Committee on Education and the Workforce

Testimony of Nancy Schiffer
before the
U.S. House of Representatives
Education and Workforce Committee
Subcommittee on Employer-Employee Relations

April 22, 2004

Thank you for inviting me to testify before the Subcommittee today, my name is Nancy Schiffer, I am the AFL-CIO Associate General Counsel.

Although the notices of today’s hearing do not specify a pending legislative initiative, it gives me an opportunity to speak to pending labor law reform legislation introduced in the 108th Congress by Representative George Miller and Senator Edward Kennedy, the Employee Free Choice Act H.R. 3619 and S. 1925, these members have been joined by over 200 of their colleagues as co-sponsors, 180 Representatives and 30 Senators.

The National Labor Relations Act’s (NLRA) stated purpose and intent was not simply to permit, but explicitly to encourage worker self-organization for representation in collective bargaining with their employers. Even with the changes to the law that were effected by the Taft Hartley Amendment in 1947, this continued to be our nation’s official, primary goal of its labor-relations policy, as reflected in the preamble of the Act. Unfortunately, in recent times the Act has been too often hijacked by employers and their agents who espouse a "union-free environment", to the detriment of working families.

Today U.S. workers have effectively lost their internationally recognized right to form a union for the purpose of self-organization to advance their common interests in the workplace. Yet, just as much as when the NLRA was passed, workers today need and try to form unions to gain an independent voice in the workplace, and to ensure they are rewarded and fairly compensated for their labor, that the gains of their productivity are shared equitably. Indeed, as U.S. workers today face wage depression, they need unions and collective bargaining more than every, as an ever-increasing number of them are uninsured and must rely on publicly financed health care services because they lack employer provided health care. Similarly, fewer and fewer workers have guaranteed pensions.

Meanwhile, union workers earn 27% more than non-union workers. Union workers are 53% more likely to have medical insurance through their job. Union workers are nearly four times as likely to have a guaranteed pension, according to the U.S. Department of Labor, Bureau of Labor Statistics. And recent surveys show that some 42 million non-union workers would like to have a union.

The bitter reality, however, is that U.S. workers typically face insurmountable employer opposition today when they seek to form a union. According to NLRB statistics, in 1969, the number of workers who suffered retaliation for union activities was just over 6,000. By the 1990s, more than 20,000 workers each year were victims of discrimination when they tried to organize a union. Sadly, it has too often become an acceptable business practice to threaten, intimidate and discharge workers who seek to join with their fellow workers for self-representation. And as employers and their union busting consultants know full well, the discharge of one worker has a chilling effect on an entire organizing campaign, when workers have no job protection or recourse.

Furthermore, even without firing workers who try to organize, the well-advised employer knows how to manipulate the NLRB election process in such a way as to turn the concept of democratic free choice on its head. To appreciate how easy this is to do, consider the differences between an NLRB election and an American civic election. First, imagine a regular civic election for political office where only the incumbent has the voter file, and with it, unfettered, unregulated access to the voters. The challenger, meanwhile, must rely on personal introductions outside the boundaries of the state or district involved, or must stand by the border to that district as voters drive by and try to flag them down. Imagine further the election being held the incumbent candidate’s party offices, with voters escorted to the polls by the incumbent’s staff. Imagine finally that during the entire course of the campaign, the incumbent has sole authority to electioneer among voters during at their place of employment and during their work time, and further has the right to have these voters deported (or fired) if they refuse to listen to this one-sided electioneering.

Needless to say, NLRB elections are conducted in an inherently coercive environment – the workplace. The employer, not the union, has ultimate power over employees. Only the employer has the ability to withhold wages or grant increases in salary, assign work and shifts, and ultimately discharge workers – the capital punishment of the workplace.

In the end, even when conducted by NLRB staff as professionally as possible, elections under the NLRA are not democratic, because the workplace is not democratic.

The Employee Free Choice Act is intended to remove these obstacles and at the same time improve cooperation between employees and employers by eliminating the requirement of mandatory voting when the majority of workers has already expressed its decision to self-organize. Under current laws, it is perfectly legal for a majority of employees to choose union representation without the need for an election; however, as it now stands, their employee has the right to veto their decision, absent an NLRB election. In civil society we regularly encourage participation and membership in other organizations: book and sporting clubs, religious organizations, and advocacy groups which further our collective and individual interests. In keeping with one long-declared federal policy of encouraging workers to organize and bargain collectively, we should make it no more difficult for them to form labor unions.

The Employee Free Choice Act would restore the original intent of our nation’s public policy under the National Labor Relations Act by doing three things.

First, the legislation would provide for majority verification of a union when employees express their desire by signing authorizations. When the NLRB finds that a majority of employees have signed authorizations, their employer would be required to recognize and bargain with the employees’ union. This procedure, commonly known as “card check” has always been legal under the NLRA. However under current law, private sector employers can insist on an NLRB-supervised election process, even after a majority of workers have demonstrated their desire by signing authorizations. Majority verification through authorizations is more democratic than NLRB elections, because it requires a true majority of the eligible voters. In NLRB elections, like political elections, there is no guarantee that all who are eligible to vote will vote. Under majority verification the workers must show that a majority of workers have signed authorizations.

In an NLRB election, which can often take several months or more, the employer is free to wage a campaign where employees are intimidated, threatened, spied upon, harassed, and—in a quarter of all cases—fired, in order to suppress the formation of a union. No less an authority than Human Rights Watch finds that the fundamental human right of America’s workers to form unions is seriously infringed upon as a result. The Employee Free Choice Act will enable workers to form unions without going through the meat-grinder of an NLRB election campaign, once a majority of workers sign authorizations demonstrating their desire to form a union.

Second, the Employee Free Choice Act would provide for first contract mediation and arbitration conducted by the Federal Mediation and Conciliation Service (FMCS). Employers who never wanted a union in the first instance too often deny workers the benefits of collective bargaining by refusing to bargain a contract, and current law provides no meaningful remedy. The legislation will give both parties access to mediation and after that, binding arbitration, if a first contract has not been negotiated voluntarily within a reasonable period.

Finally, the legislation would create meaningful penalties for violations of the Act. The bill would not restrict employer free speech, but would ensure the employer speech is not coercive or threatening, or intended to deter employee free choice. Under current law discipline or discharge of workers for union activity, threats to close or move the workplace, harassment and intimidation of workers at “captive audience” or one-on-one meetings with supervisors on work time, interrogation and surveillance of workers suspected of wanting to form a union are all technically illegal under the NLRA. However, there are no real penalties for these and other forms of illegal employer conduct to serve as a deterrent.

For example, the number of instances of illegal discipline or discharge of workers for union activity documented by the NLRB skyrocketed from 1,000 per year in the early 1950s to 15,000-25,000 annually in recent years. In the case of an employer who has been found to have discharged a worker in violation of the Act, the only penalty is back pay – less mitigation for earnings received while the case was pending. On average, for the employer, this means merely a $3,000 penalty and a cease-and-desist posting. Since employers know they face such an insignificant cost, if they are found to have violated workers rights, violations to thwart organizing campaigns have increasingly become seen as an acceptable cost of doing business.

The Employee Free Choice Act would provide for triple back pay awards to workers found to have been illegally fired. The legislation changes the penalty for threats and other illegal employer conduct from posting a cease-and-desist order in the workplace to fines of up to $20,000 per infraction. The bill provides for the same kind of timely injunctive relief against egregious illegal employer conduct that employers have enjoyed since 1947 against illegal union conduct.

The Employee Free Choice Act is needed to address a severe violation of human rights: the pervasive denial of America’s workers’ freedom to form unions and bargain collectively. The harm caused by this denial of fundamental rights is serious, not only for workers and their families but for the entire nation. It suppresses wages, health care and pension coverage, as well as justice and dignity on the job, for union and non-union workers alike. It widens race and gender pay gaps, worsens economic inequality, harms political participation, erodes the safety net, and coarsens our society.

Individual U.S. workers, now more than ever, should have the freedom to join with their fellow workers for self-representation to achieve better wages, pensions and benefits. Employers interference in their employees’ decision whether to seek union representation should not be tolerated. In the past decade we have seen significant wage and earning erosion, job loss, and corporate scandals that have devastated worker pensions and job security. It is time to restore the rights of workers to choose to self-organize and join a union for the purposes of collective bargaining.

The Employee Free Choice Act would reform the NLRA so that when a majority of workers demonstrate their choice to form a union their representative can be certified by the NLRB without the need for the NLRB election process. The legislation would also guarantee effective and efficient collective bargaining, and create real penalties as a determent to unlawful employer conduct. We urge your support of the Employee Free Choice Act, S. 1925/H.R. 3619. Thank you for this opportunity to address the committee.