, Employment, Labor 
and Pensions; Michael Gaffin, Staff Assistant, Labor; David 
Hartzler, Systems Administrator; Brian Kennedy, General 
Counsel; Thomas Kiley, Communications Director; Danielle Lee, 
Press/Outreach Assistant; Joe Novotny, Chief Clerk; Megan 
O'Reilly, Labor Policy Advisor; Rachel Racusen, Deputy 
Communications Director; Mark Zuckerman, Staff Director; Robert 
Borden, General Counsel; Steve Forde, Communications Director; 
Rob Gregg, Legislative Assistant; Jessica Gross, Deputy Press 
Secretary; Taylor Hansen, Legislative Assistant; Victor Klatt, 
Staff Director; Lindsey Mask, Director of Outreach; Jim 
Paretti, Workforce Policy Counsel; Molly McLaughlin Salmi, 
Deputy Director of Workforce Policy; Linda Stevens, Chief 
Clerk/Assistant to the General Counsel; and Loren Sweatt, 
Professional Staff Member.
    Chairman Andrews [presiding]. Please take your seats. I 
would ask if we could have the doors closed in the back of the 
room.
    Good morning, ladies and gentlemen. Today the subcommittee 
will consider the topic of the Employee Free Choice Act and the 
issues surrounding it.
    It is self-evident to me that being a middle-class person 
in this country is an increasingly difficult thing to do. 
Middle-class people feel like they are on a treadmill where the 
speed has been increased and increased and increased and they 
are struggling hard to stay in the same place.
    People who are fortunate enough to have a job, have health 
insurance and get a raise very often find out that any raise 
that they got was more than consumed by the increase in their 
out-of-pocket health-care costs. The cost of educating a son or 
a daughter or oneself or one's spouse continues to go up with 
very little relief in sight. Whether it is your fuel bills, 
your property taxes, your auto insurance, your mortgage, it is 
very difficult to make ends meet.
    Many of us believe that one of the antidotes to the middle-
class squeeze is the power of collective bargaining, the 
ability to bargain collectively with your peers at work in 
order to achieve a better result. The record would indicate 
that union workers make about 30 percent more than their 
brothers and sisters who are not in a union, that virtually the 
odds of having health insurance if you are in a union are 
remarkably higher than the odds if you are not. Same is true of 
a pension.
    Having said all of that, the purpose of the Employee Free 
Choice Act is not to encourage more membership in unions. The 
purpose of the Employee Free Choice Act is to give every 
working person in the country a free and uncoerced choice as to 
whether or not to join a union.
    The centerpiece of the Employee Free Choice Act, the lead 
sponsor of whom is the chairman of our full committee, Mr. 
Miller, and of which I am proud to be a cosponsor--the 
centerpiece of the legislation is the idea that, through 
majority sign-up, if a majority of employees of a given 
bargaining unit wish to be represented in collective 
bargaining, they have the right to do so.
    This is, by no means, a new idea under the labor statutes 
of this country. In fact, the idea of majority sign-up has been 
in the law for over 6 decades.
    The major change that the Employee Free Choice Act makes in 
majority sign-up is that, unlike the present situation where, 
if you have a majority sign-up for representation, the employer 
has a veto power and can force that decision into an election, 
under the bill that Mr. Miller has proposed if a majority of 
employees express their will, if there is a finding by the 
National Labor Relations Board that these are valid signatures, 
meaning that they are uncoerced and they are voluntarily given, 
if there is such a finding, then the union is recognized and 
there is prompt and expeditious progress toward the negotiation 
of the first contract.
    So there is nothing new about this.
    Now, certainly you are going to hear concerns raised today 
about the importance of secret ballots in choosing whether or 
not to have a union represent workers. This is an issue on 
which there is significant disagreement among our friends here 
on the subcommittee and in the full committee and, I would 
assume, in the full Congress as well.
    I would indicate today, the record will show that there is 
no secret that there is a long and negative history of coercion 
in the conduct of union elections under the existing law of the 
status quo. The notion that somehow a process that concludes 
with a secret ballot is presumptively fair and uncoerced is a 
false notion.
    And, in fact, you will hear a record of testimony today 
that indicates, in many occasions, how there is a presumptively 
coercive environment that takes place in the representation 
election context.
    Now, this is an issue on which there are strong feelings on 
both sides. And I am certain that those strong feelings will be 
vigorously expressed today. We welcome that.
    It is both my hope and my intention that, in our vigorous 
pursuit of the points of view that we advocate, that we will do 
so respectfully toward each of the witnesses, obviously toward 
each other as colleagues on the committee, and where we 
disagree, we will disagree agreeably.
    We are going to proceed with the hearing this morning. And 
what I would like to do at this point is to yield to my friend 
and colleague, the ranking member of the subcommittee, Mr. 
Kline.
    Mr. Kline. Thank you, Mr. Chairman.
    And good morning to everyone.
    As the chairman said, we had agreed at the onset of this 
Congress that there could be times when we would disagree, but 
we would do that without being disagreeable. And this is 
certainly going to be one of those days, because, from the very 
outset, I couldn't disagree more with what this bill is 
proposing to do.
    The fundamental premise is to examine a bill that is 
cleverly called the Employee Free Choice Act. And I would argue 
that this is anything but free choice.
    It would replace a system today in which workers are 
empowered to cast their vote on whether or not to unionize in a 
thoroughly monitored, federally supervised, private ballot 
election. It would replace this with an unregulated, 
unmonitored card-check process, in which everyone--everyone: a 
worker's employer, his coworkers, the union--knows how he or 
she votes.
    My colleagues know that I am not prone to hyperbole--maybe 
sometimes--or to be overly dramatic. So let me be blunt. As I 
see it, this bill strips away the federally protected right to 
a secret ballot from American workers. That is not choice, and 
it is certainly not free choice, for our nation's employees.
    I would agree entirely with the chairman's opening comments 
that this hearing and this discussion is not about whether or 
not employees are better off in a union or not. That is an 
interesting debate and one which we may engage in someday, but 
this hearing is not about whether or not unions are better than 
non-unions. It is about how workers choose whether or not they 
want to be in a union.
    And I hope that we will be able to focus the discussion and 
the debate all morning on that issue, and not flip to a 
discussion of whether or not unions provide more benefits than 
non-unions.
    We have a number of witnesses with us today, and we have 
workers from around the country who have submitted testimony 
for the record to tell us their story, which, Mr. Chairman, I 
ask unanimous consent to include in the record of this hearing.
    Chairman Andrews. Without objection.
    [The information follows:]
    [The statement of Mr. Marchant follows:]

Prepared Statement of Hon. Kenny Marchant, a Representative in Congress 
                        From the State of Texas

    Despite the true purpose and scope of today's hearings, it is clear 
that the ``Employee Free Choice Act'' does nothing more than roll back 
federally protected secret ballot elections. To join a union is a 
personal decision and under current law it is accomplished through 
either a confidential vote that remains private or a ``card check'' 
system. The secret-ballot process is overseen by the National Labor 
Relations Board. The bill we are discussing today would mandate 
revealing a worker's anonymous vote to employers, union organizers, and 
coworkers. The process proposed would take away a clear right to free 
and confidential voting that is held so dear in this country and is as 
American as Apple Pie. This bill leaves open the door for misguided 
peer pressure or coercion from unions and employers. Taking away free, 
private elections just to expedite unionization is a serious and 
misguided policy. The stories you will hear today of abuse in the 
process will be nothing more than scare tactics. We as Americans 
support and foster free elections through our representation here in 
the Nation's Capitol and also through voting at the state and local 
levels. Why would we take that right away from Americans in the 
workplace? This is an issue that I hope the public will notice and 
demand we preserve the right to free and confidential elections for the 
American worker.
    Thank you Mr. Chairman.
                                 ______
                                 

Prepared Statement of Mike Ivey, Materials Handler, Freightliner Custom 
                          Chassis Corporation

    My name is Mike Ivey, and I appreciate the opportunity to share 
with the committee my experiences under an abusive card check 
organizing drive which is still ongoing after four and a half years.
    Freightliner Custom Chassis Corporation (FCCC) in Gaffney, South 
Carolina, has employed me for approximately seven years. We are a non-
union facility and more than the majority of employees are extremely 
proud of that fact. The problems we have started in the fall of 2002.
    During contract negotiations for their union facilities, the UAW 
and Daimler Chrysler Corporation reached a card check agreement to 
allow the UAW to try to organize their non-union facilities. This 
agreement prevents FCCC from doing anything positive for their 
employees, or discussing the situation with the employees. This 
agreement also allows the union to recruit and pay FCCC employees at 
this facility to handle their card check system.
    The card check system consists of coercing employees to sign a card 
for the union. If enough cards are signed, 50% + 1, then the facility 
is considered to be a union facility. In this process of obtaining the 
needed signatures, there are a lot of untruths told.
    Early on, the employees for a non-union FCCC signed and submitted a 
petition which clearly states that they want no union representation at 
this facility. More than seventy percent of all employees signed this 
petition. The UAW and Daimler Chrysler Corporation received these 
petitions with no response, nor any halt in the card check drive.
    In April of 2003, the CEO of Daimler Chrysler promised the 
employees of FCCC a wage increase at a plant wide meeting. In August of 
2003, when the time came to make good on that promise the union 
threatened a lawsuit against Daimler Chrysler if the wage increase was 
implemented. They feared that if employees got the wage increase they 
had long been promised, it would reduce support for the union. We 
obtained free legal aid from the National Right to Work Legal Defense 
Foundation, and only after we filed charges at the National Labor 
Relations Board, did the union allow the pay increase.
    Employees are told at off-site meetings that signing a card only 
certifies that they attended the meeting. Employees are also offered a 
free t-shirt if they sign a card. What they are not told is that these 
cards are a legally binding document, which states that the employee is 
pro union--thus placing the union one step closer to their goal of 
complete control of the employees' workplace life without the employee 
even realizing it.
    In the work place, the employees running the organizing campaign 
for the UAW are relentless in trying to get the employees to sign union 
cards. This has created a hostile work environment, with employees who 
once were friends who are now at odds with each other.
    The employees who are not in support of the Union should have the 
right to go to work and not be harassed every day. This harassment has 
been going on more than 4 years with no end in sight. Faced with this 
never-ending onslaught, we employees feel that the UAW is holding our 
heads under water until we drown.
    In April 2005, the UAW obtained the personal information of each 
employee. It wasn't enough that employees were being harassed at work, 
but now they are receiving phone calls at home. The UAW also had Union 
employees from other facilities actually visit these employees at their 
homes. The union's organizers refuse to take ``no'' for an answer. If 
you told one group of organizers that you were not interested, the next 
time they would send someone else. Some employees have had 5 or more 
harassing visits from these union organizers. The only way, it seems, 
to stop the badgering and pressure is to sign the card.
    Moreover, in many instances, employees who signed cards under 
pressure or false pretenses later attempted to retrieve or void this 
card. The union would not allow this to happen, telling them that they 
could not do so.
    After four and a half years of trying to organize our facility, the 
majority of employees are still against the Union by roughly a 3 to 1 
ratio.
    We feel that the aggressive behavior of UAW organizers will only 
escalate in 2007. All the union Freightliner facilities are facing 
major layoffs in the coming months. We expect the UAW to turn up the 
heat at our Gaffney facility to make up for the dues revenue shortfalls 
at the union facilities.
    I understand that some members of Congress would like to mandate 
this abusive card check process for selecting a union so that employees 
everywhere will go through what we continue to experience. Rather than 
increasing this coercive practice, Congress should ban it.
    Everyone in public office is elected by secret ballot vote. Please 
give us a chance in our work place to make the decision on 
representation in the same manner.
                                 ______
                                 

  Prepared Statement of Karen M. Mayhew, Employee of Kaiser Permanente

    My name is Karen M. Mayhew and I work for one of the nation's 
largest Health Maintenance Organizations, Kaiser Permanente, in 
Portland, Oregon. I write today to express my concern over the 
ironically named ``Employee Free Choice Act.'' This legislation, if 
passed, will strip from American workers the right to say whether or 
not they want to have their working lives forever altered. I would like 
to share my personal experience under ``card check'' and explain why it 
is a terrible idea.
    Back in the spring of 2005, a local of the Service Employees 
International Union (SEIU) descended upon my small office of 
approximately 65 professional employees and launched into an organizing 
campaign. This union had already signed what they called a ``neutrality 
agreement'' with my employer which silenced my employer and made it 
impossible for my employer to speak truthfully to us about the meaning 
of the union's activities.
    One of the first meetings with the union after the launch of the 
``card check'' campaign was a Q & A session with a local organizer and 
SEIU organizing director at a large reception hall at one of our 
Portland campuses. At that meeting, union authorization cards were 
placed purposely in front of each chair. Some of us, myself included, 
spoke to our colleagues before the meeting about those cards, and 
questioned their meaning and purpose. At the meeting, employees asked 
the union agents questions about the purpose of the cards. The union 
agents responded by telling us that signing the card only meant that 
the employee was expressing an interest in receiving more information 
about the union, or to have an election to decide whether or not to 
bring the union in.
    It was made clear to all of us there in attendance that those 
authorization cards did NOT constitute a vote right there and then for 
exclusive representation by SEIU. We were told by the union agents that 
if 30% of us signed those cards, we would be allowed an election to 
vote on exclusive representation by the SEIU. Indeed, a collective 
bargaining agreement between Kaiser and the SEIU specifically provided 
that there would be a secret ballot election.
    For the next 7 months, a union organizer had open and free access 
to us and our facility in her quest to secure what we thought were 
cards to get an election. She would incessantly approach us on our 
breaks, our lunch hours, even in the hall on our way to the restroom. 
Due to our employer's ``neutrality agreement,'' this union agent was 
free to do this on our work time.
    On October 17, 2005, my department was brought to a meeting with 
our senior management and told that as of that date, we were officially 
represented by SEIU. There was never an election and no further 
information was available to us. About a week later, we had a joint 
meeting with the regional director of Human Resources and the union 
organizer. The first questions at that meeting were not about what it 
meant to be in the union. Instead, many incensed employees complained 
that we were not given our promised election.
    When we were told that 50% + 1 had signed the union's authorization 
cards, and that no election would be held, it did not take long for 
many employees to announce that they would not have signed the cards if 
they had known that there would be no election. Knowing that the union 
had just a one-person majority in our department at the time of 
Kaiser's recognition, I filed Unfair Labor Practice charges against 
Kaiser and the SEIU union with the National Labor Relations Board 
(NLRB), based in part on the realization that some in our department 
had signed cards solely due to the union's misrepresentations. Those 
unfair labor practice charges were docketed as NLRB Case No. 36-CA-9844 
and 36-CB-2607.
    My charges were filed with assistance from the National Right to 
Work Foundation, without whom I would have been at a loss as to how to 
proceed to protect my legal rights. My charges specifically addressed 
the union's misrepresentations, and the violation of the employer and 
union's ``collective bargaining agreement'' to hold an election when 
the union provided a 30% showing of interest.
    In addition, I filed for decertification of the union when I 
submitted to the NLRB a petition with signatures constituting more than 
30% of the bargaining unit. That decertification Petition was docketed 
as NLRB Case No. 36-RD-1673. Along with three other Kaiser employees 
from my department, I gave a sworn statement to an agent of the NLRB 
detailing the events leading up to the ``card check'' and the unlawful 
recognition of the SEIU based upon that ``card check.'' In February of 
2006, the local office of the NLRB sent my case to the NLRB's Division 
of Advice in Washington D.C.
    The charges remained at the NLRB's Division of Advice until July, 
2006. It is my understanding that the Division of Advice found merit to 
our charges of unfair labor practices, and authorized the issuance of a 
formal complaint. That is when the union and Kaiser decided to settle 
the charges. The terms of the settlement included revoking the 
voluntary recognition of SEIU by Kaiser, and the promise that if SEIU 
ever desired to represent my department for the next several years, it 
would have to obtain such status through a National Labor Relations 
Board-supervised secret ballot election. I accepted this settlement 
offer because the unlawful recognition was rescinded, and my story made 
headlines in the local newspaper, The Oregonian.
    Within two months of the settlement, the same SEIU union, at the 
same employer, gained exclusive recognition rights over employees in 
another department without any election. The employees in that 
department also filed an Unfair Labor Practice charge with the NLRB. 
The end result of that charge was another settlement in which Kaiser 
and SEIU terminated their voluntary recognition, and agreed to only use 
NLRB-supervised secret ballot elections if the union wishes to return 
before December 31, 2008.
    Throughout this whole ordeal, my colleagues and I were subjected to 
badgering and immense peer pressure. Some of us even received phone 
calls at home. While I let my feelings toward this union be known early 
on, I still was attacked verbally and in e-mail by my pro-union 
colleagues. I believe this abuse directed towards me was at the request 
of the union in an effort to intimidate me and have me back down. Union 
supporters upset with me and my actions were talking about me in 
language that could only have come from the union. You could easily 
assume they were reading from union talking points. Different people 
all expressing the same sentiment. I exercised my free choice not to be 
in the union and my work life became miserable because of it.
    In sum, I respectfully submit that ``card checks'' are not the 
preferred method of union recognition, and that the cases outlined 
above, filled with union abuses of a wide variety, are the rule in 
``card check'' campaigns, not the exception.
    To deny workers the right to choose union representation in secret, 
without coercion, intimidation, social ostracizing, and 
misrepresentations, is to deny a fundamental American right. As a 
worker who was abused under a ``card check'' process, and had to wage a 
costly battle to protect my rights, I urge you to reject this ill-
conceived special-interest legislation.
                                 ______
                                 

 Prepared Statement of Ricardo Torres, Former Union Organizer for the 
                          United Steelworkers

    My name is Ricardo Torres, and I appreciate the opportunity to 
share with the Congress some of my experiences working as a union 
organizer for the United Steelworkers (USWA) from 1996 until 2002. I 
left this line of work because I became revolted by the ugly methods 
that we were encouraged to use to pressure employees into union ranks.
    I worked across the country in many states, either directing or 
working on approximately 500 union organizing campaigns, including many 
that involved card check, rather than elections. I was in charge of the 
campaign strategies, organizers, and tactics used. I also worked on 
national organizing campaigns such as in glass, meat packing, mini 
mills, and the Metaldyne card check drive. I was the person on the 
ground working the merger with the California Nurses Association. I 
have also taught classes regarding union organizing for the Latinos in 
Labor Studies program at University of Michigan and at Linden Hall for 
the USWA in Dawson, PA. I was also part of the Wayne State University's 
union speaker circuit where I spoke on organizing immigrant workers.
    I ultimately quit this line of work when a senior Steelworkers 
union official asked me to threaten migrant workers by telling them 
they would be reported to federal immigration officials if they refused 
to sign check-off cards during a Tennessee organizing drive. This was 
the last in a long list of abuses I had observed as a union organizer.
    First, I think it is important to understand that the most 
important department in unions is the organizing department. Union 
officials know that unless dues-paying membership grows, they will have 
to cut back on salaries and perks they have grown accustomed to. There 
is always pressure put on coordinators/organizers about how many people 
were organized and at what cost. The average cost of union organizing 
in 2002 was several thousand dollars per worker, according to the data 
that was presented to me at that time. Union organizers understand that 
they need to be successful in organizing workers or they will be 
looking for another job.
    The principal directive from the higher ups in the union hierarchy 
was this: win organizing campaigns by any means necessary.
    From the first moment contact was made with workers at a company, 
the deceit began. We gave the workers a twisted version of the National 
Labor Relations Act to make them think that they had more rights under 
the law then they did.
    Pro-union employees were encouraged to isolate their coworkers into 
groups that might favor the union and those who they thought might not 
favor the union. They were encouraged to take from the workplace any 
information that might be useful to the campaign like workers' names, 
addresses, wages, personnel files, internal memos, CD ROMs. They were 
even asked to go as far as bringing us the garbage from the offices so 
that union organizers could sift through it to find any dirt on someone 
in management or the company that could be used to discredit them at a 
later date.
    To the extent possible, the internal committee of pro-union 
employees was formed in secret so that management would not take steps 
to secure their internal data or intervene to stop the pressure tactics 
on employees. We took steps to develop detailed bios on every worker 
and used this information in pressuring them into supporting the union. 
Union organizers tried to learn as much personal information about the 
targeted workers as possible, such as their friends, hobbies, and 
habits.
    Calling OSHA was another tactic used to target the company, as well 
as overstating and hyping any reports to make the case that the 
targeted employer has an unsafe work environment. Another tactic is 
bringing community pressure and/or economic pressure.
    Smear campaigns were common, as in the case of hospitals and health 
care.
    Categorizing employees into groups of supporters and non-supporters 
brought the harassment of anyone that spoke against the union or did 
not sign an authorization card. Workers were also encouraged to harass 
management and to try to hijack any company meetings about the 
organizing drive. The goal was to create a hostile environment and 
maybe even get a good employee fired in order to anger the rest of the 
workforce and cause more issues in the workplace. The objective was to 
hurt the company and non- supporting employees in any way possible.
    Visits to the homes of employees who didn't support the union were 
used to frustrate them and put them in fear of what might happen to 
them, their family, or homes if they didn't change their minds about 
the union. In most cases, constant pressure at work and home was enough 
to make workers break and at least stop talking against the union--
neutralizing them, so to speak.
    From the first conversation in a newly targeted workplace to the 
ultimate recognition of the union, the goal is to create an ``us 
against them'' environment, to anger the work force into thinking the 
union is the only solution to their problems, real or made up.
    Harassing and misleading workers is the base of all organizing 
campaigns. The job of a good union organizer is to create issues that 
disrupt the workplace and cost both the employer and the non-supporting 
employees money and time. Whether it be in organizing campaigns--or in 
the case of strikes such as the Detroit Newspaper strike that started 
in 1995 and lasted years before a contract was signed--the goal was to 
cause the company harm and use this leverage at the bargaining table. 
One of the many tactics used at the strike in Detroit was to take 100 
to 200 people to protest in front of the house of any worker who 
exercised his right to continue working. This was done to humiliate 
them and to put fear into any striker that the same would happen to 
them if they crossed the picket line. We called this tactic ``get to 
know your neighbor day.''
    Union officials do not like secret ballot elections because they 
give employees the ability to use all the information given to them in 
the course of the election process to make an informed, uncoerced 
decision. Ultimately, they get to decide what is right for both them 
and their family in the privacy of the voting booth.
    Card check organizing drives give the union more power over the 
employees. It can be awfully hard to dissent when the union knows how 
you voted. I believe that card check can be easily exploited to 
effectively take away employees' right in Section 7 of the Act to 
refrain from union activity. We knew how to make the pressure so great 
that most workers would feel powerless to refuse to sign the card.
    Looking back on my long experience as a union organizer, I believe 
the only way to keep the election process fair is to let people make up 
their minds and to voice their feelings in the only forum they can 
without fear of reprisal. The secret ballot election is the cornerstone 
of that right.
                                 ______
                                 

Prepared Statement of Mark Mix, President of the National Right to Work 
                               Committee

    To most Americans, the term ``card check'' means nothing.
    But to union officials, this term potentially means billions of 
extra dollars collected in forced union dues, above and beyond the $8 
billion in forced dues and ``fees'' that unions already report 
collecting each year on forms filed with the U.S. Labor Department.
    To understand what ``card checks'' and ``card check organizing'' 
are, one must first understand what Big Labor seeks to achieve through 
the acquisition of so-called ``union authorization cards.''
    Under current law, union officials may obtain bargaining power over 
workers who don't sign cards as well as those who do, over union 
nonmembers as well as union members. That's because federal labor law 
authorizes union ``exclusive representation'' over private and federal-
government employees in all 50 states. So-called ``exclusive 
representation'' is more accurately labeled as monopoly bargaining.
     Under Section 9(a) of the 1947 Taft-Hartley Act, a union 
that has been certified or recognized as the representative of the 
workers in a bargaining unit has the right of ``exclusive 
representation'' for all workers in that unit:
    Representatives designated or selected for the purposes of 
collective bargaining by the majority of the employees in a unit [that 
the federal government deems] appropriate for such purposes * * * shall 
be the exclusive representatives of all the employees in such unit for 
the purposes of collective bargaining in respect to rates of pay, 
wages, hours of employment, and other conditions of employment.
     The concept of ``exclusive representation'' means that the 
union is the sole bargaining agent for the unit. The employer is 
prevented from dealing with any other organization in the determination 
of wages, hours, and working conditions for that unit. The employer is 
also prevented, under most circumstances, from implementing changes in 
the conditions of work without prior negotiations with the union. 
Moreover, the individual employee within the bargaining unit, whether a 
union member or not, is unable to bargain with the employer on his or 
her own behalf unless union officials grant their permission.
    ``Card checks'' empower union officials to force employees to 
accept a union as their exclusive bargaining agent solely through the 
acquisition of signed ``union authorization cards'' from employees in a 
particular bargaining unit. Since union officials themselves keep the 
signed cards until they obtain the required number, workers have no 
real privacy rights vis-a-vis Big Labor in this process. And under the 
watchful eyes of union organizers, workers may be intimidated into 
signing not just themselves, but all their nonunion fellow employees, 
over to union-boss control.
    Union officials virtually never intend to merely obtain the power 
to negotiate pay, benefits, and working conditions for those employees 
who sign such cards. When union officials seek the power to bargain 
with a business only on behalf of those employees who choose to join 
the union, it need not be determined whether pro-union workers 
constitute a majority.
    As the U.S. Supreme Court has made clear in 1938's Consolidated 
Edison decision and in subsequent rulings, nothing in federal law bars 
either a minority or a majority union from seeking and obtaining 
employer recognition as a members-only bargaining agent.
    In recent decades, however, union officials have only very rarely 
exercised their members-only option. Instead, virtually all union 
organizing drives focus on obtaining bargaining privileges over 
nonmembers as well as members. The National Right to Work Committee has 
long favored amending federal labor law to guarantee the individual 
worker's freedom to bargain on his or her own behalf, regardless of 
coworkers' union status.
    But as long as federal law authorizes union officials to acquire 
monopoly-bargaining power, they should at least have to clear the 
hurdle of a secret-ballot vote in order to get it. Congress should 
certainly not make it easier for Big Labor to deny employees the 
opportunity to bargain for themselves by endorsing the expansion of 
``card check organizing.''
    ``Card checks'' frequently go in tandem with misleadingly-named 
``neutrality agreements,'' which typically require employers to help 
union officials secure monopoly-bargaining power.
    A ``neutrality agreement'' is actually a contract between union 
officials and an employer under which the employer agrees to support 
attempts to organize its workforce. Although these agreements come in 
several different forms, common provisions include:
     Gag Rule: Far from promoting employer ``neutrality,'' most 
``neutrality agreements'' impose a gag order on speech not favorable to 
the union. The company, including its managers and supervisors, is 
prohibited from sharing with workers any information that might be 
construed as negative about the union or unionization, including even 
uncontested, objective facts. As long as the unionization drive 
continues, top managers must do everything within their power to ensure 
employees hear only one side of the story: the version union officers 
want employees to hear.
     Preemptive ``Card Checks:'' Most ``neutrality agreements'' 
include a clause in which the company publicly announces in advance 
that, should a simple majority of employees sign ``union authorization 
cards,'' the company will recognize the union as the monopoly-
bargaining agent of all employees without first allowing a secret-
ballot election. Experience shows that many employees are coerced or 
misled into signing authorization cards. For instance, employees are 
often falsely told that authorization cards are merely health insurance 
enrollment forms, non-binding ``statements of interest,'' requests for 
an election, or even tax forms. Furthermore, when an employer tacitly 
declares that it is unconcerned about such abuses and will not 
investigate alleged instances, employees may well decide that 
resistance to unionization is futile.
     Access to Premises: ``Neutrality agreements'' commonly 
give union officers permission to come on company property during work 
hours for the purpose of collecting ``union authorization cards.'' This 
differs from the guidelines set by the National Labor Relations Board 
(NLRB) and the courts, under which an employer has no obligation of, 
and may actually be prohibited from, providing union bosses with direct 
access to employees.
     Access to Employees' Personal Information: ``Neutrality 
agreements'' frequently require that the company provide personal 
information about employees to the union, including where employees and 
their families live. Armed with a company-provided list of the name and 
address of each employee, union officials can conduct multiple home 
visits to pressure a targeted employee to sign a ``union authorization 
card.'' Some employees report they cannot stop such intrusive and 
potentially intimidating visits even by repeatedly telling union 
organizers they have no interest in signing an authorization card.
     Captive Audience Speeches: Employees may be forced to 
attend company-financed ``captive audience'' speeches pursuant to 
``neutrality agreements.'' In these mandatory forums, managers often 
watch approvingly while union officials put pressure on employees to 
sign ``union authorization cards.'' (However, actual collection of 
signed cards while managers and/or supervisors are watching is illegal, 
according to a June 2004 ruling by an NLRB administrative law judge.)
    Sometimes it is announced that the union and company have already 
formed a ``strategic partnership,'' making union representation seem a 
foregone conclusion. In one facility owned by Johnson Controls Inc., it 
was strongly implied that if workers did not support the union's 
organizing effort, they risked losing potential job opportunities.
    In light of the destruction ``neutrality agreements'' wreak on 
employee-management relations, one may reasonably ask why any employer 
in his or her right mind would ever agree to sign one. But the sad fact 
is, employers often sign ``neutrality agreements'' under duress, 
because they believe they have no other way to fend off union 
picketing, threats, or comprehensive ``corporate campaigns.'' 
(Corporate campaigns utilize many tactics, but typically involve the 
generation of negative publicity aimed at reducing an employer's 
goodwill with employees, investors, or the general public.) Some 
employers are pressured by other employers into signing ``neutrality 
agreements.'' Some agreements may require an employer to seek to impose 
the ``neutrality agreement'' on other companies with whom it 
affiliates.
    Moreover, misguided state and local politicians have in recent 
years passed a number of laws and ordinances mandating that employers 
who wish to do business with the state or locality must sign ``card 
check/neutrality agreements.''
    In one notorious case, the San Francisco Airport Authority mandated 
that any concessionaires who wished to lease space at the airport had 
first to sign a ``neutrality agreement.'' However, with legal arguments 
made by Right to Work attorneys that regulation was later found to be 
federally preempted. Its enforcement was enjoined in Aeroground, Inc. 
v. City & County of San Francisco, 170 F. Supp. 2d 950 (N.C. Cal. 
2001). Unfortunately, many Big Labor politicians are still attempting 
to require ``card check/neutrality agreements'' as a condition of 
contracting with the government or of obtaining grants, even though 
most, if not all, such requirements are barred by federal law.
    Despite the enormous pressure, alluded to above, that union 
officials are able to bring to bear on a business to secure its consent 
for a ``card check/neutrality'' deal, many employers continue to resist 
selling out employee rights that the law now entitles a business to 
protect. Under the U.S. Supreme Court's 1974 decision in Linden Lumber 
v. NLRB, an employer ``who has not engaged in an unfair labor practice 
impairing the electoral process'' cannot be legally required to 
recognize a union as employees' monopoly-bargaining agent based on a 
showing of signed cards alone.
    The misnamed ``Employee Free Choice Act'' would make ``card 
checks'' the norm even where there isn't so much as an allegation of 
employer misconduct. Consequently, during unionization drives only the 
views workers express while being monitored by union officials would 
count.
    Union lobbyists arrogantly claim that no one should be concerned 
about eviscerating employees' freedom to oppose unionization. When 
union agents intimidate workers, they imply, it's always ``for the 
workers' own good.'' But the reality is there are many good reasons why 
a worker might not want to join or be represented by a union. For 
example, the latest data from the Bureau of National Affairs (BNA) in 
Washington, D.C., show that nearly four million private-sector 
unionized employees nationwide work in sectors for which the mean 
earnings of unionized employees are lower than the earnings of union-
free employees. And the BNA data aren't even adjusted for cost of 
living, which is on average far higher in heavily unionized regions.
    Looking at the BNA data alone, many unionized workers in sectors 
like manufacturing or wholesale and retail trade have good reason to 
suspect their real take-home pay is lower than it would be if they were 
union-free. Many others don't like the fact that union bosses seem more 
interested in militant electioneering than in anything else. There's no 
logical reason for Congress to pass a measure that destroys employees' 
opportunity to cast a secret ballot against potentially detrimental 
union representation. At the same time it upheld the legality of ``card 
checks'' in 1969's NLRB v. Gissel, the U.S. Supreme Court admitted that 
employees who do not wish to be unionized frequently sign authorization 
cards as a result of union-boss misrepresentations, threats, or ``group 
pressure.'' Union officials themselves agree that the ``card check'' 
process is fraught with abuses--when the shoe is on the other foot.
    The AFL-CIO hierarchy joined in a 1998 legal brief insisting that 
unionized employees must be given a chance to cast a secret-ballot vote 
before the union is decertified, even if most have already signed a 
petition opposing a union. Echoing Gissel, the brief said that a 
union's workplace status should not be the result of ``group 
pressure.''
    Clearly, Big Labor is demanding ``card check'' certification out of 
expediency, not a sincere belief that cards reliably express employees' 
views. Any genuine labor-law reform must recognize the fact that the 
right to join or support a union and the right not to do so deserve 
equal protection under the law. This Card Check Instant Unionization 
Bill falsely assumes these rights are in conflict, and that purely non-
coercive speech or actions that might dissuade a worker from exercising 
his or her right to join a union somehow violate that worker's right to 
join a union. Speaking at a May 12, 2004 press conference on Capitol 
Hill, hotel worker Faith Jetter dismissed such loopy logic out of hand:
    I do not care what decision any employee makes regarding whether or 
not to be represented by the HERE [Hotel Employees and Restaurant 
Employees] union, but I think it is each employee's individual choice, 
to be made with full knowledge of what that choice means. * * * I would 
* * * want to hear all sides of the story, not just the union's side.
    Ms. Jetter, a housekeeping inspectress for the Renaissance Hotel in 
Pittsburgh, Pa., was visiting Washington, D.C., in order to express her 
support for legislation introduced in the 108th Congress by Rep. 
Charlie Norwood (R-Ga.), as an alternative to the 108th Congress's 
version of the ``Card Check Forced Unionism Bill.''
    The National Right to Work Legal Defense Foundation has represented 
hundreds of individual workers who have been abused by the unions 
during the ``card check'' process.
    Many were lied to by union organizers about what the card really 
meant. They were told that signing the card would help ensure that a 
secret ballot election took place. Many others were subjected to 
significant intimidation in their homes, in front of their children, 
until they signed the cards.
    The National Right to Work Committee opposes union monopoly 
bargaining regardless of how it is imposed.
    Prohibiting monopoly bargaining while safeguarding employees' 
freedom to form unions that represent their members only would subject 
union officials to the same rules that already apply to officers of 
other private groups and return personal freedom to the workplace.
    Since 1991, at least two Free World countries that formerly 
authorized ``exclusive bargaining,'' New Zealand and Australia, have 
switched to systems in which individual workers in unionized businesses 
may bargain for themselves. Both countries enjoyed above-average growth 
in production, productivity, and personal income in the years after 
they made the change.
    Some of the potential economic benefits of repealing monopoly 
bargaining in the U.S. can be seen by contrasting real earnings levels, 
job growth, and other key economic indices in states where monopoly 
bargaining is most prevalent with indices in states where it is least 
prevalent.
    When interstate differences in cost of living are factored in, the 
mean weekly earnings in 2001 of employees in the 10 states with the 
lowest share of private-sector workers under union monopoly bargaining 
were $683. That's nearly $30 a week, or roughly $1500 a year, more than 
the mean of $654 earned by employees in the 10 states with the highest 
share of unionized employees. (The mean earnings data come from the 
Bureau of National Affairs in Washington, D.C., as adjusted by the 
``Interstate Cost-of-Living Index'' created for the American Federation 
of Teachers union by Dr. F. Howard Nelson.)
    Low monopoly-bargaining density states enjoy an even greater 
advantage in economic growth indices than they do in real earnings, as 
one can see by reviewing the subsequent performances of the states that 
had the lowest and highest monopoly-bargaining densities in 1992.
    Over the next decade, the 10 states with the smallest share of 
workers under monopoly bargaining enjoyed an aggregate job growth of 
27.7%, more than double the 13.5% growth among the states where Big 
Labor wielded the most monopoly power. For growth in the number of 
people covered by employment-based health insurance, the advantage for 
the lowest monopoly-bargaining states was 24.6% vs. 12.5%. The 
monopoly-bargaining system has, by all evidence, undermined the very 
economic goals union officials purport to hold near and dear. Imposing 
more of the same on employees is no solution.
    Because it would raise the hurdle union officials need to clear 
before they can compel union nonmembers to accept unwanted union 
representation, the Committee supports enactment of the ``Secret Ballot 
Protection Act'' But more fundamental reforms are also called for. The 
Committee is also urges immediate passage of the ``National Right to 
Work Act, H.R. 697, which would bar private-sector compulsory union 
dues and ``fees'' in all 50 states. Ultimately, we support repeal of 
all federal monopoly-bargaining provisions.
                                 ______
                                 

            Prepared Statement of the Smithfield Packing Co.

    Chairman Andrews, Ranking Member Kline and Members of the 
subcommittee, Smithfield Packing Company appreciates the opportunity to 
respond to statements made to this Subcommittee at today's hearing on 
the Employee Free Choice Act by Keith Ludlum, an employee at 
Smithfield's Tar Heel, NC, pork processing plant, and to offer our view 
on the Employee Free Choice Act.
    As our initial statement indicated, Mr. Ludlum's testimony is 
riddled with untrue and exaggerated allegations involving events that, 
as Mr. Ludlum acknowledges, happened 10 to 15 years ago. We acknowledge 
that Smithfield Packing Company made mistakes at that time, when 
employees at the Tar Heel plant voted twice not to accept 
representation by the United Food & Commercial Workers (UFCW) 
International Union. We have accepted the rulings of the National Labor 
Relations Board and the federal courts on those matters. We are 
complying with the remedies prescribed. We are ready to hold a new, 
independently monitored election. But the union refuses.
    The union's motive is clear. Across the nation last year, unions 
won 56 percent of the elections in which they participated. But the 
UFCW lost well over 50 percent of its elections. Clearly, the UFCW does 
not believe it can win a secret-ballot election at Tar Heel.
    Instead, then, the union is seeking to pressure Smithfield Packing 
Company into recognizing the union without allowing employees a chance 
to vote. That is the background to the statement that Mr. Ludlum made 
to this committee.
    First and most important, we take strong exception to his 
statements about working conditions at the plant. Yes, work at the 
pork-processing plant is hard. And employees can get hurt. That is why 
we as a company do everything we can to avoid accidents. We are 
committed to employee safety.
    The North Carolina OSHA program did an eight-week, wall-to-wall 
inspection of our plant in 2005. The agency said then, publicly and in 
writing:
    ``We commend you on maintaining your workplace in this manner and 
we appreciate your commitment to protecting the health and safety of 
your employees.''
    Every year for the past 10 years, the National Safety Council has 
praised Smithfield for its safety record. The plant has one of the 
lowest accident rates of any meat-processing plant in the country, 
including our unionized plants and others that are represented by 
unions.
    But, no matter how hard we work on safety, accidents can happen. If 
an accident does occur, we have a doctor right on the premises. We 
provide immediate care. In fact, Smithfield spent more than a million 
dollars to build a complete medical clinic at the plant. Employees and 
their families can see a doctor for just $10. We also provide a full-
service pharmacy that fills prescriptions for small co-pay.
    Also false is Mr. Ludlum's statement that Smithfield denies workers 
compensation to injured employees. A third-party administrator--not 
Smithfield--reviews all claims, makes determinations and actually pays 
the claims. The administrator then sends us a bill, and we pay it. 
Plus, an employee can appeal any decision to the North Carolina 
Industrial Commission.
    Mr. Ludlum, interestingly, did not point out the benefits 
Smithfield provides to employees, including health insurance for them 
and their families, for only $100 a month; dental insurance; life 
insurance; a retirement plan and assistance with college tuition. He 
also did not point out that wages at the plant are well above the new 
minimum wage passed by this House and well above average wages in the 
area.
    Mr. Ludlum made specific allegations regarding the union elections 
in 1994 and 1997 that are contradicted by the evidence:
     Mr. Ludlum testified that on election day in 1997 
employees were required to walk a gauntlet of armed guards in order to 
go into the cafeteria to vote. Despite months of testimony and over 
13,000 page of transcript, there is no evidence whatsoever to support 
this claim. Nor did the Administrative Law Judge make such a finding. 
Police officers were present in or around the cafeteria at the time the 
NLRB went to count the ballots, after the voting was finished. Their 
presence was believed to be necessary because of the size of the crowd 
and the fact that emotions were running high among everyone involved. 
But police were not present in the plant in or around the voting area 
while people were voting.
     Mr. Ludlum also testified that the power went out during 
the voting. His testimony apparently was intended to suggest that the 
company had orchestrated the power outage and that company 
representatives may have tampered with the ballot boxes while the 
lights were out. Again, the Administrative Law Judge made no such 
finding. The power did go out for about five minutes during the first 
day of the vote, because of a thunderstorm that knocked out power 
throughout that part of North Carolina. The ALJ credited the testimony 
of Joseph Johnson, Vice President of Operations for Four County 
Electric Membership Cooperative, who testified the power went out 
system-wide, not just at the Tar Heel plant and that the Company had 
absolutely nothing to do with the outage. Likewise, the ALJ did not 
find that anyone, including company representatives, had tampered with 
any of the voting boxes while the lights were out or at any other time 
during the election. NLRB officials were present throughout the voting.
    Mr. Ludlum made a third serious allegation. He claimed that, in 
1993, an employee broke his leg at the plant and was forced to return 
to work on crutches the very next day. We can no find no record of the 
particular event Mr. Ludlum described. Nor have we found anyone at the 
plant, other than Mr. Ludlum, who can recall it. But let us be clear: 
whatever may have happened fourteen years ago, requiring a hurt or 
injured employee to return to work in such a situation is absolutely 
contrary to our longstanding policy and our demonstrated way of doing 
business.
    Smithfield Packing Company is not anti-union. A number of our 
plants are unionized, and the UFCW represents employees at two 
Smithfield Packing plants. We believe employees should decide for 
themselves whether they want to be represented by a union. That is our 
policy at every plant, including Tar Heel.
    This brings us to the real difference between Smithfield and the 
UFCW. We believe employees should vote on whether they want a union--in 
a secret-ballot election. The union wants to force itself on the plant 
through card-check. Further, the union--through Mr. Ludlum's inaccurate 
testimony and by other means--hopes to persuade this Congress to enact 
legislation repealing secret-ballot elections and replacing them with 
card-check.
    It is ironic that officials elected by secret ballot would try to 
take the protection of the secret ballot away from ordinary workers. 
Card-check takes away the workers' right to privacy. By design, a card-
check ``vote'' would not be confidential. Co-workers, union organizers 
and management alike would know who has signed a card and who has 
declined to sign. In addition to those employees who sincerely wish to 
join a union, some employees might sign union cards because of 
intimidation, pressure and fear of reprisals, or just to be left alone.
    The allegations Mr. Ludlum has made date from the 1990s. This issue 
has dragged on since that time at Tar Heel and we are ready to resolve 
it. We want to hold a new secret-ballot election at the plant. Just 
this month, Smithfield Packing Company was pleased to agree with the 
United Steelworkers Union and the National Labor Relations Board to 
hold a secret-ballot election at the company's Clayton, North Carolina, 
facility. At Tar Heel, we have even offered to pay half the cost of an 
independent observer--like the Carter Center established by President 
Jimmy Carter, which has overseen elections in foreign countries--to 
oversee the union vote. But the UFCW has refused our offer.
    It is time to let the employees vote. Let them decide what is best 
for them. Let them decide whether the allegations made by Mr. Ludlum 
and the UFCW are true.
    Smithfield Packing Company has had unionized plants for years. At 
those plants, we have worked with the unions and prospered. We will 
respect the employees' choice at Tar Heel, but we hope that choice will 
be made in the fairest way, the way most in keeping with our country's 
finest traditions--by secret ballot. We thank the Committee for this 
opportunity to express our own view and to set the record straight.
                                 ______
                                 

            Prepared Statement of the HR Policy Association

    Mr. Chairman and Members of the Subcommittee: The HR Policy 
Association is pleased to present our views to the Committee on the 
Employee Free Choice Act, which would replace federally-supervised 
secret ballot elections to determine union representation issues with 
union authorization cards signed in the presence of union organizers 
and coworkers. HR Policy strongly opposes this legislation.
    HR Policy consists of chief human resource officers representing 
more than 250 of the largest corporations in the United States, 
collectively employing nearly 18 million employees worldwide. One of HR 
Policy's principal missions is to ensure that laws and policies 
affecting employment relations are sound, practical, and responsive to 
the realities of the modern workplace.
    In the United States, workers have traditionally decided the 
important question of being represented by a union through a federally-
supervised private ballot election (often called a ``secret ballot 
election '') that ensures confidentiality and protection against 
coercion by either the employer or the union at the critical moment 
when each employee indicates his or her preference. H.R. 800, the 
``Employee Free Choice Act,'' sponsored by Rep. George Miller (DCA) 
would, among other things, require the National Labor Relations Board 
(NLRB) to certify a union when a majority of the employees have signed 
union authorization cards in the presence of union organizers and their 
coworkers.
    Under existing National Labor Relations Board procedures, in place 
since the 1930s, a union representation election typically takes place 
after the union has demonstrated to the NLRB that at least 30 percent 
of those it is seeking to represent wish to have an election. This 
interest is usually demonstrated by signed union authorization cards 
that typically indicate a desire by the employee to be represented by 
the union or to have an election to determine that issue. When the 
election is held-usually within 60 days-it is supervised by the NLRB, 
which ensures that employees cast their ballot in a confidential manner 
with no coercion by either management or the union. Under current law, 
when presented with union authorization cards signed by more than 50 
percent of the employees, the employer may voluntarily recognize the 
union (a ``card check '') but is not required to do so.
    Unlike a secret ballot election, union authorization cards are 
signed in the presence of an interested party-a pro-union co-worker or 
an outside union organizer-with no governmental supervision. This 
absence of oversight has resulted in deceptions, coercion, and other 
abuses over the years, as documented in cases where courageous 
employees who have brought coercive activity to the attention of the 
NLRB or the courts. Yet, even where there is no coercion, as Chief 
Justice Earl Warren acknowledged: ``The unreliability of the cards is * 
* * inherent, as we have noted, in the absence of secrecy and the 
natural inclination of most people to avoid stands which appear to be 
nonconformist and antagonistic to friends and fellow employees.'' NLRB 
v. Gissel, 395 U.S. 575, 602 n.20 (1969), quoting NLRB v. Logan Packing 
Co., 386 F.2d 562, 566 (4th Cir. 1967).
    As noted above, the casebooks are replete with examples of 
employees who signed cards under duress or without understanding their 
implications. For example, in HCF, Inc. d/b/a Shawnee Manor, 321 
N.L.R.B. 1320 (1996), an employee testified that a co-employee 
soliciting signatures on union authorization cards threatened that, if 
she refused to sign, ``the union would come and get her children and it 
would also slash her tires.'' In Dana Corp./Metaldyne Corp., 341 NLRB 
1283 (2004), shortly after the employer recognized the union, a 
majority of the employees presented a petition to the NLRB to obtain a 
secret ballot election to overturn the employer's action but, thus far, 
have been prevented by Board law from doing so. A recent example in 
Canada, where most provinces have card check certifications, 
demonstrates the pitfalls. In Manitoba, 43 out of 59 migrant workers 
who had signed cards said they did so because they were misled into 
signing cards by the union which claimed it would offer legal help for 
some of their coworkers. The workers later claimed they didn't want a 
union but provincial law denies them an election to resolve the matter. 
CBC News story available at http://www.cbc.ca/canada/manitoba/story/
2007/01/31/migrant-workers.html.
    The superiority of secret ballot elections in manifesting employee 
choice is so clear-cut that even organized labor and its supporters 
have sung its virtues when it serves their purposes. For example, where 
the issue is whether secret ballot elections should be required to 
determine whether employees are no longer to be represented by a union 
(i.e., a decertification), the AFLCIO has argued to the NLRB that 
``other means of decision-making are 'not comparable to the privacy and 
independence of the voting booth,' and [the secret ballot] election 
system provides the surest means of avoiding decisions which are 'the 
result of group pressures and not individual decision[s].''' Joint 
brief of the AFL-CIO et al. in Chelsea Industries & Levitz Furniture 
Co. of the Pacific, Inc., Nos. 7-CA-36846, et al. at 13 (May 18, 1998). 
Indeed, the Employee Free Choice Act would still require a secret 
ballot election for union decertifications, even though there are a 
number of procedural hurdles to obtaining such elections.
    In addition to requiring card check union certification, the 
legislation also includes several other fundamental changes in the 
labor laws, including having union-represented employees' wages, 
benefits and other conditions of employment dictated by a third party 
and locked in for two years where the employer and the union are unable 
to reach agreement within 120 days. In addition, the bill would 
unnecessarily add significant new remedies and procedures to the law. 
Meanwhile the bill would maintain all of the current rules governing 
decertification of a union, which includes barring even a majority of 
the employees from obtaining a secret ballot election if a collective 
bargaining agreement is in place (``contract bar '') or being 
negotiated for the first time (``recognition bar '') or if there are 
unfair labor practice charges pending, even though they may have been 
filed by the union simply to prevent an election.
    Throughout the 70-year history of the National Labor Relations Act, 
both management and labor have had various complaints about how it 
works and have proposed changes. Yet, for all of its flaws, at its 
centerpiece is the ability of employees to register their vote in 
private, with government supervision to ensure that privacy and the 
absence of coercion or other activities would taint that vote. As 
stated by Supreme Court Justice William O. Douglas in the 1974 Linden 
Lumber case: ``[I]n terms of getting on with the problems of 
inaugurating regimes of industrial peace, the policy of encouraging 
secret elections under the Act is favored.''
                                 ______
                                 
                                                   August 29, 2001.
Junta Local de Conciliacion y Arbitraje del Estado de Puebla,
Lic. Armando Poxqui Quintero, 17 Norte, Numero 1006 Altos, Colonia 
        Centro, Puebla, Mexico.
    Dear members of the Junta Local de Conciliacion y Arbitraje of the 
state of Puebla: As members of Congress of the United States who are 
deeply concerned with international labor standards and the role of 
labor rights in international trade agreements, we are writing to 
encourage you to use the secret ball in all union recognition 
elections.
    We understand that the secret ballot is allowed for, but not 
required, by Mexican labor law. However, we feel that the secret ballot 
is absolutely necessary in order to ensure that workers are not 
intimated into voting for a union they might not otherwise choose.
    We respect Mexico as an important neighbor and trading partner, and 
we feel that the increased use of the secret ballot in union elections 
will help bring real democracy to the Mexican workplace.
            Sincerely,
                                             George Miller,
                                              Marcy Kaptur,
                                           Bernard Sanders,
                                          William J. Coyne,
                                                Lane Evans,
                                                Bob Filner,
                                          Martin Olav Sabo,
                                              Barney Frank,
                                                  Joe Baca,
                                               Zoe Lofgren,
                                        Dennis J. Kucinich,
                                          Calvin M. Dooley,
                                        Fortney Pete Stark,
                                               Barbara Lee,
                                         James P. McGovern,
                                             Lloyd Doggett,
                                               Members of Congress.
                                 ______
                                 

                Checking the Premises of ``Card Check''

  A Nationwide Survey of Union Members and Their Views on Labor Unions

    By Zogby International for the Mackinac Center for Public Policy

    Methodology: Zogby International conducted interviews of 703 union 
members chosen at random from a Zogby database of self-identified union 
households nationwide. All calls were made from Zogby International 
headquarters in Utica, N.Y., from June 25 through June 28, 2004. The 
margin of error is  3.8 percentage points. Slight weights were applied 
to age, race and gender to more accurately reflect the sample 
population.
Results
    1. For how long have you been a member of a labor union?
                                                                 Percent
Less than 5 years.................................................    17
5-9 years.........................................................    24
10-14 years.......................................................    15
15-19 years.......................................................    11
20 years or more..................................................    33

    2. In what industry do you work?
                                                                 Percent
Education.........................................................    32
Government                                                            21
Manufacturing.....................................................    11
Construction......................................................    11
Services..........................................................     7
Transportation....................................................     6
Energy............................................................     3
Wholesale and/or retail trade.....................................     2
Telecommunications................................................     2
Mining............................................................     1
Janitorial/Custodial Services.....................................     1
Textile/Laundry...................................................    --
*Other............................................................     3

    *Other responses: Arts/Entertainment (19); Newspaper/Publishing 
(7); Attorney; Horse racing; Office manager (number in parentheses 
denotes frequency of similar response).

    3. Was the union to which you belong organized before or after your 
current employer first hired you?
                                                                 Percent
The union I belong to was organized before I was hired............    93
The union I belong to was organized after I was hired.............     7

    4. Compared to when you first joined the union, how have your 
opinions changed towards your union and its leaders in general--are you 
now much more favorable, somewhat more favorable, somewhat less 
favorable, or much less favorable toward the union, or have your 
opinions remained about the same?

 
 
 
Much more favorable..............       20%
Somewhat more favorable..........       12%       (More favorable: 32%)
Somewhat less favorable..........       10%
Much less favorable..............       15%       (Less favorable: 25%)
About the same...................       42%
 

    5-7. As a union member, which of the following responsibilities do 
you consider to be:
     the most important for a labor union?
     second-most important for labor unions?
     third-most important for labor unions?

               TABLE 1.--RESPONSIBILITIES OF A LABOR UNION
                [Ranked by percent saying most important]
------------------------------------------------------------------------
                                                     Second-     Third-
                                            Most       most       most
                                         important  important  important
------------------------------------------------------------------------
Bargaining for better wages, benefits           73         15          5
 and working conditions for its members
Improving job security.................         10         34         18
Protecting against internal union                3          8         19
 corruption............................
Helping companies be more competitive..          3          5          8
Improving the public image of labor              2          9         16
 unions................................
Engaging in political activities.......          2         11         10
Protecting the secret-ballot election            1          4          7
 process for all workers in union
 membership decisions..................
Increasing union membership............          1          9         11
*Other.................................          2          2          2
Not sure...............................          2          2          6
------------------------------------------------------------------------
*Other (Most): Retirement benefits (2); Supporting its members (2);
  Collective bargaining; Company safety; Get more people to vote; Going
  back to representation we had before; Health benefits; Helping to
  obtain more employment; Protecting us from being sued; Serving as an
  advocate for the union member; Educating younger members (number in
  parentheses denotes frequency of similar response).
*Other (Second-most): Benefits (2); Job security (2); Representation
  (2); Retirement benefits (2); Being honest with the members;
  Disability insurance; Health care; Improving education of children;
  Making more power for the workers; Organized labor; Protecting
  peoples' rights; Timely contracts (number in parentheses denotes
  frequency of similar response).
*Other (Third-most): Fight for union member rights (2); Better health
  care; Explanation of rights; How the board works with their union
  members to improve their situation in life; Job security; Keeping
  educated and informed and strong membership; Making sure elections are
  clean; Organized labor; Outsourcing our companies to other countries;
  Policing their own members; Protecting members from discrimination;
  Providing mutual aid and comfort; Staying out of politics; Wages;
  Working conditions (number in parentheses denotes frequency of similar
  response).

    8. When you think of how your union dues are spent by your union, 
which of the following best describes how those dollars are spent?
                                                                 Percent
My dues are mostly spent on helping workers get better pay, 
    benefits and working conditions...............................    42
My dues are mostly spent to pay big salaries and perks to people 
    in the union bureaucracy......................................    22
My dues are mostly spent to support political parties or 
    candidates....................................................    12
My dues are mostly spent on something else........................    10
I don't know how my union spends my dues..........................    10
Not sure..........................................................     4

    9-10. Do you think your union spends too much, too little, or about 
the right amount of your dues money:
     on direct benefits to you and your family, like efforts to 
secure better wages, benefits and working conditions?
     on things like supporting political candidates and helping 
them get elected?

            TABLE 2.--SPENDING DUES ON BENEFITS AND POLITICS
------------------------------------------------------------------------
                                            Too     Too    Right    Not
                                           much   little  amount   sure
------------------------------------------------------------------------
On direct benefits to you and your             4      43      47       6
 family, like efforts to secure better
 wages, benefits and working conditions.
On things like supporting political           34      11      42      14
 candidates and helping them get elected
------------------------------------------------------------------------

    11. Do you feel your union is doing the things it needs to do to 
make sure the union is strong and healthy for many more years, or do 
you feel your union is on the decline?
                                                                 Percent
Doing what it needs to make sure it is strong and healthy.........    51
On the decline....................................................    44
Neither/Not sure..................................................     6

    12. Do you believe workers should have the right or should not have 
the right to vote on whether they wish to belong to a union?
                                                                 Percent
Should have the right.............................................    84
Should not have the right.........................................    11
Not sure..........................................................     5

    13. I'm going to describe two ways that workers might be asked to 
decide if they want to become part of a union and ask you which of the 
two ways is most fair. In the first way, a union organizer would ask 
workers to sign their name on a card if they wanted to be part of a 
union. The worker would sign his or her name on the card if he or she 
wanted a union, or the worker would tell the union organizer he or she 
would not sign the card if he or she did not want a union. In the 
second way, the government would hold an election in the workplace 
where every worker would get to vote by secret ballot whether he or she 
wanted a union. Which way is more fair?

         TABLE 3.--CHOOSING THE FAIREST WAY TO DECIDE ON A UNION
------------------------------------------------------------------------
                                                                 Percent
------------------------------------------------------------------------
The first way, which has union organizers ask workers to sign         41
 their name on a card if they want a union, or refuse to sign
 the card if they don't want a union...........................
The second way, which has the government hold a secret-ballot         53
 election and keep the workers' decisions private..............
Neither/Not sure...............................................        5
------------------------------------------------------------------------

    14. Currently, the government is responsible for holding secret-
ballot elections for workers who are deciding whether to form a union, 
and for making sure workers can cast their votes in a fair and 
impartial manner. Do you agree or disagree that the current secret-
ballot process is fair?
                                                                 Percent
Agree.............................................................    71
Disagree..........................................................    13
Not sure..........................................................    16

    15. Do you agree or disagree that stronger laws are needed to 
protect the existing secret-ballot election process and to make sure 
workers can make their decisions about union membership in private, 
without the union, their employer or anyone else knowing how they vote?
                                                                 Percent
Agree.............................................................    63
Disagree..........................................................    24
Not sure..........................................................    14

    16. Which of the following do you feel should oversee secret-ballot 
elections for union membership? (The options were rotated in the 
interview and appear in rank order below.)
                                                                 Percent
Oversight should be given to other outside parties................   35%
Oversight should be given to individual unions....................    27
Oversight should stay with the government.........................    24
Oversight should be given to individual companies.................     6
Neither/Not sure..................................................     8

    17. Should Congress keep the existing secret-ballot election 
process for union membership, or should Congress replace it with 
another process that is less private?
                                                                 Percent
Keep the existing process.........................................    78
Replace it with one less private..................................    11
Not sure..........................................................    11

    18. Which of the following percentages of workers do you feel 
should have to vote for a union before that union represents all the 
workers?
                                                                 Percent
At least one-third of the workers.................................     9
At least half the workers.........................................    27
At least two-thirds of the workers................................    51
All of the workers................................................    11
Not sure..........................................................     2

    19. Some companies and union organizers want to make a special 
agreement to unionize the workers if at least half of the workers sign 
their names on cards saying they want a union, rather than letting all 
the workers vote in a secret-ballot election overseen by the 
government. Do you agree or disagree that it should be legal for a 
company and union organizers to make this special agreement to bypass 
the normal secret-ballot process to determine whether to unionize the 
workers?
                                                                 Percent
Agree.............................................................    26
Disagree..........................................................    66
Not sure..........................................................     8

    20. Do think it is fair or unfair for a worker to lose their job if 
he or she refuses to pay dues to, or support, a union?
                                                                 Percent
Fair..............................................................    32
Unfair............................................................    63
Not sure..........................................................     5

                                 ______
                                 
    Mr. Kline. These workers are: Mike I. from Georgia, who 
asked that this subcommittee make sure that ``employees who are 
not in support of the union have the right to go to work and 
not be harassed every day;'' workers like Karen M. from Oregon, 
who wants us to know that during a card-check drive in her 
facility, that she and her colleagues were ``subjected to 
badgering and immense peer pressure'' and that she ``exercised 
my free choice not to be in the union, and my work life became 
miserable because of it.''
    These are real employees, and I don't think they support 
the free choice proponents of this bill that we have before us 
today.
    In closing, let me reiterate the question before us is not 
whether unions are good or bad, but rather whether employees 
should have the same right each of our constituents had last 
November when they voted to send us to Congress.
    It is beyond me, frankly, how one can possibly claim that a 
system whereby everyone--your employer, your union organizer, 
and your coworkers--knows exactly how you vote on the issue of 
unionization, how does that give the employee ``free choice.''
    It seems pretty clear to me that the only way to ensure 
that a worker is free to choose is to ensure that there is a 
private ballot, so that no one knows how you voted. I cannot 
fathom how we can sit here today and debate a proposal to take 
away a worker's democratic right to vote in a secret ballot.
    With that, I yield back the balance of my time.
    Chairman Andrews. Thank you, Mr. Kline.
    Without objection, all members of the subcommittee will 
have 5 legislative days to submit additional materials for the 
hearing record, including any opening statement members would 
wish to make.
    I welcome the witnesses this morning. We thank you for your 
attendance.
    Your written prepared statements will be entered into the 
record, so they will be a part of the full record of the 
hearing.
    You will notice in front of you there is a bank of lights. 
Each witness is given 5 minutes to summarize his or her written 
statement, again, which will be included in its entirety in the 
record. When you reach the 4-minute mark, a yellow light will 
go on, which indicates that you have 1 more minute to go. When 
you reach the red light, it is an indication that you should 
wrap up. If the red light goes on for too long, Mr. Kline and I 
agreed a trap-door exists underneath your seat through which 
you will fall. [Laughter.]
    And we are even more enthusiastically going to hold to that 
rule for the members of the subcommittee. The trap-door may go 
off at the 4-minute mark, depending upon what happens.
    But we would ask you to comply with those rules. We have a 
lot of people here today who want to speak, and the members 
want to become fully engaged.
    I will introduce each of the four witnesses, and then we 
will begin.
    Mr. Keith Ludlum is a veteran of Desert Storm. He began 
working in 1993 for Smithfield Foods' meat-packing plant in Tar 
Heel, North Carolina.
    I note, for the record, the Tar Heels defeated Duke last 
night in basketball. [Laughter.]
    In 1994, Mr. Ludlum and some of his coworkers were fired 
when they participated in an organizing campaign for the United 
Food and Commercial Workers Union. In 2006, after a long, 12-
year battle, a court of appeals ordered Smithfield to reinstate 
Mr. Ludlum. And about 6 months ago, he finally returned to his 
job at Smithfield Foods.
    Our second witness is Mr. Ivo Camilo.
    Did I pronounce your name correctly, Mr. Camilo?
    Mr. Camilo. Ivo Camilo.
    Chairman Andrews. Okay. Mr. Camilo. For 35 years, Mr. 
Camilo worked at the Blue Diamond Growers plant in Sacramento, 
California, the largest almond-processing plant in the world. 
He was a valued worker and compiled an outstanding record. In 
2005, when Mr. Camilo was campaigning for the International 
Longshore and Warehouse Union, he was fired. The National Labor 
Relations Board determined Blue Diamond had unlawfully fired 
Mr. Camilo. And in 2006, the board ordered the company to 
reinstate him.
    Ms. Jennifer Jason is a former labor organizer for UNITE 
HERE.
    And, Mr. Kline, if you wanted to add anything to her 
introduction? Okay.
    And then, finally, Ms. Teresa Joyce began working as a 
customer-care representative for AT&T Wireless three and a half 
years ago. Despite organizing efforts, it wasn't until 2 years 
ago, when Cingular Wireless bought AT&T Wireless, that the 
workers were able to organize. In 2005, Cingular voluntarily 
recognized the Communications Workers of America, the CWA, as 
the workers' exclusive bargaining representative after the 
company was presented with a majority of signed authorization 
cards.
    So we will proceed, Mr. Ludlum, with you. Welcome to the 
committee. And your 5 minutes has begun.

    STATEMENT OF KEITH LUDLUM, EMPLOYEE OF SMITHFIELD FOODS

    Mr. Ludlum. Good morning, Mr. Chairman and members of the 
subcommittee. My name is Keith Ludlum, and I work in the 
livestock department of Smithfield's Tar Heel, North Carolina, 
plant.
    Thank you for this opportunity to tell the subcommittee 
about our efforts to organize at Smithfield, about Smithfield's 
hostile and illegal activities to stop us, and how the Employee 
Free Choice Act is needed to protect workers' rights.
    This is my first time on Capitol Hill and my first time 
testifying before Congress. I want to communicate to you that 
my service in Desert Storm was to protect the laws of our land 
and not to protect companies like Smithfield that continually 
violate those laws.
    If I can submit my entire written statement for the record, 
I would like to quickly summarize my story.
    Smithfield's Tar Heel plant is the largest hog-slaughter 
and pork-processing facility in the world. The Tar Heel plant 
processes 32,000 hogs a day. That is 16,000 hogs per 8-hour 
shift, 2,000 per hour, 33 hogs every minute, one every 2 
seconds.
    As a hog-runner in the livestock department, I work inside 
the pens where hogs are unloaded off trucks. During my 8-hour 
shift, my coworkers and I are responsible for moving about 
16,000 live hogs per day.
    I returned to North Carolina after my duty in Desert Storm 
and started working at Smithfield in 1993. I soon saw how 
Smithfield mistreated its workers and, in December 1993, 
started working on organizing a union. We wanted a safe 
workplace, we wanted a union contract, we wanted to be treated 
with respect.
    In 1994, Smithfield illegally targeted and fired me for my 
union-organizing activities. The supervisors and the deputy 
sheriff marched me out of the plant in front of all the other 
employees, as an example to intimidate the others. At the time, 
my wife was pregnant with our first child, and what should have 
been a joyous time for us became a difficult one.
    Shortly after my firing, there was a vote, and we were 
cheated out of union representation because of Smithfield's 
illegal activities. The NLRB issued a complaint against 
Smithfield for numerous violations of workers' rights. The 
company's anti-union campaign and severe intimidation and 
harassment cost us the election.
    Smithfield's CEO, Joe Luter III, later promised in writing 
that the next election would be fair. That promise was not 
worth the paper it was printed on. The election that followed 
in 1997 was even worse: intimidation, threats, arrests and 
firings.
    I want to point out that a union election in a plant is 
nothing like the elections to public office that you are 
familiar with. During the 1997 vote, Bladon County deputy 
sheriffs, dressed in battle gear with guns, lined the long 
driveway leading to the plant. It was an effort to intimidate 
and frighten the workers--the voters.
    Company management stood right there with the head of the 
sheriff's office and created an intimidating and hostile 
atmosphere for workers going to vote. The voting site was not a 
neutral or unprejudiced place. Imagine if the incumbent in a 
local election put armed sheriffs in front of his opponent's 
voting precincts.
    Finally, last year, after more than 12 years of litigation 
by the company and through lost appeals, a settlement was 
reached. What was the punishment? Well, Smithfield was not 
fined or indicted for breaking the law, and none of its 
executives who were named in the litigation were punished 
either.
    Smithfield was only required to offer jobs to those workers 
like me who were illegally fired and to pay back-wages for the 
time we were unemployed or could not find comparable pay.
    They were also ordered to hold another election. 
Smithfield's president said he looks forward to an election by 
secret ballot. If anybody in this room thinks that this company 
is going to have a free and fair election after its history of 
violence and intimidation, then you haven't heard a single word 
that I have said.
    When my job at Smithfield was offered to me again, I made 
the decision to leave a secure job and take a big pay cut. I 
knew I had to finish what I had started. I knew I had to fight 
for the right that was wronged at Smithfield. I had to make a 
difference for all the workers.
    Nothing has changed at the company in the 12 years since I 
was fired. The intimidation and harassment continues.
    This Congress, each one of you, has a duty to protect the 
right of American workers who want a voice at work. Sending us 
back to the company for another NLRB election is us sending 
back into the lion's den. Give us the Employee Free Choice Act 
so we can make our own decisions without harassment and 
intimidation. People's lives and jobs are on the line.
    These elections are neither free nor fair, especially when 
a multibillion-dollar corporation is willing to break the law 
repeatedly. But they do have a direct impact on me, on my 
coworkers at Smithfield, and on workers all across the United 
States.
    I know that the law isn't working, but I am hoping that our 
lawmakers are, and that, when you see injustice like this, that 
you will take actions. Real laws with real teeth will deter 
companies from abusing their workers. Please pass the Employee 
Free Choice Act and give us a voice on the job.
    Thank you for the opportunity to speak to you this morning. 
I will be happy to answer any questions you may have.
    [The statement of Mr. Ludlum follows:]

    Prepared Statement of Keith Ludlum, Employee of Smithfield Foods

    Good Morning Mr. Chairman and Members of the Subcommittee.
    My name is Keith Ludlum and I work in the livestock department at 
Smithfield's Tar Heel, NC plant. Thank you for this opportunity to tell 
the Subcommittee my story and my coworkers' stories on our fight to 
gain a voice at Smithfield. I am here to tell you about our efforts to 
organize at Smithfield and Smithfield's hostile and illegal activities 
to stop us.
    Smithfield's Tar Heel plant, which is located about 80 miles south 
of Raleigh, is the largest hog slaughter and pork processing facility 
in the world. The Tar Heel plant processes 32,000 hogs a day--that's 
16,000 hogs per 8 hour shift; 2,000 per hour; 33 hogs every minute--one 
every 2 seconds. It employs about 5,500 employees. As a hog runner in 
the livestock department, I work inside the pens where hogs are 
unloaded off trucks. Each pen holds about 250-300 hogs. Inside the 
pens, I drive 15 or more hogs out into the restraining area. I am 
continually moving the hogs forward and stopping them, when necessary, 
so they can be branded, stunned and killed. During my 8 hour shift, my 
coworkers and I are responsible for moving about 16,000 live hogs per 
day into the plant for slaughter.
    I am a native North Carolinian and after a tour of duty in Desert 
Storm, I returned to Bladen County in 1993 to look for work. In 
September of that year, I got a job at Smithfield, which had just 
opened in 1992 in Tar Heel.
    I soon saw how Smithfield mistreated its workers. Every day I saw 
my fellow workers forced to work in dangerous, inhumane conditions. We 
were often injured severely, and if we couldn't work any more, we were 
fired. Day after day, I saw safety and health and worker protections 
ignored. I saw workers abused and humiliated.
    The moment that made me realize we needed a union at Smithfield was 
when a fellow worker in his 50's broke his leg on the job when it was 
pinned between an electric pallet jack and a concrete wall. The next 
day, when I came to work, he was there in the break room with a full 
leg cast and using crutches. I asked him why he was back at work so 
soon. He told me that the company had told him he needed to come to 
work or he would lose his job. It was only later that I learned that by 
forcing him to return to work the next day, Smithfield avoided 
reporting a lost work day due to injury on their Occupational Safety 
and Health Administration (OSHA) log. For weeks, I watched this man 
hobble through the parking lot and across the greasy, wet floors of the 
kill floor and cut departments to get back and forth to the livestock 
yard. Finally one day, I approached the supervisors and asked them if 
the worker could park his car in a space near the livestock yard to 
avoid further risk of injury from slipping with his crutches. They told 
me ``only managers can park there. He is a worker.'' At that moment, a 
light clicked on for me. Here was an injured man who couldn't get a 
little help because he was ``just a worker.'' Well, I am a worker too 
and was not going to be used by this uncaring and callous company. On 
that day, I asked myself, ``What can I do to change Smithfield?'' I 
knew I had to stand up and fight these wrongs.
    At Smithfield, the hogs have onsite government representation by 
the USDA. Yet, the workers have none. The USDA is present in the 
livestock yard to insure that the hogs are not abused or unduly 
stressed. If a hog is abused or stressed, the USDA has the power to 
shut down the plant and any worker responsible can be fired. If a 
holding pen has a drain clog and the water and feces are backing up, 
the USDA inspectors will tag the pen and hogs cannot be placed in that 
pen until the drain is unclogged. Yet, if a drain is clogged in the 
restraining area or runway, workers must continue to go through these 
ponds of hog waste and endure the vile mixture splashing on them. So, 
while the USDA is there to protect the hogs, inspect the processing of 
the meat, and ensure the safe handling of the meat, there is no onsite 
representation to ensure the same level of safety and health 
protections for the workers.
    The government ranks meat packing as one of the most dangerous jobs 
in the country. At Smithfield, workers are on production lines that 
move at blinding speeds, with countless injuries. Workers get no paid 
sick days or personal days. In fact, workers get penalized if they take 
time off if they are out sick. Smithfield frequently denied workers' 
compensation by the company when they've been injured on the job. While 
Smithfield paid some of the modest fines imposed for safety violations 
by OSHA, we were working every day in extremely unsafe conditions.
    As a result of all this, in December 1993, I started working on 
organizing a union at the plant. We wanted workers at my plant to have 
the same rights that Smithfield workers enjoy in unionized plants in 
other parts of the U.S. and the world. We wanted a safe workplace. We 
wanted a union contract. We wanted to be treated with respect.
    My union activity at the time included attending meetings, talking 
about how the union could benefit the workers and getting employees to 
sign union representation cards. I spent many of my break times in the 
locker room and break room handing out representation cards and asking 
my co-workers to fill them out. On a number of occasions, my 
supervisors would come into the locker room or break room and harass 
workers by telling them that they would be fired for filling out a card 
or that unionization of the plant would result in Smithfield closing 
the plant or forcing people to work seven days a week. This harassment 
was often enough to scare my coworkers out of signing the 
representation cards.
    Besides these instances of harassment, I also witnessed company 
coercion. I witnessed workers being intimidated. I witnessed Smithfield 
repeatedly putting more value on the hogs and processing of the hogs 
than the workers' health, safety and well-being. The bottom line for 
them has always been profit--but in this case, it is at a very high 
human cost. Smithfield was doing everything it could to fight union 
representation but the workers continued to fight for what we believe 
are our rights under federal law. Workers at Smithfield knew they 
needed to be able to sit down with management on an equal basis and not 
just be dictated to or forced to work under these conditions.
    In 1994, Smithfield illegally targeted and fired me for my union 
organizing activities. I was fired for trying to get workers to sign 
cards to join the United Food and Commercial Workers International 
Union (UFCW). When I was fired, the supervisors and the deputy sheriff 
marched me out of the plant in front of all the other employees as an 
example to intimidate them.
    At the time, my wife was pregnant with our first child. It was an 
extremely difficult time for us--a time that should have been filled 
with joy and optimism as we awaited the birth of our child. Instead, my 
family suffered as I looked for a new job. It took me two years to find 
a decent job because I had been given a bad name by the only real 
employer in town, Smithfield Packing Company. In the end, I lost my car 
and could hardly pay my bills, buy groceries or purchase baby supplies.
    Shortly after my firing, there was a close vote for representation 
and the NLRB issued a complaint against Smithfield for violating 
workers' rights. Clearly, the company's anti-union campaign and severe 
intimidation and harassment cost us the election. In 1997, Smithfield's 
CEO Joe Luter III promised in writing that the next election would be 
fair. The election that followed that same year was even worse--
beatings, intimidation, threats, arrests and firings. There were many 
more NLRB violations. The NLRB found that workers were even asked to 
lie during NLRB testimony.
    On both days of the 1997 election, Bladen County deputy sheriffs, 
dressed in battle gear with guns, lined the long driveway leading to 
the plant and guard house. Since I had a case pending before the NLRB, 
I was allowed to be on the property for the election and to vote in the 
election. On those days, there was no reason for the sheriff's presence 
because there had been no violence during the union organizing drive. 
The sheriffs created an unnecessarily intimidating and hostile 
atmosphere for workers going to vote. As workers passed the lines of 
police, they saw company management standing with the head of the 
sheriff's office. The Board later ruled that Smithfield used the police 
``as an intimidation tactic meant to instill fear in [its] employees.''
    Following the vote count on the final day of balloting, company 
personnel stormed the vote-counting area and in the resulting 
confrontation, one union supporter and one union representative were 
beaten and arrested by the company's security officers. Both men were 
later cleared of any wrongdoing.
    Throughout this time, the UFCW fought for me and the other unfairly 
fired workers to get the justice we deserved. UFCW filed a legal claim 
on our behalf with the National Labor Relations Board on Smithfield's 
behavior between 1994 and 1998. Eventually, we won. In 2000, after a 
13-week trial, the NLRB Judge issued a decision finding massive 
violations of labor law and ordered broad remedies including special 
access remedies. The Judge found that Smithfield violated labor laws 
and created ``an atmosphere of intimidation and coercion'' in order to 
prevent workers at the plant from joining the union. The Judge's 
decision contained some of the strongest language in recent labor 
history against a company's total disregard for the law.
    The court cited details that included:
     Smithfield threatened to close the plant if workers formed 
a union.
     Smithfield threatened to freeze wages if employees 
unionized.
     Smithfield threatened to fire workers and threatened 
workers with violence.
     Smithfield fired some workers, like me, who backed the 
union.
     Smithfield harassed and physically assaulted workers who 
helped organize.
     Smithfield conspired with the local Sheriff Department and 
falsely arrested employees.
     Smithfield paid workers to spy on union activists--pay 
that was substantially more than their salaries.
     Smithfield coerced employees to participate in 
Smithfield's anti-union effort.
     Smithfield handed out anti-union literature.
     Smithfield ordered employees to stamp hogs with a ``Vote 
No'' stamp.
     Smithfield confiscated union materials and videotaped 
employee's union activities.
    Smithfield appealed the Judge's ruling.
    In 2000, Smithfield formed a Company Police Force, becoming the 
only meatpacking plant in the U.S. with its own certified police 
department. North Carolina law allowed these officers to carry guns at 
the plant and arrest workers on site. The company police force and on-
site holding facility allowed them to interrogate workers for hours 
without any phone calls or legal counsel. [Eventually, after public 
protest, the company disbanded its police force in 2005.]
    In 2004, the Board affirmed the Judge's 2000 decision and ruled 
that Smithfield engaged in massive illegal activity during both 
campaigns and the 1997 election and ordered extensive remedies. There 
were over 50 violations. Top Smithfield officials at the plant and in 
the company had committed egregious actions against the union campaign. 
Smithfield again appealed the decision to the Federal Court of Appeals 
in Washington, D.C.
    Then, in 2006, after more than 12 years of litigation by the 
company including appeals, and despite the company doing everything 
possible to avoid paying the back wages we were entitled to, a 
settlement was reached. This was only after the company was found 
liable by the U.S. Court of Appeals. Smithfield was not fined or 
indicted for breaking the law and none of its executives were punished. 
Smithfield was required to offer jobs to those workers like me who were 
illegally terminated and to pay back wages for the time we were 
unemployed or could not find comparable pay.
    They were also ordered to hold another election. Smithfield's 
President said he looked forward to an election by secret ballot but 
we've been down that road twice already in Tar Heel. Following the 1994 
election, plant officials promised there would be free and fair 
elections but soon after, the harassment, intimidation and coercion 
began again and in 1997, Smithfield's conduct was even worse than 
before.
    Last year, when the NLRB decided the case involving Smithfield's 
illegal anti-union campaign at its Wilson, NC plant, the Board said 
that Smithfield's ``Proclivity to violate the act is further 
established.'' Smithfield crushed the union's efforts to organize the 
Wilson employees by using the same playbook and the same top managers 
to commit the same type of illegal conduct at the Wilson plant as it 
did at my plant. This included threats to close the plant, threats of 
job loss, threats of loss of pay and other benefits, threats of 
unspecified reprisals, discharge of union supporters and interrogations 
of employees about their union activities.
    Knowing all this, and knowing that Smithfield was not changing its 
ways, when I knew I could get my job back at Smithfield, I had to 
decide--to stay at a secure job or take a big pay cut to return to work 
at the plant. It was not a hard decision since I knew I needed to 
finish what I had started. I had to fight to right the wrongs at 
Smithfield. I had to fight to protect the workers in the plant. I had 
to make a difference for future generations of workers at the plant. I 
had to return to Smithfield to make a difference and give a voice on 
the job to all the workers. We may have been cheated out of our right 
to organize a union in 1994 and 1997 but it wasn't going to happen a 
third time.
    When I returned to the plant on July 31st of last year, my 
supervisors again tried to harass me and give me the worst and least 
safe job. The court order required that I return to the same job of 
running hogs that I had when I was fired. Instead, they gave me the job 
of hog tattooing, which is an extremely boring, filthy and tedious 
task. The job also isolated me from my co-workers, which kept me from 
talking to my co-workers about everything including the union. They 
wanted to keep me quiet and make my life miserable so I would quit. But 
the Labor Board and my union lawyer told the company that this violated 
the court order and said more charges would be filed if the situation 
wasn't corrected. I was moved to my previous work of running livestock. 
In my six months back at Smithfield, I have been intimidated and 
harassed numerous times because I continue to exercise my rights to 
fight for a union at Smithfield.
    Smithfield is still up to their old dirty tricks of continuing to 
instill fear in the workers by violating the law and preventing us from 
banding together for better working conditions. Smithfield continues to 
threaten workers and distribute false information to block our union 
activities. Their efforts scare the activists and workers and deter 
union organizing.
    Around the same time, they also violated my right to express my 
wishes for a union by replacing my hard hat and making me cover my rain 
jacket. I had written on my hat and jacket pro-union messages like 
``Union Time'' or ``Union Contract Protects Workers Rights.'' I was 
told by my supervisor that the hat and rain jacket must be clean. This 
was despite the fact that Smithfield allows many different messages and 
slogans on the gear all over the plant but not union messages. All over 
the plant, people's hats had words like ``NY'' written on them or 
stickers for various products or religious symbols. Yet, I was told to 
get a new hat and cover my jacket. Clearly, I was being treated 
differently from my coworkers. This is disparate treatment.
    The harassment in the plant continues to this day despite all the 
litigation and promises for a fair new election. Finally last week, the 
company agreed to pay $1.5M to the fired workers as part of compliance 
with the 1994/1997 election rulings from NLRB. This covered back pay--
but the company was only liable for the time that workers were not able 
to find employment or comparable wages. After 12 years of consistent 
rulings by the Judge, NLRB and Federal Appeals Court, we finally had a 
decision.
    So, has anything changed since I returned to work at Smithfield? 
No, not really. The intimidation and coercion clearly continues. Far 
too many people who work at Smithfield are still injured and abused 
daily. In fact, the injury rate in 2006 rose by 60 percent over the 
year before and has DOUBLED since 2003. Many have lost their livelihood 
because of Smithfield's misconduct. And, Smithfield continues to 
challenge laws and get away with a mere slap on the wrist. One may 
think that the $1.5 million settlement is more than a slap on the 
wrist. It was just our back pay. This is just what the fired workers 
earned and deserve for being fired. For a company that sells $11 
billion worth of products a year, this is pennies in a bucket. There is 
nothing to deter companies from its unlawful conduct. There are no 
fines or damages. There is simply nothing to deter them. This is even 
true for companies that have government contracts, like Smithfield. The 
government should have closer scrutiny of companies with government 
contracts. It does not. This is not an equal playing field. And, the 
price paid in pain and suffering by Smithfield workers is nothing less 
than immoral.
    The laws are far too easy on companies like Smithfield to force 
them to change. The company has been fined by OSHA. It has been fined 
by the Environmental Protection Agency. It has been found liable for 
massive violations of labor law. But breaking the law is just the cost 
of doing business for Smithfield. Chairman Joe Luter earned over $4 
million in cash plus millions in stock options and deferred 
compensation, while workers and their families regularly go through 
hell. That's why we need the protection of a union contract now--not 
just another farce of an election that Smithfield can steal through 
brute force and intimidation. We want our voices to be finally heard 
and we want an end to the abuse.
    All of Smithfield's anti-union activities and fight against the 
union have so poisoned the environment at the plant that I believe it 
will impossible to have a free and fair election in Tar Heel. What the 
company has proposed would be more like giving an aspirin to someone 
with cancer. The poison is just too thick. What is to stop Smithfield 
from repeating what they did in 1997 and appealing any charges against 
them for another nine years? The only way workers can freely express 
their wishes is with a fair process.
    That's why we need the Employee Free Choice Act. We need help to 
stop the injuries. We need help in getting Smithfield to change and do 
the right thing for its workers.
    What has happened at Smithfield shows why we need new laws in this 
country. It shows that current laws give too much leeway to companies 
without any penalties. EFCA would make a difference in our struggles at 
Smithfield. EFCA would finally protect American workers who want to 
form a union and bargain collectively. Majority verification would help 
us avoid the intimidation that has happened at Smithfield during the 
organizing drive and the election process and will happen again if 
there is another NLRB election. A fair vote is difficult if not 
impossible at the workplace. Workplaces are not neutral and 
unprejudiced places like the polling sites we go to when we vote in 
political elections--libraries, schools and community centers. 
Workplaces are owned by the very companies that are fighting against 
union representation. The air is thick with the company's discontent. 
The halls are filled with anti-union rhetoric. The voting site is not a 
balanced and unprejudiced environment. Workers must pass through this 
biased environment to vote. I come from the south and I know that it 
sounds good to say that everyone will be able to vote secretly for the 
union--freely without influence. But big companies like Smithfield turn 
this whole process upside-down for workers, just like poll taxes and 
literacy tests turned voting upside down for African Americans at one 
time. A secret ballot is no longer secret or safe. That is why it is 
imperative that we are allowed card check.
    It is also important to point out that elections can easily be 
compromised. A blackout occurred during the voting at the plant during 
the 1997 election. When the lights came on, a Smithfield agent, who had 
no right to be in the voting room, was hovering over the ballot box. On 
these facts, the Board found that the NLRB agent left the ballot box 
unguarded during the blackout and concluded that such a situation 
damaged the integrity of the balloting process and warranted setting 
aside the election.
    In addition, it is critical that we pass strong penalties and 
remedies against employer coercion. This would force Smithfield and 
other companies to change their anti-union and anti-worker ways. And on 
that great day, when we do finally achieve representation, EFCA will 
help negotiate our first contract. Just as it was necessary to fight 
for civil rights in the south, it is now time to fight for union 
representation rights.
    Real laws with real teeth will deter companies, like Smithfield, 
from abusing their workers and doing everything they can to deter our 
right to organize. We need a union at Smithfield. We need protections 
that a union will bring the Smithfield workers. My time in the Army and 
fighting for this country in Iraq taught me to stand up for this 
country and the rights of all our citizens. I believe in this country. 
And, I believe that it is time that we get a union at Smithfield. But 
like any good soldier, I can only do this with an army of support. I 
need your help in giving a much needed voice to the hard working men 
and women at Smithfield. We need respect, dignity, a safe workplace and 
job security--which only a union contract can provide. I need your help 
in establishing the safeguards we need at Smithfield and at all 
companies across this great country. I urge you to pass the Employee 
Free Choice Act and give us a voice on the job.
    Thank you and I will be happy to take any questions you may have.
                                 ______
                                 
    Chairman Andrews. Thank you, Mr. Ludlum. And your entire 
statement, as I indicated, is part of the record of the 
hearing.
    Mr. Camilo?

   STATEMENT OF IVO CAMILO, RETIRED EMPLOYEE OF BLUE DIAMOND 
                            GROWERS

    Mr. Camilo. Hello, everyone.
    Chairman Andrews. Mr. Camilo, can you make sure your 
microphone is on and pull it as close to you, so everyone can 
hear you?
    Mr. Camilo. Hello, everyone. Thank you for giving me the 
opportunity to be here. My name is Ivo Camilo. I worked as an 
electronic machine operator at Blue Diamond Growers' plant in 
Sacramento, California, for 35 years. That is the largest 
almond-processing plant in the world.
    My coworkers and I were fed up with watching our wages sag 
while our health-care costs shot up. We fell further and 
further behind the cost of living. Due to inflation, most of us 
were bringing home less in 2004 than we did in 1990. Some of us 
had not had a raise in 7 years. Yes, you heard me right: 7 
years.
    As workers at the Blue Diamond Growers, we are employees at 
will and we have no guarantees. That is why, in 2004, we began 
organizing to join the International Longshore and Warehouse 
Union. In March 2005, we went public with our desire to join 
the union to better our lives.
    On April 15, we gave management a letter with the names of 
58 coworkers who agreed to be part of an organizing committee. 
We told them we knew our rights under the National Labor 
Relations Act and we expected those rights to be respected.
    Less than a week later, I was fired. And this is what 
happened.
    On April 18, while I was working in the manufacturing 
department, the scales overflowed, and I went to fix the 
problem. In the process, one of the scales scratched my left 
hand, and it produced a one-eighth-inch cut. Management accused 
me of ``willfully contaminating the almonds.'' And on April 
20th, two supervisors--one in the front, one in the back, 
escorted me out of the building like a criminal.
    I was suspended pending investigation. I was asked to 
surrender my badge, and I thanked the company for the 35 years 
that I worked with them and I left the property.
    The next day, I was terminated. My direct supervisor, Ron 
Lees, told me they had found blood in the almonds. Under oath, 
Mr. Lees denies this.
    By firing me, a 35-year employee, the company sent a clear 
message to everyone about what could happen if they supported a 
union.
    A week after I got fired, the company maneuvered the 
National Labor Relations Board election system and asked for an 
immediate election. We know they didn't really care about our 
right to decide. Management had been campaigning against the 
union since December 2004, long before I got fired, long before 
we even went public.
    They had put out more than 30 anti-union flyers. In group 
captive audience meetings and one-on-one talks, company 
officials and supervisors threatened that we could lose our 
pensions and other benefits if the union came in. They 
threatened that the plant would close.
    Do you think we would have had a free choice if we voted 
then? I think not.
    Blue Diamond kept the heat on. They fired two other 
coworkers in June 2005. The union filed unfair labor practice 
charges. The NLRB investigated, then held a 4-day hearing. In 
March 2006, an NLRB judge found Blue Diamond guilty of more 
than 20 labor law violations. He ordered the company to rehire 
me and one of my workers.
    Blue Diamond's violations were so severe, the board took an 
unusual step of asking for a federal court injunction against 
the company. The hearing on the injunction was set for May 5, 
2006. Blue Diamond did not have to go to court because, at the 
last minute, it decided not to appeal and to obey the judge's 
order.
    My coworker Mike Flores and I returned to work on April 24, 
2006. But the company never admitted doing anything wrong.
    Blue Diamond Growers did not stop its anti-union campaign 
after the first charges were filed. Management continued to 
spread fear and threats. They fired two more people who 
supported the union. Just last month, the board finished a 
second 4-day hearing on the new firings.
    Getting a union should not be so hard. We shouldn't have to 
pay such a high price in hardship when our employers break the 
law. The Employee Free Choice Act will increase the penalties 
so employers would have to think hard about firing union 
supporters, and it would help people fired during organizing 
drives get back to work sooner.
    But make no mistake, tougher penalties alone is not going 
to fix the broken NLRB election system. In the current election 
process, one side has all the power. And the employer controls 
the voters' paychecks and their livelihoods and has unlimited 
access to workers at the workplace.
    That is the reason we need a process of a majority sign-up. 
After----
    Chairman Andrews. I am sorry, Mr. Camilo, if you could just 
wrap up, if you could just conclude in a couple seconds here, 
okay?
    Mr. Camilo. After losing my job, I felt betrayed. I was 
insulted by the way the company supervisors escorted me out.
    But I would do it all over again. After being back at work 
for about 6 weeks, I decided to retire. I have stayed active in 
the union effort because I care about my coworkers and I care 
about justice.
    [The statement of Mr. Camilo follows:]

  Prepared Statement of Ivo Camilo, retired employee of Blue Diamond 
                                Growers

    Hello everyone. Thank you for giving me the opportunity to be here. 
My name is Ivo Camilo. I worked as an electronic machine operator at 
the Blue Diamond Growers plant in Sacramento, California for 35 years. 
That is the largest almond processing plant in the world.
    In October 2004, I started working with a group of co-workers who 
were organizing to join the International Longshore and Warehouse 
Union. It has been my experience that as workers of Blue Diamond 
Growers we have no voice in terms of policy change and no job security. 
We are employees at will and we have no guarantees.
    In March 2005, we went public with our demand to gain a voice and 
respect on the job. In April we gave management a letter with the names 
of 58 co-workers who agreed to be part of an organizing committee. We 
told them we knew our rights under the National Labor Relations Act--
and we expected those rights to be respected. We got together and 
delivered that letter April 15. Less than a week later I was fired. 
This is how it happened:
    On April 18, at 12 pm, while working in the manufacturing 
department, the scales were overflowing and I went to fix the problem. 
In the process, one of the scales scratched my left hand. It produced a 
\1/8\" cut. Management accused me of ``willfully contaminating the 
almonds'' and on April 20th at 2 p.m. two supervisors escorted me out 
of the building. I was suspended pending investigation. I was asked to 
surrender my badge, I thanked the company for the 35 years that I had 
worked with them, and left the property.
    A day later, on April 21, I was terminated. My direct supervisor, 
Ron Lees, told me he had found blood on the almonds. (Under oath, Lees 
would later deny this.) Another person working with me said she saw the 
blood but did not report it. By company rules, she should have been 
disciplined too, but she wasn't.
    On April 28, a week after Blue Diamond fired me, management asked 
the National Labor Relations Board to hold an election at the plant. 
The company twisted the facts and exploited an anti-labor section of 
the law. It claimed that the rally we had when we delivered our letter 
April 15 was really a ``picket for recognition,'' so we should be 
forced to vote.
    We knew they didn't really care about our right to decide. 
Management had been campaigning against the union since December 2004, 
long before I got fired, long before we even went public. They had put 
out more than 30 anti-union flyers. In group captive audience meetings 
and one-on-one talks, company officials and supervisors threatened that 
we could lose our pensions and other benefits if the union came in. 
They threatened that the plant would close. Do you think we would have 
had a free choice if we voted then? I think not.
    Blue Diamond kept the heat on. They fired two other co-workers in 
June 2005. The union filed unfair labor practice charges. After a 
complete investigation, the NLRB issued complaints on more than two 
dozen charges, then held a four-day hearing in December 2005. Both 
sides had the opportunity to present evidence. In March 2006, NLRB 
Administrative Law Judge Jay R. Pollack found Blue Diamond guilty of 
more than 20 labor law violations. He ordered the company to re-hire me 
and one of my co-workers. Blue Diamond's violations were so severe the 
company, called a 10(j) injunction.
    This injunction would have allowed the Board to ask a federal court 
to immediately enforce Judge Pollack's order, even if Blue Diamond 
appealed his ruling. 10(j) injunctions are rare and hard to get. The 
Board saves them for the worst of labor law violators. The regional 
NLRB office in San Francisco had to ask the General Counsel's office in 
Washington, D.C. for permission to seek the injunction. The General 
Counsel had only approved 10(j)s in 70 cases since June 2001.
    The hearing on the 10(j) was set for May 5, 2006. Blue Diamond did 
not have to go to court, because at the last minute it decided not to 
appeal and to obey Judge Pollack's order. My co-worker Mike Flores and 
I returned to work on April 24, 2006--but the company never admitted 
wrongdoing.
    Blue Diamond Growers did not stop its anti-union campaign after the 
first charges were filed. They continued to spread fear and threats and 
in September 2005 they fired another co-worker who supported the union. 
Even after they were found guilty and had to re-hire me and a co-
worker, they fired another union supporter. The Board just finished a 
second four-day hearing on the new firings.
    Getting a union shouldn't be so hard. We shouldn't have to pay such 
a high price in hardship when our employers break the law. The Employee 
Free Choice Act would increase the penalties so employers would have to 
think hard about firing union supporters--and it would help people 
fired during organizing drives get back to work sooner.
    After losing my job, I felt angry and betrayed. I was insulted by 
the way company supervisors escorted me out. I was sad, because of all 
the friends that I made that I left behind.
    But I also learned that I would do it all over again. I would join 
the organizing committee, attend meetings, and speak with my co-workers 
about the need for health coverage, better wages, and better conditions 
at work. I learned that I deserve respect and recognition for my work. 
I learned that I believe in justice and in equality. And that as a 
member of my community I matter, and my family and my co-workers matter 
as well.
    After being back at work for about six weeks, I decided to retire, 
but I have stayed active in the union effort, because I care about my 
co-workers and I care about justice.
                                 ______
                                 
    Chairman Andrews. Thank you very much. And your entire 
statement is a part of the record, sir. Thank you very, very 
much.
    Ms. Jason, welcome.

    STATEMENT OF JENNIFER JASON, FORMER UNITE HERE ORGANIZER

    Ms. Jason. Chairman Andrews, Ranking Member Kline and 
members of the subcommittee, good morning. My name is Jen 
Jason, and I thank you for the opportunity to be here today and 
to share my experiences with card-check campaigns as a former 
organizer for UNITE HERE.
    I began my career with UNITE with a strong belief in 
workers' rights and democracy in the workplace. During the 
course of my employment with the union, I began to understand 
the reality behind the rhetoric. I was taught to manipulate 
workers just to get a majority on the cards. I learned that 
promises made by organizers at the worker's house had little to 
do with how the union actually functions as a service 
organization.
    After graduating college, I was accepted into the AFL-CIO 
organizing institute, a program designed to interview, train 
and place new labor organizers. As an organizer for UNITE, I 
primarily worked on, and later led, card-check organizing 
campaigns.
    A card-check campaign begins with union organizers going to 
the homes of workers over a weekend. This is a tactic called 
house-calling. Called a ``blitz'' by the unions, it entails 
teams of two or more organizers going directly to the homes of 
workers to get cards signed. Personal information and home 
addresses obtained from license plates and other sources are 
used to create this master house-calling list. You can almost 
think of a blitz as being a surprise attack on the workers.
    As organizers, we were taught to play upon this element of 
surprise to get in their door. We were trained to perform a 
five-part house-call strategy that includes introductions, 
listening, agitation, union solution, and commitment.
    The goal of the organizer is to quickly establish a trust 
relationship and then to use that trust to get the worker mad 
at his or her boss.
    I began to realize that the number of signed cards had less 
to do with support for the union and more to do with how 
effective an organizer was at doing their job. In fact, the 
ultimate vote count in a secret ballot election is always 
significantly less than the number of cards actually collected.
    As an organizer working under a card-check system, I could 
quickly agitate a set of workers into signing cards. I didn't 
have to prove the union's case. I didn't have to answer 
complicated questions asked to me by workers. And I didn't have 
to answer for the service record of my union.
    Card-check campaigns also have little to do with giving 
workers information. We were trained to avoid topics such as 
dues increases in the specter of a strike. We were trained to 
constantly move the worker back to what the organizer had 
identified as that worker's hot-button issues. During organizer 
training sessions, this is something called re-agitation. The 
logic follows that if you can keep a worker agitated and direct 
their anger at their boss, you can pretty much get them to sign 
anything.
    If someone told me that she was perfectly content at work, 
enjoyed her job and liked her boss, I would take a quick look 
around her house and then ask agitation questions like, ``So, I 
guess, on your wages, you know, you probably won't be able to 
remodel your house, huh?'' It was designed to make her feel 
cheated by her boss. Five minutes earlier, of course, she had 
just said that she enjoyed her working situation.
    Many workers do actually realize that they had been 
manipulated after the fact and asked for their cards back or 
asked to have them returned to them. The union's strategy was 
to never return or destroy such cards, but to include them in 
the official count toward the majority.
    In addition to the house-call, the union frequently 
manipulates the size of the bargaining unit. One of the most 
common ways that we did this, in order to ensure that the union 
could claim that it had reached a majority on cards, was to 
actually reduce the size of the group of workers that we were 
going to be representing after the fact.
    Because of this, many workers who were promised that their 
decision to sign a union card mattered were ultimately shut out 
just so that the numbers would work.
    In a card-check campaign, the cards become more important 
than the worker. And I remember one time in which Ernest 
Bennett, who was the director of organizing for UNITE HERE at 
the time, said to a group of workers in a meeting, training 
them for the Cintas campaign, that if three workers weren't 
fired by the end of the first week of organizing, UNITE was 
going to lose that organizing campaign.
    After 4 years of watching what I feel were disgraceful 
practices on the part of organizing unions and having 
experienced personal discrimination in my own workplace, I 
chose to leave UNITE, though I remain committed to working 
toward fairness and prosperity for both employers and employees 
in the American workplace. Ultimately, it was these types of 
union practices that pointed to a culture of corruption that I 
was unwilling to participate in.
    If you truly believe in employees' free choice, if you 
truly value an employee's free choice, you will defeat this 
bill, and you will uphold an employee's right to a secret 
ballot election.
    Thank you for your time. I look forward to answering any 
questions that you may have.
    [The statement of Ms. Jason follows:]

   Prepared Statement of Jennifer Jason, Former UNITE HERE Organizer

    Chairman Andrews, Ranking Member Kline, members of the House 
Subcommittee on Health, Employment, Labor and Pensions, good morning. 
My name is Jen Jason. I am a former labor organizer for UNITE HERE, a 
union that represents more than 450,000 active members and more than 
400,000 retirees throughout North America in the textile, lodging, 
foodservice and manufacturing industries.
    Thank you for the opportunity to be here today as the committee 
considers the ``Employee Free Choice Act'' to share my personal 
experiences with ``card check'' campaigns as a former organizer.
    As a child growing up with a United Methodist Minister for a 
father, I was raised with the strong belief that I should spend my life 
working toward social justice in some way. For a time, I considered 
entering the ministry. However, after graduating college, I felt that I 
needed to spend time working in a service position while I made certain 
of my calling. I was accepted into the AFL-CIO Organizing Institute, a 
program designed to interview, train and place new labor organizers. 
The AFL-CIO trained me in the skills necessary for these efforts and I 
was eventually hired into UNITE's organizing department.
    As an Organizer for UNITE, I primarily worked on and later led 
``card check'' organizing campaigns. Depending on the situation, this 
meant that we either had a pre-existing ``card check'' agreement with 
the company in question, or there was going to be a complicated and 
aggressive corporate campaign waged against a company in order to 
coerce an agreement, or I was working in a jurisdiction in which ``card 
check'' was predetermined through legislation, such as in Quebec and 
Manitoba.
    During my tenure, I organized under U.S. labor law and in Canada 
under different provincially specific laws in Ontario, British 
Columbia, as well as Quebec and Manitoba. I was directed to organize 
thousands of workers using ``card check'' strategies against companies 
such as TJ Maxx, Levi's, New Flyer Bus Company, and Cintas.
    A ``card check'' campaign begins with union organizers going to the 
homes of workers over a weekend, a tactic called ``housecalling,'' with 
the sole intent of having those workers sign authorization cards. 
Called a ``blitz'' by the unions, it entails teams of two or more 
organizers going directly to the homes of workers. The workers' 
personal information and home addresses used during the blitz was 
obtained from license plates and other sources that were used to create 
a master list.
    In most cases, the workers have no idea that there is a union 
campaign underway. Organizers are taught to play upon this element of 
surprise to get ``into the door.'' They are trained to perform a five 
part house call strategy that includes: Introductions, Listening, 
Agitation, Union Solution, and Commitment. The goal of the organizer is 
to quickly establish a trust relationship with the worker, move from 
talking about what their job entails to what they would like to change 
about their job, agitate them by insisting that management won't fix 
their workplace problems without a union and finally convincing the 
worker to sign a card.
    At the time, I personally took great pride in the fact that I could 
always get the worker to sign the card if I could get inside their 
home. Typically, if a worker signed a card, it had nothing to do with 
whether a worker was satisfied with the job or felt they were treated 
fairly by his or her boss. I found that most often it was the skill of 
the organizer to create issues from information the organizer had 
extracted from the worker during the ``probe'' stage of the house call 
that determined whether the worker signed the card.
    I began to realize that the number of cards that were signed had 
less to do with support for the union and more to do with the 
effectiveness of the organizer speaking to the workers.
    This appears to be consistent with results of secret ballot 
elections that are conducted in which workers are able to vote and make 
their final decision free from manipulation, intimidation or pressure 
tactics from either side.
    From my experience, the number of cards signed appear to have 
little relationship to the ultimate vote count. During a private 
election campaign, even though a union still sends organizers out to 
workers' homes on frequent canvassing in attempts to gain support, the 
worker has a better chance to get perspective on the questions at hand. 
The time allocated for the election to go forward allows the worker a 
chance to think through his or her own issues without undue influence--
thus avoiding an immediate, impulsive decision based on little or no 
fact. After all, the decision to join a union is often life-changing, 
and workers should be afforded the time to debate, discuss and research 
all of the options available to them.
    As an organizer working under a ``card check'' system versus an 
election system, I knew that ``card check'' gave me the ability to 
quickly agitate a set of workers into signing cards. I did not have to 
prove the union's case, answer more informed questions from workers or 
be held accountable for the service record of my union.
    When the union is allowed to implement the ``card check'' strategy, 
the decision about whether or not an individual employee would choose 
to join a union is reduced to a crisis decision. This situation is 
created by the organizer and places the worker into a high pressure 
sales situation. Furthermore, my experience is that in jurisdictions in 
which ``card check'' was actually legislated, organizers tended to be 
even more willing to harass, lie and use fear tactics to intimidate 
workers into signing cards. I have personally heard from workers that 
they signed the union card simply to get the organizer to leave their 
home and not harass them further. At no point during a ``card check'' 
campaign, is the opportunity created or fostered for employees to 
seriously consider their working lives and to think about possible 
solutions to any problems.
    I began my career with UNITE with a strong belief in worker's 
rights and democracy in the workplace. During the course of my 
employment with the union, I began to understand the reality behind the 
rhetoric. I took in the ways that organizers were manipulating workers 
just to get a majority on ``the cards'' and the various strategies that 
they employed. I began to appreciate that promises made by organizers 
at a worker's house had little to do with how the union actually 
functions as a ``service'' organization.
    For example, we rarely showed workers what an actual union contract 
looked like because we knew that it wouldn't necessarily reflect what a 
worker would want to see. We were trained to avoid topics such as dues 
increases, strike histories, etc. and to constantly move the worker 
back to what the organizer identified as his or her ``issues'' during 
the first part of the housecall. This technique was commonly referred 
to as ``reagitation'' during organizer training sessions. The logic 
follows that if you can keep workers agitated and direct that anger at 
their boss, you can get them to sign the card. If someone told me that 
she was perfectly contented at work, enjoyed her job and liked her 
boss, I would look around her house and ask questions based on what I 
noticed: ``wow, I bet on your salary, you'll never be able to get your 
house remodeled,'' or, ``so does the company pay for day care?'' These 
were questions to which I knew the answer and could use to make her 
feel that she was cheated by her boss. Five minutes earlier she had 
just told me that she was feeling good about her work situation.
    Frankly, it isn't difficult to agitate someone in a short period of 
time, work them up to the point where they are feeling very upset, tell 
them that I have the solution, and that if they simply sign a card, the 
union will solve all of their problems. I know many workers who later, 
upon reflection, knew that they had been manipulated and asked for 
their card to be returned to them. The union's strategy, of course, was 
never to return or destroy such cards, but to include them in the 
official count towards the majority. This is why it is imperative that 
workers have the time and the space to make a reasoned decision based 
on the facts and their true feelings.
    In addition to the ``housecall,'' the union frequently employs 
other tactics to manipulate the card numbers and add legitimacy to 
their organizing drive. One strategy is to manipulate unit size. One of 
the most common ways that we ensured the union could claim that we had 
reached a majority was to change the size of the group of workers we 
were going to organize after the drive was finished. During the blitz, 
workers in every department would be ``housecalled,'' but if need be, 
certain groups of workers would be removed from the final unit, 
regardless of their level of union support. In doing so, the union 
reduced the number of cards needed to reach a majority. Another such 
strategy is that organizers are told to train workers to ``provoke'' 
unfair labor practices on the part of the company in an attempt to 
create campaign legitimacy and coerce a ``card check'' agreement.
    One egregious example was when Ernest Bennett, the Director of 
Organizing for UNITE at the time, told a room full of organizers during 
a training meeting for the Cintas campaign that if three workers 
weren't fired by the end of the first week of organizing, UNITE would 
not win the campaign. Another strategy is that organizers are told not 
to file any unfair labor practice charges because it would slow the 
``card check'' process and make time for the workers to question their 
decisions.
    After four years of watching what I feel were disgraceful practices 
on the part of organizing unions, and having experienced personal 
discrimination in my own workplace, I chose to leave UNITE, though I 
remain committed to work toward fairness and prosperity for both 
employers and employees in the American workplace.
    Thank you for the opportunity to testify. I look forward to any 
questions you may have.
                                 ______
                                 
    Chairman Andrews. Thank you, Ms. Jason.
    Mrs. Joyce, welcome.

    STATEMENT OF TERESA JOYCE, EMPLOYEE OF CINGULAR WIRELESS

    Ms. Joyce. Thank you.
    Mr. Chairman and members of the subcommittee----
    Chairman Andrews. Ms. Joyce, I am sorry. Could you turn 
your microphone on and make sure it is by your mouth?
    Ms. Joyce. Okay.
    Chairman Andrews. There you go. Thank you.
    Ms. Joyce. Mr. Chairman and members of the subcommittee, 
good morning, and thank you for inviting me to participate in 
this important hearing on workers' rights. My name is Teresa 
Joyce, and I am a customer-care representative with Cingular 
Wireless in Lebanon, Virginia.
    I have a good union job that pays well and provides 
affordable health-care benefits for myself and my family. 
However, it wasn't always this way. Four years ago, before 
Cingular took over, AT&T Wireless owned our call center, and it 
was a very different experience.
    Under AT&T Wireless, our health-care benefits were costly, 
wages were stagnant, and supervisors treated us with very 
little respect. I knew it didn't have to be this way. For over 
23 years, my husband had mined the Appalachian Mountains and 
was a proud member of the United Mine Workers of America, the 
UMWA.
    Through his union, my husband was able to bargain for 
better wages, health insurance, and improved safety equipment 
for the miners. As a result, we were able to live a 
comfortable, middle-class life. My husband and I have raised 
three happy and healthy children, as well as we are able to 
educate them.
    I knew the difference that a union could make, and I knew 
that to improve conditions at AT&T Wireless we, too, would need 
a union.
    At AT&T Wireless, we had absolutely no say on workplace 
conditions, including our wages and our benefits. Our raises 
were determined by favoritism and seldom a reflection of our 
work. Some years, we would receive as little as a two-cent 
raise.
    On top of this, workers had no real means for reporting 
unfair treatment by our supervisors. When we approached upper 
management about unfair treatment and inadequate pay, our 
requests fell on deaf ears.
    Frustrated with our company's neglect and indifference, my 
coworkers and I decided to come together to form a union with 
the Communication Workers of America, the CWA. We were able to 
bargain for fair raises, affordable health-care benefits and 
respect at work.
    Once word reached management that we were trying to 
organize, they did everything they could to stop us from 
exercising our right to form a union. Our supervisors 
constantly threatened that AT&T Wireless would leave our town 
and that we would no longer have a job. They also claimed that 
if we did succeed with our organizing efforts, our union dues 
would be so enormous that we would actually need two jobs.
    My coworkers and I would distribute union flyers and make 
posters to put on the walls in our break room with information 
about the union. Our supervisors would immediately gather our 
information and dispose of it.
    Management wanted to deny other workers the opportunity to 
make an informed, educated decision on whether or not to join a 
union. They wanted to control the information that workers 
received and instill fear through constant threats and lies 
about the union.
    At one point, one of the managers went so far as to park 
her car at the front entrance of a building where my coworkers 
and I were holding a union meeting. Deeper into our organizing 
campaign, management began to drive out our most outspoken 
union supporters for so-called ``bad attitudes'' and other 
flimsy charges.
    Despite the company's ongoing intimidation tactics, we 
continued our organizing efforts. Having had past experience 
with unions and knowing what a difference they could make, I 
was especially active in the fight to unionize at AT&T 
Wireless.
    Months into our organizing struggle, we heard that Cingular 
Wireless was going to purchase AT&T Wireless. At some point 
during the merger, several coworkers and I sat in on a 
conference call with Cingular Wireless executives to talk about 
what would happen with the merger regarding the former AT&T 
Wireless workers.
    When asked about organizing efforts, Cingular CEO Stan 
Sigmund revealed that he had a great relationship with the CWA, 
and he assured us that each AT&T Wireless call center employee 
would be able to choose whether or not they wanted union 
representation, free of employer interference.
    I was overjoyed. It was a relief to know that we could 
finally speak openly about the union without fear of employer 
retaliation.
    Shortly afterwards, the harassment and intimidation 
stopped. We were free to distribute union literature to other 
workers during our break and were even allowed to set up a 
table in the break room with information on CWA. We made 
posters, put out flyers and made phone calls about the benefits 
of joining a union and having a say on our wages and work 
conditions.
    In 2005, a majority of us voted for the union by signing 
authorization cards. And on September 6th of 2005, we were 
officially recognized as members of the CWA. Management even 
helped us with a cookout at our call center to celebrate.
    Today, the supervisors treat us with respect. We have been 
able to bargain for fair wages and affordable health-care 
benefits. Our wages are now determined by a wage scale, not 
favoritism. We have more vacation days, and more importantly we 
have job security.
    Cases such as mine, where the employer agrees to take no 
position and allow workers to freely choose whether or not they 
want a union, are few and far between. The reality is that, 
every 23 minutes, a worker is illegally fired or discriminated 
against for exercising her or his human and constitutional 
rights to form a union.
    I had two uncles that sacrificed their lives for this great 
country during World War II. I lost a cousin in a cousin in 
Iraq a year ago in November. And I also have another cousin in 
Afghanistan. My own daughter and son-in-law are in the United 
States Navy. Their lives are at risk every day so that they can 
protect our freedoms. Every day they spread democratic 
principles and values to people abroad.
    It is outrageous and it is shameful that the very freedoms 
they fight to preserve all over the world are the very freedoms 
that are routinely trampled on here at home.
    Mr. Chairman and members of the subcommittee, there is 
something terribly wrong with our laws and with our country 
when workers are systematically harassed, threatened and even 
fired from their jobs, stripped of their very livelihood, just 
for the simple act of exercising their right to form a union to 
improve their lives.
    As a country that prides itself on our rights and our 
freedoms, we must take immediate action to restore workers' 
most basic liberties at the workplace.
    Thank you again for the opportunity to testify at this 
hearing.
    [The statement of Ms. Joyce follows:]

   Prepared Statement of Teresa Joyce, Cingular Worker and CWA Union 
                                 Member

    Mr. Chairman and members of the Subcommittee, good morning and 
thank you for inviting me to participate in this important hearing on 
workers' rights. My name is Teresa Joyce and I am a customer care 
representative with Cingular Wireless in Lebanon, Virginia. I have a 
good union job that pays well and provides affordable healthcare 
benefits for my family and me. However, it wasn't always this way. Four 
years ago, before Cingular took over, AT&T Wireless owned our call 
center--and it was a very different experience.
    Under AT&T, our health care benefits were costly, wages were 
stagnant and supervisors treated us with very little respect. I knew it 
didn't have to be this way. For 23 years, my husband had mined the 
Appalachian Mountains and was a proud member of the United Mine Workers 
of America (UMWA). Through his union, my husband was able to bargain 
for better wages, health insurance and improved safety equipment for 
the miners. As a result, we were able to live a comfortable, middle-
class life and raise three happy and healthy children. I knew the 
difference a union could make and I knew that to improve conditions at 
the call center, we too, would need a union.
    At AT&T Wireless, we had absolutely no say on workplace conditions, 
including wages and benefits. Our raises were determined by favoritism 
and seldom a reflection of our work. Some years, we would receive as 
little as a two-cent increase. On top of this, workers had no real 
means for reporting unfair treatment by supervisors. When we approached 
upper management about unfair treatment and inadequate pay, our 
requests fell on def ears. Frustrated with the companies' neglect and 
indifference, my co-workers and I decided to come together to form a 
union with the Communication Workers of America (CWA) to bargain for 
fair raises, affordable health care benefits and respect at work.
    Once word reached management that we were trying to organize, they 
did everything they could to stop us from exercising our right to form 
a union. Our supervisors constantly threatened that AT&T Wireless would 
leave our town and that we would lose our jobs. They also claimed that 
if we did succeed with our organizing efforts, our union dues would be 
so enormous we may actually need two jobs.
    My co-workers and I would distribute union flyers in our break room 
and place posters on the walls with information about the union. 
Supervisors would immediately gather the information and dispose of it. 
Management wanted to deny other workers the opportunity to make an 
informed, educated decision on whether or not to join a union. They 
wanted to control the information workers received and instill fear 
through constant threats and lies about the union. At one point, one of 
the managers went so far as to park her car at the front entrance of a 
building where my co-workers and I were holding a union meeting. Deeper 
into our organizing campaign, management began to drive out our most 
outspoken union supporters for so-called ``bad attitudes'' and other 
flimsy charges.
    Despite the company's on-going intimidation tactics, we continued 
our organizing efforts. Having had past experience with unions and 
knowing what a difference they could make, I was especially active in 
the fight to unionize at AT&T Wireless.
    Months into our organizing struggle, we heard that Cingular 
Wireless was going to purchase AT&T Wireless. At some point during the 
merger, several co-workers and I sat in on a conference call with 
Cingular Wireless executives to talk about what the merger would mean 
for former AT&T Wireless employees. When asked about our organizing 
efforts, Cingular CEO, Stan Sigmund, revealed he had a good 
relationship with CWA and assured us that each AT&T Wireless call 
center employee would be able to choose whether or not they wanted 
union representation, free of employer interference. I was overjoyed. 
It was a relief to know that we could finally speak openly about the 
union without the fear of employer retaliation.
    Shortly afterwards, the harassment and intimidation stopped. We 
were free to distribute union literature to other workers during our 
break and were even allowed to set up a table in the break room with 
information on CWA. We made posters, put out flyers and made phone 
calls about the benefits of joining a union and having a say on wages 
and work conditions. In 2005, a majority of us voted for the union by 
signing authorization cards and on Sept 6th, 2005 we were officially 
recognized as CWA members. Management even helped us arrange a cookout 
at the call center to celebrate.
    Today, supervisors treat us with respect. We've been able to 
bargain for fair wage increases and affordable health care benefits. 
Our wages are now determined by a wage scale, not favoritism. We have 
more vacation days and--more importantly--we have job security.
    Cases such as mine, where the employer agrees to take no position 
and allow their workers' to freely choose whether or not they want a 
union, are few and far between. The reality is that every 23 minutes, a 
worker is illegally fired or discriminated against for exercising her 
human and constitutional right to form a union. I had two uncles 
sacrifice their lives for this great country during World War II. I 
lost a cousin in the war in Iraq. I have another cousin in Afghanistan 
and my daughter, Laura, and her husband serve in the US Navy. Every day 
they risk their lives to protect our freedoms. Every day they work to 
spread democratic principles and values to audiences abroad. It's 
outrageous and it's shameful when the very freedoms they fight to 
preserve are the very freedoms that are routinely trampled on, here, at 
home.
    Mr. Chairman and members of the Subcommittee, there is something 
terribly wrong with our laws and with our country, when workers are 
systematically harassed, threatened and even fired from their jobs--
stripped of their very livelihood--for the simple act of exercising 
their right to form a union to improve their lives. As a country that 
prides itself on our rights and freedoms, we must take immediate action 
to restore workers' most basic liberties at the workplace.
    Thank you again for the opportunity to testify at this hearing.
                                 ______
                                 
    Chairman Andrews. Mrs. Joyce, thank you.
    And we thank each of the four of you for your testimony. We 
will now proceed with questions. And we live by the same 5-
minute rule, as well.
    I think it is important we put the testimony in context.
    And, Ms. Jason, any fair-minded person, when they hear what 
you say, would have to be concerned about the possibility of 
workers being coerced to sign cards in majority sign-up 
procedures.
    I think it is important we put this in context.
    The majority sign-up procedure and other forms of union 
organizing have been around for more than 6 decades, on the law 
that we have now. And our research indicates that, in those 
more than 6 decades, there have been 42 occasions when the 
National Labor Relations Board has made a finding of coercive 
behavior by a union organizer--42 findings in over 60 years.
    The other side of the coin is rather different. In 2005 
alone, more than 31,000 workers received back-pay or some other 
remedy because of a finding by the National Labor Relations 
Board that their rights had been in some way abridged.
    Also, we want to take a look at some of the coercive 
circumstances that Ms. Jason talked about in her testimony. 
First is house-calling, and I wanted to put that in some 
perspective.
    I can understand how there might be a time when someone 
knocking on your door would be fairly coercive.
    But, Mr. Ludlum, I want you to again describe for us what 
the scene looked like the day that you and your fellow workers 
went to vote in 1997 in the ballot election. You made some 
reference to sheriff's officers being present. Could you 
describe that a little more fully for us?
    Mr. Ludlum. Yes, sir. The plant manager had gotten the 
local sheriff to have his deputies out there in full battle 
gear, with shotguns, lining the plant entrance, all up in the 
hallways, all the way up to the election booth area. Plant 
management was all up in the election booth area, standing 
there with their white hats on, their white smocks, showing 
their authority, and everybody saying, ``No union. No union.'' 
Now, that is coercion.
    Chairman Andrews. Now, Mr. Camilo, I wanted to ask if you 
could tell us, one of the points that Ms. Jason made was about 
access to information about employees to try to get them to 
sign the cards. And she talked about people getting information 
off of license plates and whatnot.
    When you were involved--and I would ask Mrs. Joyce, too--
when you were involved in the effort to organize workers at 
your workplace, did your employer give you a list of the names 
and addresses of the people who worked for the employer? Mr. 
Camilo, did you get that list?
    Mr. Camilo. No, I didn't get a list. I know I presented a 
list to the employers of 58 of us that were trying to organize.
    Chairman Andrews. Did the employer say, ``Sure, here is a 
list of the other people that would like to organize; here are 
their names and addresses and phone numbers''? Did you get such 
a list?
    Mr. Camilo. No, they did not provide that list to me.
    Chairman Andrews. Mrs. Joyce, did you have access to such a 
list?
    Ms. Joyce. We never made house-calls when we were 
organizing with AT&T Wireless. We tried to get information to 
employees that, if they wanted to talk to us about the union, 
would come and meet us at restaurants in town. We tried to have 
it at a townhall. That is when we had managers find out and try 
to--they were taking pictures of us. They were parking their 
cars in front of the entrances.
    Chairman Andrews. Prior to the neutrality agreement that 
you made reference to at Cingular, did the prior employer 
permit the union to come on company grounds and tell their side 
of the story?
    Ms. Joyce. Never, never.
    Chairman Andrews. Were there meetings that involved 
employees where only those opposed to the union were allowed to 
speak?
    Ms. Joyce. Yes, we had meetings--for instance, in the town 
where I am from, we had a Bonanza Steakhouse, and we had 
meetings up there where any employees were welcome to come and 
ask questions. That is what we were there for, to give out 
information.
    Chairman Andrews. But how about the meetings that were held 
in the workplace by--I guess it was AT&T was the prior 
employer? Were pro-union people allowed to speak at those 
meetings in the workplace?
    Ms. Joyce. No. We were never allowed--we were taken off the 
phones by managers and taken to a room to tell us the negative 
effects of a union. We were told major lies about what a union 
would do. That is when we were told we would lose our jobs.
    Chairman Andrews. Mr. Ludlum, why did you go back to your 
present employer after 12 years? Did you take a pay cut when 
you went back?
    Mr. Ludlum. Yes, yes.
    Chairman Andrews. Why did you go back?
    Mr. Ludlum. Because I knew that being selfish doesn't 
accomplish anything. And I knew what that company was doing to 
my community and to the workers there. So I had to go back, in 
order to make a change for a company that thought that their 
plan was going to work, by getting rid of people that were pro-
union and wanting to make it better for people and the children 
of our community.
    Chairman Andrews. Well, Mr. Ludlum, we are going to try to 
help you make that change.
    Mr. Ludlum. Thank you, sir.
    Chairman Andrews. Mr. Kline?
    Mr. Kline. Thank you, Mr. Chairman.
    I would like to thank the witnesses for being here today 
and for their testimony and everybody sticking pretty close to 
the clock. I am going to try to set the standard for my 
colleagues up here and stay within my 5 minutes.
    Mr. Ludlum, I just want to make sure I understand the 
scene. The chairman asked you what it looked like when you went 
to vote. It sounded pretty bad. But when you walked past the 
sheriff's deputies and everything, did you go cast a secret 
ballot?
    Mr. Ludlum. Yes, sir.
    Mr. Kline. And did you think that the sheriffs were opening 
the ballots and looking at it? It was in private, right?
    Mr. Ludlum. Yes, sir. But at the time of the vote counting, 
all of a sudden power was lost in the plant; the lights went 
out. [Laughter.]
    Mr. Kline. So you didn't get to vote?
    Mr. Ludlum. And there were supervisors there at the ballot 
box when the lights came back on, so----
    [Laughter.]
    Mr. Kline. I see. And was the----
    Chairman Andrews. Was this in Florida? Was this in Florida, 
Mr. Ludlum? [Laughter.]
    Mr. Kline. That is cute, Mr. Chairman. That is very, very 
cute. [Laughter.]
    The NLRB wasn't there?
    Mr. Ludlum. You have got to understand----
    Mr. Kline. The NLRB wasn't there?
    Mr. Ludlum. Yes, they were there.
    Mr. Kline. Okay, thank you.
    Ms. Jason, we have heard some pretty tough stories here 
about intimidation by employers, and clearly that should not 
be. Can you tell us, from your experience, about any 
intimidation, any violence, any harassment that may have taken 
place by unions?
    Ms. Jason. Yes. And let me just say that I am here to say 
that I don't think harassment should take place on either 
side----
    Mr. Kline. Exactly.
    Ms. Jason [continuing]. Of the equation. And really, it is 
about making sure that people can privately decide and cast 
their vote.
    There are a lot of strategies that the union uses, like I 
mentioned about house-calling and different agitational 
strategies that the union uses in order to keep people up, get 
their emotions very high and create a crisis situation in which 
there is a tremendous amount of urgency about solving problems 
that are perceived by the company and really put out there by 
the union.
    And so, there are a lot of ways in which, especially during 
the context of a card-check campaign--and this is what I worked 
on a lot of the time, as an organizer--in which, really, there 
were no rules about, you know, how we got the cards. And it 
didn't matter whether or not that person who was signing the 
card at the end loved me or hated me.
    So there were many times where we, you know, visited people 
very late at night and stayed in their house and basically put 
my feet up on the ottoman and made it clear that I wasn't going 
to leave until they signed the card.
    There were threats made to anti-union people. As an 
organizer, there were many times where I was directed to create 
what is called a rat campaign, in which you identified a pro-
union supporter who hasn't signed a union card, label them as 
company rats, and harass them on the shop floor. In one such 
environment in Indianapolis, a woman actually had a heart 
attack on the shop floor because the stress was so great.
    And this is intentionally created by the union, this 
environment of fear and intimidation, is intentionally created 
as a campaign strategy on the part of the union.
    Mr. Kline. Okay.
    Thank you very much, Mr. Chairman. I will yield back, 
trying to set that example.
    Chairman Andrews. Thank you.
    And keeping with the full committee's practice, members 
will be recognized in accordance with their seniority who were 
present at the time of the gavel and then will be recognized by 
seniority after the gavel.
    And we would start with Mr. Kildee for 5 minutes.
    Mr. Kildee. Thank you, Mr. Chairman.
    Since the Wagner Act was passed in 1935, there has been 
probably cases of coercion on both sides, but all the studies--
all the studies--show that the vast amount of the coercion 
takes place on the employer side.
    And that was the example that I grew up with. I was born in 
1929; I remember the sit-down strike in Flint in 1937. And 
General Motors, for example, was the highest contractor of 
Pinkerton Detectives. When my dad joined the union, he had to 
hide his button under his collar because he wasn't sure that 
the person next to him might be a Pinkerton detective who would 
report him.
    So, if you take the coercion--now, you may find abuse on 
either side, but all the studies indicate that the coercion is 
really more, by far, on the part of the employer. They used to 
use blackjacks, 1936, 1937, when I was growing up, and now they 
use briefcases. You know, if you go to the western part of 
Michigan, particularly, you find in the Yellow Pages, ``Labor 
problems? Union problems? Call us.'' I mean, these are experts 
who really will help companies keep unions out.
    So, the coercion has always been far greater, in my 77 
years upon this earth, on the part of management. Now, we don't 
want it on either side. But sheer numbers, they have the power 
to do it in a far greater manner than a union trying to get 
started in a place. There is no question about that. And I have 
experienced that myself regularly.
    Let me ask a question of Mr. Camilo. What effect did the 
threat of plant closure, the loss of pensions and the benefits 
have on the workers at Blue Diamond?
    Mr. Camilo. Make the employees scared. Like, in 2004, a lot 
of people vote for union, but then after, because they get 
scared, so they can't make a decision to vote for a union at 
that time.
    Mr. Kildee. So they would use that to intimidate or 
frighten the workers, then?
    Mr. Camilo [continuing]. So workers are nervous. They are 
afraid to lose their job. Some are just single mothers. They 
just feel bad, they don't want to lose their job, because if 
they lose their job they will lose their house, they will lose 
everything they have.
    Mr. Kildee. I thank you very much.
    And because we have two panels today, I will yield back the 
balance of my time also, Mr. Chairman.
    Chairman Andrews. Thank you, Mr. Kildee.
    I am pleased to recognize the ranking member of the full 
committee, the gentleman from California, Mr. McKeon, for 5 
minutes.
    Mr. McKeon. Thank you, Mr. Chairman.
    I, too, want to thank all of you for being here. And, you 
know, we have heard stories on both sides, things that the 
unions have done incorrectly, things that labor have done 
incorrectly. None of these things should happen in our country, 
and it is sad that that happened.
    You know, I am not quite as old as Mr. Kildee, but almost. 
[Laughter.]
    And we come from a different generation. And I remember 
stories of my dad telling me that when he was a young man that 
they didn't have unions, and the company he was working for, 
the sales manager would come in every week and just fire 
someone, just to keep them scared, just to make sure that 
everybody toed the line and did the things they were told.
    Those days of that kind of intimidation I think are well 
behind us, just as--as a young man, I served as a missionary 
for our church. When I got off the train in San Antonio, I saw 
signs for drinking fountains, colored and white. This was 
before civil rights. We have come a long ways.
    Do we still have problems? Yes, we do. But I think the 
reason that we are here today and what we are looking at is, 
what is the best way, what is the most democratic way to let 
these decisions be made?
    And, obviously, we have differences of opinion. I come down 
on the side of an election where nobody knows who voted which 
way.
    And, you know, Mr. Ludlum, thank you for your service. I 
also serve on the Armed Services Committee, and I appreciate 
what you have done for our country, and I feel bad that you had 
these kind of problems. But we have only heard your side of the 
story.
    And, Mr. Chairman, I would like to request that we give 
Smithfield Company a chance to respond and put their statement 
in the record, so that we have some balance in that. I don't 
think we would have a problem with that, would we?
    Chairman Andrews. Well, if I may, if the gentleman would 
yield, at the beginning of the hearing, as per the committee 
rules, any member is welcome to submit material for the record 
under unanimous consent. If you choose to do that, you are 
welcome to.
    Mr. McKeon. Okay, thank you.
    Mr. Ludlum, you said you left a good-paying job. What kind 
of a job was that?
    Mr. Ludlum. I worked for various construction companies as 
a contract administrator.
    Mr. McKeon. And did they have unions there? Were you a 
member of the union there?
    Mr. Ludlum. No.
    Mr. McKeon. But they treated you differently so they didn't 
need a union there? You didn't feel like they should be 
organized? What----
    Mr. Ludlum. No, they treated the employees well. I don't 
say that every company, every business, every proprietorship, 
whatever, needs a union. But when employees need a union, then 
they need the right to vote on that union and get a union.
    Mr. McKeon. I agree. I agree totally. I think they should 
have the right to vote. And I think that should be done by a 
secret ballot so that neither the employer nor the union knows 
how people are making that decision, and that should be a 
private, secret ballot.
    You know, I have a letter here--I would like to put it in 
the record, Mr. Chairman--that many members--if I go down the 
line, they all are on your side of the aisle. But this is a 
letter that was to state of Puebla--it was a group down in 
Mexico.
    And it says, ``As members of the Congress of the United 
States, we are deeply concerned with international labor 
standards and the role of labor rights in international trade 
agreements. We are writing to encourage you to use a secret 
ballot in all union recognition elections.
    ``We understand that secret ballot is allowed for but not 
required by Mexican labor law. However, we feel that the secret 
ballot is absolutely necessary in order to ensure that workers 
are not intimidated into voting for a union they might not 
otherwise choose.
    ``We respect Mexico as an important neighbor and trading 
partner. We feel that the increased use of the secret ballot in 
union recognition elections will help bring real democracy to 
the Mexican workplace.''
    And I would like to have that inserted into the record----
    Chairman Andrews. Without objection.
    Mr. McKeon [continuing]. Because I agree totally with that.
    And, again, thank you all for being here today.
    I yield back.
    Chairman Andrews. Thank you.
    The chair recognizes the gentlelady from California, Ms. 
Sanchez, for 5 minutes.
    Ms. Sanchez. Thank you, Mr. Chairman.
    And thank you to all of the panelists for your thoughtful 
testimony today.
    My first question is for Ms. Joyce.
    Ms. Joyce, Ms. Jason, the panel member who identified 
herself as a former UNITE organizer, testifies that the 
decision to join a union is often life-changing, and that is 
why she thinks that employers should be able to force employees 
to use the NLRB election process even when a majority of them 
have signed cards expressing their desire to be represented by 
a union.
    Do you agree with the implication that employees would be 
better off engaged in an election battle with an anti-union 
employer than decided to join a union through the card-check 
process?
    Ms. Joyce. No. I think they should be able to have the 
choice if they--my story is much different from the one Ms. 
Jason portrayed. At AT&T Wireless we didn't harass workers. You 
don't need to harass workers when the company gives people a 
two-cent raise. [Laughter.]
    Ms. Sanchez. So you would agree that--basically, 
fundamentally, do you think it is a better process to have 
these heated anti-union messaging in the workplace followed by 
an NLRB election, or just a majority of employees being able to 
decide they want to be represented by a union by signing off on 
a card-check?
    Ms. Joyce. I think that workers feel relieved to be able to 
sign a card and get the majority. They are terrified to have to 
go and vote. Even when we tried to go off the property, 
management would show up. And it was very frightening to think 
you may get fired or lose your job or be harassed because you 
want to make a choice to join a union.
    Ms. Sanchez. Thank you.
    My next question is for Mr. Camilo.
    In your testimony, you describe some of the anti-union 
tactics that were used by Blue Diamond, including captive-
audience sessions and one-on-one meetings in which officials 
threatened to close the plant and take everyone's pension away. 
Also there were some firings, yours included, among others, of 
your coworkers.
    Ms. Jason, who disagrees with the Employee Free Choice Act 
method of card-check, said that unions use high-pressure 
tactics on the employees to try to get them to sign these 
cards.
    How would you compare your experience in dealing with union 
folks who were trying to organize versus the employers who are 
trying to prohibit the union from coming in? How would you 
compare the tactics used by the two?
    Mr. Camilo. Is that question for me?
    Ms. Sanchez. Yes.
    Mr. Camilo. Well, the union--support for unions if you want 
to. With the company, they keep on persuading you that union is 
bad, you don't want to pay union dues. They are just so phony, 
I think. But they keep on intimidating people.
    Like, in my case, because our plant organized, they fired 
me. After 35 years of working for that company, they fired me. 
They made a statement I contaminated the product. Then when we 
went to court, they denied it. They said, ``No, we didn't find 
no blood.'' Why did they fire me?
    Ms. Sanchez. And ultimately----
    Mr. Camilo. My sister worked there for 42 years, but she is 
afraid to let them know that she is for a union. She just keeps 
silent. So we feel great intimidation. I mean, we don't want 
them to know. After I got fired, a lot of people got scared.
    And soon after, Blue Diamond took a side that they want a 
union, they want a secret ballot, because they are intimidating 
people; that is why they want it. They don't want a card-check, 
I mean majority, to sign up. And majority sign-up is a way that 
you sign your card freely, make your decision the way you want 
it, not by persuasion of a company.
    Ms. Sanchez. Thank you.
    Last question, and I am running out of time, but, Mr. 
Ludlum, much has been made about the fact that NLRB elections 
are done via secret ballot. Do you believe that process is 
truly free and open and free of intimidation or coercion when 
you go in to cast your ballot in an NLRB election on whether 
you want union representation or not?
    Mr. Ludlum. No, no. When I said earlier that I think the 
workers ought to have a chance to vote, secret ballot elections 
on company property under the intimidation of sheriffs and 
company management is not a vote, okay. Signing a card, that is 
a vote for an employee, signing a card openly and freely, 
whether it is on property, off property, in a restaurant or 
whatever, that is their choice and their vote and everything.
    You know, a lot of employees don't even go show up to vote 
because they don't want management to see them even in there. 
So not even showing up is a ``no'' vote.
    Ms. Sanchez. Thank you. I guess----
    Chairman Andrews. The gentlelady's time has expired.
    The chair recognizes the gentleman from Michigan, Mr. 
Hoekstra, for 5 minutes.
    Mr. Hoekstra. Hoekstra.
    Chairman Andrews. Hoekstra, excuse me. It has been so long 
since you have been here, I forgot the pronunciation of your 
name. [Laughter.]
    I don't mean that as an insult. Mr. Hoekstra was----
    Mr. Hoekstra. That is only because I have been on leave 
from the committee.
    Chairman Andrews. He was chairman of the Intelligence 
Committee, and he is back, and we welcome him back.
    Mr. Hoekstra. Hey, thank you. It is great to be back. It 
brings back memories, let me tell you.
    I just first want to respond to the comments from my 
colleague from the state of Michigan, since he was talking 
about my district in Michigan when he was talking about west 
Michigan.
    Let me just point to my colleague, Mr. Kildee, that, in a 
state that struggles with one of the highest unemployment rates 
in the country at over 7 percent--at least in west Michigan, we 
are about 2 points below that in unemployment. And if there is 
a bright spot in the state of Michigan, it is the west side of 
the state, where we have got great companies, we have got great 
employees that have found a way to be successful in a state 
that has a very unfriendly economy to businesses today.
    I think that, as we have gone through the process and 
listening to the testimony, I don't think there is anybody here 
who disagrees that there needs to be free and fair election. 
That means that you can't be coerced by the unions and you 
can't be coerced by businesses. And employees ought to have 
that right to go and have that decision and do it in secret. At 
least that is what I am hoping for.
    You know, this committee has a pretty good tradition of 
standing up for workers' rights, at least parts of this 
committee do. It was about 10 years ago that this committee, 
over the objections of members on the other side, took on 
corruption, took on corruption within the Teamsters Union, 
where there was a fraudulent election of a union, 1.4 million 
members, one of the largest private-sector unions in America 
today. And this committee stood up and said, there is going to 
be another election because of the fraudulent leadership of, at 
that time, President Carey of the Teamsters. There was another 
election. It was a fair election. And we defended the rights of 
1.4 million Teamsters.
    And, Mr. Chairman, I hope that we, as a subcommittee, will 
take a look at restoring workers' rights to those 1.4 million 
Teamsters by taking the final step in getting the consent 
decree removed and getting this union from under the control of 
the federal government. It is time that that happened.
    And it would be a great step for worker democracy and one 
that I hope, this time, Republicans and Democrats could work 
together on. I don't think any of us believe that, after this 
union has been under control, I think, of the federal 
government for around 17 years, that the federal government 
still should have it under its thumb. And I think this would be 
a great step for worker democracy.
    The question that I would have for Ms. Joyce on this is, 
you know, the card-check process is an interesting process. And 
it demonstrates that perhaps with only half of the members or 
employees of a company being part of the process and only half 
being contacted, that there could be union recognition.
    At that point in time, because 50.1 percent of the workers 
have agreed that they want union representation and the other 
49 percent not having a vote, at that time should the union 
represent the 50 percent or 51 percent of the workers that have 
signed the card-check, or should that be a requirement for 100 
percent of the workers?
    Ms. Joyce. Just as with any election, it is the majority. 
When the union----
    Mr. Hoekstra. But this is not an election. This is a card-
check. This is not an election.
    Ms. Joyce. Well, per se, when you get 51 percent--it is 50 
percent plus one person----
    Mr. Hoekstra. Right.
    Ms. Joyce [continuing]. You get the majority that say, 
``Yes, we want the union to help represent us,'' that is the 
majority of the employees. Everyone has the choice of whether 
they want to belong to the union or not. In fact, when the 
totals are brought in, we have to have that majority.
    Mr. Hoekstra. But it is not an election. There is not 
necessarily--the people who disagree with joining and who may 
never have been asked, the benefits and the detriments may 
never have been explained to them----
    Ms. Joyce. At our call center, everyone knew----
    Mr. Hoekstra. I don't care about--I am just talking 
philosophically here----
    Chairman Andrews. The gentleman's time has expired.
    Mr. Hoekstra. All right. Thank you.
    Thank you, Mr. Chairman.
    Chairman Andrews. Thank you.
    The chair recognizes the gentleman from Iowa, Mr. Loebsack, 
for 5 minutes.
    Mr. Loebsack. Thank you, Mr. Chair.
    Thanks to all of you for your testimony today. It has been 
enlightening.
    I might just make one comment. It seems to me that part of 
the problem that we are facing here--I like to put things in, 
kind of, a bigger context. We all know that of course union 
membership, as a percent of the workforce in this country, has 
been dropping dramatically over the course of the last couple 
of decades.
    And, in particular in the meat-packing industry and a 
number of others, I think what we are seeing is--a lot of this 
is the result of the globalization process. We are seeing a 
race to the bottom, if you will, in a lot of industries. And we 
are seeing tremendous pressure on the workers.
    And I think what we see is an increase in productivity on 
the part of the workers, but we see a decline in their ability 
to organize, we see a decline in their benefits, whether it is 
real wages or whether it is health benefits, whatever the case 
may be.
    And my own view, for what it is worth, is that we have a 
lot of company executives who are very aware of the squeezing 
of the working class, and, oftentimes in the workplace, it is 
manifested by the kinds of activities that we have heard from a 
number of you today.
    And it is not that there aren't abuses on both sides; we 
have heard that from a number of panel members here and from 
some of you, as well.
    But I do want to just ask a couple of quick questions, if I 
can.
    Mr. Ludlum, I was out of the room when our chair questioned 
you, and you may have addressed this already. But can you talk 
to us about the role of the UFCW in this process? Did they 
engage in any kind of intimidation tactics?
    You know, you were part of this process. How did they 
approach this whole process? And I don't mean just during a 
vote.
    Mr. Ludlum. No, when I first started working at Smithfield 
I knew nothing about unions, had never been a part of a union, 
was not raised up in union territory. You know, I was raised up 
in the South, you know, so there wasn't a lot of unions in the 
area or anything like that; knew nothing about them. But, as I 
started working there and leaving the plant, the organizers 
would be out there handbilling at the highway, you know. They 
would be right there at the line, where they had to stay on 
public property and handbill. And every once in a while, I 
would get a handbill; sometimes I wouldn't. Sometimes I would 
read it, and sometimes I wouldn't, you know.
    But the union did not make my decision on whether or not I 
needed a union. I did. And the company made it for me, you 
know.
    As I've seen workers getting hurt, getting mistreated, you 
know--in particular, the straw that broke the camel's back was 
one employee in the livestock area, when his leg got broke when 
it got caught between an electric pallet jack and a concrete 
wall, and then the very next morning he was at work with a full 
cast and crutches.
    And I was asking him, I said, ``What are you doing in 
here?'' He said, ``I have got to be here or I am going to lose 
my job.'' And come to find out, it was just to prevent the 
company from having a loss-of-workday case on their OSHA law.
    So this man had to go all the way through the parking lot, 
a large parking lot--you know, they employ over 5,500 
employees--a large parking lot, all the way through the plant, 
through the greasy cut floors and kill floors, to sit in the 
livestock break area all day, with crutches and a cast on, you 
know, and just be under the pain and being uncomfortable all 
day and risking himself again.
    And when I went to supervision, who drove around and parked 
right in the livestock yard, 10 feet from where he was sitting 
at in the break room, I said, ``How about you guys let him 
drive around, you know, and park where you guys are parking 
at?'' And they said, ``No, that is for management, and he is an 
employee.''
    And that is when the switch flipped for me. That is when I 
said, ``Okay, this is a mindset. This is what has to change. 
They are going to treat these people with respect, because I am 
a worker too.''
    Mr. Loebsack. Right. I appreciate that.
    I will just make one brief comment. Being from Iowa, we 
know a lot about the hog industry, as you do in North Carolina, 
and also about the processing industry as well. And we are 
represented in many of these plants in Iowa by the UFCW, and I 
am really happy that we are, of course.
    I will yield back----
    Chairman Andrews. Would the gentleman yield before he does 
that?
    I did want the record to reflect the discussion earlier 
about the letter on the Mexican unions--and we will submit 
written information on this--I do want the record to reflect 
that that was a situation where it was union versus union, as 
to which was supposed to be recognized. It was the view of the 
signers of the letter, including Chairman Miller, that the 
incumbent union was a government-run sham union and the union 
that was to replace it was a more conventional union that truly 
represented the workers.
    I do want the record to reflect that that is the reason the 
chairman and others signed the letter.
    The chair recognizes the gentlelady from North Carolina, 
Ms. Foxx.
    Ms. Foxx. Thank you, Mr. Chairman. And I appreciate that.
    I would like to respond to your last comment, in your 
clarification about that letter. It seems to me that the 
important point was that you and your colleagues recognized the 
importance of a secret ballot in protecting people, no matter 
what the issue was.
    Chairman Andrews. Will the gentlelady yield?
    Ms. Foxx. I will as soon as I finish my other comments.
    Chairman Andrews. Sure.
    Ms. Foxx. Thank you.
    I appreciate the fact that we are going to allow the 
Smithfield Packing Company to include their statement in the 
record for today too. I am very pleased about doing that. I 
agree with my colleague that there are at least two sides to 
every story and every issue--at least two. I learned, when I 
served in the state legislature, there are usually about 25 
different sides to an issue.
    Mr. Ludlum, I want to thank you, too, for your service to 
our country. I always try to thank every veteran and every 
active military person for their service because I think it is 
very important that we do that and recognize it.
    But I want to ask you a question about the current 
situation at Smithfield. Isn't it true that Smithfield has 
called on the UFCW to agree to a private, secret ballot 
election, so that the workers at Tar Heel can decide whether or 
not to be unionized?
    And isn't it true that they have agreed to have a carefully 
regulated-by-the-federal-government election and have even 
offered to share the cost of a neutral observer, such as 
someone from the Carter Center, to oversee that balloting? 
Isn't that true?
    Mr. Ludlum. Oh, yes, ma'am. They definitely want a fair 
shot at keeping us in the secret ballot process because it was 
12 years from the first one, 10 years from the second one, and 
they can postpone, you know, a legitimate election for another 
12, 14 years, you know, have 20, 30 years operating and abusing 
workers, you know.
    And you asked if the government regulates that the NLRB is 
there, but when you lose power and lights go off and there is 
no agent around the ballot box? No, the only secrets that are 
being kept is the secrets that the company's dirty tricks are 
going to continue to happen.
    Ms. Foxx. But they do want to have a secret ballot election 
and they will have to abide by that election if they have the 
election?
    Mr. Ludlum. Yes, they want a secret ballot election.
    Ms. Foxx. And I would like to make one other comment about 
Ms. Jason's comment.
    You mentioned, in response to the question from Mr. 
Hoekstra, everyone has a choice. And in the example that he 
used, which you did not complete, a 51 percent, or 50-plus-one 
sign those cards and they wanted to be represented by a union, 
you never responded to the rest of it, then assuming the other 
49 percent don't want to be represented by a union. And you 
said everyone has a choice. But in this kind of a situation, 
they don't. You are not willing to give them that choice.
    Thank you very much, Mr. Chairman.
    Chairman Andrews. Will the gentlelady yield, since she----
    Ms. Foxx. Oh, yes, now I will.
    Chairman Andrews. I would respectfully say to her that one 
major difference in the Mexican situation is that the union 
that was the incumbent was functionally an arm of the Mexican 
government. If you have got a situation where your government 
is against you, I think most people want to be protected in 
their privacy against their government, as opposed to the 
present situation.
    Second, I would say, to Mr. Ludlum's situation, the UFCW 
has no choice but to go for a secret ballot election under 
present law. It is either nothing or that.
    Right? Is that correct, under the present law?
    Ms. Foxx. Correct.
    Chairman Andrews. Okay. The chair recognizes----
    Ms. Foxx. Would the chairman yield?
    Chairman Andrews. Yes, it is your time. Yes, ma'am.
    Ms. Foxx. Would you say that in our country we should just 
have sign-up cards, or would you do away with the secret ballot 
elections in this country?
    Chairman Andrews. I would say that we should guarantee 
under the labor law a free choice of every employee, and this 
bill is the right way to do it.
    The chair recognizes the gentleman from New Jersey, Mr. 
Holt, for 5 minutes.
    Mr. Holt. Thank you. Thank you, Mr. Chairman. And thank you 
for holding these hearings.
    Mr. Ludlum, when it takes as long as a decade to finally 
get reinstated, what is the message that the law sends to 
employers and employees about the value of unions and the 
importance of unions?
    Mr. Ludlum. Well, I mean, you know, I am a shining example 
for Smithfield to the other workers. If you speak up, you stand 
up for your rights, we will fire you and we will see you in 12, 
13 years.
    Mr. Holt. Do you think that a majority vote through the 
card-check would make it easier or harder to organize?
    Mr. Ludlum. Oh, I think it would make it easier, you know.
    Mr. Holt. It would make it easier.
    Let me ask a couple of questions of Jen Jason.
    I understand that you are now a consultant to businesses. 
Is that correct?
    Ms. Jason. Yes.
    Mr. Holt. And I understand that your Web site talks about 
what you call union avoidance programs. Is that correct?
    Ms. Jason. Yes.
    Mr. Holt. And after you left as an organizer for UNITE 
HERE, who was your first client?
    Ms. Jason. We worked for the Cintas corporation.
    Mr. Holt. For Cintas. And how soon after you left UNITE 
HERE did you take them as a client?
    Ms. Jason. I don't recall at the time. Within a couple of 
months. Once we started up the consultant company.
    Mr. Holt. So, okay, as soon as you started the company.
    Ms. Jason. Excuse me. As I said, I remained committed to 
the idea that workers deserve their rights and deserve 
democracy in the workplace. And one of the things we wanted to 
do with our consulting company was to use our experiences as 
organizers to help companies understand the ways in which 
employees feel like they are being discriminated against, feel 
that favoritism is being used against them, and to help them 
rectify the situation in a peaceful way so that there doesn't 
have to be strife between management and employees.
    Mr. Holt. So in whose interest is union avoidance? Why 
would someone, some company or anyone want to avoid unions? 
What would they be avoiding?
    Ms. Jason. Well, I mean, in this particular example, I 
think what we are talking about is corporate leverage 
organizing campaigns that are well outside of the jurisdiction 
of the NLRB, which we have been talking about, in which signing 
a union card is an indication that you want to get a union and 
you want to have a vote. I think that is essentially how they 
are using it now.
    But, as some of your colleagues have said, in the last 10 
years, with the history of the way that the economy has been 
working and manufacturing has been moving overseas, unions have 
become more desperate to organize workers and have used even 
more aggressive tactics against companies to force them to 
agree to card-check outside the jurisdiction of the NLRB.
    And basically what that means to a company and to the 
employees is that that union--for example, UNITE HERE in the 
Cintas case--will wage long-standing public relations 
campaigns, shareholder actions and things like that that are 
actually detrimental to the company and to the employees, 
especially in a case where there is no, to my knowledge, there 
is no overwhelming voice of people saying, ``We want a union 
here,'' but it was actually a strategic decision made by the 
corporate union to organize that company, not a call from the 
shop floor saying, ``I am breaking my back here; I need your 
help.''
    Mr. Holt. Well, my time is nearly expired. What I think is 
a key issue here of whether we are making unionization harder, 
making it harder to organize. I think the data are pretty clear 
that workers would be better off if collective unionizing were 
the norm, rather than the exception, and that making it more 
difficult actually is a disservice to the overall economy, not 
just the workers.
    So I have seen union avoidance consultants at work, and I 
know they can be quite effective. But I question whether they 
really operate in the interest of workers and the economy as a 
whole.
    Thank you.
    Chairman Andrews. Thank you, Mr. Holt.
    The chair recognizes the gentleman from Louisiana, Dr. 
Boustany, for 5 minutes.
    Mr. Boustany. Thank you, Mr. Chairman. Thank you for 
holding this hearing.
    I want to thank the witnesses. You have all given very 
compelling personal stories, and it has been very interesting 
to me.
    And, clearly, abuses occur, intimidation occurs, on both 
sides. And this committee is interested in looking at fairness 
and what is really fair to the worker. And, clearly, that is a 
central issue. And it seems to me that fairness to the worker 
would mean not short-circuiting a secret ballot system which is 
set up fairly, with proper safeguards. That seems to be the 
fairest way to handle this.
    Now, I guess the question I have is this: If we were to 
move forward with card-check, what do you recommend--and I 
would like to hear from each of you on this--what do you 
recommend be done to prevent fraud and intimidation under that 
type of system?
    I mean, do you recommend that the NLRB be present in every 
meeting? Which, I mean, that is impossible. But what do you 
recommend that this committee look at? And how do we verify 
that we are not going to have intimidation and fraudulent 
activity with card-check?
    Mr. Ludlum, why don't you start with that?
    Mr. Ludlum. Yes, if you find somebody bending somebody's 
arm behind their back to make them sign a card, put them in 
jail, whether it be a CEO or a union organizer.
    Mr. Boustany. But how would you really prevent this? I 
mean, I----
    Mr. Ludlum. Well, eventually----
    Mr. Boustany. You are talking about enforcement after the 
fact. How do we devise a fair system?
    Mr. Ludlum. Well, I mean, eventually, then you say, okay, 
that card is not legitimate. You know? I mean, a person will 
come out and tell you. I mean, as soon as they feel safe, 
somehow it will come out. A lie will always find you.
    Mr. Boustany. Mr. Camilo?
    Mr. Camilo. Well, you can read all the cards and contact 
the person that signed the cards to make sure that they signed 
it if you have any doubt.
    Mr. Boustany. Ms. Jason?
    Mr. Jason. Well, I am certainly not a legislative expert, 
but I would suggest--and having worked in card-check scenarios 
throughout the U.S. and Canada in multiple different provincial 
locations, card-check doesn't solve the problem of harassment. 
Card-check doesn't solve the problem of violence on the shop 
floor or any of these things that have been described by other 
members of this panel. In reality, it just heightens the sense 
of urgency that is created and the potential for violence.
    And so, my actual, honest response is I would not recommend 
it. I would recommend that a secret ballot be upheld in which a 
person can say one way or another whether or not they want a 
union but that no one ever finds out what they voted.
    Mr. Boustany. Thank you.
    Mrs. Joyce?
    Ms. Joyce. I agree that, for example, if I call my land-
line service and want to change my plan, then they have 
somebody contact me, and I can say ``Yes, I agree to that'' or 
``No, that is not my card.''
    But that is much better than trying to get an employee that 
really wants a union to have to go where the management can 
watch you, taking pictures of you, and worried about getting 
fired because you choose to have a union represent you.
    Mr. Boustany. Okay, well, I would say, you know, as a 
member of this committee, I am interested in fairness, and I 
want to see a fair system in place. But I am not satisfied that 
we can create a system with card-check that would be reasonably 
full-proof with regard to intimidation tactics and fraudulent 
abuses. That is the problem I have, as a member of this 
committee.
    And it seems to me that a secret ballot election is a 
system whereby at least you can create some degree of safeguard 
that protects the right of the worker. And I think that is the 
central issue that we need to keep our eyes on.
    And I see my time is running out, so, again, I thank you 
for your testimony.
    Mr. Chairman, thank you very much. I yield back.
    Chairman Andrews. I thank the gentleman.
    And the chair recognizes the gentlelady from New York, Ms. 
McCarthy, for 5 minutes.
    Mrs. McCarthy. Thank you, Mr. Chairman. And I appreciate 
this hearing.
    You know, as we talk about union coercion in the workplace, 
let me give you some information that I had done a little 
research on.
    The anti-union H.R. Policy Association was able to identify 
only 42 cases involving coercion in the signing of union 
authorization forms in the more than 60 years since the NLRA 
has permitted unions, or less than one per year.
    So I think that, you know, trying to put this on to the 
unions, that they are giving everyone a difficult time, I think 
is a little out of place there. Yet we know that we see our 
unions trying to organize, and they are being shut out 
constantly.
    So something is not working, and obviously we need to have 
a better playing field for those that want to be unionized.
    Going back to the beginning of some of the testimony, Ms. 
Jason talked about how the unions would go to the homes. They 
are not allowed on the property, so where are they supposed to 
talk to those members that might want to join a union?
    And, to be very honest with you, as a politician, twice a 
year I go around knocking door to door and going to people's 
homes so they can sign my petitions so I can run for re-
election. So, you know, those that don't want me in the home 
ask me to leave. Those that want to sign up just sign up. So, I 
don't know, I kind of consider that freedom of speech, in one 
way or the other. So I see nothing wrong with that.
    But, again, to have Ms. Jason testify here and certainly--
let me ask you. Why did you join a union in the first place 
where you were working?
    Ms. Jason. I am sorry?
    Mrs. McCarthy. Why were you involved in the union?
    Ms. Jason. In the first place?
    Mrs. McCarthy. Yes.
    Ms. Jason. Well, I grew up in a family that valued social 
justice issues. And I really strongly believed----
    Mrs. McCarthy. When you were in the union, did you see why 
should stay into a union, as far as the workplace conditions?
    Ms. Jason. Well, what I found in my experience was that, 
while the need may have always been present for change in the 
workplace, or while there was certainly a call for people to 
advocate for change or to discuss change in how they were going 
to solve problems in the workplace, and, you know----
    Mrs. McCarthy. Okay. With that being said, though--no, I am 
just asking, why were you in the union? Why were you in the 
workplace? Why were you trying to organize? Because obviously--
is there a reason for it?
    Ms. Jason. Well, if I could answer more fully, I started 
off with a strong belief in these things. I ended my career 
with UNITE with a strong belief in these things.
    Mrs. McCarthy. And yet----
    Ms. Jason. In the middle, I took a look at the reality of 
what was going on on the shop floor.
    Mrs. McCarthy. Taking my time back, when you quit your job 
as an organizer, how soon after you quit did you start your own 
business?
    Ms. Jason. As I said, it was a couple of months.
    Mrs. McCarthy. Couple of months. And who was your first 
client?
    Ms. Jason. Cintas.
    Mrs. McCarthy. And basically, what were they paying you, 
basically, a year that first year?
    Ms. Jason. We had a consulting agreement. They weren't 
personally paying me. It was a consulting agreement between my 
company and Cintas.
    Mrs. McCarthy. And what was about how much?
    Ms. Jason. For $225,000.
    Mrs. McCarthy. Correct. [Laughter.]
    I don't know. It just seems to me that you have a conflict 
of interest, you know, on a number of those issues.
    We have testimony from a number of members that belong----
    Mr. Kline. Excuse me. Would the gentlelady yield for just a 
second?
    Are you suggesting by that conflict that her testimony is 
inaccurate or misrepresenting? What is----
    Mrs. McCarthy. I think it is a little biased. [Laughter.]
    Taking my time back, you know, there are many union 
workers, and especially in the world that we are seeing today, 
that workers are not getting a fair shake. We are seeing 
health-care plans being taken away. We are seeing pensions 
being taken away. These are things that we, as Americans, have 
always fought for.
    Now, there are many good employers out there, and there 
are. And those that don't want to join the unions, that is 
certainly the employee's right.
    But when we make it so difficult for people that want to 
work with a union because they do protect workers' rights--if 
you remember correctly why unions even started, it basically 
goes back to the time when our union people--or our people, 
just average working people, were taken definite advantage of. 
And we are seeing that more and more.
    We all want fair elections. All we want is people to be 
able to say to another person, ``We think we need to have a 
union.'' And I think that is fair.
    We have seen too much abuse, as far as employers not 
allowing the employees to have that. And I hope this committee 
will certainly help change that.
    With that, I would like to offer for the----
    Chairman Andrews. The gentlewoman's time has expired.
    Mrs. McCarthy. I would like to offer for the record the 
Form LM-20 which Ms. Jason has filled out and also testimony 
from many people that want to join unions.
    Chairman Andrews. Without objection.
    The chair recognizes the gentleman from Michigan, welcomes 
him to the committee, Mr. Walberg, for 5 minutes.
    Mr. Walberg. Thank you, Mr. Chairman.
    First of all, let me also thank Mr. Ludlum for his service, 
for the cause of freedom.
    Also having been a father of a military personnel, I would 
say to Ms. Joyce, as well, thank you for being a family member 
in support of people who were willing to go, as you said very 
clearly, and fight for the cause of freedom. That is important 
we remember that.
    And I applaud you for your positions and thank you for 
taking right, each of you, the freedom to express your point of 
view on this issue.
    Having said that, as well, I admit that I, as probably 
everyone in this room, come with perspectives that come from 
filters in our life. I was raised in a union home. My father 
was a tool and die maker/machinist. I worked at U.S. Steel 
Southworks in Chicago for a time, as a steelworker.
    I had a foreman, not a union official but a foreman, come 
up to me early on in my time at U.S. Steel, diligently sweeping 
out the kitchen area, the materials area underneath the No. 2 
electric furnace there, and tell me, ``Walberg, take it easy. 
Go find a box, curl up, take a nap. Unions work long and hard 
to get your working conditions. Don't screw it up in 1 week.''
    That is a filter that I have in my life. I admit that. But 
we all have those filters.
    And yet, there are principles that go way beyond filters.
    So I just want to ask a couple questions here, and would 
appreciate a ``yes'' or ``no'' answer.
    Mr. Ludlum, do you believe exceptions to the rules of NLRB 
or the law should be a reason for undoing free and private 
elections in the workplace, yes or no?
    Mr. Ludlum, yes or no? Or I will move on.
    Mr. Camilo, do you believe exceptions to the rules should 
be a reason for undoing free and private elections in the 
workplace? [Laughter.]
    Ms. Jason, do you believe exceptions to the rules should be 
a reason for ending free and private elections in the 
workplace?
    Ms. Jason. No.
    Mr. Walberg. Ms. Joyce, do you believe exceptions to the 
rules should be a reason for ending free and private elections 
in the workplace?
    Ms. Joyce. I am sorry, I don't completely understand what 
you are asking.
    Mr. Walberg. Do you believe exceptions to the rule of law 
or the NLRB--and we have exceptions on both sides; we can admit 
that. We have bad management, and we have bad unions. We have 
all seen it; we have read about it.
    Do you believe exceptions to the rule of law or the NLRB 
should be a reason for ending free and private elections in the 
workplace?
    Ms. Joyce. I believe in----
    Mr. Walberg. Yes or no?
    Ms. Sanchez. Excuse me. Would the gentleman yield for a 
question?
    Mr. Walberg. Not until I am finished with these questions.
    Ms. Sanchez. It would help clarify----
    Mr. Walberg. Thank you.
    Ms. Sanchez [continuing]. I think the question that you are 
asking of them.
    Mr. Walberg. No, I think the question is very clear.
    Ms. Sanchez. By ``exceptions'' do you mean violations?
    Mr. Walberg. I have not----
    Chairman Andrews. The gentleman from Michigan has the 
floor.
    Mr. Walberg. I have not yielded.
    The second question I would like to ask: Mr. Ludlum, do you 
believe that an employee who doesn't want to join a union 
should have that opinion protected under the right to privacy?
    Mr. Ludlum. Is this yes or no also?
    Mr. Walberg. Yes or no. [Laughter.]
    It is not multiple choice. I don't think it is that 
difficult. Yes or no? We are talking about freedom. You fought 
for it.
    Do you believe that an employee who doesn't want to join a 
union should have that opinion protected under the right to 
privacy?
    Mr. Ludlum. That doesn't want to join the union?
    Mr. Walberg. One who doesn't want to.
    Mr. Ludlum. Yes.
    Mr. Walberg. Thank you.
    Mr. Camilo, do you believe that an employee who doesn't 
want to join a union should have that opinion protected under 
the right to privacy?
    Mr. Camilo. If a majority wants a union----
    Mr. Walberg. Yes or no?
    Mr. Camilo [continuing]. Then they should have a union.
    Mr. Walberg. I didn't ask that question.
    Ms. Jason, do you believe that an employee who doesn't want 
to join a union should have that opinion protected under the 
right to privacy?
    Ms. Jason. Absolutely.
    Mr. Walberg. Thank you.
    Ms. Joyce, do you believe that an employee who doesn't want 
to join a union should have that opinion protected under the 
right to privacy?
    Ms. Joyce. Yes.
    Mr. Walberg. Thank you.
    Chairman Andrews. The gentleman's time has expired.
    Mr. Walberg. Thank you.
    Chairman Andrews. The chair recognizes the gentleman from 
Connecticut, Mr. Courtney, for 5 minutes.
    Mr. Courtney. Mr. Chair, I yield back to you.
    Chairman Andrews. I thank the gentleman for yielding. I 
will ask a question, then we will yield to Ms. Sanchez.
    Mr. Ludlum, do you think that when people are in coercive 
situations where an employer controls the entire process 
leading up to a vote, that that vote reflects a free and 
unfettered choice of a worker?
    Mr. Ludlum. No.
    Chairman Andrews. The chair yields to Ms. Sanchez--Mr. 
Courtney yields to Ms. Sanchez.
    Ms. Sanchez. I thank the gentleman for his time.
    I was probably just as confused as some of the panelists by 
one of the questions that was just asked of them in a yes-or-no 
form as to whether or not ``exceptions'' to the NLRB should 
therefore trigger dispensing with free and fair elections.
    By ``exceptions'' did the gentleman mean violations to the 
NLRB law and rules?
    Mr. Walberg. If I may answer, Mr. Chairman?
    Chairman Andrews. Are you yielding to the gentleman from 
Michigan?
    Ms. Sanchez. I believe it is Mr. Courtney's time.
    Chairman Andrews. Are you, Mr. Courtney, yielding to the 
gentleman from Michigan?
    Mr. Courtney. I will. [Laughter.]
    Chairman Andrews. Thank you, Mr. Courtney, for being so 
helpful.
    Ms. Sanchez. By ``exceptions'' did you mean violations?
    Mr. Walberg. This is tough for a freshman to understand all 
this process.
    But, yes, I absolutely meant that. Very much did I mean 
that these were exceptions that were violations, that were 
violations of the law, that were illegal.
    Ms. Sanchez. May I----
    Mr. Walberg. On either side. That was the question----
    Ms. Sanchez. Okay. May I reclaim my time, Mr. Courtney?
    Mr. Courtney. Go ahead, yes.
    Ms. Sanchez. Thank you, Mr. Courtney.
    Well, it would seem to me that if there are enough 
violations of a rule that is not being followed in a free and 
fair manner, that perhaps the elections are not free and fair. 
And so, perhaps we ought to be considering another way in which 
employees can express their desire whether to be represented by 
a union or not be represented by a union.
    And I don't know if that helps the panelists clarify the 
question that my colleague was asking.
    Mr. Walberg. Will the gentlelady yield for my response?
    Ms. Sanchez. I will yield time back to Mr. Courtney. He 
controls the time.
    Mr. Courtney. You can respond.
    Mr. Walberg. Thank you.
    And I would agree that is worth looking at. I was saying 
exceptions, and I think there are exceptions on both sides. I 
don't think that we are talking about something that is 
massive, either side. I think we would say that the majority of 
our business, our corporations, our job providers live under 
the law.
    These are egregious exceptions. I admit that. When you have 
a man with a broken leg expected to work----
    Ms. Sanchez. Would Mr. Courtney yield time to me?
    I just want to clarify, in terms of ``exceptions'' which 
means ``violations,'' companies--I just want to cite some 
statistics.
    Workers in 2005 who received back-pay because of illegal 
employer discrimination for activities protected under the 
National Labor Relations Act: 31,358 employees received back-
pay because of exceptions or violations to NLRB on behalf of 
employers.
    Percentage of cases in which employers never agreed to a 
contract after workers form a union under the NLRB process: 34 
percent. So even if a union is elected, in 34 percent of those 
cases, there is no contract that ever gets negotiated because 
employers don't bargain in good faith.
    And I could cite multiple statistics. But I think, if I 
could have unanimous consent to enter this document into the 
record----
    Chairman Andrews. Without objection.
    Ms. Sanchez. I would also end by saying that, by far and 
away, statistics that show employer exceptions or violations to 
NLRB rules far exceeds any union or employee exceptions or 
violations to the NLRB rules.
    And, with that, I would yield back to Mr. Courtney and 
thank him again for his time.
    Mr. Courtney. Mr. Chair, I think that is game, set and 
match. [Laughter.]
    I want to yield back to the chair.
    Chairman Andrews. Thank you, Chairman Courtney. [Laughter.]
    We appreciate that very much.
    The chair yields to the gentleman from Illinois, Mr. Hare, 
for 5 minutes.
    Mr. Hare. Ms. Jason, I won't force you to do the yes-or-no 
thing here all the time, but I am a member of UNITE HERE and I 
did some organizing. And I was just wondering, I never got paid 
$220,000 for organizing. Did you make that when you organized 
for UNITE HERE?
    Ms. Jason. No, I didn't.
    Mr. Hare. Okay. You were quoted as saying to The Windsor 
Star on September the 3rd that, quoting, ``Cintas prides itself 
with being principally anti-union.'' Did you make that 
statement?
    Ms. Jason. I don't recall.
    Mr. Hare. Okay. Well, I will put it in the record and get 
you a copy of it. [Laughter.]
    Let me ask you this then. Having said that, I am a little 
bit confused. You said you went into this as a dreamer or 
whatever and out of it as wanting to do the right thing.
    Are you aware that Cintas has settled over 60 charges of 
labor violations with general counsel of the NLRB?
    Ms. Jason. Well----
    Mr. Hare. I am just asking, are you aware they have settled 
60 charges with the NLRB?
    Ms. Jason. To be perfectly honest with you, I am not here 
on behalf of Cintas or as a representative----
    Mr. Hare. No, no, no. I am not asking you--I am just asking 
you, are you aware that your client, that paid you $220,000-
some, has settled over 60 charges of violating labor law? And 
you were quoted in the paper, talking about them being an anti-
union company.
    So I am asking you, are you aware of this?
    Ms. Jason. I am aware that, as a union organizer, one of 
our strategies in the Cintas campaign was to intentionally 
provoke unfair labor practices.
    Mr. Hare. Let me reclaim my time. Maybe I didn't read the 
question properly. Let me try reframing the question then.
    Are you aware that this company had 60 charges of violating 
the labor laws with the National Labor Relations Board and 
settled those?
    Ms. Jason. I am not.
    Mr. Hare. Thank you very much for answering the question.
    Let me ask you this. How, in heaven's name, if the employer 
has the employees for 8 hours on the floor of the factory or, 
in your case, a call center, and the union people, the union 
organizers are not allowed on company property--they are left 
to, I was, hand-bill--if not going to their home, will we do a 
Vulcan mind meld to communicate with these people? [Laughter.]
    Because it would seem to me, in order to be fair--we keep 
hearing about fair elections, and I am just wondering if you 
can tell me, if organizers shouldn't be going to people's homes 
and talking to them about the benefits of getting overtime, 
health care, decent working conditions, safety violations--and, 
by the way, let me just tell you, I came out of the factory, 
they had 52 cutters, and I was only one of two that came out 
with all 10 of my fingers. Pretty dangerous work.
    So how are we supposed to communicate with the workers in a 
fair and open process if we are not supposed to go to their 
home?
    Ms. Jason. Well, I would say, first of all, you know, there 
is no problem with a worker inviting an organizer into their 
home to discuss issues on the shop floor. I am not against 
that.
    What I am against is the fact that the way that organizers 
are trained to use a systematic sales tactic to go, 
unannounced, to a person's home, basically coerce their way 
into the door, and then once you are in the house implement 
that----
    Mr. Hare. How did you coerce--I am interested. When you 
knocked at the door of the, say, Hare residence, how did you 
coerce to come into my home? I mean, did you offer me a gift to 
come in? How did you get into my home?
    Ms. Jason. Well, during an election campaign, these types 
of things don't often happen with card-signing because there 
needs to be a certain amount of relationship between that time 
and the election.
    Mr. Hare. Right.
    Ms. Jason. But in the card-check, really that is a one-
moment point of sale. So there have been many instances in 
which organizers go into the doors, and, you know, many of my 
colleagues pretended to be people they weren't----
    Mr. Hare. Did you ever----
    Ms. Jason [continuing]. Pretended to be representatives 
from an organization that----
    Mr. Hare. Let me ask you this. I don't mean to interrupt 
you, but I guess I am trying to get to this because of the 
intimidation thing that you said. Were you instructed by the 
union, then, that when you were in the person's home, you said, 
``You will sign this union card or else''?
    Ms. Jason. There are much more sophisticated ways of making 
that message.
    Mr. Hare. But did you ever tell anybody in their home that 
if you don't sign, you are in deep trouble or you could lose 
your job for not wanting to join the union?
    Ms. Jason. I often, as an organizer, made the point that, 
if you didn't sign a union card, you were at great risk from 
the company.
    Chairman Andrews. Did the gentleman yield back? The 
gentleman's time has expired.
    The chair recognizes the gentleman from Pennsylvania, Mr. 
Sestak, for 5 minutes.
    Mr. Sestak. I yield my time to Mr. Courtney, Mr. Chairman.
    Chairman Andrews. Geez. Mr. Courtney, here you go. 
[Laughter.]
    Mr. Courtney. Thank you, Mr. Sestak.
    And I actually just wanted to follow up on some of the 
questions that the other side had posed, about the question of 
whether or not duress or fraud is something that there is going 
to be any opportunity for employers to ever raise those issues 
in the context of a card-check.
    And once in a while, I think it is good to actually look at 
the bill that we are debating here. [Laughter.]
    And section 2 actually has language in it that instructs 
the NLRB to design a card that will, I think, be fully 
transparent and clearly state what the choice is for the worker 
who is being asked to sign it.
    And secondly, it is also establishing a procedure for 
people to challenge the validity of the signatures so that--and 
the chairman and I have talked about this outside of this 
hearing, is that I think everybody wants to get to the goal of 
fairness here. And just merely by changing the law to establish 
the card-check system as a way of certifying a union doesn't 
mean that we are throwing fairness out the door; that there 
will be an opportunity, if there are instances of fraud and 
duress, for employers or anybody else to present that to the 
National Labor Relations Board.
    And I wanted to just sort of follow up with Ms. Joyce, 
because you have actually participated in a card-check 
campaign. I mean, these are not the back of a napkin. I mean, 
the card actually contains real information so that people 
understand what it is that they are signing. Isn't that 
correct?
    Ms. Joyce. Yes. And you sign it and you date it with the 
fact that you do want the union to be involved where you work.
    Mr. Courtney. And the language in it is also very clear. I 
mean, there is sort of a suggestion that is being left here 
today that cards somehow are different from ballot. I mean, in 
fact, there is probably more information that could be 
contained on a card than there actually is on a ballot, which 
is just simply a ``yes'' or a ``no'' selection. Isn't that 
correct?
    Ms. Joyce. I wish I would have brought a card with me. It 
simply says, ``I''--you put your name--that, yes, you do want 
union representation. And you sign it again and you date it.
    Mr. Courtney. Thank you. That is my only----
    Ms. Joyce. It is very clear.
    Mr. Courtney [continuing]. Question.
    Thank you, Mr. Chairman.
    Chairman Andrews. The gentleman's time has expired.
    The chair recognizes the gentlelady from New York, Ms. 
Clarke, for 5 minutes.
    Ms. Clarke. Thank you very much, Mr. Chair.
    This has been a historic hearing. Your testimonies here 
today strengthens our nation, as we go through this transition 
in the economy and how we treat the workers of America.
    My question is to Mr. Camilo. I want to thank you, first of 
all, for sharing what has been, I am sure, a very devastating 
chapter in your life--the commitment that you gave to Blue 
Diamond and what had happened just in seeking to unionize.
    I am happy to share with you that this legislation will 
change all of that, in that employers will think twice before 
doing to others what has been done to you.
    You know, I come from New York City, and we pride ourselves 
on being a union town. But I have to tell you, growing up in a 
community where unionized workers were the basis for the growth 
and development of our communities and seeing that decrease, it 
is something that has destabilized many communities around this 
nation.
    Mr. Camilo--and I know this is emotional for you--could you 
just share with us what you think that this legislation will do 
to strengthen us as a nation and the generation coming behind 
us?
    Mr. Camilo. I think this legislation should consider that 
labor work is the ground of this land, that we work hard, all 
the work done by laborers, that they should at least give us a 
way that we can vote freely, without intimidation of companies.
    And the Employee Free Choice Act is the right way to go, 
because we can do it in our free time, in any way, any place 
that we want, without intimidation of the company. We don't 
talk about voting in a working place, because of the great 
intimidation.
    What happened to me, because I was, myself, supporting 
organizing a union, they fired me. And all the other workers 
were intimidated. If they had a card majority in the system, 
probably that wouldn't have happened. And that is what we need.
    I believe Congress should not be so hard on it, but the 
Congress should be much harder on employers. They are coercing 
us and stopping us from doing what is good for us and for the 
nation.
    Ms. Clarke. I want to thank you, Mr. Camilo. You have 
sacrificed a lot.
    Mr. Camilo. Thank you.
    Ms. Clarke. And you are one of many throughout this nation 
who continue to sacrifice. We are proud of you. And I want you 
to know that I will remember this on the day that I cast my 
vote in favor of this bill. Thank you, sir.
    Chairman Andrews. Does the gentlewoman yield back?
    Ms. Clarke. I yield back, Mr. Chair.
    Chairman Andrews. Thank you.
    I want to thank each of the four witnesses for their very 
significant contribution to this record and this discussion. We 
are very grateful for your time, and we thank you very much.
    We would now ask the witnesses for the second panel to come 
to the witness table.
    Again, we thank each of the four witnesses for their 
participation this morning. [Applause.]
    Applaud them. They deserve it. They deserve it. [Applause.]
    I am going to begin the introduction process as the 
witnesses take their seats.
    Nancy Schiffer is associate general counsel with the 
American Federation of Labor and Congress of Industrial 
Organizations, AFL-CIO.
    Harley Shaiken holds the Class of 1930 chair and is a 
professor at the Graduate School of Education and a member of 
the department of geography at the University of California-
Berkeley.
    Charles Cohen, who is a return visitor to our committee--he 
is welcome--is senior partner in the labor and employment 
practice in the law firm of Morgan Lewis & Bockius, Washington, 
D.C., and served as a member of the National Labor Relations 
Board.
    And Gordon Lafer--is it Lafer, Professor? Gordon Lafer is 
an associate professor at the University of Oregon's Labor 
Education and Research Center, second only to Cornell 
University's School of Industrial Labor Relations, which I say 
as a proud Cornell graduate.
    Lady and gentlemen, thank you for your patience this 
morning through the first panel. I assure you that your 
testimony is no less significant and important to us because of 
the delay, but we certainly did want to hear what the first 
group of witnesses said.
    I will reiterate the instructions I gave at the beginning 
of the hearing. The box in front of you indicates that you have 
a 5-minute period to summarize your testimony. In each of your 
cases, the written testimony will be included as a part of the 
record of the hearing, so we would ask you to summarize your 
written testimony.
    When the yellow light in front of you goes on, it is an 
indication that you have 1 minute to complete your remarks. And 
when the red light goes on, that is the conclusion of the 5 
minutes, at which time we will then proceed to questions from 
the members of the subcommittee.
    Ms. Schiffer, you have been here before. We welcome you 
back. And we would ask that you proceed with your testimony.
    Ms. Schiffer. Thank you, Chairman----
    Chairman Andrews. If the gentlelady would suspend, we would 
just ask if the door could be closed so the witness can be 
heard.
    Thank you very much.
    Ms. Schiffer, please proceed.

          STATEMENT OF NANCY SCHIFFER, LAWYER, AFL-CIO

    Ms. Schiffer. Chairman Andrews, Ranking Member Kline and 
members of the committee, thank you so much for this 
opportunity to testify in support of the Employee Free Choice 
Act.
    I feel a special privilege to do this because I have spent 
30-plus years as a lawyer working with employees who want to 
form unions so they can improve their working conditions.
    As a new lawyer, I worked for the National Labor Relations 
Board in their Detroit regional office. It is their busiest 
office. I ran elections, as an NLRB agent. I held hearings and 
issued decisions about allegations of objectionable conduct 
during election campaigns. And I investigated and prosecuted 
violations of the act. And I believed in the NLRB election 
process.
    I left the NLRB to work with a private law firm. We 
represented a variety of local unions and some national unions. 
And after some years there, I joined the legal department of 
the United Auto Workers, where I stayed for 18 years.
    While at the firm and also at the Auto Workers, I worked 
primarily with workers who wanted to form a union. And I saw 
the NLRB's election process from a different perspective: the 
worker's perspective.
    I frequently met with workers who wanted to form a union, 
over the years, hundreds and hundreds of workers, all sorts of 
workplaces. I met with them to tell them what their legal 
rights were under the National Labor Relations Act during the 
campaign and what to expect from their employer.
    I tried to get the workers ready for the campaign of 
intimidation and fear that I knew they would have to endure, 
and they always did--have to endure it, I mean. I would listen 
to their stories of worker intimidation, threats, 
misrepresentation and abuse, and I would try to make sure their 
rights were protected, and I would try to push the election 
process forward.
    But, at some point in my career in doing this, I could no 
longer, in good conscience, keep telling workers that the 
National Labor Relations Act protected their right to form a 
union. I knew what the statute said, but I knew full well that, 
in practice, it could not and would not protect them. I had 
seen it fail too many times.
    I knew the difference between what was supposed to happen 
and what really happened. And I knew that they would have to be 
heroes in order to survive their organizing effort. And that is 
just wrong.
    And I have always wanted the opportunity to be able to tell 
their stories to someone, you, who has the authority and the 
power to do something about it.
    In campaign after campaign, initiating the NLRB's election 
process triggered a campaign of intimidation and fear by the 
employer, and you have heard some of it today: mandatory 
meetings, threats, bribes, spying, turning workers against each 
other, interrogations, harassments, workers are fired.
    And it adds up to an intensely coercive workplace. And the 
more workers support the union, the more coercive and intense 
it becomes for them and everyone in the workplace. And every 
worker knows what happens to union supporters.
    Workers see that their rights are violated with impunity 
during the so-called NLRB-supervised election process, and they 
lose heart because they feel betrayed by the law that they 
thought protected them and they feel afraid.
    I would like to tell you about one particular conversation 
I had late one evening with a retail store worker. And I am 
telling this to you because I hope it will help you to 
understand what workers really face--not the rhetoric, but the 
reality.
    The woman's supervisor had told her if she supported the 
union he would fire her. And I was talking to her about giving 
this information to support an unfair labor practice charge at 
the Labor Board, and she started to cry. She was afraid the 
employer would find out that she had helped the union and she 
would be fired, she said.
    She explained that she had a 10-year-old son who had asthma 
and that, if she got fired, she would lose her health care and 
she wouldn't be able to afford her medications. She wanted to 
do the right thing, but she was afraid--afraid for her son. And 
who wouldn't be? That kind of fear doesn't go away when the 
NLRB agent hands you a ballot.
    She had no evidence--and there was none--that this process 
was, as one of the people said today, thoroughly monitored and 
entirely supervised. In this hearing, as I have sat here, the 
focus has been on secret balloting and has totally ignored the 
reality of the election campaign process.
    In my written testimony, I try to describe what workers 
face, what it is like for them when they go through that 
election process, and explain why workers need the Employee 
Free Choice Act so that they can choose union representation 
and collective bargaining without fear and intimidation, and I 
tried to debunk some of the myths about it.
    I thank you so much for this opportunity. It is a real 
privilege for me.
    [The statement of Ms. Schiffer follows:]

 Prepared Statement of Nancy Schiffer, Associate General Counsel, AFL-
                                  CIO

    Chairman Andrews and Members of the Committee: My name is Nancy 
Schiffer. Since 2000 I have been an Associate General Counsel with the 
AFL-CIO.
    Thank you for this opportunity to testify before you today about 
the Employee Free Choice Act. This is a special privilege for me 
because I have spent my thirty plus years as a lawyer working with 
employees who want a union in their workplace so they can bargain a 
contract to improve their working conditions.
    I started my career at the National Labor Relations Board's Detroit 
Regional Office, its busiest. While there, I conducted representation 
elections for workers as an NLRB agent; I was a Hearing Officer who 
heard evidence and made determinations about objectionable conduct 
affecting an election; and, as a Field Attorney, I investigated and 
prosecuted violations of the National Labor Relations Act. I then 
worked with a private law firm in Detroit that was counsel to numerous 
local unions and several national unions in a variety of industries. 
For the next 18 years, I worked in the Legal Department of the United 
Auto Workers in Detroit.
    Both at the firm and with the UAW I spent most of my time meeting 
with workers who wanted to form a union and helping them through the 
National Labor Relations Board's representation process. Hundreds and 
hundreds of workers: teachers, accountants, nurses, retail sales 
clerks, engineers, nursing home aides, factory workers, and many 
others. I would tell them about their rights under the National Labor 
Relations Act and what to expect from their employer. In every 
organizing effort, I tried to get workers ready for what would happen 
to them when their employer discovered their interest in a union. And 
it always happened. I would listen to their stories of employer 
intimidation, misrepresentation, and abuse and try to make sure their 
rights were protected.
    At some point in my career, however, I could no longer tell workers 
that the Act protects their right to form a union. Because I knew that, 
despite the wording of the statute, in practice it does not. And I knew 
that they would have to be heroes to survive their organizing effort, 
just because they wanted to form a union so that they could bargain for 
a better life.
    That's wrong and I have always wanted an opportunity to tell their 
stories to someone who has the authority and the power to do something 
about it. The Employee Free Choice Act is the ``what'' of what can be 
done and you are ``who'' that can make it happen.
    The Employee Free Choice Act represents an opportunity to change 
the National Labor Relations Act in a way that will restore its 
purpose, as set forth in the Act in 1935:
    It is declared to be the policy of the United States to * * * 
encourag[e] the practice and procedure of collective bargaining and * * 
* protect[s] the exercise by workers of full freedom of association, 
self-organization, and designation of representatives of their own 
choosing, for the purpose of negotiating the terms and conditions of 
their employment or other mutual aid or protection.
    This law was designed as a shield to facilitate employee 
representation and promote their ability to enhance working conditions 
through collective bargaining with their employers. Its stated purpose 
has remained our nation's official and principal labor-relations goal 
even following changes in 1947 with the Taft Hartley Amendments.
    But over the years, the law has been perverted. It now acts as a 
sword which is used by employers to frustrate employee freedom of 
choice and deny them their right to collective bargaining. When workers 
want to form a union to bargain with their employer, the NLRB election 
process, which was originally established as their means to this end, 
now provides a virtually insurmountable series of practical, 
procedural, and legal obstacles.
    The NLRA's procedures for representation still sound facially 
workable. But here's the problem: There is a world of difference 
between the rights guaranteed in the NLRA and the reality of what 
happens to workers when they want to achieve collective bargaining. 
Only by deliberately denying the reality of employee organizing can 
anyone conclude that the NLRA's path to union representation and 
collective bargaining for workers is anything but hopelessly off 
course.
    Why does this matter? Economic inequality is the hallmark of our 
time. Wages have stagnated. Only 38 percent of Americans say their 
families are getting ahead. Less than a quarter say they expect the 
next generation's standard of living will be better than today. Six 
million fewer Americans have health insurance today than in 1995. 
Meanwhile, corporations are reaping unprecedented profits. Corporate 
CEOs earned 262 times as much as the average workers in 2005--up from 
35 times more in 1978.
    Collective bargaining is the best opportunity that working men and 
women have to achieve individual opportunity, restore economic fairness 
and rebuild America's middle class. Union workers earn 30% more than 
non-union workers. For women and workers of color, the union wage 
advantage is even higher: 31% for women, 36% for African-Americans and 
46% for Latinos. Collective bargaining helps to narrow race and gender 
wage gaps. The union advantage extends to health care coverage and 
retirement benefits. Union workers are 63% more likely to have medical 
and health insurance through their jobs. Union workers are nearly four 
times as likely to have a guaranteed pension, and 77% more likely to 
have jobs that provide short-term disability benefits.\1\ Workers in 
low-wage occupations such as childcare workers, cooks, housekeeping 
cleaners and cashiers, have been able to raise their earnings above the 
poverty line through collective bargaining. Collective bargaining 
provides an opportunity for workers to bargain for a better future.
    Recent surveys show that 60 million non-union workers would like to 
have a union for collective bargaining in their workplace. But the NLRA 
no longer protects workers' rights to form a union. And for more and 
more workers, it no longer provides a process that will lead to union 
representation and a collectively bargained contract.
    According to NLRB statistics, in 1969, the number of workers who 
suffered illegal retaliation for exercising their federal labor law 
rights was just over 6,000. By the 1990s, more than 20,000 workers each 
year were victims of discrimination. In 2005, according to the NLRB's 
Annual Report, 31,358 workers received backpay because of illegal 
employer discrimination in violation of the National Labor Relations 
Act--one worker every 17 minutes. Imagine if, instead of firing workers 
to guarantee a union-free workplace, this many workers were fired to 
maintain a women-free workplace or a minority-free workplace.
    Sadly, as these statistics and my own experience demonstrate, 
initiating the NLRB's election process triggers a campaign of 
intimidation and misrepresentation by employers in the workplace. 
``Union avoidance'' has become an area of legal practice that is listed 
in law firm directories along with estate planning and corporate 
mergers and acquisitions. Maintaining a ``union free'' workplace is 
identified by many of our largest corporations as a high-priority goal 
for human resource management. An entire business of consultants, now a 
$4 billion dollar industry, has grown up in the United States devoted 
to making sure that the NLRA's election process does not result in 
collective bargaining.\2\ Some of these groups are so confident of 
their campaign tactics to scare and frighten workers that they 
guarantee the employer its money back if their workplace doesn't remain 
union-free. Anti-union consultants are hired by employers in 75--82% of 
worker campaigns to form unions.\3\
    The NLRB election process is broken. Only by relying on rhetoric 
and ignoring the reality of what workers face when they want a union 
for collective bargaining, can it be argued otherwise.
    If general political elections were run like NLRB elections, only 
the incumbent office holder, and not the challenger, would have access 
to a list of registered voters and their home addresses. The challenger 
would not get these until just before the election. Only the incumbent, 
and not the challenger, would be able to talk to voters, in person, 
every single day. The challenger, meanwhile, would have to remain 
outside the boundaries of the state or district involved and try to 
meet voters by flagging them down as they drive past. The election 
would always be conducted in the incumbent candidate's party offices, 
with voters escorted to the polls by the incumbent's staff. And 
finally, during the entire course of the campaign, the incumbent, but 
not the challenger, would have the sole authority and ability to 
electioneer among the voters at their place of employment, during the 
entire time they are working. Moreover, the incumbent could pull them 
off their jobs and make then attend one-sided electioneering meetings 
whenever it wanted. The challenger could never, ever make voters come 
to a meeting, anywhere or anyplace. And the incumbent could fire voters 
who refused to attend mandatory meetings, or if they tried to leave the 
meeting, or even if they objected to or questioned what was being said.
    But this is how an NLRB election process is conducted. An employer 
can and does compel workers to attend one-sided anti-union meetings. 
These compulsory meetings are conducted in 92% of worker campaigns. And 
if a worker refuses to go or tries to leave, the employer can legally 
fire them. And if a worker tries to object to what is being said or 
even to ask a question, the employer can legally fire them. Compulsory 
meetings are conducted with large and small groups of workers; they 
often involve high level management officials whom workers have never 
met before, but who are now intensely focused on their interests--in 
collective bargaining.\4\
    Mandatory meetings are also conducted with individual workers, 
either at their workplace or by being called into their supervisor's 
office. Supervisors are required to be the employer's front line 
offensive team in the anti-union campaign. They are responsible for 
monitoring and assessing the union sympathies of the workers they 
supervisor. Many times, the worker has never actually talked to the 
supervisor before and thought the supervisor only knew her as ``Hey, 
you.'' Now the worker is in the office with just her supervisor or 
perhaps the supervisor and another, higher level, management official. 
They are both telling her that the union will bring violence to the 
workplace, that the employer will never agree to any improvements in 
working conditions, or even, that choosing a union will result in 
layoffs or in the workplace being closed down. In over half of worker 
campaigns, employers threaten or predict that the workplace will close 
if workers vote for collective bargaining--even more in mobile 
industries [71% in manufacturing].
    Sometimes employers spy on their workers. Fourteen percent use 
electronic spying, video and still cameras, long distance microphones, 
company guards, supervisors, and even the local police for spying. 
Supervisors are sent to offsite union meetings to observe who attends. 
I have been involved with cases where supervisors followed union 
supporters around the work place and even into the bathrooms to see who 
they talked to and who they didn't. The company even posted management 
observers in nearby restaurants and other gathering places to see which 
workers talked with union representatives. Long-distance microphones 
were aimed at them to find out what they talked about while they were 
on their breaks, outside the workplace.
    Employers also offer bribes to influence workers during the 
campaign. They promise either all or selected employees increased 
benefits, a better shift assignment, a promotion or some other 
advantage. Fifty-one percent offer bribes or other special favors; 
fifty-nine percent promise to improve wages.\5\
    In one fourth of worker campaigns for collective bargaining, 
workers are fired. A new study by the Center for Economic and Policy 
Research (CEPR) supports an ever higher number, that one in five 
activists are fired.\6\ When a worker who has supported the union is 
fired, fear is instantly and inevitably injected into the workplace. 
Workers are afraid that the same thing will happen to them if they 
support the union. This fear devastates the organizing campaign. And 
the fear persists because fired workers are rarely returned to their 
jobs as lengthy legal delays are common.
    This adds up to an inherently and intensely coercive environment. 
Before the NLRB agent ever arrives at the workplace with the voting 
booth and cardboard ballot box, workers have been harassed, 
intimidated, spied on, threatened and fired. How can a secret ballot 
election cure this? It can't and it doesn't.
    What is free about your choice when your employer has threatened to 
relocate your work if the union wins? What is free about your choice 
when your employer points to a nearby sister location that voted for a 
union with an almost 100 vote margin and, four years later, no 
bargaining has taken place [but fails to mention that it's because the 
employer is gaming the system]? What is free about your choice when you 
can plainly see that union support means being followed and harassed 
and videotaped? This kind of fear does not disappear when the worker is 
handed a ballot. It's their job and their families' livelihood. That's 
too much to risk. It's too much to have to risk.
    One night I talked with a woman who worked at a store where workers 
were trying to organize. I remember this conversation well. It was late 
in the evening and I was at home; so was she. Her supervisor had told 
her that if she supported the union, he would get rid of her. She told 
me she knew this was illegal, but she was afraid to give her story to 
the NLRB agent investigating charges against her employer. She was 
afraid that the employer would find out and that she would be fired. In 
tears, she explained that her ten-year-old son had asthma and she could 
not afford to jeopardize her job because she needed her health care 
coverage to pay for his medications. She wanted to do the right thing, 
but she was afraid. Afraid for her son. That kind of fear doesn't go 
away.
    Workers who have been subjected to this kind of coercive campaign 
believe their employer will retaliate against them if the union wins 
the election. Either the employer will continue its campaign of fear 
and intimidation after the election, or the employer will figure out 
who voted for the union and retaliate. Or both. And workers know how 
little the law does to protect them. In one election-related case I 
litigated, there were thirteen votes in favor of the union in a secret 
ballot election. Within six months each of the thirteen workers who had 
voted for the union had been terminated.
    Part of the reason for workers' fear and part of the reason 
employers violate the Act with impunity is that no effective remedies 
are imposed. And that they come months and years too late. What happens 
if an employer is prosecuted for illegally threatening workers that it 
will close or lay off workers if they vote to form a union? Or for 
illegally spying on workers' who are supporting a union? Or illegally 
telling workers that they cannot talk about the union? After the case 
is investigated and evaluated, it is litigated in a hearing before an 
NLRB Administrative Law Judge, appealed to the National Labor Relations 
Board and enforced in federal court. Only then can the employer be 
required to take any remedial action whatsoever. It will be required to 
post a notice on a bulletin board saying that it will not violate the 
law again. A piece of paper stapled to the bulletin board. In one of my 
cases the notice the employer posted required three 11'' x 14'' sheets 
to list all of the violations it had committed. Yet during the time the 
notice was posted, the employer committed all of the same violations 
again.
    The employer is also subject to a cease-and-desist order, which is 
limited to the specific violation charged. If the initial violation is 
for illegally interrogating workers about their union support and then 
the employer subsequently illegally threatens to reduce wages if 
employees choose representation, this constitutes an entirely different 
circumstance under current Board practice and the process starts all 
over again: investigation, hearing, appeal, appeal. If employees at 
several facilities of a single employer are organizing, violations at 
one worksite almost never produce an order not to commit those same 
violations at the other worksites.
    I have often asked workers to testify about their employer's 
illegal conduct. They know they will have to confront their supervisor 
and probably their supervisor's supervisor in a hearing, face-to-face. 
They are terrified, but they want to do the right thing. When they ask 
what the employer will have to do if found guilty, I tell them, ``Post 
a Notice.'' They are incredulous, jaw-dropping and eye-opening 
incredulous: ``That's it?'' And they lose heart because they feel 
betrayed by the law that they thought protected them.
    What if a worker is fired in retaliation for union support? After 
the legal process has been concluded, the employer must pay the worker 
for lost wages, minus any money the employee earned in the meantime. If 
the worker is able to secure a job elsewhere at the same rate of pay, 
the employer pays absolutely nothing. If payment is required, interest 
is simple interest, not compounded. There are no compensatory or 
punitive damages. In 2003, the average backpay amount was $3,800 and 
most workers never return to their jobs. A small price to pay to stay 
``union-free.''
    In September 2000, Human Rights Watch, one of the world's most 
respected human rights organizations, published an historic book-length 
report on workers' freedom to form unions and bargaining collectively 
in the United States, based on an 18-month survey. HRW Executive 
Director Kenneth Roth summarized the report's findings:
    Our findings are disturbing, to say the least. Loophole-ridden law, 
paralyzing delays, and feeble enforcement have led to a culture of 
impunity in many areas of U.S. labor law and practice. Legal obstacles 
tilt the playing field so steeply against workers' freedom of 
association that the United States is in violation of international 
human rights standards for workers.
    The HRW report places part of the blame for this failure on the 
lack of effective remedies for violations of workers' rights during 
campaigns to form a union:
    Many employers have come to view remedies like backpay for workers 
fired because of union activity as a routine cost of doing business, 
well worth it to get rid of organizing leaders and derail workers' 
organizing efforts. As a result, a culture of near-impunity has taken 
shape in much of U.S. labor law and practice.\7\
    What happens in the workplace while the discharge case is being 
filed, investigated, and litigated? Workers are afraid to support the 
union. No one wants to be fired. Who can afford to jeopardize their 
family's welfare, even if they are deeply committed to bringing 
collective bargaining to their workplace. Interest in the union has 
been successfully smothered. But the employer pays absolutely nothing 
for this collateral damage.
    Even when workers are able to form their union, they are not able 
to bargain a first contract. Out of 1,586 initial contract bargaining 
cases closed by the Federal Mediation and Conciliation Service (FMCS) 
during 2004, 710 (45% of the total) were closed without a contract 
being reached.\8\ According to NLRB General Counsel Ronald Meisburg, 
meritorious NLRB charges alleging illegal refusals to bargain by 
employers are filed in 28% of all newly certified bargaining 
relationships. Of all NLRB charges alleging refusals to bargain by 
employers, half occur in first contract bargaining. What is the remedy 
when an employer engages in unlawful bargaining tactics? The employer 
is ordered to bargain some more.
    In one of my cases, by the time the parties reached the bargaining 
table--not concluded their first contract but only finally reached the 
bargaining table--6\1/2\ years had elapsed since the workers voted by 
an almost 100 vote margin for union representation. The woman they had 
elected as their president had retired and moved to Florida. And the 
woman elected to lead the bargaining had had a massive heart attack and 
died, just two weeks before their first negotiating session.
    Anti-union consultants and ``union-avoidance'' specialists know 
that the employer's anti-union campaign does not end when the Board 
certifies the union as the workers' representative. These consultants 
and specialists typically offer their services through the entire 
bargaining process. If they can continue the campaign of fear and 
intimidation and not reach a contract for a year, they are rewarded 
with another opportunity to eliminate the union. If no contract is 
concluded in twelve months, the NLRB will conduct another election. So 
the strategy for remaining union-free includes stalling contract 
negotiations, frustrating collective bargaining, and fomenting 
disillusionment and a feeling of futility.
    The Employee Free Choice Act is aimed at removing the obstacles 
workers face when they want to be able to bargain with their employer. 
It does this in three ways.
    First, the Employee Free Choice Act allows workers to have their 
union recognized when the majority of workers has expressed its 
decision to form a union for collective bargaining. The legislation 
amends the National Labor Relations Act by providing a process by which 
workers can have their union certified by the National Labor Relations 
Board if a majority has signed valid authorizations designating the 
union as their representative for collective bargaining. It does not 
change in the process for petitioning for an election and does not 
eliminate the election process.
    Under current law, recognition based on majority sign-up is already 
perfectly legal and has been since the passage of the Wagner Act in 
1935, when it was widely used. It has been endorsed by Congress, 
recognized and enforced by the National Labor Relations Board and 
federal courts, and approved by the United States Supreme Court.
    Majority sign-up is how many public sector workers choose 
unionization. The states of California, New York, New Jersey and 
Illinois now provide majority sign-up for their public sector workers. 
And it has increasingly been the path to unionization in the private 
sector, used by many thousands of workers, including those at Cingular, 
Kaiser-Permanente, Alcoa, Inc., and others.
    Under current law, the employer has the right to veto this decision 
of a majority of the workers. In fact, even if every single worker in 
the workplace wants to form a union to bargain a contract, the employer 
has no obligation whatsoever to recognize their union and bargain. 
Without the Employee Free Choice Act, the employer--not the workers--
has the right to decide whether the workers' choice will be honored. 
Today, workers can be forced by their employer into the delay-ridden, 
divisive, coercive representation election process.
    Majority sign-up procedures would make the process for choosing to 
form a union similar to the process already in place for disbanding a 
union. No NLRB election is required when workers no longer want a union 
to represent them. If a majority of workers demonstrate that they no 
longer want their union, the employer can and must withdraw recognition 
and refuse to bargain a contract. Or workers can petition the NLRB to 
conduct an election to decertify the union. The NLRB will conduct such 
an election if only 30 percent of the workers support the petition 
request. Even an employer can file a petition and trigger an election 
if it has evidence that the union may have lost its majority support. 
The Employee Free Choice Act does not change these existing procedures.
    Although poll after poll shows that workers are very satisfied with 
their unions, [a December 2006 Hart poll showed that 87 percent of 
union members approve of unions and only 7 percent disapprove, compared 
to 65 percent approval of unions by the public overall], nothing in the 
Employee Free Choice Act would make it harder for workers to terminate 
their union representation.
    Under current law, union coercion in connection with signing 
authorization forms is illegal. The Employee Free Choice Act does not 
change this current law. Coercion would continue to be illegal. But the 
Employee Free Choice Act adds additional protections. It directs the 
National Labor Relations Board to establish procedures for determining 
the validity of signed authorizations. Such procedures would allow the 
NLRB to determine whether authorizations are invalid because of 
coercion or fraud. The Employee Free Choice Act includes further 
protections by also directing the NLRB to formulate model authorization 
language so that the effect and purpose of the authorization is 
perfectly clear to potential signers. A union could not be certified 
without a majority of valid authorizations which comply with these 
procedures.
    Is coercion in the signing of authorizations a legitimate concern? 
A recent review of 113 cases cited by the HR Policy Association as 
``involving'' fraud and coercion identified only 42 decisions since the 
Act's inception that actually found coercion, fraud or 
misrepresentation in the signing of union authorization forms. That's 
less than one case per year. Compare that to the 31,358 cases in 2005 
of illegal firings and other discrimination against workers for 
exercising their federally protected labor law rights.\9\ That's a 
ratio of over 30,000 to 1.
    Allowing employees to demonstrate their union support through 
signed authorizations will avoid the intimidation and fear triggered by 
the current NLRB election process. Workers' choice for representation 
and collective bargaining would be recognized and honored--not left to 
the whim of their employer. Workers would not be required to endure the 
coercive onslaught that has become an employer's anti-union campaign 
only to be forced, for a second time, to demonstrate their choice for 
union representation as part of the NLRB's election process.
    Second, the Employee Free Choice Act would provide for first 
contract mediation and arbitration to ensure that workers actually 
achieve meaningful collective bargaining. The mediation and arbitration 
would be conducted by the Federal Mediation and Conciliation Service 
(FMCS). This legislation will give both parties access to mediation and 
arbitration. If mediation is not successful in producing a mutually 
agreeable contract, the dispute is referred for binding arbitration. 
This process will ensure that workers who choose a union actually 
achieve the contract they seek. Otherwise, the right to choose is 
illusory and accomplishes nothing.
    Thirdly, the Employee Free Choice Act would create meaningful 
penalties for violations of the Act. It would provide for triple back 
pay awards to workers who have been illegally fired during organizing 
and first contract efforts. Illegal threats, coercion and other 
intimidation would be subject to fines of up to $20,000 per infraction. 
The bill provides guidelines for the determination of such civil 
penalties that take into account the gravity of the violation and its 
impact on the charging party, workers and the public interest. Finally, 
the Employee Free Choice Act provides for timely injunctive relief 
against egregious illegal employer conduct when workers are trying to 
from a union and negotiate a first contract. Currently, the National 
Labor Relations Act mandates such injunctive relief only for violations 
of the law by unions. But there is no current, parallel provision of 
the Act that requires injunctive relief to protect workers from illegal 
conduct by their employers. The National Labor Relations Act provides a 
discretionary process for such violations, but it has been so rarely 
used in recent years that is has all but disappeared. The Employee Free 
Choice Act would correct this imbalance by requiring mandatory 
injunctions for significant illegal conduct by an employer when its 
employees are seeking union representation, including during first 
contract negotiations.
    Injunctive relief is essential for protecting workers' rights. A 
notice posting three years after illegal interrogations or threats does 
not remedy anything. It will not dispel the fear and it will not 
convince workers that they are really free to exercise their right to 
support union representation. Reinstating the lead union supporter 
years after her termination will not restore workers' confidence in the 
ability of the law to protect them. Injunctive relief works.
    Conclusion: The Employee Free Choice Act would reform the NLRA so 
that workers can choose union representation and collective bargaining 
without fear and intimidation. 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 delay-ridden, coercive and divisive 
NLRB election process. Federal labor law would finally, and again, 
assure that workers who want collective bargaining are able to have it. 
And it would guarantee that collective bargaining would be conducted 
effectively and efficiently and would result in a contract. Finally, it 
would create real penalties as a deterrent to unlawful employer 
conduct.
    We urge your support of the Employee Free Choice Act.
    Thank you again for this opportunity to address the committee.
                                endnotes
    \1\ U.S. Department of Labor, Bureau of Labor Statistics.
    \2\ John Logan (2006), ``The Union Avoidance Industry in the USA,'' 
British Journal of Industrial Relations 44:4, December 2006, p. 655.
    \3\ Kate Bronfenbrenner, ``Uneasy Terrain: The Impact of Capital 
Mobility on Workers, Wages and Union Organizing,'' September 6, 2000, 
Table 8, p. 73; Chirag Mehta and Nik Theodore, ``Undermining the Right 
to Organize: Employer Behavior During Union Representation Campaigns,'' 
report for American Rights at Work, December 2005.
    \4\ See above, Bronfenbrenner; Mehta and Theodore.
    \5\ See above, Mehta and Theodore.
    \6\ John Schmitt and Ben Zipperer, ``Dropping the Ax: Illegal 
Firings During Union Election Campaigns,'' Center for Economic and 
Policy Research, January 2007.
    \7\ Human Rights Watch, ``Unfair Advantage, Workers; Freedom of 
Association in the United States Under International Human Rights 
Standards,'' 2000, p. 10.
    \8\ http://fmcs.gov/assets/files/annual%20reports/FY04--
AnnualReport--FINAL113004.doc.
    \9\ NLRB Annual Report, 2005.
                                 ______
                                 
    [An AFL-CIO fact sheet follows:]

                           AFL-CIO Fact Sheet

Employee Free Choice Act: Summary
    The Employee Free Choice Act was introduced as bipartisan 
legislation by Sens. Edward Kennedy (D-Mass.) and Arlen Specter (R-Pa.) 
and Reps. George Miller (D-Calif.) and Peter King (R-N.Y.).
1. Certification on the Basis of Majority Sign-Up
    Provides for certification of a union as the bargaining 
representative if the National Labor Relations Board (NLRB) finds that 
a majority of employees in an appropriate unit has signed 
authorizations designating the union as its bargaining representative. 
Requires the board to develop model authorization language and 
procedures for establishing the validity of signed authorizations.
2. First-Contract Mediation and Arbitration
    Provides that if an employer and a union are engaged in bargaining 
for their first contract and are unable to reach agreement within 90 
days, either party may refer the dispute to the Federal Mediation and 
Conciliation Service (FMCS) for mediation. If the FMCS is unable to 
bring the parties to agreement after 30 days of mediation, the dispute 
will be referred to arbitration, and the results of the arbitration 
shall be binding on the parties for two years. Time limits may be 
extended by mutual agreement of the parties.
3. Stronger Penalties for Violations While Employees Are Attempting to 
        Form a Union or Attain a First Contract
    Makes the following new provisions applicable to violations of the 
National Labor Relations Act committed by employers against employees 
during any period while employees are attempting to form a union or 
negotiate a first contract with the employer:
    a. Civil Penalties: Provides for civil fines of up to $20,000 per 
violation against employers found to have willfully or repeatedly 
violated employees' rights during an organizing campaign or first 
contract drive.
    b. Treble Back Pay: Increases the amount an employer is required to 
pay when an employee is discharged or discriminated against during an 
organizing campaign or first contract drive to three times back pay.
    c. Mandatory Applications for Injunctions: Provides that just as 
the NLRB is required to seek a federal court injunction against a union 
whenever there is reasonable cause to believe the union has violated 
the secondary boycott prohibitions in the act, the NLRB must seek a 
federal court injunction against an employer whenever there is 
reasonable cause to believe the employer has discharged or 
discriminated against employees, threatened to discharge or 
discriminate against employees or engaged in conduct that significantly 
interferes with employee rights during an organizing or first contract 
drive. Authorizes the courts to grant temporary restraining orders or 
other appropriate injunctive relief.
                                 ______
                                 
    Chairman Andrews. Ms. Schiffer, thank you very much. And, 
as I said, your entire written statement will be in the record 
as presented.
    Professor Shaiken, welcome to the committee.

     STATEMENT OF HARLEY SHAIKEN, PROFESSOR, UNIVERSITY OF 
                      CALIFORNIA-BERKELEY

    Mr. Shaiken. Thank you. And, Mr. Chairman and members of 
the committee, I am very honored to be here to testify on this 
issue.
    When the Congress passed the Wagner Act in 1935, it was 
rightly hailed as labor's Magna Carta. But I think when it was 
passed it was hardly unusual. It was meant to encourage the 
rights of workers to organize and bargain collectively if they 
so choose.
    Seventy years later, we have seen the act turned on its 
head. I think earlier in the hearing today, Mr. Holt----
    Chairman Andrews. Excuse me, Mr. Shaiken, is your 
microphone on? You have a very clear voice but it would be 
better----
    Mr. Shaiken. I thought I was being too loud there, for a 
moment.
    Chairman Andrews. No, that is okay. Excuse me.
    Mr. Shaiken. It is on now.
    Mr. Holt's question about are we making it harder to join a 
union I think is a pretty critical question. And the evidence 
on this is overwhelming. We are making it much harder to join a 
union. And, in that process, I think American workers have lost 
a fundamental right.
    I would like to talk very briefly about three dimensions of 
this.
    First, when it comes to joining a union, we have a 
democracy deficit, a growing gap between the preference of 
eligible workers to join and the reality of declining union 
numbers. The most recent polls tell us that almost 60 percent 
of eligible workers would join a union if they could. The most 
recent BLS numbers tell us a little over 7 percent of workers 
in the private sector are union members.
    I think the only way to really explain that gap is that, 
for many Americans, joining a union has become a risk rather 
than a right.
    And I would like to briefly touch on two issues that came 
up earlier.
    First, the notion of pressure. On any hotly contested 
issue, there is a lot of pressure on all sides, and union 
certification elections are no exception. But when the Wagner 
Act was passed, the drafters were very clear: Only the employer 
had the economic weight to exert coercion, because only the 
employer can derail a career, transfer someone, fire an 
individual or close a facility.
    Related to that, the issue of secrecy. Now, it is true with 
the secret ballot election the identity of how an individual 
worker votes is kept secret, but not the identity of the unit 
that votes. So when meat-cutters at Wal-Mart a number of years 
ago voted to have a union, the company decided very visibly to 
close the entire department. So individual identities were 
protected, but the identity of the group remained very visible.
    Now, I think, in a democracy, we rightly consider the 
secret ballot to be sacred. But for the secret ballot to be 
meaningful, you need a democratic context. What we have today 
in the context of NLRB elections is a very coercive context, an 
inherently coercive context, of which there is more than ample 
evidence.
    As a result, secret ballot votes on union organization more 
approximate a plebiscite in a dictatorship than a real 
election. The votes are counted honestly, but the fear and 
coercion behind the vote is what decides what takes place when 
ballots are cast. I think, in practice, this fundamentally 
eliminates and undermines a key right.
    My second two points are what stem from this. A great 
disconnect: Productivity is going up, economic growth is 
increasing, worker wages are going down. Many workers are 
completely disconnected from this growth.
    Finally, we have an opportunity for a high road to 
competitiveness in the global economy today that requires that 
workers, as well as consumers and stockholders, benefit from 
growth. For that we need a vibrant labor movement.
    I think George P. Shultz, the former secretary of state, 
summarized it very well: ``Free societies and free unions go 
together.'' He continued to say, ``We need a system of checks 
and balances.'' We have lost that system in the American 
workplace. American workers have lost a key right.
    Thank you.
    [The statement of Mr. Shaiken follows:]

    Prepared Statement of Harley Shaiken, Professor, University of 
                          California, Berkeley

    Americans are confronting a troubling paradox. Polls tell us a 
record 58 percent of eligible workers would join a union if they could 
(Peter D. Hart Research Associates, 2007) while the Bureau of Labor 
statistics informs us that union membership in the private sector has 
slid to 7.4 percent in 2006, a record low (BLS, 2007).\1\
    What causes this growing gap between employee preference and 
workplace reality? It reflects the fact that for many Americans joining 
a union has become a risk rather than a right. According to the 2005 
National Labor Relations Board (NLRB) annual report,\2\ 31,358 people--
or one worker every 17 minutes--were disciplined or even fired for 
union activity. The result is a big chill on union organizing and a 
``democracy deficit'' for the entire society.
    Shrinking union membership impacts all Americans. Unions paved the 
way to the middle class for millions, pioneering benefits such as paid 
pensions and health care. Now labor's plummeting numbers contribute to 
a squeeze on the middle class, rising inequality, and an erosion of 
democratic values.
    In 1935, during the dark days of the Great Depression, Congress 
passed the National Labor Relations Act (NLRA), often called the Wagner 
Act, guaranteeing workers the right to organize and bargain 
collectively. It was immediately hailed as labor's ``Magna Carta.'' 
Since then, amendments, court rulings, and administrative decisions 
have turned the Act on its head. Congress never voted to repeal this 
legislation yet many workers have seen their fundamental right to 
organize eroded in the way the Act is now implemented.
    Today, if workers seek to organize, the NLRB generally sets a 
secret-ballot election a month or two following the formal request. 
(Although in some cases legal procedures delay the election up to 
several years.) During the period between the request and the election, 
the company retains overwhelming power to influence the outcome of the 
vote. According to Fortune magazine, ``workers are routinely fired or 
discriminated against for supporting unions, most employers hire anti-
union consultants to block organizing drives and some go so far as to 
close down work sites when employees vote for a union'' (Gunther, 
2006). Penalties are virtually nonexistent for violating workers' 
diminished rights by, for example, firing individuals for union 
activity. It's not just that the playing field is tilted against 
organizing; unions are barred from the stadium.
    Nonetheless, you might say, ``What's undemocratic about a secret-
ballot election?'' The secret-ballot is appropriately considered sacred 
in a democracy, but it requires a democratic context to be meaningful. 
Today, NLRB-supervised elections often take place in highly coercive 
environments. As a result, they approximate plebiscites in a 
dictatorship rather than a functioning democracy. The votes may be 
counted honestly, but the outcome ratifies the inequitable atmosphere 
in which the vote occurs.
    The Employee Free Choice Act (EFCA) seeks to provide a more 
democratic context. What the Act does is simple: it allows workers to 
form a union if a majority of employees in a workplace sign up for one. 
In addition, it provides meaningful penalties for violating workers' 
rights and insures that collective bargaining results if workers choose 
a union. The Act restores balance to a system that currently is driven 
by aggressive employers, anti-union consultants, coercion, and fear.
    Two broad themes run through this testimony: first, declining 
unions fuel ``the Great Disconnect''--rising productivity decoupled 
from wages and, second, more robust unions contribute to a ``High Road 
Competitiveness'' a more broadly shared prosperity that benefits 
working families as well as consumers and shareholders.
The Great Disconnect
    These are tough times for America's working families. During a 
period of robust economic growth, record profits, and the fastest 
sustained productivity increases since the 1950s, only a thin slice at 
the top of the economic heap is enjoying higher living standards.
    We are living through a period that might best be termed the 
``Great Disconnect'' since the economy is growing and wages are 
flattening. The good news is that productivity expanded by a healthy 20 
percent between 2000 and 2006 (Mishel, 2006 :2); the bad news is that 
most of this has bypassed workers. Real wages, Larry Mishel tells us, 
whether we're talking about a median worker or a college graduate, will 
have edged up about 2 percent as a spillover from the late 1990s 
(Ibid).\3\ Between 1966 and 2001 only the top 10 percent of taxpayers 
scored increases in real labor income per hour that kept up with 
productivity growth, according to economists Ian Dew-Becker and Robert 
J. Gordon. ``The bottom 90 percent of the income distribution fell 
behind or even were left out of the productivity gains entirely'' 
(2005: 78). While life has been good at the top, more recently it has 
become absolutely regal at the very top. Dew-Becker and Gordon found 
that ``the top one-tenth of one percent of the income distribution 
earned as much of the real 1997-2001 gain in wage and salary income as 
the bottom 50 percent'' (2005: 59). This income distribution is so 
extreme that even the top 1 percent feel they are among the 
dispossessed. It's hardly a surprise that The Economist magazine noted 
in summer 2006 that ``Growth is fast, unemployment is low and profits 
are fat * * * [Yet] only one in four Americans believes the economy is 
in good shape. While firms' profits have soared, wages for the typical 
worker have barely budged'' (2006).
    During the first five years of the Bush administration, U.S. firms 
expanded their share of the economy more rapidly than during any period 
since World War II. Profits stemming from current production as a share 
of national income have jumped from 7 percent in mid-2001 to 12.2 
percent at the beginning of 2006, the highest increase since data 
collection began in 1947 (Swan & Guerrera, 2006).
    Business analysts across the political spectrum now widely 
acknowledge that the link between a strong economy and middle class 
hopes is broken. Henry Paulson, President Bush's Treasury Secretary, 
admitted in August 2006 that ``amid this country's strong economic 
expansion, many Americans simply aren't feeling the benefits'' 
(Paulson). Paul Krugman concurred, stating ``all indicators of the 
economic status of ordinary Americans--poverty rates, family incomes, 
the number of people without health insurance--show that most of us 
were worse off in 2005 than we were in 2000, and there's little reason 
to think that 2006 was much better'' (Krugman, 2006a: 48).
    Even President Bush has commented on the situation recently. ``I 
know some of our citizens worry about the fact that our dynamic economy 
is leaving working people behind,'' the President stated. ``We have an 
obligation to help ensure that every citizen shares in this country's 
future. The fact is that income inequality is real; it's been rising 
for more than 25 years'' (January 31, 2007).
    Compare today's Great Disconnect to the period spanning the Great 
Depression and World War II, a period Goldin and Margo referred to as 
the ``Great Compression.'' This earlier period was characterized by 
wages that rose with productivity growth and declining inequality. One 
major difference between the Great Compression and the Great Disconnect 
is the trend in union membership. As Paul Krugman points out 
``government policies and organized labor combined to create a broad 
and solid middle class'' (Krugman 2006b: 46). Needless to say, the 
bargaining clout of unions when they represent almost one out of every 
three workers--as they did soon after World War II--is far greater than 
when they represent fewer than one out of every eight workers. As a 
result, Krugman tell us, ``we're seeing the rise of a narrow oligarchy: 
income and wealth are becoming increasingly concentrated in the hands 
of a small, privileged elite'' (Krugman, 2006).
    The decline of the labor movement exacerbates income inequality not 
only directly but also because it diminishes the role of unions in 
shaping public policy. For example, partly as a result of labor's 
diminished clout, an increase in the minimum wage has been blocked in 
recent years. Tax policy, to take a second example, has favored the 
rich, leading to smaller revenues to invest in health care, education, 
and other public programs that benefit the middle class. A stronger 
labor movement would have produced different tax and spending policies.
    Alan Greenspan, in testimony before Congress on July 21, 2005 noted 
that growing inequality of income and wealth are ``very disturbing.'' 
He added that ``* * * a free market democratic society is ill-served by 
an economy in which the rewards of that economy [are] distributed in a 
way which too many of our population do not feel is appropriate * * * I 
think it is a major issue in this country.'' For those who don't 
remember the 1920s, we are bringing back that decade's income 
distribution.
Unions--The Folks that Brought You the Middle Class
    ``Unions,'' the bumper sticker goes, ``the folks that brought you 
the weekend.'' In fact, unions brought America its first broad middle 
class. Even today, union wages are higher and benefits more extensive 
than in comparable nonunion workplaces. Union members enjoy higher 
compensation directly, but the far larger nonunion sector benefits as 
well. Unions' influence on wages is felt most strongly by workers at 
the bottom and middle of the wage scale, where it also narrows the 
historic gaps associated with race and ethnicity. As union membership 
slides, however, both unions' ability to raise wages for their members 
and spin-off benefits for nonunion workers erode, wiping out the middle 
class dreams of many Americans.
    Bureau of Labor Statistics data indicate a union wage advantage of 
28.1 percent for wages and 43.7 percent for total compensation--wages 
and benefits (Mishel et al., 2007: 181). Another analysis that controls 
for factors such as experience, industry, education, and region shows a 
smaller but still significant 14.7 percent union premium (Ibid.) This 
second study records a higher union premium for African Americans (20.3 
percent), Hispanics (21.9 percent), and Asians (16.7 percent) (Ibid.).
    Union gains flow to nonunion workers, particularly in industries 
with high union density. Simply put, employers match what unions win to 
avoid unionization. Farber (2002, 2003) found that the overall impact 
on nonunion wages--the combined extra gains that all nonunion workers 
receive--approaches the total gains for union members, a major boost 
for consumer demand throughout the economy (Mishel and Walters, 2003: 
10). The corollary is that as unions decline so does this payout. 
According to Farber (2002: 1), ``more than half of the decline in the 
average wage paid to workers with a high school education or less can 
be accounted for by the decline in union density.''
    The story is similar for employee benefits, an area in which unions 
played a pioneering role. Two features characterize the union advantage 
for benefits: a higher percentage of unionized workers are covered, and 
they receive richer benefits than in the nonunion sector. Take health 
care: 28.2 percent more unionized workers are covered, and they receive 
15.6 percent higher coverage for families (Mishel et al., 2007:184). 
The story for pensions is similar: 53.9 percent more union workers are 
covered, and their employers spend 36.1 percent more on the generally 
preferred defined-benefit plans\4\ (Ibid). As union density slips, so 
do worker benefits. Over the period 1983-97 the proportion of workers 
receiving employer-provided health insurance slid by 8.3 percentage 
points to 62.8 percent, and the drop in union density explains about 20 
percent of this decline (Buchmueller et al., 1999: 8).
    Unions are particularly important for those stuck at the bottom of 
the wage scale. ``Because unions boost workers' bargaining power and 
help them win a greater share of productivity gains,'' according to 
Business Week, ``any resurgence would give low-wage workers more clout 
to deal with the effects of factors such as globalization, immigration, 
and technology'' (Conlin and Bernstein, 2004). Blanchflower and Bryson 
(2003: 30) underscored this claim, finding in their research that 
``unions are particularly good at protecting the wages of the most 
vulnerable workers.''
    Beyond the benefits that show up on a pay stub, unions have helped 
to weave a broader social safety net that provides security for the 
middle class. Labor has championed state-level programs such as 
Workers' Compensation and Unemployment Insurance. These programs tend 
to be stronger and more inclusive for all workers--union and nonunion 
alike--in states where unions are stronger, reflecting the political 
strength of the labor movement. And research underscores the fact that 
unionized workers have better access to social safety net programs such 
as these (Weil, 2003: 15).\5\
High Road Competitiveness
    Few dispute that the union advantage results in organized workers 
earning more than their nonunion counterparts. Some, however, argue 
that we can no longer afford this premium in a fiercely competitive 
domestic and global economy. Competitiveness, however, is linked to 
productivity, quality, and innovation as well as labor costs. And, when 
it comes to labor costs, low unit costs are critical, not simply low 
wages. For example, a worker producing 10 widgets an hour who earns $20 
has a unit labor cost of $2 a widget; a worker producing 1 widget an 
hour who earns $5 has a unit labor cost of $5 a widget. In this case, 
higher wages lower labor costs. In fact, higher wages can serve to 
enhance productivity, quality, and innovation, as well as reducing 
turnover. The result is a high road path to competitive success that 
benefits workers and communities as well as shareholders.
    Consider the role of productivity. When Henry Ford introduced the 
assembly line in 1913 in his Highland Park plant near Detroit, 
productivity shot up. So did costly turnover. In response Ford doubled 
the prevailing wage in the auto industry in January 1914 to what became 
the legendary five-dollar day. Many observers, including his 
competitors, predicted Ford's ruin. Instead, he was able to cut the 
price of the Model T, pay his workers substantially more, and increase 
his profits significantly. ``A low wage business is always insecure,'' 
Ford commented. The five-dollar day ``was one of the finest cost 
cutting moves we ever made'' (Raff and Summers, 1986: 3). Ford 
pioneered the high road to competitive success, but many factors caused 
American industry to seek exit ramps. It took the rapid rise of unions 
later in the century to link rising productivity to worker wages more 
permanently. The result was competitive firms and a growing middle 
class.
    The economics literature indicates that unionization and high 
productivity often go hand-in-hand. Fairness on the job and wages that 
reflect marketplace success contribute to more motivated workers. 
Belman points out that unions ``provide opportunities for firms to 
better their performance by eliciting greater commitment and 
information-sharing effort from their employees'' (Belman, 2003: 3). 
Without unions, day-to-day competitive pressures leave workers with 
quitting as the only option to address serious problems, a costly 
solution for all concerned. Given the pressures of globalization and 
competitiveness today, unions have been responsive to increasing 
productivity and embracing new methods. ``If we don't make a profit, we 
don't have a plant,'' according to James Kaster, president of UAW Local 
1714, representing the famed General Motor's plant in Lordstown, Ohio 
(Terlip, 2007).
    Freeman and Medoff (1984) examined why unionized firms are more 
productive in What Do Unions Do? They found that about one-fifth of the 
union productivity effect came from reduced turnover. Unions improve 
communication channels giving workers the ability to improve their 
conditions short of ``exiting.'' Lower turnover means lower training 
costs, and the experience of more seasoned workers translates into 
higher productivity and quality. Moreover, higher compensation focuses 
the managerial mind: employers need to plan more effectively and focus 
on better methods.
    The real productivity story is best understood in the workplace 
where the rubber truly hits the road. An innovative employer working 
with a progressive union can achieve high levels of productivity and 
quality, pay high wages, and be competitive. Consider four examples 
from very different industries: auto, retail, telecommunications, and 
hotels.
    The New United Motor Manufacturing (NUMMI) plant--a joint 
partnership of General Motors and Toyota organized by the United Auto 
Workers--achieves strong results in a unionized environment (Appelbaum 
et al, 2000, 7). The plant produces high quality cars and trucks and 
pays among the highest wages in the domestic auto industry. NUMMI 
ranked third in 2005 for productivity among small truck assembly plants 
in North America (Harbour Consulting, 2006). In fact, among car 
manufacturers overall, two of the top three assembly plants in North 
America were UAW in 2005 (they ranked one and two), and six of the top 
ten were represented by the union (Ibid.) The Detroit Three have more 
than their share of problems right now, but labor productivity has made 
major strides.
    In retailing, the high-road, partially unionized Costco outperforms 
the low-road Sam's Club, a Wal-Mart affiliate. Costco's labor costs are 
40 percent higher than Wal-Mart's, but nonetheless Costco produced 
$21,805 in operating profit per hourly employee in the U.S. in 2005, 
almost double the $11,615 generated at Sam's Club (Cascio, 2006: 28, 
35). And, Costco sells $866 per square foot compared to $525 at Sam's 
Club. How does Costco do it? ``It absolutely makes good business 
sense,'' CEO James Sinegal maintains. ``Most people agree that we're 
the lowest-cost provider. Yet we pay the highest wages. So it must mean 
we get better productivity.'' Echoing Henry Ford, he points out 
``that's not just altruism; it's good business'' (Cascio 2006: 28). 
Costco, as Freeman and Medoff (1984) found in unionized firms, has 
lower turnover--6 percent annually compared to 21 percent for Sam's 
Club'' (Holmes and Zellner, 2004).
    Cingular, the largest wireless carrier in the nation, accepted a 
``neutrality agreement'' with the Communications Workers of America 
(CWA). Both sides agreed not to attack each other, and the company 
agreed to majority sign up for its workers, a preview of how the 
Employee Free Choice Act might work. To date, 39,000 workers have 
joined the union, about 85 percent of Cingular customer service reps, 
technicians, and retail sales workers in 35 states. How have things 
worked out? Lew Walker, vice president for human resources, says that 
the union provides a competitive advantage for the company. ``They very 
much recognize that we are in a competitive environment,'' he states. 
Disagreements occur, but a mechanism is in place to work them out 
cooperatively (Gunther, 2006).
    In Las Vegas, Culinary Local 226, organizes 90 percent of the hotel 
workers on the Strip. As a result, unionized housekeepers earn 50 
percent more than their nonunion counterparts in Reno and enjoy fully 
paid health care. The union and the hospitality industry jointly put a 
heavy emphasis on training and operate the Las Vegas Culinary Training 
Academy, one of the most comprehensive training centers of its kind in 
the country. ``Our union's goal and the training center's goal is you 
can come in as a non-English-speaking worker, come in as a low-level 
kitchen worker, and if you have the desire, you can leave as a gourmet 
food server, sous-chef or master sommelier,'' according to D. Taylor, 
the secretary-treasurer of the local (Greenhouse, 2004, A22). The Las 
Vegas hospitality case is one of a growing number of regional 
industries in which labor has been the driving force behind the 
formation of multi-company labor-management high-road training 
partnerships.\6\ These cases hark back to the central role of craft 
unions in the building industry in apprenticeship training, helping 
workers find new jobs, and administering portable benefit plans. In 
today's skill-based and post-industrial economy, a renewal of labor's 
capacity to give middle- and low-income workers access to training, 
career counseling, job placement, and portable benefits is essential to 
broadly shared prosperity. This renewal is equally pivotal to enabling 
more businesses to compete through skills, high productivity, and 
quality service. The high wages and extensive training are a successful 
combination in the service industry, according to management officials 
such as J. Terrence Lanni, chairman of MGM Mirage (Greenhouse, 2004a: 
A22). The companies benefit and so do the union members, in this case, 
a group that is 70 percent female and 65 percent nonwhite.
    While it is true that short-sighted management can lead a unionized 
firm into the ground and a recalcitrant union can put a brake on 
productivity, the literature and case studies confirm that unionization 
can foster higher productivity.
Time for a Change
    In ``a healthy workplace,'' George Schultz tells us, ``it is very 
important that there be some system of checks and balances'' (Silk 
1991). Today the system of checks and balances that he extols has 
broken down for over 90 percent of private-sector employees.
    When unions decline wages lag, inequality grows, workers at the 
bottom of the pay ladder suffer, and an important part of the 
democratic fabric of society unravels. Today unions exist in a context 
of fierce global pressures and bruising domestic competition. This 
context alone would be daunting, but an important part of labor's 
decline is rooted in the fact that employees have lost the right to 
freely choose whether or not they want to be represented by a union. 
Labor historian David Brody (2004: 1) points out that ``the law serves 
today as a bulwark of the `union-free environment' that describes nine-
tenths of our private sector economy.'' Ironically, rather than being 
labor's Magna Carta, the Wagner Act has been twisted into a vehicle to 
thwart unionization through delay and intimidation. Steven Pearlstein, 
the Washington Post columnist, did not mince words when he wrote that 
``over the years, [the right to form unions and bargain collectively] 
has been whittled away by legislation, poked with holes by appeals 
courts and reduced to irrelevancy by a well meaning bureaucracy that 
has let itself be intimidated by political and legal thuggery'' 
(Pearlstein, 2004: E01). And for those workers who happen to win a 
union, he continued, ``any company willing to use intimidation and 
delaying tactics will never have to sign a first contract with a union, 
even if employees really want one'' (Pearlstein, 2004: E01).
    At issue is the right to make a choice free of coercion for 
``representatives of ones own choosing.'' To restore this right to 
millions of American workers, one has to go back to the future: reform 
the current dysfunctional labor relations system to achieve the spirit 
of the Wagner Act in a 21st century setting. The Employee Free Choice 
Act represents an important approach to redressing the lack of balance 
today through three main provisions: restoring the union recognition 
procedure that the Wagner Act initially provided; stiffening penalties 
to deter employer misconduct; and instituting first contract mediation/
arbitration to thwart bad faith bargaining.
    The EFCA restores needed balance to a process that has become 
increasingly dysfunctional. As we have seen, denying workers the right 
to form a union has important consequences for the economy and the 
political process. Workers' freedom to form unions is, and should be 
considered, a fundamental human right. All Americans lose--in fact, 
democracy itself is weakened--if the right to unionize is formally 
recognized but undermined in practice. Strengthening free choice in the 
workplace lays the basis for insuring a more prosperous economy and a 
healthier society. As Studs Terkel put it, ``Respect on the job and a 
voice at the workplace shouldn't be something Americans have to work 
overtime to achieve'' (2006).
                               references
American Rights at Work. 2007. Washington, DC. Available online at: 
        http://www.americanrightsatwork.org/takeaction/index.cfm
Appelbaum, Eileen, Thomas Baily, Peter Berg, and Arne Kalleberg. 2000. 
        Manufacturing Advantage. Why High performance Systems Pay Off. 
        Ithaca: ILR Press.
Belman, Dale. 2003. Bargaining for Competitiveness: Law, Research and 
        Case Studies.
Richard N. Block, editor, Kalamazoo, MI: Upjohn, 2003, pp. 45-74.
BLS. See U.S. Department of Labor. Bureau of Labor Statistics.
Blanchflower, David , and Alex Bryson. 2003. What Effect Do Unions Have 
        on Wages Now and Would `What Do Unions Do' Be Surprised? NBER 
        Working Paper No. 9973. Cambridge, MA: National Bureau of 
        Economic Research. http://www.nber.org /papers/w9973
Brody, David. 2004. New Strategies. How the Wagner Act Became a 
        Management Tool. New Labor Forum (Spring).
Buchmueller, Thomas C., John DiNardo, and Robert G. Valletta. 1999. 
        Union Effects on Health Insurance Provision and Coverage in the 
        United States. San Francisco: Federal Reserve Bank.
Budd, John W. and Brian P. McCall. 1997. Unions and unemployment 
        insurance benefits receipt: Evidence from the CPS. Working 
        Paper, Industrial Relations Center, University of Minnesota.
Cascio, Wayne. 2006. Decency Means More than ``Always Low Prices'': A 
        Comparison of Costco to Wal-Mart's Sam's Club. Perspectives, 
        Academy of Management, August.
Conlin, Michelle, and Aaron Bernstein. 2004. Working and Poor. Business 
        Week, May 31.
Dew-Becker, Ian and Robert J. Gordon. 2005. Where did the Productivity 
        Growth Go? Inflation Dynamics and the Distribution of Income. 
        Paper to be presented at the 81st meeting of the Brookings 
        Panel on Economic Activity, Washington DC, September 8-9.
Economist, The. 2006. Inequality and the American Dream, June 16.
Farber, Henry S. 2002. Are Unions Still a Threat? Wages and the Decline 
        of Unions, 1973-2001. Princeton University, Working Paper. 
        Princeton, N.J.: Princeton University. ----. 2003. Nonunion 
        Wage Rates and the Threat of Unionization. Princeton 
        University, Working Paper. Princeton, N.J.: Princeton 
        University.
Freeman, Richard, and James L. Medoff. 1984. What Do Unions Do? New 
        York: Basic Books.
Greenhouse, Steven. 2004. Crossing the Border into the Middle Class, 
        The New York Times, June 3, A22. ----. 2004a. Local 226, `the 
        Culinary,' Makes Las Vegas the Land of the Living Wage, The New 
        York Times, June 3, A22.
Greenspan, Alan. 2005. Testimony before the Committee on Banking, 
        Housing, and Urban Affairs, United States Senate, One Hundred 
        Ninth Congress, July 21. Available online at: http://
        frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=109--
        senate--hearings&docid=f:24852.pdf
Gunther, Marc. 2007. Cingular bucks anti-union trend. Fortune, June 7.
Harbour Consulting. 2006. The Harbour Report North America 2006, June.
Hirsch, Barry T., Michael DuMond, and David MacPherson. 1997. Workers 
        Compensation Recipiency in Union and Nonunion Workplaces. 
        Industrial and Labor Relations Review 50 (2).
Holmes, Stanley, and Wendy Zellner. 2004. The Costco Way; Higher Wages 
        Mean
Higher Profits. But Try Telling Wall Street. Business Week, April 12: 
        76.
Krugman, Paul. 2006. Graduates Versus Oligarchs. The New York Times, 
        February 27. ----. 2006a. The Great Wealth Transfer. Rolling 
        Stone Magazine, December 14, pp. 44--50.
Mishel, Lawrence, and Matthew Walters. 2003. How Unions Help All 
        Workers. Washington, DC: Economic Policy Institute.
Mishel, Lawrence. 2006. Comments on ``Growth, Opportunity, and 
        Prosperity in a Globalizing Economy.'' Presented at The 
        Hamilton Project Conference on ``Meeting the Challenge of a 
        Global Economy,'' The Brookings Institution, Washington, DC, 
        July 25. Available online at: http://www.epinet.org/
        content.cfm?id=2447
Mishel, Lawrence, Jared Bernstein, and Sylvia Allegretto. 2007. The 
        State of Working America 2006/2007. Ithaca, N.Y.: ILR Press.
Paulson, Henry. 2006. Remarks Prepared for Delivery by Treasury 
        Secretary Henry M.
Paulson, Columbia University, August 1. Available online at: http://
        www.ustreas.gov/press/releases/hp41.htm
Pearlstein, Steven. 2004. Workers' Rights Are Being Rolled back. 
        Washington Post, February 24.
Peter D. Hart Research Associates. 2006. New Opinion Research on Unions 
        and Employee Free Choice Act. Report conducted for the AFL-CIO, 
        December.
President George Bush. 2007. Remarks by the President on the State of 
        the Economy. Federal Hall, New York, NY, January 31.
Raff, Daniel and Lawrence Summers. 1986. Did Henry Ford Pay Efficiency 
        Wages? National Bureau of Economic Research, Working Paper No. 
        2101, December.
Silk, Leonard. 1991. Worrying Over Weakened Unions. New York Times, 
        December 13.
Swan, Christopher and Francisco Guerrera. 2006. U.S. companies boost 
        share of economic pie, Financial Times, June 5.
Terkel, Studs. 2006. Working stiffs, unite. Chicago Tribune, April 7.
Terlip, Sharon. 2007. UAW: Expect sacrifice. The Detroit News, January 
        16.
U.S. Department of Labor. Bureau of Labor Statistics. 2007. Union 
        Members in 2006. Washington, DC, January 27.
Weil, David. 2003. Individual Rights and Collective Agents: The Role of 
        Old and New Workplace Institutions in the Regulation of Labor 
        Markets. NBER Working Paper 9565. Cambridge, MA: National 
        Bureau of Economic Research. http://www.nber.org/papers/w9565
                                endnotes
    \1\ Even if you include government workers, the numbers inch up to 
only 12 percent.
    \2\ According to 1993-2003 NLRB Annual Reports, an average of 
22,633 workers per year received backpay from their employer. The NLRB 
orders employers to award back pay to workers they illegally fired, 
demoted, laid off, suspended without pay, or denied work as a result of 
their union activity (American Rights at Work, 2007).
    \3\ Productivity rose 33.4 percent during the 1995-2005 period, 
making the economic pie substantially larger. Most of this growth, 
however, did not find its way into paychecks. The typical worker saw 
health and pension benefits rise by about half the rate of productivity 
growth and wages increase only one-third that rate between 1995-2005 
(Mishel 2007: 112-113).
    \4\ Another study that controls for factors such as sector and 
establishment size finds that union workers are 18.3 percent more 
likely to have health insurance and 22.5 percent more likely to enjoy 
pensions, still a significant premium (Ibid).
    \5\ In the case of unemployment insurance, Budd and McCall (1997) 
estimate that unionized unemployed workers in blue-collar occupations 
are 23 percent more likely to receive these benefits than their 
nonunion counterparts (Mishel and Walters, 2003: 12). A similar 
situation exists for workers' compensation benefits. ``Union workers 
are far more likely than nonunion workers,'' Hirsch et al. (1997) 
write, ``to receive benefits from workers' compensation, and the 
likelihood of a claim is more responsive to differences in benefit 
levels among union than nonunion workers.''
    \6\ Working for America Institute, The High Road Partnerships 
Report, available online at: http://www.workingforamerica.org/
documents/HighRoadReport/highroadreport.htm. For a more recent set of 
case examples in a single state, see Keystone Research Center, The 
Pennsylvania High Road Partnerships Report, online at 
www.keystoneresearch.org.
                                 ______
                                 
    Chairman Andrews. Mr. Shaiken, thank you very much. And, 
again, your full statement will be included in the record.
    Mr. Cohen, welcome back to the committee.
    Mr. Cohen is testifying this morning on behalf of the 
United States Chamber of Commerce.
    You are recognized for 5 minutes.

        STATEMENT OF CHARLES COHEN, CHAMBER OF COMMERCE

    Mr. Cohen. Thank you very much. Chairman Andrews, Mr. Kline 
and members of the subcommittee, I am pleased and honored to be 
here yet again 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 at the NLRB in various capacities from 1971 to 1979. 
And, like Ms. Schiffer, I conducted NLRB elections, I 
investigated unfair labor practice cases, et cetera.
    From 1979 to 1994, I was a labor lawyer representing 
management. Since leaving the board in 1996, I have returned to 
private practice, and I 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 I am testifying today on behalf 
of the U.S. Chamber of Commerce.
    Let me be clear: I am here testifying against the Employee 
No Choice Act. I have not misspoken. I know that the proposed 
legislation is called the Employee Free Choice Act, but, with 
all due respect, that is a misnomer.
    Simply put, the proposed legislation strips employees of a 
secret ballot vote on the subject of unionization, something 
they have had since 1935. It also potentially strips them from 
a vote on contract ratification.
    If a group of employees in an appropriate collective 
bargaining unit wish to select a union to represent them, the 
National Labor Relations Board will hold a secret ballot 
election based on a petition. The ultimate question of union 
representation is determined by majority rule. If a majority of 
votes are case in favor of the union, the board will certify 
the union as the exclusive bargaining representative of all 
employees in the collective bargaining unit.
    Unlike joining a club, once a union is certified by the 
board, it becomes the exclusive representative of the entire 
unit of employees, regardless of whether they voted for the 
union. The employer is obligated by law to bargain with the 
union in good faith with respect to all matters involving 
wages, hours and other terms and conditions of employment.
    As the board and Supreme Court have acknowledged, the use 
of authorization cards to determine majority support is a 
method of last resort, not first. The Supreme Court stated in 
its Gissel case that authorization cards are ``admittedly 
inferior to the election process.''
    The Supreme Court in Linden Lumber held that an employer 
may lawfully refuse to recognize a union based on authorization 
cards and insist on a board-supervised secret ballot election. 
Thus, an employer may, but cannot be compelled, to forgo a 
secret ballot election.
    The motivating force behind neutrality card-check 
agreements, which we see a lot of today, and the proposed 
legislation is the steady decline in union membership among the 
private-sector workforce in the United States. Unions today 
represent only 7.4 percent of the private-sector workforce.
    There are many explanations for this precipitous decline: 
the globalization of the economy and the intense competition 
that comes with it, the increasing regulation of the workplace 
through federal and state legislation rather than collective 
bargaining, and the changing culture of the American workplace.
    The NLRB's election process is efficient and fair. 
Legislative change is not needed. The NLRB's election process 
is not slow. In fiscal year 2006, 94.2 percent of all initial 
representation elections were conducted within 56 days of the 
filing of the petition. During that same period, the median 
time to proceed to an election from the filing of a petition 
was 39 days.
    Unions are currently winning well over 50 percent of NLRB's 
secret ballot elections involving new organizing. The NLRB's 
most recent election report summary shows that unions won 59.6 
percent of all elections involving new organizing.
    As we have heard, there are certainly horror stories of 
employers who abuse the system. I hold no grief for those 
employers. As a member of the National Labor Relations Board, I 
vigorously enforce the law. But those situations are the 
exception rather than the norm, and there is nothing new about 
the fact that some employers abuse the system.
    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.
    May I have another moment?
    Chairman Andrews. If you could just summarize briefly, Mr. 
Cohen.
    Mr. Cohen. Sure. I just want to touch for a moment on the 
mandatory interest arbitration provision that the Employee No 
Choice Act provides.
    It would eviscerate another fundamental tenet of U.S. labor 
law: voluntary agreement. This act would destroy the bedrock 
principle of the act by mandating that if the parties don't 
have an initial collective bargaining agreement within 120 
days, that after FMCS involvement there will be interest 
arbitration. This would parlay the taking away the vote on 
representation that employees have with taking away the vote on 
ratification of any such agreement.
    The actual agreement is forged in the crucible of what the 
business can sustain. Imagine a company attempting to compete 
in the global economy, and to survive it must outsource certain 
non-core functions, but the government-mandated contract might 
well provide that the employer may not outsource. It is 
difficult to see how the resulting loss of business and jobs 
would add workers to the middle class.
    This concludes my testimony.
    [The statement of Mr. Cohen follows:]

Prepared Statement of Charles I. Cohen, Senior Partner, Morgan, Lewis & 
                              Bockius, LLP

    Before Chairman Andrews 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 that 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 wish to select a union to represent them, the Board will hold a 
secret ballot election based on a petition supported by at least thirty 
percent 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. Unlike joining a club, once a union is certified by the Board, it 
becomes the exclusive representative of the entire unit of employees, 
regardless of whether 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 also will order the employer 
to remedy such unfair labor practices, for example by ordering the 
employer to reinstate and compensate an employee who was discharged 
unlawfully 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. Unions likewise prefer an 
NLRB secret ballot election, at least when they are faced with a 
potential loss of majority support. In Levitz Furniture Co. of the 
Pacific, 333 NLRB 717 (2001), the United Food and Commercial Workers, 
supported by the AFL-CIO as amicus curiae, took the position that 
``Board elections are the preferred means of establishing whether a 
union has the support of a majority of the employees in a bargaining 
unit.'' Id. at 719 (emphasis added). The Board agreed with the unions' 
position in Levitz. See id. at 725 (``We agree with the General Counsel 
and the unions that Board elections are the preferred means of testing 
employees' support.'').
    Although authorization cards adequately may 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.'' Gissel Packing, 395 U.S. at 602. Other federal 
courts of appeal have expressed the same view:
     ``[I]t is beyond dispute that secret election is a more 
accurate reflection of the employees' true desires than a check of 
authorization cards collected at the behest of a union organizer.'' 
NLRB v. Flomatic Corp., 347 F.2d 74, 78 (2d Cir. 1965).
     ``It would be difficult to imagine a more unreliable 
method of ascertaining the real wishes of employees than a `card 
check,' unless it were an employer's request for an open show of hands. 
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).
     ``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).
     ``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).  ``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).
     ``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. Thus, an employer may, but cannot be compelled, to forgo a 
secret ballot election and abide by the less reliable card check method 
of determining union representation. The only exception to an 
employer's right to insist on an election is when the employer, as in 
the Gissel situation, has engaged in unfair labor practices that impair 
the electoral process.
The Increasing Use of Neutrality/Card Check Agreements in Organizing 
        Campaigns and the Attempt to Mandate Card Check
    One of the highest priorities of unions today is to obtain 
agreements from employers that 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 some 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 that are designed to facilitate the union's 
organizing campaign, such as:
     An agreement to provide the union with a list of the names 
and addresses of employees in the agreed-upon unit;
     An agreement to allow the union access to the employer's 
facilities to distribute literature and meet with employees;
     Limitations or a ``gag order'' on employer communications 
to employees about the union;
     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
     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 that 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 three law review articles discussing 
this trend. See Charles I. Cohen, Joseph E. Santucci, Jr., & Jonathan 
Fritts, Resisting Its Own Obsolescence--How the National Labor 
Relations Board Is Questioning the Existing Law of Neutrality 
Agreements, 20 Notre Dame Journal of Law, Ethics & Public Policy 521 
(2006), available at http://www.morganlewis.com/ pubs/
NotreDameJournal--ResistingObsolescence.pdf; Charles I. Cohen, 
Neutrality Agreements: Will the NLRB Sanction Its Own Obsolescence?, 
The Labor Lawyer (Fall, 2000); Charles I. Cohen & Jonathan C. Fritts, 
The Developing Law of Neutrality Agreements, Labor Law Journal (Winter, 
2003).
    An even greater threat to that crown jewel is the Employee Free 
Choice Act--which more accurately should be described as the Employee 
No Choice Act. The provisions of that proposed legislation would, in 
nearly all cases, eliminate governmentsupervised secret ballot 
elections and instead turn the National Labor Relations Board into a 
card counting agency.
    The motivating force behind neutrality/card check agreements and 
the proposed legislation is the steady decline in union membership 
among the private sector workforce in the United States. Unions today 
represent only about 7.4% of the private sector workforce, about half 
of the rate twenty years ago. See U.S. Dep't of Labor, Bureau of Labor 
Statistics, Union Members in 2006 (Jan. 25, 2007), available at http://
www.bls.gov/news.release/union2.nr0.htm. There are many explanations 
for this precipitous decline: the globalization of the economy and the 
intense competition that comes with it, 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. Legislative 
change is not needed. Second, neutrality/card check agreements limit 
employee free choice and are generally the product of damaging leverage 
exerted by the union against the employer, which redounds to the 
detriment of employee knowledge and free choice.
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 2006, 94.2% 
of all initial representation elections were conducted within 56 days 
of the filing of the petition. Memorandum GC-07-03, Summary of 
Operations (Fiscal Year 2006), at p. 8 (January 3, 2007), available at 
http://www.nlrb.gov/shared--files/GC%20Memo/2007/GC%2007- 
03%20Summary%20of%20Operations%20FY%2006.pdf. During that same time 
period, the median time to proceed to an election from the filing of a 
petition was 39 days. Id. Based on my experience over the past 35 
years, these statistics demonstrate that the Board's election process 
has become even more efficient over time.
    Unions are currently winning well 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 Employee No Choice Act. If anything, unions' win rate 
in representation elections currently is on the rise. The NLRB's most 
recent election report summary shows that unions won 59.6% of all 
elections involving new organizing. See NLRB Election Report; 6-Months 
Summary--April 2006 through September 2006 and Cases Closed September 
2006, at p. 18. This figure is about the same as it was forty years 
ago. In 1965, unions won 61.8% of elections in RC cases (cases that 
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:
     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).
     In 1985, unions won 48% of elections in RC cases. See 
Fiftieth Annual Report of the National Labor Relations Board, at p. 176 
(1985).
     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).
     In 2005, unions won 56.8% of elections in RC cases. See 
Seventieth Annual Report of the National Labor Relations Board, at p. 
16 (2005).
    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 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. I hold no brief for those employers. As a 
Member of the National Labor Relations Board, I vigorously enforced the 
law. In cases of unlawful conduct, the law provides remedies for the 
employer's behavior, including Gissel bargaining orders. But these 
situations are the exception rather than the norm. And, there is 
nothing new about the fact that some employers abuse the system. 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.
    Unions attempt to portray the Board's secret ballot election 
process as fundamentally unfair (except when unions are faced with a 
challenge to their majority status) by making unfavorable comparisons 
between Board elections and a typical political election in the United 
States. In doing so, unions frequently ignore several important facts 
about the NLRB election process:
     The union controls whether and when an election petition 
will be filed. Imagine if the challenger in a political election 
controlled the timing of the election.
     The union largely controls the definition of the 
bargaining unit in which the election will occur, because the union 
need only demonstrate that the petitioned-for unit is an appropriate 
bargaining unit. Imagine if the challenger in a political election had 
almost irreversible discretion to gerrymander the voting district to 
its maximum advantage.
     The union usually has obtained signed authorization cards 
from a majority of employees at the time the petition is filed. Thus, 
the union already knows the voters and has conducted a straw poll 
before the employer is even aware that an election will be held. 
Imagine if the challenger in a political election could campaign and 
poll the electorate without the incumbent's knowledge, wait until the 
polls show that the challenger has majority support, and then give the 
incumbent less than 60 days' notice of the election.
     Even though the union already knows the voters well by the 
time the election petition is filed, the employer must give the union a 
list of all of the voters' names and home addresses after the petition 
is filed. The union, but not the employer, is permitted to visit the 
employees at home to campaign for their vote.
     The union, unlike the employer, can make campaign promises 
to the employees to induce them to vote for the union.
     The union, like the employer, may designate an observer to 
be present in the voting area for the duration of the election, in 
order to check every voter and make sure that no irregularities occur.
    These facts illustrate that, far from being unfair to unions, the 
NLRB's election process offers unions many unique advantages.
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. This typically occurs by demonizing 
the employer. 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 attack the company and force the employer to 
enter into a neutrality/card check agreement for employees who will be 
working at that location. Political or regulatory pressure is often 
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. And, with the proposed legislation, 
unions are seeking to have the government mandate the card check 
portion of neutrality/card check for them.
    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 vote 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 
Employee No Choice Act 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. It likewise would eviscerate the proud tradition of 
industrial democracy that has been the hallmark of the NLRB for nearly 
seven decades.
The Employee No Choice Act's Interest Arbitration Provisions
    In addition to mandating recognition by card check rather than a 
secret ballot election, the Employee No Choice Act would eviscerate 
another fundamental tenet of U.S. labor law: voluntary agreement. As 
the Supreme Court held in H. K. Porter v. NLRB, 397 U.S. 99 (1970), the 
Act is founded on the notion that the parties, not the government, 
should determine the applicable terms and conditions of employment:
    The object of this Act was not to allow governmental regulation of 
the terms and conditions of employment, but rather to ensure that 
employer and their employees could work together to establish mutually 
satisfactory conditions. The basic theme of the Act was that through 
collective bargaining the passions, arguments, and struggles of prior 
years would be channeled into constructive, open discussions leading, 
it was hoped, to mutual agreement. But it was recognized from the 
beginning that agreement might in some cases be impossible, and it was 
never intended that the Government would in such cases step in, become 
a party to the negotiations and impose its own views of a desirable 
settlement.
    Id. at 103-04 (emphasis added). The Employee No Choice Act would 
destroy this bedrock principle of the Act by mandating that, if the 
parties are not able to reach agreement on a first contract within a 
120-day period, the terms of the contract will be set by an arbitration 
panel designated by the Federal Mediation and Conciliation Service. As 
with the abandonment of the secret ballot election, I believe this 
interest arbitration requirement is unwise public policy. With respect 
to employees, it would parlay the taking away of a vote on 
representation with the taking away of a vote on ratification. This is 
because the contract mandated by the interest arbitrator renders moot 
employee endorsement. Likewise, it is the employer that must run the 
business, remain competitive, and pay the employees each week. The 
union has the opportunity to influence the employer's thinking by 
engaging in economic warfare. But, the actual agreement is forged in 
the crucible of what the business can sustain. Imagine a company 
attempting to compete in the global economy and, to survive, it must 
outsource certain non-core functions. But, the government-mandated 
contract might well provide that the employer may not outsource. It is 
difficult to see how the resulting loss of business and jobs would add 
workers to the middle class. I firmly believe that our present system 
has it right and that the employer must retain the power to determine 
whether the terms of the agreement are acceptable to it. In the end, 
that will work to the benefit of not only the employer, but of the 
employees as well.
Conclusion
    This concludes my prepared oral 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 Andrews. Mr. Cohen, thank you very much. And, 
again, in your case, your complete statement will be entered 
into the record.
    Professor Lafer, welcome to the committee.

   STATEMENT OF GORDON LAFER, PROFESSOR, UNIVERSITY OF OREGON

    Mr. Lafer. Thank you, Chairman Andrews, Ranking Member 
Kline and members of the committee. Thank you for the 
opportunity to be here.
    My name is Gordon Lafer. I hold a Ph.D. in political 
science from Yale University, and I am a currently a professor 
at the University of Oregon. I am also the national co-chair of 
the American Political Science Association's Labor Project.
    I think that when most people hear that there are union 
elections, they assume that they work more or less the same as 
elections to Congress. Unfortunately, nothing could be further 
from the truth.
    My research examines the extent to which NLRB elections 
live up to American standards, from the founding fathers to the 
present, for what constitutes a free and fair election.
    Unfortunately, I have to report to you that NLRB elections, 
by these standards, look more like the discredited practices of 
rogue regimes abroad than like anything we would call American. 
I have attached a report that summarizes this research, and 
today I want to focus on just a few highlights.
    Before I do, I want to say a word about secret ballots 
though. There are some who may believe that, as long as an 
election ends in a secret ballot, it doesn't matter what 
happens before; it must be fair. That in the workplace, even if 
a worker is intimidated by their boss----
    Chairman Andrews. Excuse me, Professor Lafer, you might 
want to use the microphone that is next to you. That one 
appears to be a bit defective.
    Mr. Lafer. Okay.
    Chairman Andrews. If you try that, I think it would be 
better. Thank you.
    Mr. Lafer. Thank you. Is this better?
    Let me just start with going back to a word about secret 
ballots. There is the view that, as long as an election ends in 
a secret ballot, it doesn't matter what happens beforehand. 
That in the workplace, even if a worker is intimidated by their 
employer, they can always lie and pretend that they are anti-
union. As long as, at the end of the day, they go into a booth 
with a curtain and can vote their conscience, the system must 
be fair.
    It is critical to know that the American democratic 
tradition, from the founders to the present, fundamentally 
rejects this view. In our tradition, while the secret ballots 
are a necessary ingredient, there is a whole set of other 
standards that have to be met before Election Day, including 
things like free speech, equal access to the media, which are 
equally crucial. Indeed, our government has often condemned 
elections in other countries where there was no question that 
it ended in a secret ballot, because it failed these other 
standards.
    Unfortunately, with the exception of the secret ballot, 
which in fact the NLRB procedures in some ways protects and in 
other ways undermines, every other aspect of the NLRB election 
system fails to meet American standards for what defines a free 
and fair election.
    I would like to illustrate just a few aspects of this 
problem.
    First, in terms of free speech and equal access to the 
media, it goes without saying that in congressional elections 
there is no such thing as a neighborhood or a mall that is 
available to one candidate and off-limits to the other. Radio 
and T.V. stations must offer ad time on an equal basis to both 
sides. Even private corporations are banned from inviting one 
candidate to address their employees without giving equal 
opportunity to the opposition.
    But this most basic standard of equality and freedom is 
ignored by the NLRB. By law, management is allowed to plaster 
the workplace with anti-union leaflets, posters and banners, 
while prohibiting pro-union employees from doing likewise. 
Anti-union managers are free to campaign against unionization 
all day long, any place in the workplace, while pro-union 
workers are banned from talking about unionization except on 
break times.
    The most extreme restriction on free speech is employers 
forcing workers to attend mass anti-unions meetings. Not only 
are pro-union employees not given equal time, but they can be 
forced to attend on condition that they keep their mouths shut. 
If they ask a question, they can be fired on the spot, legally.
    If, during the last presidential election, the Democrats 
could have forced every voter in America to watch ``Fahrenheit 
9/11'' and only that, with no opportunity for questions from 
the other side, or perhaps if the Bush campaign could have 
forced everyone to watch the Swiftboat Veterans for Truth 
movie, maybe they would have done so, but none of us would call 
this democracy. And the fact that it ended in a secret ballot 
would, in no way, change that judgment.
    Let me say a word about economic coercion of voters. When 
the founders of our country created the world's first democracy 
and gave the vote to the common people, they were particularly 
concerned that employers might use their economic power over 
workers to influence their vote. As Alexander Hamilton warned, 
``Power over a man's purse is power over his will.''
    For this reason, there is a whole range of laws that 
protect employees to be able to make free political choices, 
free from the influence of their employers. In federal 
elections, elections to Congress, private corporations are 
completely prohibited from telling employees how they think 
they should vote or suggesting that if one candidate or the 
other wins business may suffer and people may have to be laid 
off.
    But in NLRB elections, this kind of intimidation is 
completely legal. Standard employer practice is to have direct 
supervisors, the person with the most immediate control over 
one's job, instruct subordinates in the strictest possible 
terms as to why they should oppose unionization. Thus, NLRB 
elections maximize exactly the kind of behavior that federal 
law classifies as anti-democratic.
    The truth is that we uphold higher standards now for voters 
abroad than for American workers. In 2002, for instance, the 
State Department condemned elections in the Ukraine that ended 
in a secret ballot as undemocratic, for, among the reasons: 
employees of state-owned enterprises were pressured to support 
the ruling party; faculty were told by their university to vote 
for specific candidates; and the governing party enjoyed one-
sided media coverage while the opposition was largely shut out 
of state-run T.V.
    Every one of the reasons for which the Ukrainian elections 
were deemed undemocratic is completely legal and extremely 
commonplace in NLRB elections. So the sad fact is that, right 
now, our government demands higher standards of democracy for 
voters in the Ukraine and elsewhere than for Americans in 
workplaces across the country.
    If we are serious about having a truly democratic process 
for American workers, we must recognize that the current system 
is profoundly broken, profoundly undemocratic, and, I would 
say, profoundly un-American. I believe that the Employee Free 
Choice Act goes a long way toward that goal.
    Thank you again for the opportunity to be here today. I 
would be happy to answer any questions you may have.
    [The statement of Mr. Lafer follows:]

       Statement of Gordon Lafer, Professor, University of Oregon

    Chairman Andrews, Ranking Member Kline, and Members of the 
Committee, thank you for the opportunity to participate in this 
hearing. My name is Gordon Lafer. I hold a PhD in Political Science 
from Yale University and am currently a professor at the University of 
Oregon's Labor Education and Research Center. I am also the national 
co-chair of the American Political Science Association's Labor Project.
    Over the past two years, I have conducted extensive research 
measuring the extent to which National Labor Relations Board elections 
match up to American standards--developed from the Founding Fathers to 
the present--for defining ``free and fair'' elections. Unfortunately, I 
must report that NLRB elections look more like the discredited 
practices of rogue regimes abroad than like anything we would call 
American.
    I have attached a report that summarizes this research.
    Today I want to focus on just a few highlights.
The role of secret ballots
    Before going into the substance of my findings, I want to say a 
word about secret ballots, since so much of the debate around labor law 
reform has focused on the role of secret ballots. To some, it may seem 
that as long as an election ends in a secret ballot, it must be fair. 
In the workplace, one might imagine that even in the worst case, if a 
worker is intimidated by his or her employer, one could lie to one's 
supervisor and pretend to be opposing the union; as long as, at the end 
of the day, you cast your ballot in the privacy of a voting booth, you 
are free to exercise your conscience.
    It is critical to note that the American democratic tradition--from 
the Founders to the present--fundamentally rejects this view. In 
elections to public office, while the secret ballot is a necessary 
ingredient, there are a whole set of standards that must be met in the 
leadup to election day--such as equal access to the media and voters, 
free speech, etc.--which are equally crucial elements of defining a 
``free and fair'' process. Indeed, our government has often condemned 
elections abroad when there was no question that they ended in a secret 
ballot, because they failed to meet these other, equally important 
standards.
    Unfortunately, with the exception of the secret ballot--which NLRB 
procedures protect in some ways and undermine in others--every other 
aspect of NLRB elections fails to meet American standards defining 
``free and fair'' elections.
    Today I would like to focus on just three dimensions of democratic 
elections: access to voters; free speech; and protection of voters from 
economic coercion.
Access to voter lists
    The first step in any American election campaign is getting a list 
of eligible voters, and it is law that both parties must have equal 
access to the voter rolls.
    In NLRB elections, however, management has a complete list of 
employee contact information, and can use this for campaigning against 
unionization at any time--while employees have no equal right to such 
lists. Employers use legal maneuvers to delay union elections for 
months. Only after all delays have been settled does the union have a 
right to the list of eligible voters. A federal commission found that 
on average, unions received the voter list less than 20 days before the 
election.\1\ Even then, the NLRB requires employers to provide workers' 
names and addresses--but no apartment numbers, zip codes, or telephone 
numbers.
---------------------------------------------------------------------------
    \1\ Dunlop Commission, Final Report, p. 47.
---------------------------------------------------------------------------
    If we imagine this system being applied to Congressional 
elections--where one candidate had the voter rolls two years before 
election day, while his or her opponent was restricted to a partial 
list and only got it a month before the vote--none of us would call 
this a ``free and fair'' election.
Economic coercion of voters
    When the founders of our country created the world's first 
democracy and gave the vote to the common people, they were 
particularly concerned that employers might use their economic power 
over workers to influence their political choices. In general, 
Alexander Hamilton warned, ``power over a man's purse is power over his 
will.''
    For this reason, there are a wide range of federal and state laws 
that make sure employees can make political choices free from economic 
coercion.
    In elections to Congress, it is illegal for a private corporation 
to tell its employees how they should vote, or to suggest that if one 
party wins business will suffer and workers will be laid off.\2\ 
Supervisor or managers can't say anything to those they oversee that 
amounts to endorsing one side or the other. It is noteworthy that 
federal law doesn't require that employers spell out a quid pro quo 
threat stating, for instance, that anyone caught wearing a button 
supporting the ``wrong'' candidate will never get a promotion. It is 
understood that employees naturally are extremely sensitive to the need 
to make a good impression on their boss, and don't need a threat to be 
spelled out for it to influence their behavior. Thus, federal law 
protects the ability of workers to make a political choice based on 
personal conscience rather than economic coercion.
---------------------------------------------------------------------------
    \2\ Under FECA, corporations are free to campaign to their 
``restricted class'' of managerial and supervisory employees, but are 
prohibited from engaging in any communication to rank-and-file 
employees that includes express advocacy for a specific candidate or 
party. 2 USC 441(b)(2)(A); 11 CRF 114.3, 114.4. According to the FEC, 
``express advocacy'' can be either an explicit message to vote for or 
against a given candidate, or a message that doesn't use such explicit 
language but that ``can only be interpreted by a 'reasonable person' as 
advocating the election or defeat of one or more clearly identified 
candidates.'' Federal Election Commission, Campaign Guide for 
Corporations and Labor Organizations, Washington, DC, June, 2001, p. 
31.
---------------------------------------------------------------------------
    But in NLRB elections, this kind of intimidation is completely 
legal. Standard employer behavior involves having mass meetings where 
upper management attacks the idea of unionization, and then having 
supervisors tell each of their subordinates personally that they should 
vote against the union. In this way, NLRB elections maximize exactly 
the kind of behavior that is banned in federal elections.
Free speech and equal access to media
    Free speech is the cornerstone of American democracy.
    In election to public office, it is a bedrock principle that there 
is no such thing as a neighborhood, park or shopping mall that is 
accessible to one candidate but off-limits to the other. Radio and 
television stations are required to sell ad time on the same terms to 
competing candidates. Even private corporations are prohibited from 
inviting one candidate to address employees without giving equal 
opportunity to the opposition. From the founders to the present, it has 
been understood that democracy requires free speech, equal access to 
the media, and robust debate.
    Yet this most basic standard of freedom is ignored by the NLRB.
    Management is allowed to plaster the workplace with anti-union 
leaflets, posters, and banners--while maintaining a ban on pro-union 
employees doing likewise.
    In addition, anti-union managers are free to campaign against 
unionization all day long, anyplace in the workplace, while pro-union 
workers are banned from talking about unionization except on break 
times. As a result, research shows that in a typical campaign, most 
employees never even have a single conversation with a union 
representative.
    The most extreme restriction on free speech is employers' forcing 
workers to attend mass anti-union meetings. Not only is the union given 
no equal time, but pro-union employees can be forced to attend with the 
condition that they don't open their mouths. If they ask a question, 
they can be fired on the spot.
    If, during the 2004 presidential election, the Bush campaign could 
have forced every voter in America to watch the Swiftboat Veterans' for 
Truth movie, with no opportunity for response from the other side--or 
if the Democrats could have forced everyone to watch Fahrenheit 9/11--
they might well have seized the opportunity. But none of us would call 
this democracy.
Higher Standards Abroad than At Home
    The truth is that we uphold higher standards for voters abroad than 
for American workers.
    In 2002, the State Department condemned elections in Ukraine for 
failing to ``ensure a level playing field,'' because
     employees of state-owned enterprises were pressured to 
support the ruling party;
     faculty and students were instructed by their university 
to vote for specific candidates;
     and the governing party enjoyed one-sided media coverage, 
while the opposition was largely shut out of state-run television.
    Every one of these practices is completely legal under the NLRB.
    The sad fact is that right now, our government demands higher 
standards of democracy for voters in Ukraine than it does for Americans 
in workplaces across the country.
Illegal activity in NLRB system, compared with FEC
    The things I've described so far are legal. However, NLRB elections 
are also characterized by an extraordinary level of illegal activity.
    Labor law is the only area of American employment law in which it 
is statutorily impossible to impose fines, prison, or any other 
punitive damage.
    As a result, it is not just ``rogue'' employers who break the law. 
Any rational employer might decide it's worth it to fire a few workers 
in order to scare hundreds more into abandoning their support for 
unionization.
    In my research, I have measured the impact of illegal retaliation 
against union supporters by making the most conservative possible 
calculations. Nevertheless, the results are extremely troubling. One 
out of every 17 eligible voters in NLRB elections is fired, suspended, 
demoted or otherwise economically punished for supporting unionization.
    If federal elections were run by NLRB standards, we would have seen 
7.5 million Americans economically penalized for backing the ``wrong'' 
candidate in the last election cycle.
    Imagine what this would mean. Every family in America would know 
someone who had been fired or suspended in retaliation for their 
political beliefs. Most citizens would quickly become too scared to 
participate in any public show of support for opposition candidates. If 
we continued to hold elections amidst such widespread repression, they 
would be sham elections. The outcome would not represent the popular 
will, but would simply reflect the fear that governed the country.
    What I'm describing may sound like a bad science fiction movie. But 
it is the reality that workers face when they try to organize.
    If we compare illegal activity per voter under the NLRB with that 
under the FEC, the data suggests that NLRB elections are 3,500 times 
dirtier than federal elections.
    This number may sound incredible; but it's true. But suppose my 
numbers are off by as much as an entire order of magnitude. Then the 
NLRB system would be only 350 times dirtier than federal elections.
    Anyway you count it, the system is profoundly broken, profoundly 
undemocratic, and, I would say, profoundly un-American.
Conclusion
    If we're serious about having a truly democratic process for 
American workers, we must begin by fixing these problems.
    Thank you again for the opportunity to be here today.
    I would be happy to answer any questions you may have.
                                 ______
                                 
    Chairman Andrews. Thank you, Professor.
    And we thank each of the four of you for very thoughtful 
statements. I have had the opportunity to read all four of the 
statements, and I found them to be very persuasive and very 
good for our record. We thank you.
    Mr. Cohen, I wanted to ask you, I am well aware of the fact 
that not every meritorious claim is brought, not every 
meritorious claim is found to be meritorious because there can 
be some defects in the decision-making process. So I don't, for 
a moment, contend that the statistic I am about to use 
represents the entire universe of valid claims by workers 
against unions for coercive behavior in an organizing campaign.
    But it is a fact that, in the more than 6 decades that we 
have had the labor statutes we are talking about today, there 
have been only 42 findings of coercive behavior by unions 
against potential members in organizing campaigns.
    How do you explain the paucity of that record if--because I 
take it that your implicit concern is that a defect in the 
majority sign-up process would be potential abuse by unions in 
a coercive way. How do you explain the paucity of claims on the 
record for more than 60 years?
    Mr. Cohen. Obviously, Mr. Chairman, you are making 
reference to the H.R. Policy Association----
    Chairman Andrews. I am.
    Mr. Cohen [continuing]. Work. And I, of course, had no role 
in the authoring of that.
    It is my understanding that those 42 cases do not purport 
to be a total compilation of all the cases that raise that kind 
of issue.
    Chairman Andrews. Are you aware of another document that 
would have cases----
    Mr. Cohen. I am not aware of any reason for anybody, 
frankly, to have done that comprehensive a study on that issue.
    But, more fundamentally, if I can----
    Chairman Andrews. For a minute, you can.
    Mr. Cohen. Thank you. [Laughter.]
    There is little reason, in the normal situation, for anyone 
to challenge. If we had voluntary recognition and there has 
been something untoward with the cards, it would require an 
individual to go forward and bring that case. Usually, little 
reason to do that. An employer can do so; again, little reason 
for that employer to do it, in most instances.
    Chairman Andrews. If I may, I want to explore this idea of 
what one of the witnesses called the democratic context--I 
think Professor Shaiken called the democratic context--and I 
want to be sure that the record reflects this. And I would ask 
Ms. Schiffer if she could answer these questions in the 
instance.
    When someone tries to organize a union with an employer, 
does the employer have an obligation to give the organizers a 
list of the employees?
    Ms. Schiffer. The employer has no obligation----
    Chairman Andrews. Would you put your microphone on, please?
    Ms. Schiffer. The employer has no obligation to provide the 
union with the list of the names of the employees or the 
addresses of the employees until right before the election.
    Chairman Andrews. Does the employer have an obligation to 
provide access to the employer's property--shop floor, call 
center, store--prior to the election?
    Ms. Schiffer. Absolutely no obligation to provide the union 
with access to the workplace at all.
    Chairman Andrews. Is it legal, under present case law, for 
employers to call--is there a limit on the number of meetings 
an employer can call to discuss unionization before a vote 
takes place?
    Ms. Schiffer. There is no limit. Workers are called in for 
one-on-ones with their supervisors, these kind of meetings, 
over and over. They can take a few minutes; they can take a few 
hours.
    Chairman Andrews. Is there a limit on the number of people 
who have to be present for such a meeting?
    Ms. Schiffer. Not at all.
    Chairman Andrews. Can it be 10 supervisors and one worker?
    Ms. Schiffer. Yes.
    Chairman Andrews. Is there a limit on the amount of time 
that the meetings can take?
    Ms. Schiffer. No, no limit.
    Chairman Andrews. Is there a requirement that the union 
have equal time in that meeting?
    Ms. Schiffer. No requirement at all for equal time in a 
meeting.
    Chairman Andrews. Let's talk for a moment, either Dr. Lafer 
or Mr. Shaiken, about this concept of leverage. And perhaps Ms. 
Schiffer will want to chime in on this, as well.
    Can you describe to us some instances of employer leverage 
over someone who is about to case a vote in a representation 
election that falls short of being violations of the labor law, 
so they are not actionable, but they are effective?
    And, as my time is about to expire, you can supplement the 
record in writing. Can you give me an example of something that 
is, in your view, coercive without being illegal?
    Mr. Shaiken, do you want to answer that?
    Mr. Shaiken. Sure. I would like to give two very brief 
examples.
    First, something that is legal. An employer can predict a 
consequence of a union being voted in--not threaten, but 
predict. So an employer has predicted--and this was viewed 
legal--that the plant would close and move to Mexico----
    Chairman Andrews. Could you quickly give the second?
    And I would invite the other witnesses to supplement in 
writing.
    Mr. Shaiken. But the demonstration effect of actually 
closing the facility that unionizes, ostensibly for other 
reasons.
    Chairman Andrews. The Wal-Mart meat-cutters.
    Mr. Shaiken. The Wal-Mart meat-cutters had a huge impact, 
and still does.
    Chairman Andrews. Thank you very much.
    I yield to my friend from Minnesota, Mr. Kline, for 5 
minutes.
    Mr. Kline. I thank you, Mr. Chairman.
    Again, I want to thank the witnesses for being here today 
and for their testimony.
    I wanted to just address for a moment the concern of the 
gentlewoman from New York about bias. And let me stipulate that 
all witnesses here come with a point of view, which I would 
argue might be biased. You know where you are on this issue. 
But I would hope that none of us would question your integrity 
or sincerity because of that possible bias.
    I want to get a couple things on the record here, if I 
could.
    Let me go to you, Mr. Cohen, make sure that I understand 
this correctly. And I have some notes here in front of me, so 
excuse me if I look down sometimes and make sure I have got 
this right.
    I know that some supporters of this bill have tried to 
argue that even if the union conducts a card-check campaign, 
employees will still have the right to vote. I don't understand 
that here.
    Can you make clear for all of us and for the record, simply 
and directly, under the bill, if a union organizer, an employee 
presents 50-percent-plus-one signed cards to an employer, the 
right to an election following that is extinguished, is that 
correct?
    Mr. Cohen. That is right. There is no right to the 
election.
    Mr. Kline. Okay. And, now, you----
    Mr. Cohen. And if I might supplement that for one moment, 
there is no reason for a union to ever file a petition for an 
election with less than a majority. It is common practice to go 
well over a majority, 60, 70, 80 percent, on the theory that 
there will be attrition as time goes forward.
    So, functionally speaking, although if a petition were to 
be filed with 35 percent, that would not trigger the no-
election provision. But, again, no reason to ever file that 
petition.
    Mr. Kline. Okay, thank you.
    And, in your testimony--and I think I heard you say 
something about 56 days, but one of the claims we have heard 
repeatedly is that the NLRB process just takes too long. I 
think one of the witnesses in the earlier panel said something 
about 7 years, 8 years, and 12 years or something like that.
    Could you again tell us, on average, how long it is from 
when a union files a petition before an election is held? Give 
us those numbers again. It is in there somewhere in the record.
    Mr. Cohen. Surely. In fiscal year 2006, 94.2 percent of all 
initial representation elections were conducted within 56 days 
of the filing of the petition. During that same time period, 
the median time to proceed to an election from the filing of a 
petition was 39 days.
    And these are numbers which don't come about accidentally. 
The NLRB is very diligent, and the regional director's 
performance is monitored in Washington to make sure that those 
days don't slip. In fact, it is a shorter period of time today 
than it was, for example, 15 years ago.
    Mr. Kline. Okay. Thank you.
    And, again, just to get some clarification here, I think it 
was Professor Lafer--again, this is to you, Mr. Cohen--had said 
that, with an NLRB election, it is only management that has 
access to employees' addresses, phone numbers and the like. Is 
that true? And could you explain for us what an excelsior list 
is?
    Mr. Cohen. Sure. An excelsior list is a list that the NLRB 
requires be furnished to the union, typically about 3 weeks 
before the election actually takes place. It is a list of the 
names and addresses of the electorate, if you will. And that is 
required by law, and it has been upheld by the Supreme Court.
    Mr. Kline. And it is furnished to the union?
    Mr. Cohen. Absolutely.
    Mr. Kline. Okay, thank you.
    Mr. Cohen. It is turned over precisely for organizing 
purposes.
    Mr. Kline. All right. Thank you very much.
    And, Mr. Chairman, in the interest of time because I think 
we have got a vote coming up here pretty quick, I will yield 
back.
    Chairman Andrews. Thank you very much.
    The chair recognizes the gentlelady from California, Ms. 
Sanchez, for 5 minutes.
    Ms. Sanchez. Thank you, Mr. Chairman.
    I have enjoyed all of your testimony on the panel today 
and, in particular, Mr. Shaiken because he is from my alma 
mater. [Laughter.]
    But you used a couple of phrases that I found very 
intriguing to describe the process of NLRB elections: the fact 
that a secret ballot needs to be meaningful in order for it to 
be free and fair, and the fact that the fear and coercion 
behind the vote often undermines the results of the vote.
    And a lot has been made about the term ``secret ballot'' 
and how fundamental that is and how that protects workers.
    Mr. Lafer, I would like to ask you, in a real NLRB 
election, how secret is the secret ballot really?
    Mr. Lafer. In the American democratic tradition, the 
principle of the secret ballot is not simply the fact that you 
go into a voting booth and pull a curtain and nobody sees what 
you do. It is your right to keep your political opinion private 
to yourself before, during and after the act of voting, that 
you can't be lured or coerced into a conversation that is 
designed to make you reveal your political preferences.
    In the NLRB, while the vote does take place in a booth 
where nobody sees what you are doing, management is allowed to 
engage in a series of behaviors in the lead-up to the vote that 
force the vast majority of workers to reveal how they are going 
to vote long before they ever step into the booth.
    It is illegal for a supervisor to ask a worker directly, 
``How are you going to vote?'' And for that reason, the 
standard practice of employers and consultants is to coach 
supervisors to have intensive, what they call eyeball-to-
eyeball conversations with every one of the people they 
oversee, the most intimidating kind of conversation, and ask 
them questions that avoid that explicit language but force them 
to reveal their preferences. They make provocative statements, 
they record what the worker says, they watch their body 
language. They go back and they rank them on a scale of one to 
five of where they stand.
    And one consultant reports that he would regularly hold a 
poll among managers for $100 to see who could guess the correct 
number of votes that the election would be, and they were 
always astonishingly accurate, within a few votes.
    So, under those conditions, under that intimidating 
condition, if you are a supremely skilled actor or liar, you 
can keep your opinion unknown. But for most normal people, you 
end up revealing where you stand. And the fact that you then go 
into a secret ballot, at the end of the day, doesn't change 
that.
    Ms. Sanchez. So, technically, while they are not violating 
the rules by asking explicit questions, if I am understanding 
what you are saying correctly, they have grown very 
sophisticated at other ways in which they are able to get that 
information from workers before they actually step in and vote.
    Mr. Lafer. That is right. And I think if we saw this 
happening in any other country, that workers were interrogated 
in this manor even though they ended up in a secret booth, we 
would say the secret ballot existed in name only.
    Ms. Sanchez. Thank you.
    I had an opportunity to read the testimony in writing, and 
I have a question for Ms. Schiffer.
    You mentioned that one of the fears in moving forward with 
an NLRA complaint is the lack of effective remedies for those 
violations. Is it true that remedies for those violations on 
the part of employers are sometimes as cheap to remedy as the 
cost of a few pieces of paper?
    And what do you think those penalties do, in terms of 
providing an effective deterrent against violations of the 
NLRA?
    Ms. Schiffer. Well, most of the violations that we have 
listened to workers talk about today, the employer's remedy is 
to post a piece of paper on the bulletin board saying that it 
will not do these things again.
    And when I ask workers to testify, to come face to face 
with their supervisor in an administrative hearing and say, 
``My worker interrogated me about how I felt about the union,'' 
these kind of violations, the worker will say, ``Okay, what 
will happen to the employer if I testify and they are found 
guilty?'' And I say, ``Well, they have to post a piece of 
paper.''
    And they are just incredulous, just jaw-dropping, eye-
opening incredulous that that is all the employer has to do.
    And even if someone is fired and they lose pay, the remedy 
is back-pay; if the person gets another job that pays the same 
or more, the employer doesn't have to pay any back-pay for that 
amount of time. So the average back-pay award is somewhere 
between $3,500 and $4,000, and it is just a small price to pay.
    Human Rights Watch did a study and issued a report in 2000, 
and their conclusion was the same, that employers view this as 
a small price to pay.
    Ms. Sanchez. And I have often heard the term that employers 
who regularly violate the NLRA just factor it in as a cost of 
doing business, because there really isn't any big financial 
disincentive to continue acting as a bad actor.
    Ms. Schiffer. That is what the Human Rights Watch report 
concluded.
    Ms. Sanchez. Thank you.
    And I yield back.
    Chairman Andrews. I thank the gentlewoman.
    The chair recognizes the gentleman from Illinois, Mr. Hare, 
for 5 minutes.
    Mr. Hare. Thank you, Mr. Chairman.
    Mr. Cohen, some people who don't like the Employee Free 
Choice Act indicate they don't like it because it is just a 
signing of card, they don't have the secret vote.
    Isn't it true that an employer, if the employees present to 
that employer in writing a sufficient number of names, they 
could decertify that union without having an election?
    Mr. Cohen. The term ``decertification'' connotes, as I 
understand it, an election having been held. So in order to 
decertify the union, there must be an NLRB election.
    If you are talking about withdrawal of recognition of the 
union, which is a slightly different animal----
    Mr. Hare. They can do that by merely giving a sufficient 
number of names to the employer, who is then, under law, 
required to proceed with the--not recognizing the union as a 
full bargaining agent.
    Mr. Cohen. If, in fact, there has been a loss of majority 
support, that is correct.
    Mr. Hare. Okay. I am just amazed, and I have to be very 
candid. In sitting here today, I see that the union is given 3 
weeks to be able to contact the employees. Most organizing 
drives are months and months of preparation and work and 
contacting people and trying to go to their homes. You can't 
get them on the floor of the factory; you have got to do it at 
the home or you have got to do it outside. I mean, the deck is 
clearly stacked against this.
    I wonder how many people running for public office, if we 
were under the same--if I was running for Congress and I was 
only given 3 weeks to contact my constituents, and my opponent 
had a year and a half to do it, and I couldn't talk to them, I 
would probably be going in decidedly at a disadvantage.
    Plus, I am amazed, as you said, Ms. Schiffer, that the 
numbers of employees that are called in or can be called in 
under this law. And it is, to me, I think a basic violation of 
human rights. This whole question, it seems to me, of keeping 
this a secret ballot is to disguise, really, in my honest 
opinion, to make it more difficult for unions to be able to do 
what they do best, and that is represent people.
    I would like to ask you this, if I could, Ms. Schiffer. In 
your experience on the NLRB, did you see a lot of violations 
from labor and coercion on elections and find them to be heavy-
handed and ruled against them?
    Ms. Schiffer. On the part of unions?
    Mr. Hare. Yes.
    Ms. Schiffer. No, that was not my experience.
    In fact, there has been reference to this H.R. Policy 
Association report of cases of fraud and coercion. And the 
reason, actually, that we investigated that report was because 
a case that I had litigated was on there, and I knew there was 
no fraud or coercion found in this case, and here it was on 
this list of supposed cases involving fraud and coercion.
    And so we looked at those cases, and we found that there 
were 42 out of the list where there was any evidence of fraud 
and coercion.
    Mr. Hare. In 60 years?
    Ms. Schiffer. In 60 years.
    Mr. Hare. Forty-two. Not bad.
    Let me just ask, maybe, you, Mr. Shaiken, in your opinion, 
if this bill were enacted into law tomorrow, would you see a 
tremendous movement of people wanting to have the basic right 
to have an election without fear? Do you think it would lessen 
the fear and the intimidation factor and it would give 
employees--balance that field a little bit?
    Even since you can't even go on the property, which really, 
again, it bothers me a great deal that the playing field is not 
level here for the workers who want to try to join a collective 
bargaining union.
    Mr. Shaiken. I think you have an excellent point here. In a 
way, it is not simply that the playing field isn't level. The 
union isn't allowed into the stadium, when it comes to this.
    And I think what we are really looking at, were this act 
passed, in symbolic terms I think it would really recognize 
that workers can make a free and informed choice. Nobody has to 
join a union. And I think, given the polls that we have seen--
and not a single poll, but a wide variety of polls--there 
really is a pent-up demand of people that say, ``Look, we would 
like to join a union if we could.'' And that is totally at odds 
with the membership numbers.
    A little common sense tells us this is a period where there 
is a strong squeeze on wages, that there are great fears about 
the global economy, where competitiveness is very fierce. Under 
those circumstances, the ability to have greater voice in a 
workplace is important to workers.
    So I think what this act would do is restore choice. And 
the outcome, we will see.
    Mr. Hare. Thank you.
    One final question, I am running out of time.
    Ms. Schiffer, would you agree that the $3,500 to $4,000 
that an employer would have to pay, basically is paying on 
average, is a pretty good bang for the buck if you don't want a 
union in there and have to pay health care and pension benefits 
and the kinds of things that, you know, a union might very well 
try to negotiate for their workers?
    Ms. Schiffer. It is the kind of bargain that encourages 
employers to do these things.
    Mr. Hare. Thanks very much.
    I yield back.
    Chairman Andrews. I thank the gentleman.
    I thank the witnesses for their excellent contribution to 
the record today.
    I also want to express my appreciation to the staff on both 
sides of the aisle for their hard work in making this hearing a 
success.
    And I understand my friend has no concluding statement?
    Mr. Kline. No. Thank you, Mr. Chairman.
    Chairman Andrews. In which case, the committee stands 
adjourned.
    [Whereupon, at 1:04 p.m., the subcommittee was adjourned.]