Secret Ballot Protection Act of 2007

Mr. President, I yield 15 minutes to the Senator from Pennsylvania.

That is agreeable. We will try to accommodate the time. Senator Specter wanted 15 minutes; others are 5 minutes. But we will be glad to accommodate, so if he goes for 15, you can go for 5.

That would be fine.

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. President, I yield 3 minutes to the Senator from Colorado.

Mr. President, I believe I have 6 minutes; is that correct?

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. 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.

I will include those references in the Record, and I thank the Chair.

Madam President, I thank the distinguished chairman for yielding time. I have sought recognition to speak on the legislation entitled the ``Employee Free Choice Act.'' I have had numerous contacts on this bill, both for it and against it, very impassioned contacts. People feel very strongly about it. The unions contend they very desperately need it. The employers say it would be an abdication of their rights to a secret ballot. I believe there are a great many important issues which need to be considered on this matter, and that is why I will vote, when the roll is called, to impose cloture so that we may consider the issue. I emphasize that on a procedural motion to invoke cloture--that is, to cut off debate--it is procedural only and that my purpose in seeking to discuss the matter is so that we may consider a great many very important and complex issues. I express no conclusion on the underlying merits in voting procedurally to consider the issue.

In my limited time available, I will seek to summarize. I begin with a note that the National Labor Relations Act does not specify that there should be a secret ballot or a card check but says only that the employee representative will represent in collective bargaining where that representative has been ``designated or selected'' for that purpose. The courts have held that the secret ballot is preferable but not exclusive.

In the case captioned ``Linden Lumber Division v. National Labor Relations Board,'' the Supreme Court held that ``an employer has no right to a secret ballot where the employer has so poisoned the environment through unfair labor practices that a fair election is not possible.''

The analysis is, what is the status with respect to the way elections are held today? The unions contend that there is an imbalance, that there is not a level playing field, and say that has been responsible in whole or in part for the steady decline in union membership.

In 1954, 34.8 percent of the American workers belonged to unions. That number decreased in 1973 to 23.5 percent and in 1984 to 18.8 percent; in 2004, to 12.5 percent; and in 2006, to 12 percent. In taking a look at the practices by the National Labor Relations Board, the delays are interminable and unacceptable. By the time the NLRB and the legal process has worked through, the delays are so long that there is no longer a meaningful election. That applies both to employers and to unions, that the delays have been interminable.

In the course of my extended statement, I cite a number of cases. In Goya Foods, the time lapse was 6 years; Fieldcrest Cannon, 5 years; Smithfield--two cases--12 and 7 years; Wallace International, 6 years; Homer Bronson, 5 years.

In the course of my written statement, I have cited a number of cases showing improper tactics by unions, showing improper tactics by employers. In the limited time I have, I can only cite a couple of these matters, but these are illustrative.

In the Goya Foods case, workers at a factory in Florida voted for the union to represent them in collective bargaining. Following the election, the company refused to bargain with the union and fired a number of workers for promoting the union. The workers filed an unfair labor practices case in June of 2000, seeking to require the employer to bargain.

In February of 2001, the administrative law judge found the company had illegally fired the employees and had refused to bargain. But it was not until August of 2006 that the board in Washington, DC, adopted those findings, ordered reinstatement of the employees with backpay, and required Goya to bargain in good faith--a delay of some 5 years.

In the Fieldcrest Cannon case, workers at a factory in North Carolina sought an election to vote on union representation. To discourage its employees from voting for the union, the company fired 10 employees who had vocally supported the union. The employer threatened reprisal against other employees who had voted for the union and threatened that immigrant

workers would be deported or sent to prison if they voted for the union. The union lost the election in August of 1991. Although workers filed an unfair labor practice case with the NLRB, the administrative law judge did not decide the case until 3 years later, in 1994, and his order was not enforced by the Fourth Circuit until 1996--a lapse of some 5 years. In my written statement, I cite seven additional cases.

Similarly, there have been improper practices by unions. On the balance, I have cited nine on that line, the same number I cited on improper activities by employers.

At a Senate Appropriations subcommittee hearing, which I conducted in Harrisburg, PA, in July of 2004, we had illustrative testimony from an employee, Faith Jetter:

Two union representatives came to my home and made a

presentation about the union. They tried to pressure me into

signing the union authorization card, and even offered to

take me out to dinner. I refused to sign the card . . .

shortly thereafter, the union representatives called again at

my home and visited my home again to try to get me to sign

the union authorization card. I finally told them that my

decision was that I did not want to be represented . . .

despite that . . . there was continuing pressure on me to

sign.

At a hearing of the House Committee on Labor this February, witness Karen Mayhew testified about offensive pressure tactics by the unions. I would cite some of my own experience with the issue. When I was an assistant district attorney in Philadelphia, I tried the first case against union coercive tactics to come out of the McClellan Committee investigation. The McClellan Committee had investigated Local 107 of the Philadelphia Teamsters Union, found they had organized a goon squad, beat up people, and exercised coercive tactics to form a union. That case was brought to trial in 1963 and resulted in convictions of all six of the union officials and they all went to jail. Without elaborating on the detailed testimony, it was horrendous what the union practices were in that case.

There is no doubt if you take a look at the way the National Labor Relations Board functions--it is not functioning at all--but that it is dysfunctional.

If you take a look at the statistics, on the one category of intake, it declined from 1,155 in 1994, to 448 in 2006. In another category, it declined from almost 41,000 in 1994, to slightly under 27,000 in 2006. On injunctions, where the NLRB has the authority to go in and get some action taken promptly, it is used very sparingly, and again there is a steep decline: from 104 applications for injunctions in 1995, to 15 in 2005, and 25 in 2006. The full table shows a great deal of the ineptitude as to what is going on.

So what you have, essentially, is a very tough fought, very bitter contest on elections, very oppressive tactics used by both sides and no referee. The National Labor Relations Board is inert. It takes so long to decide the case that the election becomes moot, not important anymore. What they do is order a new election and they start all over again and, again, frequently the same tactics are employed.

If there is an unfair labor practice in a discharge, the most the current law authorizes the NLRB to do is to reinstate the worker with backpay. That is reduced by the amount the individual has earned otherwise, which is in accordance with the general legal principle of mitigation of damages. But there is no penalty which is attached. So when you take a look at what the NLRB does, it is totally ineffective.

Those are issues which I think ought to be debated by the Senate. We ought to make a determination whether the current laws are adequate and whether there ought to be changes and whether there ought to be remedies. We ought to take a look, for example, at the Canadian system. When I did some fundamental, basic research, I was surprised to find that 5 of the 10 provinces of Canada employ the card check; that is, there is no right to a secret election. One of the provinces had the card check, rejected it, and then I am told went back to the card check. So their experiences are worthy of our consideration.

In Canada, elections are held 5 to 10 days after petitions are filed. I believe this body ought to take a close look at whether the procedures could be shortened, whether there could be mandatory procedures for moving through in a swift way--justice delayed is justice denied, we all know--whether there ought to be the standing for the injured parties to go into court for injunctive relief. That is provided now in the act, but only the NLRB can undertake it.

This vote, we all know, is going to be pro forma. We have the partisanship lined up on this matter to the virtual extreme. There is no effort behind the debate which we are undertaking today to get to the issues. There is going to be a pro forma vote on cloture. Cloture is not going to be invoked. We are going to move on and not consider the matter. We know there are enough votes to defeat cloture. The President has promised a veto. So it is pro forma.

But that should not be the end of our consideration of this issue because labor peace--relations between labor and management--is very important, and we ought to do more by way of analyzing it to see if any corrections are necessary in existing law.

It is worth noting, in the history of the Senate, there has been considerable bipartisanship--not present today. But listen to this: In 1931, the Davis-Bacon Act was passed by a voice vote. In 1932, the Norris LaGuardia Act was passed by a voice vote. In 1935, the National Labor Relations Act, also known as the Wagner Act, was passed by a voice vote. In 1938, the Fair Labor Standards Act was passed, again, by a voice vote. In 1959, only two Senators voted against the Landrum- Griffin bill.

A comment made by then-Senator John F. Kennedy, on January 20, 1959, commenting on the Landrum-Griffin bill, is worth noting. I quote only in part because my time is about to expire, but this is what Senator John F. Kennedy had to say:

[T]he necessity for bipartisanship in labor legislation is

a principle which should guide us all. . . .The extremists on

both sides are always displeased. . . .Without doubt, the

future course of our action in this area will be plagued with

the usual emotional arguments, political perils, and powerful

pressures which always surround this subject.

Madam President, I ask unanimous consent for 1 additional minute.

In conclusion, it would be my hope we would take a very close look at this very important law in this very important field and recognize that harmonious relations between management and labor are very important. That is not the case today, with a few illustrations I have given in my prepared statement. We ought to exercise our standing, which we pride ourselves as the world's greatest deliberative body.

Although that will not be done today because cloture is not going to be invoked, I intend to pursue oversight through the subcommittee where I rank which has jurisdiction over the NLRB.

Madam President, I ask unanimous consent that my extensive statement be printed in the Record.

Madam President, I thank the Chair and yield the floor.

Mr. President, I ask unanimous consent the order for the quorum call be rescinded.

President Franklin Delano Roosevelt said:

It is one of the characteristics of a free and democratic

nation that it have free and independent labor unions.

Roosevelt's New Deal lifted America through the Great Depression by showing us the rights of working people can go hand in with economic growth. His call for equality and basic fairness, which guaranteed our country a permanent workforce of skilled, trained, and professional employees, is something that is one of his legacies. But now, 70 years later, for many Americans the New Deal has become a raw deal.

Today in America, hourly wages are down, way down, while the number of uninsured is up, way up. Today in America, household income is down, way down, while the average chief executive officer's pay is a staggering, record-shattering, 411 times higher than the pay of the average working person, and going up every day. This has happened in part because, to use a term from Las Vegas, ``the boss holds all the chips.''

I rise to support that we proceed to the Employee Free Choice Act, a bill that will level the playing field for the American worker. It is unquestioned that when employees join labor unions, their standard of living improves and they become more productive employees. It is a win- win for employers and employees alike. Yet too often some employers coerce, harass, and threaten their employees to keep them from organizing. Our current laws give our employees little recourse when that happens, and it happens a lot. The Employee Free Choice Act puts the choice to organize squarely on the shoulders of the employees, and that is where it belongs.

This bill requires employers to recognize the formation of a union when the majority of employees express their support by signing a simple authorization card--a card check. It gives both sides a right to bring in the Federal Mediation Service to mediate the first contract once a union is formed, and enforces stronger penalties for companies that interfere with the right to organize.

Providing the American workers with free choice will ensure access to higher wages and better benefits, better fringe benefits. That means more working families will have good health care and will be able to save, for example, for a college education for their children and maybe even for a better retirement. They will be guaranteed fair benefits, such as vacation time, a reasonable workday, better on-the-job safety.

This is particularly true for African Americans, Latinos, and certainly women. There are some who claim this is a political vote, a gesture to labor. It is a gesture to the American working men and women. I can only venture to guess that those people who do not understand what this bill is all about are those who do not like the bill. This bill is an honest attempt to help improve the lives of Americans who often work hardest and are rewarded the very least.

Opponents of this bill, I guess, see it differently. Lobbyists for big business argue the status quo NLRB secret ballot election works just fine. It is not just fine. It doesn't work just fine. In reality, the status quo is often unfair and undemocratic. Big business wields tremendous power in secret balloting, and too often they use that power abusively. Big business controls the paychecks of the voters and livelihoods of labor. Big business sets the work schedule and terms of employment. And big business has a captive audience, an unfiltered audience to voters. All of us, save our new colleague who was sworn in at 3:15 yesterday, Dr. Barrasso, have earned a place in the Senate through an election. But I guarantee everyone here, everyone within the sound of my voice, in any of the elections of the other 99 Senators who serve here now, if our opponents controlled 100 percent of the information that voters receive, none of us would be here.

That is what this is all about. There is nothing more democratic in politics and in government and the workplace than a level playing field.

For those who are skeptical of this legislation, let me remind you that it is already working. The NLRB permits the use of majority signup, or card check as it is often described. For example, in Nevada, a State where business and labor work together, most union organizing drives are implemented through majority signup.

Let me say this. Let me be very clear. This bill does nothing to limit employee options in right-to-work States such as Nevada, nor does it eliminate secret ballot elections, as some have said. It simply gives employees the choice to determine their path to union representation. That seems fair. That is the level field we are talking about.

Skeptics of this bill should look to Nevada to see that labor organizing does not have to be adversarial. The Employee Free Choice Act will be good for both sides: It will be good for labor, and it will be good for management. This legislation will help provide the fair, square deal for working people that President Roosevelt first promised 70 years ago and will keep our country strong and certainly more competitive.

I encourage all my colleagues to join in supporting the Employee Free Choice Act. That is what it is, a free choice act.

Mr. President, after we vote on the Employee Free Choice Act, we will return to immigration. Attention will be brought back to that issue, which is so critical--comprehensive immigration reform.

We would not have been able to revisit this issue if Democrats and Republicans hadn't put aside their differences to move forward. We may not all agree on the destination, but we now do at least have a roadmap. The process for this debate and the number of amendments we will consider were decided with the complete support of the Republican leader, Senator McConnell. Senator McConnell and I have worked together in good faith to ensure a full, open, and productive debate on an issue of such overriding national importance. But this bill will not get done without Republican support. The bill is here, but we need Republican support.

Sunday I had the good fortune to visit with the President. I spoke the same evening with Secretary Gutierrez. I spoke to Josh Bolton, the President's Chief of Staff. I explained to them, this is not a Democratic bill. They understand that. We had a Democratic bill last year. It died because the Republicans wouldn't allow us to go to conference. This is a bill that was negotiated in good faith with the total support of the President. He has made public statements that he supports this legislation. Throughout this debate, Democrats have done our part. Eighty percent of us voted for the President's bill; 14 percent of Republicans did the same. That is not enough. We are not asking the Republicans to equally match our support, although I wish they would, for their President's bill. If they deliver even 50 percent of their caucus, the legislation will pass. We need 25 Republicans to support us in this matter.

This is important legislation. The stakes are too high for inaction. We are the Senate of the United States. People have said the issue is too complex; let's not do it.

We have to take hard votes. We have an immigration system that is broken and needs to be fixed. That is what we are trying to do, fix it. We would be derelict in our duties if we didn't make every effort to get this legislation passed.

When we finish here, is it over with? Of course not. It goes to the House, and they will take up a measure. They will do what they think is appropriate. It will go to conference and we will come up with something that hopefully will solve most of the problems of immigration. I believe that to be the case. Comprehensive immigration reform will require us to tackle a number of difficult issues, such as border security. We have done a remarkably important thing in this bill regarding border security. Previously, there was authorization for money to do border security. This bill gives direct funding of $4.4 billion to address border security. If for no other reason, people should vote for this. I am confident this bill will take care of border security more than anything we have talked about in recent years. It will also look at a fair temporary worker program. There is in the legislation an agricultural workers program that is excellent. In this legislation there is the DREAM Act for education for children who previously could not be educated. Of course, there are employer sanctions which are important.

I am confident this bill addresses all four of these issues in a way that honors our country, our strong immigrant history, and sets us on the path to a stronger future.

I was looking at some commentary, talking about me and immigration. Actually, they made fun of fact that my father-in-law came from Russia, as if it were a negative. My wife's father was born in Russia. That is the strength of our country. My grandmother was born in England. I used to talk to my grandmother. She didn't remember much

about anything, but she remembered a few things. The fact that my father-in-law came from Russia, my grandmother came from England makes us a better country. Immigrants are the strength of this country. This legislation honors that fact.

We need to proceed with this legislation and send the American people a better life for everybody. That is what this legislation will do. It will allow us to solve the problem, secure our borders, have a temporary worker program that meets the demands of our country, and put 12 million people on a pathway to legalization. As Secretary Gutierrez said, it is not amnesty. If we do nothing, there is silent amnesty. What this bill does is make sure that people learn English. It makes sure they pay their taxes. It makes sure they work, stay out of trouble, pay penalties and fines. Even then, they go to the back of the line. Remember, these people, whether we like it or not, have American children. This will allow them to come out of the shadows, be productive citizens and with the great work we have done on border security, stop illegals from coming into the country in the future. That is what this legislation is all about. It is good legislation. We have an obligation, as the legislative branch of Government, to do something to work with the President and get this passed.

cloture motion

Madam President, I yield 5 minutes to the Senator from Tennessee.

Madam President, we are debating two things this morning, the card check and immigration. I yield 5 minutes to the Senator from New Hampshire.

Madam President, as I allocate the time, I do want people to know that the next sentence I say is tongue in cheek. I had no idea that taking the secret ballot away from America's workers could solve all the problems of the world.

I yield 5 minutes to the Senator from Tennessee.

Madam President, we are hearing two debates today, and that was intentional. We will shift gears and go to immigration.

I yield 5 minutes to the Senator from Alabama.

Madam President, I yield 5 minutes to the Senator from Texas.

Mr. President, I yield 5 minutes to the Senator from Iowa.

Mr. President, I yield myself the remainder of my time.

We are actually debating two things here this morning because we are going to have two cloture votes right in a row. And there are some similarities between the two bills. The similarities are that neither has been through the committee process. Neither bill has been to committee. And I will tell you, when you don't send bills to committee around here, at least in my 11 years here, I don't think I have seen one bill pass that didn't go to committee. Why? Because people don't feel as if they had any input into it.

Just imagine. A coalition gets together and puts bills together and leaves everybody out and then tries to limit the amount of amendments that can be offered on them. The way the coalition works is that one person has this piece of a bill which they are really enamored with but hardly anybody likes it. Another person has this piece of a bill which he is really enamored with but hardly anybody likes it. And you get enough of those people together, throwing their bad parts of the bill in and agreeing to support it to the bitter end in order to pass the bill, but it is a conglomeration, sometimes, of bad things. So it shouldn't be a surprise when cloture isn't invoked on these bills that don't go through the committee process. The only chance for the person who is not in the coalition to have any kind of a voice is at the time of cloture.

Both of these bills, both the immigration bill and the card check bill, have not been through committee. The main bill I am talking about is the Employee Free Choice Act--I have to give them a lot of credit for picking a good name. Ironically, however, it is not about free choice; it is about taking away free choice. It should be called the ``Employee Intimidation Act'' or the ``Take Away the Secret Ballot Act.'' It should not be called the Employee Free Choice Act, and I urge my colleagues to vote no on cloture on the motion to proceed.

For generations, this body has faithfully protected and continually expanded the rights of working men and women. This legislation does exactly the opposite and would strip away from working men and women their fundamental democratic right. Should cloture be invoked, we will get to talk about this for 30 hours, and I am going to go through each and every one of the charts the other side has used to show that statistics aren't always the truth. But everybody knew that already.

We see some charts that show how much people made during one 25-year period and which group, which 20 percent, made the most. Then we switch to another chart, and we show how that changed in the next 25 years. But the third chart is the fascinating one. If you count the spaces on that chart, we have gone from five slots of 20 percent to six slots because the emphasis is on what the top 1 percent in the country made. If you are going to have honest charts, you have to show what the top 1 percent made on the first two charts as well. Statistics--yes, you can get them to say what you want.

Another chart claimed that 30,000 people got backpay because they were fired for organizing. That isn't 30,000 people who got backpay because of organizing efforts; that is 30,000 people whom the National Labor Relations Board--through all of their proceedings has awarded backpay. They do a whole lot of cases that don't have anything to do with union organizing, such as contract interpretation, and those can result in settlements that award backpay. For example, in 200, two thirds of the recipients of ``backpay'' were involved in a single case involving contract interpretation, it had nothing to do with organizing.

But I don't want to go into all that now. I will have plenty of time if we do invoke cloture. I suspect there are plenty of people around here who can see the flaw in something called the Free Choice Act which takes away the right of people to vote, so I won't dwell on that.

For generations, we have guaranteed all workers in our country the right to choose whether they do or do not wish to be represented by a union. We have secured that right through the most basic means of a free people--the use of the secret ballot election. Now, however, proponents of this legislation would cast that right aside. One can almost feel the discomfort from our colleagues across the aisle as they grasp

at straws to ultimately prevent a futile effort to justify the shameful assault on workers' rights.

We have had related to us that it would solve fair trade, it would solve executive pay, and untold issues in the world would just be solved if we just took away the right to vote from people who are being organized.

We have been told the system is broken and the bill is needed to fix it. Simply untrue. Unions that participate in the democratic election process have never in history enjoyed as much success as in the last decade, a record of 10 straight years of an increasing winning rate, the last 2 years at record rates of 62 percent. I guess they are upset that in 38 percent of the votes, they lost.

Employer unfair labor practice allegations are down dramatically, more than 40 percent over prior decades. Most importantly, the National Labor Relations Board has only found it necessary to invalidate less than 1 percent of the elections it held last year. In fact, we took a look at 2,300 elections, and there were only 19 that were rerun, and those were because of union violations as well as employer violations.

We are told, secondly, that something must be wrong with the system because there are fewer unionized employees in the workforce. That is true, but I would suggest unions need to look elsewhere to explain this phenomenon. Many observers believe the problem for unions is that today's employees see them as out of step, too political. They talk about not having enough money to take on management. If they took some of the money they put into political campaigns and went after management, they would probably win more of the elections. Their members see them as being too political and too concerned with their own agenda rather than the workers. I don't know if that is true, but I do know that when unions push an undemocratic bill such as this, which takes rights away from workers, it does little to dispel that view.

I also note that the level of union membership has absolutely nothing to do with the law this bill seeks to radically alter. The law governing unionization and the law providing for a secret ballot has not changed for over 60 years. It is the same today as generations ago when union membership was at 35 percent. The law is plainly not the problem.

Third, we have been told increased unionization is necessary to boost worker pay and benefits. Increased benefits and pay cost money, and unions do not contribute a penny to such costs. Thus, the notion that these two are causally linked is simply smoke and mirrors.

But even if that were the case, the promise of higher wages and benefits is exactly the kind of appeal a union is free to make to employees in a free election process with a secret ballot. It is not an excuse to strip them of the right to vote. This bill is nothing more than a transparent payoff to union bosses to help them artificially and unfairly boost their membership numbers, to increase their bank accounts through more union dues, and increase the political leverage that such money buys. Pandering to special interests is a bad enough problem, but when the cost of such pandering is the most basic of American rights for American workers, it is disgraceful.

I urge my colleagues to reject this effort and to vote no on cloture.

I ask how much time I have remaining?

I yield the floor.

Mr. President, I suggest the absence of a quorum.

Madam President, on behalf of Senator Kennedy, I yield myself 5 minutes.

Madam President, history shows when the union movement is strong, the middle class is strong. When the middle class is strong, our Nation is strong.

But when the union movement is under attack, the middle class is under attack. When the middle class is under attack, our Nation is weaker economically and politically. Let there be no mistake, the union movement and our middle class are under attack. Just take a look at the numbers.

Since 1973, 26 percent of the workers in America belong to unions. The pay and benefits, the working conditions, the basic dignity they fought for spilled over to the rest of working class Americans. We are all better off for it.

I would like to show you a couple of charts. Between 1947 and 1973, if you look at rising income growth, and based on the percentile of income shown on this chart, essentially everyone from 1947 to 1973--the rising tide lifts all boats, and it lifted all boats--there was an actual real income growth of almost 118 percent for the lowest 20 percentile. The top 20 percentile grew over 80 percent. There was some genuine equity.

Then take a look at what happened as the union movement began to take blows from the Supreme Court and the NLRB. There used to be card check back in those days, by the way. If you wanted to join a union, you got a card check, a little like we are talking about now.

Look what happened between 1973 and the year 2000. Real income growth, the lowest 20 percent, grew just about 12 percent. The top 20 percent grew over 67 percent. We begin to see the building inequities as a consequence of the demise of the American union movement, as well as tax policy and the types of jobs we are creating.

Now, because I only have 5 minutes, I am going to do this quickly. Let's fast-forward to the era of President Bush, George W. Bush. Look what has happened in terms of real income growth, in terms of 2004 dollars. There has actually been a net decline in the income of the lowest 20 percent, almost 5 percent; the second lowest tier, almost 4 percent; the middle income, people making between $40,000 and $60,000 per family, their real income actually dropped over 2 percent--all the way across the board, everybody but the top 1 percent. You have to have an income roughly of $435,000 to make it into that category. Average salary income in that category is $1.4-plus million per year. That is the only outfit growing, and look at what happened.

If I could superimpose a chart on organized labor, you would see a direct decline; you would see an inverse proportion of what happened. As labor declined, the economic power of corporate America increased, and the power of the wealthiest among us skyrocketed.

It is time to change. Today, just 12 percent of American workers belong to unions, and the spending power of the paycheck is actually lower than it was in 1973. The median income is lower, but productivity is up more than 80 percent since 1973.

It used to be we had a grand bargain in this country. As labor increased productivity, as they did more, as businesses and stockholders were able to benefit from the increased productivity, they benefited. Now it is in inverse proportion. On the sweat and their backs, they have increased productivity, and they have been penalized for it.

Even in my State of Delaware, the hourly wage is down since 2000. The median family income is below its 2000 level. The number of workers represented and protected by unions has fallen from 1 in 4 in 1973 to 1 in 10 today. The basic social compact that built our economy, that built our middle class, that built our country after World War II, has been broken. That compact said if workers produce more, they would share in the gains. Today, that is not true. Unions help to cut that deal, and they kept their end of the bargain. Business and government have not kept their part of the deal.

It is harder now to organize, harder to get a union certified to represent the interests of the workers. It is harder because business is fighting back harder because this administration has launched its own unrelenting attack on the union movement. It is not just pay that has taken a hit. Basic benefits such as health care, pensions--things unions fought for and won--they are, more and more, just a thing of the past.

More and more of the American people have no health insurance--46 million as of last year--a number that just keeps growing. In my State of Delaware there are 100,000 uninsured.

Just imagine the fear, the insecurity, the helplessness that the families must feel, going from day to day--the man lying in bed and the woman lying in bed at night staring at the ceiling, having no insurance, looking over at his pregnant wife, knowing it is a premature child, and they will literally lose their house.

I yield myself 3 more minutes.

Madam President, a quarter of a century ago, 9 out of 10 American workers could count on a pension plan with a guaranteed payout. They had security in knowing they could pay their bills. Today, only about one-third of Americans are in that shape.

Union membership means more security. The facts are clear. Union jobs earn 30 percent more than nonunion jobs.

We have to stop and reverse the decline of union membership, and that means passing the Employee Free Choice Act, which I have supported from the beginning, and which used to exist.

In Delaware right now the Laborers International Union of North America says the majority of the workers at the Walker International Transportation Company near my home in New Castle, DE, want to join them. They want to join because they need the benefits such as decent health care, pay, and working conditions for which unions have fought. Since May, the union has filed four complaints with the NLRB, complaints that the company is interfering with their organizing efforts.

Under current law, this process could be drawn out indefinitely. They should be able to resolve this with a clear, simple count of cards, certified by the National Labor Relations Board.

The Employee Free Choice Act will make the will of the majority of workers clearer. It will punish employers who break the law, and it will guarantee that new unions will get their first contract, not just another runaround.

It is time to bring the strength of the union movement back within the reach of the American people. It is time to rebuild the middle class by giving organized labor the strength to fight for decent pay and benefits.

My colleagues, it is time for a new social compact, a new social compact because of white-collar workers who never thought they needed a union, and who all of a sudden are finding out their companies are not so generous with them when they walk in and shut down a division and shut them out. I say to my colleagues, I believe American white-collar workers who never thought about the union movement are prepared to think about it now.

I don't want to just reverse the slide of organized labor in America, I want to energize a new compact between white-collar workers and blue- collar workers to give back power to the middle class so this graph you see here from the year 2008 through 2020 looks more like this graph that existed from

1947 to 1973. It is the only way to keep the middle class in the game. They are getting crushed now. They are getting crushed.

I yield the floor, and I thank my colleague for the time.