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Employee Free Choice Act of 2007-Motion to Proceed

Floor Speech

Location: Washington, DC



Mr. KENNEDY. Madam President, I yield myself 1 minute.

The fact is, if we sink this bill, if we vote against this bill, we wouldn't even have tried to do all the background checks, we wouldn't even have tried to get a secure border.

We know what so many Members of this body are against, but we have yet to hear what they are for. The Senator from Texas outlined in very considerable detail the kind of security to which we believe this legislation is committed. Defeat this legislation and all of that security is out the window.

This bill may not be perfect, but it is the best opportunity we have to do something significant and substantial, and I believe the bill is good.

I see my friend from Ohio. I yield him 5 minutes.


Mr. KENNEDY. Mr. President, again I wish to thank my friend from Colorado for putting into 3 short minutes the compelling case for the support for cloture we will be voting on in just a very short period of time and thank him not only for his eloquence and his passion but also the strong ongoing effort he has made to try to make sure this legislation is worthy of the goals he has outlined. He has made an extraordinary contribution, and history will show it.

If the Chair will let me know when I have 1 minute left.

Mr. President, on the employee checkoff legislation, first of all, we want to point out that free elections are in the Employee Free Choice Act. They are in the legislation. We have heard a lot of issues and questions about whether they are in or they are not in. They are in the legislation. But let me really point out, in the few minutes that remain, why this legislation is necessary.

It is necessary because of the impact of what is happening today to so many workers who are trying to be able to pursue their economic interests.

This is Verna Bader, a machine operator in Taylor, MN. Verna wanted to form a union to help address health and safety problems at work. This is often the case. It isn't just their own economic interest; it is the health and safety problems they see on the job. She and other union supporters were harassed by the foreman, who threatened: ``If you do get a union in here, you're gonna find out that you aren't gonna have a job.'' We have heard of intimidation, and this is the type of intimidation which so many workers, when they try to form a union, are faced with.

After employees voted to form a union, the harassment became unbearable for Verna. ``There's days that I literally went out of there crying. This is the kind of conditions that the employer set.''

Taylor Machine illegally shut down the department where union supporters worked. Eventually, the NLRB ordered the company to give them back their jobs. The company refused and appealed the ruling, delaying justice for the workers. Verna and her coworkers didn't get the backpay the company owed them until 8 years later.

This is Bonny Wallace, a nurse from Roseburg, OR. Bonny and her coworkers decided to form a union after the hospital began increasing nurses' patient loads, forcing them to work mandatory overtime. Many times, these workers would come down exhausted at the end of their 8-hour shift and be told: No, you are going to have to continue to work. Many of them had children at home or children they were picking up at school, and they were told they had to go out. The workers tried to find out if they couldn't get at least some kind of recognition of their needs. ``We needed some help and some representation. We needed someone to listen to us, when management would not. That's why we called the union.''

The hospital started a campaign of fear and intimidation. Despite a shortage of workers, the hospital forced them to attend antiunion meetings during their shifts. The meetings were demeaning and dehumanizing. ``We felt insulted by the half-truths they put forward.''

The nurses won the election, but 1 year after the union was certified, they still had no contract. Management has come to bargaining meetings unprepared to negotiate, stalling the negotiations and slow-walking the outcome.

So you have the situation where an individual is fired and another situation where they have just refused to negotiate.

Now, what happens every year? These are the figures from 2005: 30,000 workers--30,000 workers--have had to get backpay from the National Labor Relations Board because of examples I have just given here this afternoon. And these are not the exception. This is what is happening all over America. It didn't used to be that way. It didn't used to be that way.

Years ago, when they did have the card and the checkoff, the numbers that were actually being talked about at that time were about 3,000 individuals. Now, as has been pointed out during the course of the debate, the powers that are out there to defeat these workers, humiliate these workers, intimidate these workers are very effective, and we have 30,000 who get backpay.

Employees are fired in one-quarter of all the private sector union-organizing campaigns. One in five workers who openly advocate for a union during an election campaign is fired. That is the technique used in order to destroy. That is what we are trying to deal with in this legislation. That is what this legislation is all about. Let us allow the workers to have the choice and the employee recognition that they can vote for or vote against having a union but not have intimidation.

Finally, what are the penalties? I mentioned 30,000 different instances where they had to get backpay. The average backpay in 2005 was $2,660. Imagine that worker out of work for 8 years and finally gets the backpay, and the backpay is $2,660. If you had the violation on this Smokey Bear image, it would be $10,000.

This is not only an economic issue, it is a moral issue, and we have this open letter from 124 religious leaders that states: We as leaders of the faith communities, representing the entire spectrum of U.S. religious life, call upon the U.S. Senate to pass the Employee Free Choice Act so that workers will be able to represent themselves.

It is a civil rights issue. The Leadership Conference on Civil Rights and the Governors understand this. There is a letter from some 16 Governors, who think this makes sense.

There is also this extraordinary letter from a former Secretary of Labor, Ray Marshall, and he quotes the Dunlop Commission. John Dunlop, a Republican, was probably one of the greatest Secretaries of Labor in the history of this country.

Mr. KENNEDY. Mr. President, over the past several days I have addressed the Senate several times about the dramatic changes in our economy, and the overwhelming challenges facing American workers. I am deeply concerned about the growing divide between the haves and have-nots in our country. Working families are not receiving their fair share of our economic gains, and it is threatening the vitality of the American middle class and the American dream.

It is time to have a real conversation about economic security. We need to be talking about how we can return to the days where the rising tide really did lift all boats, and working Americans shared in the Nation's prosperity.

Unfortunately, my colleagues on the other side of the aisle don't seem interested in having that conversation. Instead, they have chosen to spread misconceptions and half-truths about the Employee Free Choice Act.

Before we can continue talking about the economic challenges facing America's workers, we need to set the record straight. I would like to clear up the misconceptions and half-truths about this legislation so we can return to focusing on the issues that matter to working families.

First, several of my Republican colleagues have come to the Senate floor to argue that the current system for choosing a union works just fine. They argue that there is no real problem here because 60 percent of NLRB elections are won by unions.

Actually, I still find that number disappointing, because in a substantial percentage of the elections that unions lose, the organizing efforts had majority support before the election process began. And nearly half the election petitions filed by unions are withdrawn even before the election occurs because union support has been so eroded that there is no point in going forward. Something happened during the election process to scare and intimidate workers.

But more importantly, the number of NLRB elections that unions win does not tell the whole story. What tells the story is how many employees want a union and don't have one. What tells the story is how many workers never get to that stage of the process.

According to a December 2006 poll by Peter Hart Research Associates, 58 percent of America's nonmanagerial workers--nearly 60 million--say they would join a union right now if they could. But only 7 percent of employees in the private sector have a union in their workplace. This shows that NLRB elections are not working to get workers the unions they want.

Some critics have also taken issue with some of the supporting statistics that I and my Democratic colleagues have used to demonstrate the widespread problem of anti-union behavior and abuses of the law by employers. Specifically, they have attacked a study performed by

Professor Kate Bronfenbrenner of Cornell University concluding that employees are fired in one-quarter of all private-sector union organizing campaigns. These attacks are unfounded.

Professor Bronfenbrenner's study is one of many research projects that confirm what many of us have long known--that abuses of employees who try to form a union are rampant and our current system has proved inadequate to protect workers' rights.

Kate Bronfenbrenner's research has been relied upon for 20 years by Congress and the U.S. Trade Deficit Review Commission, USTDR, among others, to gauge the extent of employer behavior that affects the exercise of rights by workers. Her research has been published in a number of peer-reviewed books and journals where it was found to have upheld the stringent standards for methodological review for those publications.

It's abundantly clear that there is a serious problem, but Republicans argue that the Employee Free Choice Act is not the solution. They have pointed to a 2004 Zogby survey of union workers and a 2007 poll of workers by McLaughlin and Associates to argue that workers--even union workers--don't want this.

Both the McLaughlin poll and the Zogby poll are unpersuasive. Both of these surveys presented people with a false choice--between majority sign-up and a fair and democratic election. Neither asked workers to choose between majority sign-up and the NLRB election process.

I think if the choice was presented accurately those results would have been much different, because a fair and democratic choice is just not what the NLRB election process provides. NLRB elections are so skewed in favor of the employer there's nothing fair or democratic about them.

The Hart research survey I have cited is far more accurate--I'll use the exact wording so there's no chance of misunderstanding:

Under majority signup, once a majority of employees at a company join the union by signing authorization cards, the company must recognize and bargain with the union, with no election held. Do you favor or oppose this proposal?

When asked this question--with no slant or bias in it--70 percent of union members and 50 percent of workers overall supported majority sign-up, compared to only 20 percent of union members and 36 percent of workers overall who opposed it.

Beyond public perceptions, when it comes to the substance of the bill, each of the three major provisions of the act--the majority sign-up, the first contract timeline, and the enhanced penalties--has been the subject of misleading and inaccurate attacks. I will address each of these sections of the bill in turn.

On majority sign-up, the most common criticism I have heard is that the Employee Free Choice Act is undemocratic or that it eliminates the secret ballot election. Neither of these assertions is true--the bill does not abolish the NLRB election process, and if the goal of a democratic system is to have an outcome that reflects the will of the people, the Employee Free Choice Act establishes a far more democratic alternative to the current system.

Initially, the bill does not abolish the secret ballot election process. That process would still be available. It just gives workers--not employers--the choice whether to use the NLRB election process or majority signup.

My friend and colleague from Wyoming, Senator Enzi, has cited a letter from the Congressional Research Service, arguing that this letter proves that the bill eliminates secret ballot elections. With respect, I think that's a misreading of CRS's conclusions. What CRS said was that the bill would not permit an election when the majority of the employees has already signed valid authorizations designating a union as their collective bargaining representative. And that is correct--if the majority has already spoken and chosen a representative by signing authorization cards, the employees have already decided how they want to choose a union. It's that majority choice--the decision to choose a union through majority signup--that we want to protect. If the workers were to choose to use the election process instead--if they were to sign cards asking for an election rather than designating a bargaining representative--they would get an election. The Employee Free Choice Act lets the workers use the system they want. This makes perfect sense--after all, it is the workers' representative, why should the employer get to control how the workers get to choose?

In their discussions of the majority signup process, my Republican colleagues seem to suggest that the NLRB election process is a model of democratic fairness. But nothing could be further from the truth. NLRB elections are nothing like the public elections we use to elect our Congressional representatives. One side has all the power. Employers control the voters' paychecks and livelihood, have unlimited access to voters, and can intimidate and coerce them with impunity. By the time employees get to vote in an NLRB election, the environment is often so poisoned that free choice is no longer possible. That is not a free election or a fair election. Workers should have the option to choose a better process.

Another common criticism raised about majority signup is that employees may be coerced by their colleagues, or by union representatives, into supporting the union. This is really not a cause for significant concern. It is already clearly against the law for unions to coerce or intimidate employees into signing union authorization cards. Those cards are invalid and cannot be counted towards majority signup, and nothing in the Employee Free Choice Act changes that.

Along these same lines, several of my colleagues have cited a Supreme Court case--NLRB v. Gissel Packing Company--for the proposition that authorization cards are an ``inherently unreliable'' indicator of true employee support for a union. I am distressed that my colleagues would take this quotation so drastically out of context.

Those words--``inherently unreliable''--were used by the Court to articulate the employer's contention, which the Court rejected. In fact the Court in Gissel held the exact opposite! They found that authorization cards can adequately reflect employee desires for representation and the NLRB's rules governing the card collection process are adequate to guard against any coercion that might occur.

I don't understand my colleague's suggestion that authorization cards aren't a valid indicator of a worker's wishes. We have always used these cards to determine whether workers want an election or not, and there's never been any suggestion that coercion or misrepresentation makes the process unfair.

Majority signup is a better system. It respects the free choice of workers by giving them the freedom to choose a union in a simple, peaceful way. Experience has shown that when majority signup replaces the battlefield mentality of the NLRB election process, conflict is minimized and the workplace becomes more cooperative and productive--a win for both sides.

Briefly, there are three more concerns that have been raised about majority signup that I would like to dispel. Each of these concerns reflects a misunderstanding of how the bill would affect current law.

First, my Republican colleagues claim that the Employee Free Choice Act would require ``public'' card signings, which is simply untrue. Under the act, signing a card will be no more or less confidential than it is now. Under current law, workers can request an election if 30 percent of them sign cards saying they are interested in an election. The NLRB keeps the cards--and the card signer's identity--confidential and will not reveal that information to the employer. The Employee Free Choice Act does that change these NLRB confidentiality requirements that protect workers from being targeted by their employers for later retaliation.

Second, some of my colleagues have suggested that the Employee Free Choice Act will ``silence'' employers and restrict their ability to express their views about the union. But nothing in the Employee Free Choice Act changes the free speech rights of an employer. Employers are still free to express their views about the union as long as they do not threaten or intimidate workers. The act also does not change the types of anti-union activity that are prohibited by law. What the act does do is strengthen the penalties for anti-union activity that are prohibited by law. It also allows workers to find an alternative to the contentious NLRB election process, when many of these violations of the law can occur.

My friend and colleague from Utah, Senator Hatch, claims that by giving workers an alternative to the NLRB election process, the employer is ``effectively silenced'' because it is possible that the employer will not know about the majority signup campaign until the cards are presented to the employer. While that is theoretically possible, it is highly unlikely. Most employers know when employees are thinking about forming a union. Even in the rare instance where an employer was truly taken by surprise, the employer has no ``right'' to an additional period of time to engage in anti-union tactics. Majority signup is about workers choosing their own representative. Why should the employer have a guaranteed say in the workers' decision about their own representative? That would be like saying that one party in a court case can't hire a lawyer until the other party has a guaranteed period of time to argue that his opponent shouldn't be allowed to have a lawyer. It is nonsensical.

Third, critics have argued that the Employee Free Choice Act inappropriately lets employees choose the appropriate unit for bargaining, instead of the National Labor Relations

Board. Again, this reflects a misunderstanding of current law, and of the scope of the Employee Free Choice Act.

Under current law, when employees petition for an election they have a right to choose the unit for bargaining. Employees need only choose an appropriate unit, not the most appropriate unit. Employers then have the right to ask the National Labor Relations Board to determine whether the unit chosen by the employees is inappropriate or unlawful. The Employee Free Choice Act does not alter the law in this respect. Employees will still have the right to choose their bargaining unit. EFCA maintains this important right for employees, while continuing to protect employers from being forced to recognize an inappropriate or unlawful unit.

Unfortunately, opponents of this bill have not confined their misguided attacks to the majority signup provisions. They have also raised several unjustified criticisms of the provisions in the bill providing a timetable to get workers a first contract.

Primarily, my Republican colleagues have argued that these provisions would allow the government to impose a contract on the parties, threatening business's bottom line. These sensationalistic references to ``government-imposed contracts'' are way off-base. It is a scare tactic that has no relationship to what this bill actually does.

The Employee Free Choice Act does not compel arbitration whenever the parties have difficulty reaching a contract, as my colleagues suggest. It provides a procedure where unions or employers can seek assistance from the Federal Mediation and Conciliation Service if they are encountering difficulties in their negotiations. The first step of this process is mediation. Collective bargaining mediation provides a neutral, third-party mediator to assist the two sides in reaching contract agreement on their own. The FMCS has provided collective bargaining mediation services--including mediation of first contract negotiations--for more than 50 years, and they have an 86 percent success rate in helping the parties agree to a contract. That is a pretty impressive record.

Only in the rare instance where mediation fails does the act provide for arbitration. Binding arbitration is a last resort, and will rarely be used. It primarily serves as an incentive to bring the parties to the table. Neither the union nor the employer wants any uncertainty in the process, and therefore the parties have a strong reason to sit down at the table and work things out on their own rather than letting an arbitrator rule. The bill's negotiating framework is similar to what is used in most Canadian provinces. Canada's experience shows that arbitration is rarely used, and is an incentive--rather than a roadblock--to parties reaching their own agreement.

Finally, even in the rare case where parties do resort to arbitration, it will be limited to the issues that the parties are unable to agree on. These arbitrations will be handled by highly qualified FMCS arbitrators with long experience in crafting fair contract provisions. They will not impose unfair or extreme terms. I also don't know where my colleagues get the impression that an arbitration through the FMCS would produce a contract biased in favor of the union. It is not in anyone's interest to put a company out of business--workers would lose their jobs and unions would lose their members. Typically, arbitration produces middle-ground solutions that everyone can live with, and often parties settle their disputes during arbitration, alleviating the need for the arbitrator to render a decision at all.

The second criticism that has been leveled against the first contract timeline is that in the rare instance where a contract is actually imposed through the arbitration process, workers will lose their ``right'' to vote to ratify the contract. This reflects a complete misunderstanding of current law. Under current law, employees do not have a ``right'' to ratify a collective-bargaining agreement. A ratification vote is a courtesy that unions routinely give the workers they represent as a matter of policy. It is not a legal requirement.

Under the bill, if unions want to provide their members with input during the first contract negotiation process, they could submit the union's arbitration proposal to the membership for a ratification vote. This would ensure that the position the union takes in arbitration is consistent with the views of the membership.

Perhaps most importantly, in the rare case where a union gets a contract through arbitration, this contract will only be for a 2-year term--a relatively short timeframe for a labor contract. And, during the short duration of the first contract, the membership will no doubt still be far better off than if they had no contract at all.

Finally, opponents of the bill have argued that arbitration of first contracts is incompatible with the collective bargaining process. In support of this assertion, they cite a text on arbitration written by Elkouri and Elkouri, quoting it to say that using arbitration to reach a first contract is the ``antithesis of free collective bargaining.''

My Republican colleagues are taking this quotation out of context. Read in full, the text says: ``The arguments against compulsory arbitration as revealed in literature on the subject, are, broadly stated, that it is incompatible with free collective bargaining .....'' Elkouri and Elkouri are merely reporting arguments made by others, not endorsing this position.

Indeed, later in the book, the authors acknowledge that, in some instances in which ``the parties find it difficult or impossible to reach agreement by direct negotiation,'' and ``the use of economic weapons [may] be costly and injurious to both parties'' or to the public, ``interest arbitration by impartial, competent neutrals, whether voluntary or statutorily prescribed, offers a way out of the dilemma.''

Using interest arbitration to resolve difficult situations is hardly unheard of. In fact, it has become quite common in public sector employment, public utilities, and railroads. It is also used in most Canadian provinces, where it has been perfectly consistent with a robust system of collective bargaining.

The system established by the Employee Free Choice Act gives a responsible employer every opportunity to pursue a contract fairly. There's bargaining, then there's mediation--arbitration is only a last resort. And the parties can always agree to keep talking or to extend any of the deadlines in the timetable. The process can last as long as it takes to reach a deal, so long as the parties are acting reasonably and can agree to keep talking.

Finally, I would like to take just a brief moment to respond to an argument raised by my friend from Utah, Senator Hatch, regarding penalties. He argued that the Employee Free Choice Act is unfair because it requires employers--but not unions--to pay triple backpay when they violate workers rights. While it is true that the bill does not provide for the same treble backpay penalty against unions, this is hardly problematic. Backpay is a remedy for wages to which an employee would otherwise have been entitled. Unions do not have the power to fire, demote, layoff, or take away workers' raises or overtime pay. Those are abuses only an employer can impose. Because unions cannot retaliate against workers in this manner, there is no reason to impose treble backpay on them.

In 2005 alone, over 30,000 workers received backpay from employers who violated their rights. In contrast, unions paid backpay to only 132 employees. This small set of backpay awards against unions primarily involves mishandled employee benefits--not the types of appalling abuses the Employee Free Choice Act is intended to address. When it comes to causing workers to lose their pay and benefits, it is employers--not unions--that are the problem, and the Employee Free Choice Act provides a solution, putting real teeth in the law, so that unscrupulous employers can no longer dismiss the penalties for violating workers rights as a minor cost of doing business.

The Employee Free Choice Act does one thing--it empowers workers. It gives them the freedom to choose--without fear of intimidation or harassment--whether they want union representation. There's nothing more democratic than that.

I hope that my comments today have set the record straight. I hope that we can now move on to discussing the critical role this legislation can play in helping working families to overcome the challenges of new economy return to a time of shared prosperity. I urge all of my colleagues to vote to proceed to this bill so we can have that important debate.

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