59–006 

110TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 1st Session 110–23 

EMPLOYEE FREE CHOICE ACT OF 2007 

FEBRUARY 16, 2007.—Committed to the Committee of the Whole House on the State 

of the Union and ordered to be printed 

Mr. GEORGE MILLER of California, from the Committee on 

Education and Labor, submitted the following 

R E P O R T 

together with 

MINORITY VIEWS 

[To accompany H.R. 800] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Education and Labor, to whom was referred 

the bill (H.R. 800) to amend the National Labor Relations Act to 

establish an efficient system to enable employees to form, join, or 

assist labor organizations, to provide for mandatory injunctions for 

unfair labor practices during organizing efforts, and for other purposes, having considered the same, report favorably thereon with 

an amendment and recommend that the bill as amended do pass. 

The amendment is as follows: 

Strike all after the enacting clause and insert the following: 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘Employee Free Choice Act of 2007’’. 

SEC. 2. STREAMLINING UNION CERTIFICATION. 

(a) IN GENERAL.—Section 9(c) of the National Labor Relations Act (29 U.S.C. 

159(c)) is amended by adding at the end the following: 

‘‘(6) Notwithstanding any other provision of this section, whenever a petition shall 

have been filed by an employee or group of employees or any individual or labor 

organization acting in their behalf alleging that a majority of employees in a unit 

appropriate for the purposes of collective bargaining wish to be represented by an 

individual or labor organization for such purposes, the Board shall investigate the 

petition. If the Board finds that a majority of the employees in a unit appropriate 

for bargaining has signed valid authorizations designating the individual or labor 

organization specified in the petition as their bargaining representative and that no 

other individual or labor organization is currently certified or recognized as the exclusive representative of any of the employees in the unit, the Board shall not direct 

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an election but shall certify the individual or labor organization as the representative described in subsection (a). 

‘‘(7) The Board shall develop guidelines and procedures for the designation by employees of a bargaining representative in the manner described in paragraph (6). 

Such guidelines and procedures shall include—

(A) model collective bargaining authorization language that may be used for 

purposes of making the designations described in paragraph (6); and 

(B) procedures to be used by the Board to establish the validity of signed authorizations designating bargaining representatives.′′. 

(b) CONFORMING AMENDMENTS.—

(1) NATIONAL LABOR RELALTIONS BOARD.—Section 3(b) of the National Labor 

Relations Act (29 U.S.C. 153(b)) is amended, in the second sentence—

(A) by striking ‘‘and to’’ and inserting ‘‘to’’; and 

(B) by striking ‘‘and certify the results thereof,’’ and inserting ‘‘, and to 

issue certifications as provided for in that section,’’. 

(2) UNFAIR LABOR PRACTICES.—Section 8(b) of the National Labor Relations 

Act (29 U.S.C. 158(b)) is amended—

(A) in paragraph (7)(B) by striking ‘‘, or’’ and inserting ‘‘or a petition has 

been filed under section 9(c)(6), or’’; and 

(B) in paragraph (7)(C) by striking ‘‘when such a petition has been filed’’

and inserting ‘‘when such a petition other than a petition under section 

9(c)(6) has been filed’’. 

SEC. 3. FACILITATING INITIAL COLLECTIVE BARGAINING AGREEMENTS. 

Section 8 of the National Labor Relations Act (29 U.S.C. 158) is amended by adding at the end the following: 

‘‘(h) Whenever collective bargaining is for the purpose of establishing an initial 

agreement following certification or recognition, the provisions of subsection (d) 

shall be modified as follows: 

‘‘(1) Not later than 10 days after receiving a written request for collective bargaining from an individual or labor organization that has been newly organized 

or certified as a representative as defined in section 9(a), or within such further 

period as the parties agree upon, the parties shall meet and commence to bargain collectively and shall make every reasonable effort to conclude and sign a 

collective bargaining agreement. 

‘‘(2) If after the expiration of the 90-day period beginning on the date on 

which bargaining is commenced, or such additional period as the parties may 

agree upon, the parties have failed to reach an agreement, either party may notify the Federal Mediation and Conciliation Service of the existence of a dispute 

and request mediation. Whenever such a request is received, it shall be the duty 

of the Service promptly to put itself in communication with the parties and to 

use its best efforts, by mediation and conciliation, to bring them to agreement. 

‘‘(3) If after the expiration of the 30-day period beginning on the date on 

which the request for mediation is made under paragraph (2), or such additional period as the parties may agree upon, the Service is not able to bring 

the parties to agreement by conciliation, the Service shall refer the dispute to 

an arbitration board established in accordance with such regulations as may be 

prescribed by the Service. The arbitration panel shall render a decision settling 

the dispute and such decision shall be binding upon the parties for a period of 

2 years, unless amended during such period by written consent of the parties.’’. 

SEC. 4. STRENGTHENING ENFORCEMENT. 

(a) INJUNCTIONS AGAINST UNFAIR LABOR PRACTICES DURING ORGANIZING

DRIVES.—

(1) IN GENERAL.—Section 10(l) of the National Labor Relations Act (29 U.S.C. 

160(l)) is amended—

(A) in the second sentence, by striking ‘‘If, after such’’ and inserting the 

following: 

‘‘(2) If, after such’’; and (B) by striking the first sentence and inserting the following: 

‘‘(1) Whenever it is charged—

‘‘(A) that any employer—

‘‘(i) discharged or otherwise discriminated against an employee in violation of subsection (a)(3) of section 8; 

‘‘(ii) threatened to discharge or to otherwise discriminate against an employee in violation of subsection (a)(1) of section 8; or 

‘‘(iii) engaged in any other unfair labor practice within the meaning of 

subsection (a)(1) that significantly interferes with, restrains, or coerces employees in the exercise of the rights guaranteed in section 7; 

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while employees of that employer were seeking representation by a labor organization or during the period after a labor organization was recognized as a representative defined in section 9(a) until the first collective bargaining contract is entered 

into between the employer and the representative; or 

‘‘(B) that any person has engaged in an unfair labor practice within the meaning of subparagraph (A), (B) or (C) of section 8(b)(4), section 8(e), or section 

8(b)(7); 

the preliminary investigation of such charge shall be made forthwith and given priority over all other cases except cases of like character in the office where it is filed 

or to which it is referred.’’. 

(2) CONFORMING AMENDMENT.—Section 10(m) of the National Labor Relations 

Act (29 U.S.C. 160(m)) is amended by inserting ‘‘under circumstances not subject to section 10(l)’’ after ‘‘section 8’’. 

(b) REMEDIES FOR VIOLATIONS.—

(1) BACKPAY.—Section 10(c) of the National Labor Relations Act (29 U.S.C. 

160(c)) is amended by striking ‘‘And provided further,’’ and inserting ‘‘Provided 

further, That if the Board finds that an employer has discriminated against an 

employee in violation of subsection (a)(3) of section 8 while employees of the employer were seeking representation by a labor organization, or during the period 

after a labor organization was recognized as a representative defined in subsection (a) of section 9 until the first collective bargaining contract was entered 

into between the employer and the representative, the Board in such order shall 

award the employee back pay and, in addition, 2 times that amount as liquidated damages: Provided further,’’. 

(2) CIVIL PENALTIES.—Section 12 of the National Labor Relations Act (29 

U.S.C. 162) is amended—

(A) by striking ‘‘Any’’ and inserting ‘‘(a) Any’’; and 

(B) by adding at the end the following: 

‘‘(b) Any employer who willfully or repeatedly commits any unfair labor practice 

within the meaning of subsections (a)(1) or (a)(3) of section 8 while employees of the 

employer are seeking representation by a labor organization or during the period 

after a labor organization has been recognized as a representative defined in subsection (a) of section 9 until the first collective bargaining contract is entered into 

between the employer and the representative shall, in addition to any make-whole 

remedy ordered, be subject to a civil penalty of not to exceed $20,000 for each violation. In determining the amount of any penalty under this section, the Board shall 

consider the gravity of the unfair labor practice and the impact of the unfair labor 

practice on the charging party, on other persons seeking to exercise rights guaranteed by this Act, or on the public interest.’’. 

PURPOSE

H.R. 800, the Employee Free Choice Act of 2007, seeks to 

strengthen and expands the American middle class by restoring 

workers’ freedom to organize and collectively bargain under the 

National Labor Relations Act (NLRA). The bill reforms the NLRA 

to provide for union certification through simple majority sign-up 

procedures, first contract mediation and binding arbitration, and 

tougher penalties for violations of workers’ rights during organizing 

and first contract drives. The Employee Free Choice Act of 2007 

furthers the long-standing policy of the United States to encourage 

the practice of collective bargaining and to protect the exercise by 

workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose 

of negotiating the terms and conditions of their employment or 

other mutual aid or protection. 

COMMITTEE ACTION

108TH CONGRESS

The Employee Free Choice Act was first introduced during the 

108th Congress. On November 21, 2003, Representative George 

Miller (D–CA), then Ranking Member of the Committee, introduced 

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H.R. 3619. A companion bill, S. 1925, was introduced in the Senate 

by Senator Edward M. Kennedy (D–MA) at the same time. H.R. 

3619 garnered 209 cosponsors, both Democratic and Republican. It 

was referred to the Committee on Education and the Workforce 

and the Subcommittee on Employer-Employee Relations. 

Neither the full Committee nor the Subcommittee took any direct 

action on the bill. The Subcommittee, however, conducted several 

hearings which either featured references to the Employee Free 

Choice Act or raised issues related to the Employee Free Choice 

Act—particularly union organizing issues. On April 22, 2004, the 

Subcommittee conducted a hearing on ‘‘Developments in Labor 

Law: Examining Trends and Tactics in Labor Organization Campaigns.’’ On May 10, 2004, the Subcommittee conducted a field 

hearing in Round Rock, Texas, on ‘‘Examining Union ‘Salting’

Abuses and Organizing Tactics that Harm the U.S. Economy.’’ And 

on September 30, 2004, the Subcommittee held a hearing on ‘‘H.R. 

4343, The Secret Ballot Protection Act of 2004.’’

109TH CONGRESS

On April 19, 2005, the Employee Free Choice Act was re-introduced in the 109th Congress as H.R. 1696 by Representative 

George Miller, then Ranking Member of the Committee, joined by 

Representative Peter King (R–NY) as a lead co-sponsor. At the 

same time, Senator Kennedy introduced its Senate companion, S. 

842, joined by Senator Arlen Specter (R–PA) as a lead co-sponsor. 

In the House of Representatives, the Employee Free Choice Act 

garnered 214 co-sponsors, both Democratic and Republican. H.R. 

1696 was referred to the Committee on Education and the Workforce and the Subcommittee on Employer-Employee Relations. 

Neither the full Committee nor the Subcommittee took any action on the bill. Democratic Members of the Committee, however, 

conducted field forums on the Employee Free Choice Act. For example, on June 13, 2005, Representative George Miller, then-Ranking Member on the full Committee, joined Representative Rosa 

DeLauro (D–CT) in New Haven, Connecticut, for a field forum on 

local organizing issues and the Employee Free Choice Act. On June 

27, 2005, Representative Robert Andrews (D–NJ), then-Ranking 

Member on the Subcommittee on Employer-Employee Relations, 

conducted a field forum on local organizing issues and the Employee Free Choice Act in Trenton, New Jersey, and was joined by 

other Members of the New Jersey congressional delegation, including Committee Members Donald Payne (D–NJ) and Rush Holt (D– NJ). On April 20, 2006, Representative George Miller conducted 

another field forum on the Employee Free Choice Act in Sacramento, California. There, he was joined by Representative Doris 

Matsui (D–CA). In each of these forums, Members of Congress 

heard from workers attempting to organize unions and expert witnesses on organizing and collective bargaining rights. 

110TH CONGRESS

First Economic Hearing: The State of the Middle Class 

On January 31, 2007, the Committee on Education and Labor 

conducted its first full Committee hearing of the new Congress. 

This hearing, ‘‘Strengthening America’s Middle Class: Evaluating 

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the Economic Squeeze on America’s Families,’’ provided the Committee with an overview of the state of the American middle class. 

The Committee heard testimony describing the scope and causes of 

the middle class squeeze, i.e., the combination of downward pressures on wages and benefits and the rising costs of basic family necessities, such as energy, housing, health care, and education. Witnesses included Professor Jacob Hacker, a professor and author at 

Yale University; Ms. Rosemary Miller, a flight attendant and middle class mother; Professor Eileen Appelbaum, the Director of the 

Center for Women and Work at Rutgers University; Ms. Diana 

Furchtgott-Roth, the Director of the Center for Employment Policy 

at the Hudson Institute; Ms. Kellie Johnson, President of ACE 

Clearwater Enterprises, Inc., and Dr. Christian Weller, a senior 

economist at the Center for American Progress. 

Second Economic Hearing: Economic Solutions to the Middle Class 

Squeeze 

On February 7, 2007, the Committee on Education and Labor 

conducted its second full Committee hearing of the new Congress. 

This hearing, ‘‘Strengthening America’s Middle Class: Finding Economic Solutions to Help America’s Families,’’ served as the second 

part of the January 31 hearing. In this hearing, building on what 

was learned about the state of the middle class, Members and witnesses explored what could be done to alleviate the middle class 

squeeze and strengthen and expand the middle class. Witnesses 

testified about the need for fairer trade policies, stronger protections for workers’ fundamental rights, more rigorous training and 

education for a high skills, high wage economy, and a greater commitment to comprehensive health care reform. These witnesses included Mr. Richard L. Trumka, Executive Vice President of the 

AFL–CIO; Dr. Judy Feder, Dean of the Georgetown Public Policy 

Institute at Georgetown University; Mr. William T. Archey, President and Chief Executive Officer of AeA; and Dr. Lynn A. Karoly, 

senior economist at the RAND Corporation. 

Introduction of the Employee Free Choice Act 

On February 5, 2007, the Employee Free Choice Act, as H.R. 

800, was re-introduced in the 110th Congress by Chairman George 

Miller, joined by 230 original co-sponsors, including Representative 

Peter King (R–NY) as a lead co-sponsor. In the following days, the 

number of co-sponsors increased to 234, including both Democratic 

and Republican co-sponsors. 

Subcommittee Hearing on the Employee Free Choice Act 

On February 8, 2007, the Subcommittee on Health, Employment, 

Labor, and Pensions (HELP), led by Chairman Robert Andrews (D–

NJ), conducted a legislative hearing on H.R. 800, ‘‘Strengthening 

America’s Middle Class through the Employee Free Choice Act.’’

This hearing featured testimony from two panels of witnesses. The 

first panel consisted of three workers who have attempted to form 

unions in their workplaces, namely, Mr. Keith Ludlum, an employee of Smithfield Foods in Tar Heel, North Carolina; Mr. Ivo 

Camilo, a retired employee of Blue Diamond Growers in Sacramento, California; and Ms. Teresa Joyce, an employee of 

Cingular Wireless in Lebanon, Virginia; as well as a former union 

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organizer who is currently a union avoidance consultant for employers, Ms. Jennifer Jason, founder of Six Questions Consulting 

LLC and formerly with UNITE–HERE. These witnesses discussed 

their experiences in attempting to organize unions. The second 

panel consisted of two labor lawyers, a labor economist, and a political scientist, namely, Ms. Nancy Schiffer, associate general counsel 

at the AFL–CIO; Mr. Charles Cohen, a former member of the National Labor Relations Board, speaking on behalf of the U.S. Chamber of Commerce; Professor Harley Shaiken, a labor economist at 

the University of California-Berkeley; and Professor Gordon Lafer, 

a political scientist at the University of Oregon. These witnesses 

discussed the bill. 

Full Committee Mark-Up of the Employee Free Choice Act 

On February 14, 2007, the Committee on Education and Labor 

met to markup H.R. 800, the Employee Free Choice Act. The Committee adopted by voice vote an amendment in the nature of a substitute offered by Mr. Andrews. Thirteen other amendments were 

offered and debated. None of those amendments were adopted. The 

Committee voted to favorably report H.R. 800, by a vote of 26–19. 

SUMMARY

H.R. 800, the Employee Free Choice Act, consists of three basic 

provisions: 

1. The majority sign-up certification provision provides for 

certification of a union as the bargaining representative of the 

National Labor Relations Board finds that a majority of employees in an appropriate unit has signed valid authorizations 

designating the union as its bargaining representative. This 

provision requires the Board to develop model authorization 

language and procedures for establishing the validity of signed 

authorizations. 

2. The first contract mediation and arbitration provision provides that if an employer and a union are engaged in bargaining for their first contract and are unable to reach agreement within 90 days, either party may refer the dispute to the 

Federal Mediation and Conciliation Service (FMCS) for mediation. If the FMCS has been unable to bring the parties to 

agreement after 30 days of mediation, the dispute will be referred to arbitration and the results of the arbitration shall be 

binding on the parties for two years. Time limits may be extended by mutual agreement of the parties. 

3. The penalties provision makes the following new provisions applicable to violations of the NLRA committed by employers against employees during any period while employees 

are attempting to organize a union or negotiate a first contract 

agreement: 

a. Just as the NLRB is required to seek a federal court 

injunction against a union whenever there is reasonable 

cause to believe that the union has violated the secondary 

boycott prohibitions of the NLRA, the NLRB must seek a 

federal court injunction against an employer whenever 

there is reasonable cause to believe that the employer has 

discharged or discriminated against employees, threatened 

to discharge or discriminate against employees, or engaged 

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1 29 U.S.C. 151 et seq. 

in conduct that significantly interferes with employee 

rights during an organizing or first contract drive. Likewise, this provision authorizes the courts to grant temporary restraining orders and other appropriate injunctive 

relief. 

b. An employer must pay three times backpay when an 

employee is unlawfully discharged or discriminated 

against during an organizing or first contract drive. 

c. The NLRB may impose civil fines of up to $20,000 per 

violation against employers found to have willfully or repeatedly violated employees’ rights during an organizing or 

first contract drive. 

COMMITTEE VIEWS

The Committee on Education and Labor of the 110th Congress 

is committed to strengthening and expanding the American middle 

class. The middle class is the backbone of this country’s strong 

economy and vibrant democracy. A strong middle class is critical 

to the long-term prosperity and stability of the United States. 

The Employee Free Choice Act of 2007 is—in the final analysis—

about saving the American Dream for millions of hard working 

families who struggle every day to pay for the basics, pay for 

health care when there is a family illness, to build a nest egg for 

their future, and to get their children to college in the face of skyrocketing college costs. 

To this challenge, Congress must act decisively on behalf of millions of hard working middle class workers who see the American 

Dream slipping from their reach. 

The Employee Free Choice Act is about giving workers basic dignity and respect in their workplace—a tradition that is deeply rooted in our nation’s history. It is about allowing employees to make 

their own decision about whether they want to bargain together— to advocate for fairer wages, benefits, and working conditions— without the threat or fear of harassment and retribution and fear 

of losing their livelihood. 

A HUMAN RIGHTS CRISIS

H.R. 800 addresses a human rights crisis that is a leading cause 

of the middle class squeeze. The freedom to form or join a labor 

union and engage in collective bargaining is an internationally-recognized human right. In the United States, the freedom of association is enshrined in the First Amendment of the Bill of Rights. 

While this freedom is often associated with political ventures, it is 

a long-standing American principle and tradition that working people may join together to improve their economic circumstances. The 

most explicit recognition of this principle for private sector workers 

in federal law is the 1935 Wagner Act, also known as the National 

Labor Relations Act (NLRA).1

Section 1 of the NLRA declares ‘‘it is the policy of the United 

States’’ to ‘‘encourage the practice and procedure of collective bargaining and to protect the exercise by workers of full freedom of association, self-organizing and designation of representatives of their 

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2 29 U.S.C. 151. 

3 29 U.S.C. 157. 

4 29 U.S.C. 158(a) and (b). 

5 29 U.S.C. 158(d). 

6 American Rights at Work website, at http://www.americanrightsatwork.org/resources/ 

23cite.cfm. 7Strengthening America’s Middle Class through the Employee Free Choice Act, Hearing Before the Subcommittee on Health, Employment, Labor & Pensions, 110th Cong., 1st Sess. (2007) 

(written testimony of Harley Shaiken, at 1, n.1) [hereinafter Shaiken Testimony]. 8Shaiken Testimony, at 1. 

9 John Schmitt & Ben Zipperer, ‘‘Dropping the Ax: Illegal Firings During Union Election Campaigns,’’ Center for Economic and Policy Research (January 2007), at 3 [hereinafter Schmitt & 

Zipperer]. 10Strengthening America’s Middle Class through the Employee Free Choice Act, Hearing Before the Subcommittee on Health, Employment, Labor & Pensions, 110th Cong., 1st Sess. (2007) 

(written testimony of Nancy Schiffer, at 3) [hereinafter Schiffer Testimony]. 11Michele Amber, ‘‘Union Membership Rates Dropped in 2006 to 12 Percent; Manufacturing 

Leads the Way,’’ BNA Daily Labor Report (January 26, 2007). 

own choosing, for the purpose of negotiating the terms and conditions of their employment, or other mutual aid or protection.’’ 2

The NLRA is a relatively straightforward law. Section 7 of the 

NLRA establishes the fundamental rights of workers to ‘‘self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the 

right to refrain from any or all of such activities. . .’’ 3 Section 8 

lays out a variety of prohibitions for both employer and union behavior. 4 For example, employers may not interfere with, coerce, intimidate, or discriminate against employees in the exercise of their 

Section 7 rights. The NLRA also requires employers to bargain in 

good faith with their employees’ exclusive bargaining representative, when a union is voluntarily recognized as such by the employer or certified as such by the National Labor Relations Board 

(NLRB), the agency which the NLRA establishes to administer and 

enforce the NLRA.5

WORKERS RIGHTS ARE UNDER ATTACK

For more than 70 years, workers’ freedom to organize and collectively bargain has depended upon the effectiveness of the NLRA. 

Today, the NLRA is ineffective, and American workers’ freedom to 

organize and collectively bargain is in peril everyday as a result. 

The numbers are staggering. Every 23 minutes, a worker is fired 

or otherwise discriminated against because of his or her union activity.6 According to NLRB Annual Reports between 1993 and 

2003, an average of 22,633 workers per year received back pay 

from their employers.7 In 2005, this number hit 31,358.8 A recent 

study by the Center for Economic and Policy Research found that, 

in 2005, workers engaged in pro-union activism ‘‘faced almost a 20 

percent chance of being fired during a union-election campaign.’’ 9

The number of workers awarded backpay by the NLRB also reveals a worsening trend. The NLRB provides backpay to workers 

who are illegally fired, laid off, demoted, suspended, denied work, 

or otherwise discriminated against because of their union activity. 

In 1969 a little over 6,000 workers received backpay because of illegal employer actions.10 That number has risen by 500 percent although the percentage of the private sector workforce that is unionized has declined over the same time period from nearly 30 percent 

to just 7.4 percent.11 In the 1970s, 1-in-100 pro-union workers acmstockstill on PROD1PC66 with HEARING

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12Schmitt & Zipperer, at 3. 13Kate Bronfenbrenner, ‘‘Uneasy Terrain: The Impact of Capital Mobility on Workers, Wages 

and Union Organizing,’’ (September 6, 2000). 14 Id. 15 Id. 16 Id. 17 Chirag Mehta & Nik Theodore, ‘‘Undermining the Right to Organize: Employer Behavior 

During Union Representation Campaigns,’’ A Report for American Rights at Work (December 

2005), at 5. 18 John Logan, ‘‘The Union Avoidance Industry in the United States,’’ British Journal of Industrial Relations (December 2006), at 651. 19For example, the Republican witness, presented as a former UNITE–HERE organizer in the 

February 8, 2007, HELP Subcommittee hearing on the Employee Free Choice Act, was paid 

$225,000 in one year, plus expenses, by Cintas, a company she formerly was trying to organize 

but had since taken on as a client for her union avoidance consulting firm. 20 John Logan, ‘‘The Fine Art of Union Busting,’’ New Labor Forum (Summer 2004), at 78. 21Steven Greenhouse, ‘‘How Do You Drive Out a Union? South Carolina Factory Provides a 

Textbook Case,’’ The New York Times (December 14, 2004). 

tively involved in an organizing drive was fired. Today, that number has doubled to about 1-in-53.12

The anti-union activities of employers have become far more sophisticated and brazen in recent history. Today, 25 percent of employers illegally fire at least one worker for union activity during 

an organizing campaign.13 Additionally, 75 percent of employers 

facing a union organizing drive hire anti-union consultants.14 During an organizing drive, 78 percent of employers force their employees to attend one-on-one meetings against the union with supervisors, while 92 percent force employees to attend mandatory, captive audience anti-union meetings.15 More than half of all employers facing an organizing drive threaten to close all or part of their 

plants.16

A 2005 study that focused on organizing campaigns in the Chicago metropolitan area found that 30 percent of employers fired 

workers engaging in union activities; 49 percent of employers 

threatened to close or relocate if the union won; and 82 percent of 

employers hired anti-union consultants to assist with their campaign against the union.17

The ‘‘union avoidance’’ industry—comprised of anti-union consultants who help employers defeat organizing drives or encourage 

the decertification of existing unions—is ‘‘worth several hundred 

million dollars per year.’’ 18 Companies intent on busting organizing 

drives pay top dollar to anti-union consulting and law firms. 19

These consultants wage highly sophisticated campaigns against 

workers trying to form a union. These campaigns may include such 

tactics as ‘‘captive speeches, employee interrogations, one-on-one 

meetings between employees and supervisors, ‘vote no’ committees, 

antiunion videos, threats of plant closures, and discriminatory discharges.’’ 20 A rare light was shed on the ‘‘union avoidance’’ industry in a 2004 New York Times expos ́e. According to the article, the 

battery company EnerSys had paid the anti-union law firm Jackson Lewis $2.7 million for its services—during which time the company, according to a federal complaint containing some 120 unfair 

labor practices, fired union leaders, assisted the anti-union campaign, improperly withdrew recognition from the union, and moved 

production to nonunion plants in retaliation for workers’ union activity. EnerSys later accused Jackson Lewis of malpractice for its 

advice, which Jackson Lewis denied. 21

This human rights crisis in the United States was highlighted in 

a 2000 Human Rights Watch report entitled ‘‘Unfair Advantage: 

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22 ‘‘Unfair Advantage: Workers’ Freedom of Association in the United States under International Human Rights Standards,’’ Human Rights Watch report (August 2000) [hereinafter 

Human Rights Watch Report]. 23 Id. 24Schiffer Testimony, at 1. 

Workers’ Freedom of Association in the United States under International Human Rights Standards,’’ Human Rights Watch warned: 

‘‘Workers’ freedom of association is at risk in the United States, 

with yet untold consequences for societal fairness.’’ 22 According to 

the report: 

A culture of near-impunity has taken shape in much of 

U.S. labor law and practice. Any employer intent on resisting workers’ self-organization can drag out legal proceedings for years, fearing little more than an order to post 

a written notice in the workplace promising not to repeat 

unlawful conduct. Many employers have come to view remedies like back pay for workers fired because of union activity as a routine cost of doing business, well worth it to 

get rid of organizing leaders and derail workers’ organizing 

efforts. 23

In her testimony before the HELP Subcommittee on February 8, 

2007, union-side labor lawyer Nancy Schiffer echoed this reality: 

At some point in my career . . . I could no longer tell 

workers that the [NLRA] protects their right to form a 

union. Because I knew that, despite the wording of the 

statute, in practice it does not. And I knew that they 

would have to be heroes to survive their organizing effort, 

just because they wanted to form a union so that they 

could bargain for a better life. 24

The ineffectiveness of the NLRA has put workers’ fundamental 

freedoms at risk. These developments have spurred a human rights 

crisis with real economic consequences for America’s middle class. 

THE ECONOMIC CONSEQUENCES OF THE HUMAN RIGHTS CRISIS

The rise of workers’ freedom to organize and collectively bargain 

dramatically expanded the middle class in 20th Century America. 

The decline of these freedoms has put the middle class at risk. 

Workers’ inability to join together and bargain for something better, or protect what they already have, has in part manifested itself 

in the middle class squeeze. 

The first two full Committee hearings of the 110th Congress examined the middle class squeeze and explored solutions to it. Witnesses in the first hearing, ‘‘Strengthening America’s Middle Class: 

Evaluating the Economic Squeeze on America’s Families,’’ held on 

January 31, 2007, described the state of the middle class. 

The middle class is less economically secure today than 30 years 

ago, as economic burdens and risks have shifted from corporate or 

government insurance programs to individuals and families. Witness Dr. Jacob Hacker, a professor of political science at Yale University and author of The Great Risk Shift, explained: ‘‘Over the 

last generation, we have witnessed a massive transfer of economic 

risk from broad structures of insurance, whether sponsored by the 

corporate sector or by government, onto the fragile balance sheets 

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25Strengthening America’s Middle Class: Evaluating the Economic Squeeze on America’s Families, Hearing Before the Committee on Education & Labor, 110th Cong., 1st Sess. (2007) 

(written testimony of Jacob Hacker) [hereinafter Hacker Testimony]. 26Strengthening America’s Middle Class: Evaluating the Economic Squeeze on America’s 

Families, Hearing Before the Committee on Education & Labor, 110th Cong., 1st Sess. (2007) 

(written testimony of Christian Weller) [hereinafter Weller Testimony]. 

of American families.’’ 25 Dr. Hacker presented research revealing 

a measurable increase in insecurity—not just a ‘‘growing gap between the rungs of our economic ladder’’ but a ‘‘growing risk of slipping from the ladder itself.’’ For example, the instability of family 

incomes has increased dramatically since the late 1960s. ‘‘You can 

be perfectly average—with an average income, an average-sized 

family, an average likelihood of losing your job or becoming disabled—and you’re still two-and-a-half times as likely to see your income plummet as an average person was thirty years ago,’’ explained Dr. Hacker. Personal bankruptcy filings have risen from 

less than 300,000 in 1980 to more than 2 million in 2005. The 

share of households seeing foreclosures on their homes has increased 500 percent since the early 1970s. Americans are burdened 

by personal debt, with the personal savings rate falling from approximately one-tenth of disposable income to virtually zero between the early 1970s and today. Meanwhile, the American middle 

class has been losing its access to employer-provided health insurance and guaranteed pensions. This insecurity ‘‘strikes at the very 

heart of the American Dream’’ but also acts as a drag on the economy in general. Individuals who feel insecure in their economic position are less likely to take on additional risks—such as career 

changes, new training and education, or entrepreneurial endeavors—which could benefit the economy overall. 

These points were supported by witness Dr. Christian Weller, a 

senior economist at the Center for American Progress. 26 He also 

presented research which found a growing level of financial insecurity among America’s middle class families. For example, according 

to Dr. Weller: ‘‘A substantially smaller share of typical dual income 

couples between the ages of 35 and 54 who earn between $18,500 

and $88,030 a year—those in the middle 60 percent of income distribution—were prepared for an emergency in 2004 (the last year 

complete data was available) than in 2001.’’ Such emergencies 

might include the sudden unemployment of a breadwinner or the 

sudden medical emergency of a family member. Dr. Weller also explained: ‘‘One of the foremost reasons for the erosion in middle 

class economic security is that families face a comparatively weak 

labor market despite a growing economy.’’ His research showed 

that, for the first time in any economic recovery, the initial stages 

of the most recent economic ‘‘recovery,’’ beginning in November 

2001, were marked by a sustained period of job loss. Between 2000 

and 2005, the share of people without any health insurance increased from 14.2 percent to 15.9 percent, and the share of people 

with employer-provided health insurance decreased from 63.6 percent to 59.5 percent. These structural changes pose an increasing 

threat to the middle class way of life. 

Today’s economy is imbalanced. Witness Dr. Eileen Appelbaum, 

Director of the Center for Women and Work at Rutgers University, 

testified that working people are not receiving their fair share of 

the wealth that has been created by economic growth and increased 

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27Strengthening America’s Middle Class: Evaluating the Economic Squeeze on America’s Families, Hearing Before the Committee on Education & Labor, 110th Cong., 1st Sess. (2007) 

(written testimony of Eileen Appelbaum) [hereinafter Appelbaum Testimony]. 28Strengthening America’s Middle Class: Evaluating the Economic Squeeze on America’s 

Families, Hearing Before the Committee on Education & Labor, 110th Cong., 1st Sess. (2007) 

(written testimony of Rosemary Miller) [hereinafter Miller Testimony]. 

productivity. 27 She explained: ‘‘American workers today produce 70 

percent more goods and services than they did at the end of the 

1970s. . . . The overwhelming majority of American families 

haven’t shared fairly in this bounty. Workers’ pay and benefits 

have lagged far behind the increase in productivity.’’ Her research 

pointed out that, since the start of 2001, an 18 percent increase in 

productivity has been accompanied by only a 3 percent increase in 

the average real hourly wages of workers, an increase ‘‘dwarfed by 

the increases in corporate profits and in the incomes of the very 

richest Americans.’’ Dr. Appelbaum suggested a number of prescriptions for tackling the middle class squeeze, including the Employee Free Choice Act. She explained: ‘‘Workers need a greater 

voice at work and the right to form unions if they so desire.’’ Witness Rosemary Miller, a flight attendant and mother, told the 

Committee her personal story of the middle class squeeze.28 After 

her employer declared bankruptcy, she saw ‘‘drastic wage and benefit reductions.’’ She said: ‘‘I am now working longer and longer 

days as well as having to spend more and more time away from 

home. I have had to miss some of my daughters’ school events that 

I vowed I would never miss because now I have to work longer in 

order to keep food on the table and a roof over our heads. But not 

only am I working longer; I’m earning less. My pension has been 

frozen. My benefits have been reduced.’’ She explained: ‘‘We are 

asking for livable wages, a home that we own, affordable health 

care, comfortable retirement security, and reasonable means to provide for our children’s college costs. It is obscene that in this country, among all others, it is such a struggle to simply live decently.’’ The Committee’s second economic hearing, ‘‘Strengthening America’s Middle Class: Finding Economic Solutions for America’s Families,’’ held on February 7, 2007, looked at a number of economic solutions to the middle class squeeze. All of these solutions complemented one another. For example, one solution forwarded at the 

hearing was the Innovation Agenda. Better training and education 

to ensure that workers have sufficient skills and knowledge for a 

higher-tech economy are necessary but not by themselves sufficient 

for tackling the middle class squeeze. Better training and education 

via the Innovation Agenda will ensure that qualified workers are 

available to fill the jobs of today and tomorrow. Without more, however, there is no guarantee that those jobs—whether service, manufacturing, or high-tech sector jobs—will be middle-class family-supporting jobs. To make those jobs good jobs, workers must be given 

a fair playing field on which to compete globally and a fair playing 

field on which to bargain for better wages, benefits, and working 

conditions. In this regard, the Committee heard testimony on the 

need for fairer trade practices to allow American workers and business to compete on a global scale and stronger enforcement of 

workers’ rights at home. Finally, the middle class squeeze is not 

fully addressed without solving the health care crisis—both the 

coverage crisis and the cost crisis. Testimony was also heard on 

policy proposals in this area. 

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29Strengthening America’s Middle Class: Finding Economic Solutions for America’s Families, 

Hearing Before the Committee on Education & Labor, 110th Cong., 1st Sess. (2007) (written testimony of Richard Trumka) [hereinafter Trumka Testimony]. 30This and subsequent statistics in this paragraph are attributed to the following sources: 

U.S. Department of Labor, Bureau of Labor Statistics, Union Members in 2006 (January 25, 

2007); U.S. Department of Labor, Bureau of Labor Statistics, National Compensation Survey: 

Employee Benefits in Private Industry in the United States (March 2006); Economic Policy Institute; Employee Benefits Research Institute (May 2005). 

The Employee Free Choice Act featured prominently as a key solution to the middle class squeeze in this hearing. Witness Richard 

L. Trumka, Executive Vice President of the AFL–CIO, testified: ‘‘The best opportunity for working men and women to get ahead 

economically is to unite with their co-workers to bargain with their 

employers for better wages and benefits.’’ 29 He pointed out that 

unionized workers earn 30 percent more than non-union workers, 

are 62 percent more likely to have employer-provided health care 

coverage, and are four times more likely to have guaranteed defined benefit pensions. According to Mr. Trumka, while nearly 60 

million workers say they would join a union if they could, the vast 

majority have not because of a broken system for forming unions 

and collective bargaining that does not protect workers’ fundamental rights. On behalf of the AFL–CIO, Mr. Trumka called specifically for Congress to pass the Employee Free Choice Act. He explained: ‘‘This legislation would represent an enormous step toward 

restoring balance between workers and their employers and helping repair the ruptured productivity-wage relationship.’’

UNIONS AND THE MIDDLE CLASS

The link between the Employee Free Choice Act and new hope 

for a more vibrant American middle class is evident in the numbers. By every measure, workers who join together to bargain for 

better wages, benefits, and working conditions do indeed receive 

better wages, benefits, and working conditions. This ‘‘union difference’’ is confirmed by the Bureau of Labor Statistics. Unionized 

workers’ median weekly earnings are 30 percent higher than nonunion workers’.30 This wage advantage is even more pronounced 

among women (31 percent union wage advantage), African Americans (36 percent union wage advantage), and Latinos (46 percent 

union wage advantage). Eighty percent of unionized workers have 

employer-provided health insurance, while only 49 percent of nonunion workers do. Sixty-eight percent of unionized workers have 

guaranteed pensions under a defined benefit plan, while only 14 

percent of nonunion workers do. Sixty-two percent of unionized 

workers have the protection of short-term disability benefits, while 

only 35 percent of nonunion workers do. Unionized workers have, 

on average, 15 days of paid vacation—time that can be taken to 

spend with family—compared to only 11.75 average days of paid 

vacation for nonunion employees. Unionized workers also almost 

invariably have the protection of just cause employment, while nonunion workers are typically at-will employees, open to firing or layoff for any legal reason or no reason at all. 

Unions, however, do not only benefit unionized workers. Strong 

unions set industry-wide standards that benefit workers across an 

industry, regardless of their union or nonunion status. Moreover, 

the threat of unionization often leads employers to attempt to 

match or approach union pay and benefit scales in order to discourmstockstill on PROD1PC66 with HEARING

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31Lawrence Mishel (with Matthew Walters), ‘‘How Unions Help All Workers,’’ Economic Policy 

Institute Briefing Paper (August 2003), at 1 [hereinafter Mishel]. 32 Henry S. Farber, ‘‘Are Unions Still a Threat? Wages and the Decline of Unions, 1973–2001,’’

Princeton University Working Paper (2002), at 1. 33Thomas C. Buchmueller, John DiNardo, & Robert G. Valletta, ‘‘Union Effects on Health Insurance Provision and Coverage in the United States,’’ San Francisco Federal Reserve Bank 

(1999). 34Paul Fronstin, ‘‘Union Status and Employment-Based Benefits,’’ EBRI Notes (May 2005). 35David Card, Thomas Lemieux, and W. Craig Riddell, ‘‘Unionization and Wage Inequality: 

A Comparative Study of the U.S., U.K., and Canada,’’ NBER Working Paper (February 2003). 36 John E. Baugher & J. Timmons Roberts, ‘‘Workplace Hazards, Unions & Coping Styles,’’ Labor Studies Journal (Summer 2004). 37Michael Ash & Jean Ann Seago, ‘‘The Effect of Registered Nurses’ Unions on Heart-Attack 

Mortality,’’ Industrial and Labor Relations Review (April 2004), at 422–442. See also Saul A. 

Rubenstein, ‘‘The Impact of Co-Management on Quality Performance: The Case of the Saturn 

Corporation,’’ Industrial and Labor Relations Review (January 2000). 38 Christos Doucouliagos & Patrice Laroche, ‘‘The Impact of U.S. Unions on Productivity: A 

Bootstrap Meta-analysis,’’ Proceedings of the Industrial Relations Research Association (2004); 

and ‘‘What Do Unions Do to Productivity: A Meta-Analysis,’’ Industrial Relations (October 2003). 

For an earlier study, see Charles Brown & James L. Medoff, ‘‘Trade Unions in the Production 

Process,’’ Journal of Political Economy (June 1978). 39Mishel, at 11–14. 40Shaiken Testimony, at 2. 

age unionization. A recent study found that, for example, a high 

school graduate who is not even a union worker but whose industry 

is at least 25 percent unionized will be paid 5 percent more than 

similar workers in less organized industries.31 A 2002 study found 

that ‘‘more than half of the decline in the average wage paid to 

workers with a high school education or less can be accounted for 

by the decline in union density.’’ 32 A 1999 study found that the 

drop in union density explained about 20 percent of the decline in 

the percentage of workers receiving employer-provided health insurance between 1983 and 1997.33 A 2005 report recently explained 

that ‘‘further erosion of unionization is likely to coincide with an 

overall erosion in the percentage of workers with employmentbased health benefits.’’ 34

The union difference extends into other areas as well. The rise 

in wage inequality in the U.S., particularly among men, has been 

linked to de-unionization.35 A 2004 study on workplace hazards 

produced findings suggesting that unions ‘‘could reduce job stress 

by giving workers the voice to cope effectively with job hazards.’’ 36

Unions improve product or service quality. For example, a 2004 

paper revealed that ‘‘[a]fter controlling for patient and hospital 

characteristics . . . hospitals with unionized R.N.’s have 5.5% 

lower heart-attack mortality than do non-union hospitals.’’ 37 Moreover, unions have been found to increase overall productivity.38

Unions, as the only organizations explicitly representing workers 

qua workers, have been instrumental in building and preserving 

nationwide and statewide systems of social insurance and worker 

protections, such as workers’ compensation and unemployment insurance, occupational safety and health standards, and wage and 

hour laws such as the minimum wage, the 40-hour workweek, and 

overtime premium pay.39 All Americans reap the benefits of these 

laws and programs, regardless of their union or nonunion status. 

Many of these points were laid out in the testimony of Professor 

Harley Shaiken at the February 8, 2007, HELP Subcommittee 

hearing on the Employee Free Choice Act. As Professor Shaiken explained: ‘‘[D]eclining unions fuel ‘the Great Disconnect’—rising productivity decoupled from wages.’’ 40 But Professor Shaiken went a 

step further. In his analysis, he found that ‘‘more robust unions’’

not only stem the middle class squeeze but ‘‘contribute to a ‘High 

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41 Id. 42 Id. at 5–8. 43 Id. at 8–9. 

Road Competitiveness’—a more broadly shared prosperity that benefits working families as well as consumers and shareholders.’’ 41

In his testimony, Professor Shaiken cited a number of studies 

showing how ‘‘unionization and productivity often go hand-inhand.’’ For example, greater fairness on the job and wages that reflect a company’s success lead to more motivated employees. 

Unions foster ‘‘greater commitment and information-sharing’’ between employees and management. A 1984 study found that approximately 20 percent of the union productivity effect resulted 

from lower turnover in unionized firms. This is not difficult to understand. As Professor Shaiken pointed out: ‘‘Lower turnover 

means lower training costs, and the experience of more seasoned 

workers translates into higher productivity and quality.’’ On a 

microeconomic level, Professor Shaiken cited a number of companies as examples of high-road competitiveness, where an employer 

respected workers’ rights, paid higher compensation, and achieved 

higher levels of productivity and quality. These examples included 

the New United Motor Manufacturing plant, Costco, Cingular 

Wireless, and the relationships between Culinary Local 226 and 

the hospitality industry in Las Vegas.42

Professor Shaiken concluded: 

The [Employee Free Choice Act] restores needed balance 

to a process that has become increasingly dysfunctional. 

As we have seen, denying workers the right to form a 

union has important consequences for the economy and the 

political process. Workers’ freedom to form unions is, and 

should be considered, a fundamental human right. All 

Americans lose—in fact, democracy itself is weakened—if 

the right to unionize is formally recognized but undermined in practice. Strengthening free choice in the workplace lays the basis for insuring a more prosperous economy and a healthier society.43

On every score, the collective bargaining process has produced 

better wages, benefits, and quality of life for America’s working 

families. The decline in collective bargaining—in workers’ ability to 

join together to press for a better deal—mirrors the tightening 

squeeze on the middle class. That decline also mirrors a rising tide 

of employer disregard for the law and for the fundamental rights 

of workers. 

THE NEED FOR THE EMPLOYEE FREE CHOICE ACT

H.R. 800, the Employee Free Choice Act, will help lift the middle 

class and help working people get ahead by restoring their freedom 

to organize and bargain for better wages, benefits, and working 

conditions. It does so by strengthening the nation’s labor law in 

three fundamental ways. 

THE NEED FOR INCREASED PENALTIES FOR VIOLATIONS OF WORKERS’ RIGHTS

Current penalties for employers who violate the NLRA are insufficient to enforce compliance with the law. Instead, many employmstockstill on PROD1PC66 with HEARING

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44 29 U.S.C. 160(c); NLRB Rules and Regulations, Sections 103.101 and 103.102(a); NLRB 

Casehandling Manual, Paragraph 10528 (reinstatement) and Paragraphs 10530–10546 (backpay). 45Schiffer Testimony, at 6. 46Strengthening America’s Middle Class through the Employee Free Choice Act, Hearing Before the Subcommittee on Health, Employment, Labor & Pensions, 110th Cong., 1st Sess. (2007) 

(written testimony of Keith Ludlum) [hereinafter Ludlum Testimony]. 47Strengthening America’s Middle Class through the Employee Free Choice Act, Hearing Before the Subcommittee on Health, Employment, Labor & Pensions, 110th Cong., 1st Sess. (2007) 

(written testimony of Ivo Camilo) [hereinafter Camilo Testimony]. 

ers treat those penalties as a mere cost of doing business to prevent their company from being unionized. When an employer fires 

a worker for his pro-union activities, the employee must file a 

charge with the NLRB. After what are often many years of appeals 

by the employer, the employee may finally prevail. Employers are 

only required to reinstate the employee, post a notice promising to 

never do it again, and pay the employee back wages minus what 

the worker earned or should have earned in the interim.44 In 2003, 

the average backpay amount was a mere $3800.45 While nearly 

cost-free, illegal firings are extremely effective in stopping an organizing drive, sending a chilling effect throughout the workforce. Additionally, for other serious violations, such as illegal threats to 

close the workplace if the union prevails, employers are merely 

subjected to a cease and desist order and notice posting. Again, this 

remedy is often imposed years later, once all appeals are exhausted. By that time, the violation has served its unlawful purpose of intimidating or coercing employees. 

The HELP Subcommittee heard from two witnesses in the February 8, 2007, hearing with direct experience in unlawful firings. 

Keith Ludlum began working at a Smithfield Foods meatpacking 

plant in Tar Heel, North Carolina, soon after returning from a tour 

of duty in Iraq during Operation Desert Storm.46 After experiencing and witnessing poor treatment of workers, Mr. Ludlum 

began trying to organize a union at the plant in December 1993. 

He testified that, in 1994, he was fired by the company for attempting to get his co-workers to sign union cards with the United Food 

and Commercial Workers (UFCW). He explained that supervisors 

and a deputy sheriff marched him out of the plant in front of his 

coworkers that day ‘‘as an example to intimidate them.’’ After more 

unlawful worker filings, a string of unfair labor practices, and 12 

years of litigation, Mr. Ludlum finally won his job back. In 2006, 

Smithfield settled to reinstate Mr. Ludlum and pay him backpay 

after the company was found liable by a U.S. Court of Appeals, for, 

among other things, assaulting, intimidating, firing, and unlawfully 

arresting workers who were trying to organize a union. Mr. 

Ludlum testified: ‘‘Smithfield was not fined or indicted for breaking 

the law and none of its executives were punished.’’ The Smithfield 

facility in Tar Heel, North Carolina, remains nonunion. 

Ivo Camilo worked as an electronic machine operator at the Blue 

Diamond Growers plant in Sacramento, California, for 35 years.47

He told the Subcommittee of how he started working with fellow 

employees on a union organizing drive in October 2004. On April 

15, 2005, he and his coworkers presented the company with a letter 

from the organizing committee, signed by 58 workers, including 

himself, demanding that their rights under the NLRA be respected. 

Less than a week later, Mr. Camilo, a leader of the organizing 

drive, was fired. In addition to firing Mr. Camilo, the company conmstockstill on PROD1PC66 with HEARING

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48 Commission of the Future of Worker-Management Relations (‘‘the Dunlop Commission’’), 

Fact Finding Report (1994), at 70 [hereinafter Dunlop Fact Finding]. 49 Human Rights Watch Report. 

ducted group captive audience meetings and one-on-one meetings 

between employees and their supervisors, where management 

threatened that, if the union won, workers could lose pensions and 

other benefits. They also threatened to close the plant if it unionized. Soon, two more workers were fired. In March 2006, an NLRB 

Administrative Law Judge issued a decision finding more than 20 

labor law violations by the company, including unlawfully firing 

Mr. Camilo and another worker. Under threat of a discretionary 

NLRA Section 10(j) injunction which could have put Mr. Camilo 

and his coworker back to work pending any appeal, the company 

relented and reinstated Mr. Camilo in May 2006. However, two 

more pro-union workers were fired in September 2006 soon after 

Mr. Camilo’s reinstatement. These unfair labor practice charges 

are awaiting decisions from the NLRB. In the end, compared to Mr. 

Ludlum and countless other workers fired for organizing a union, 

Mr. Camilo was one of the lucky ones—he was only out of his job 

for a little over a year. But, as Mr. Camilo put it, even under such 

circumstances: ‘‘Getting a union shouldn’t be so hard. We shouldn’t 

have to pay such a high price in hardship when our employers 

break the law.’’ The Blue Diamond Grower plant in Sacramento remains nonunion. 

Stories like Mr. Ludlum’s and Mr. Camilo’s are far too common 

in the United States and are unacceptable in a democracy that respects fundamental human rights, including workers’ freedom of 

association. While the hardship imposed by an unlawful firing on 

these individuals and their families is enough to demand action, 

these firings do not happen in a vacuum. The human rights violation is compounded by the fear and intimidation—fully intended by 

these unlawful acts—that spreads through the workplace when coworkers see pro-union activists fired or disciplined for speaking up. 

The firings have a chilling effect on any attempts to exercise workers’ basic, federally-protected right to organize. 

The remedies for unlawful employer activity during organizing 

and first contract drives, when workers are just beginning to understand and exercise their rights, are simply insufficient to deter 

unlawful behavior. This problem was apparent to the Congress 

three decades ago when the U.S. House of Representatives passed 

H.R. 8410, the Labor Reform Act of 1977, and the Senate came just 

two votes short of ending debate and passing the bill. The Labor 

Reform Act of 1977, like the Employee Free Choice Act, also stiffened penalties for workers’ rights violations. In the years since, numerous studies have drawn similar conclusions. The 1994 Dunlop 

Commission, for example, found that unlawful employer activity 

had increased five-fold since the 1950s, affecting 1-in-20 union election campaigns in 1951–55 and 1-in-4 union election campaigns in 

1986–90.48 In 2000, Human Rights Watch pointed out: ‘‘Many employers have come to view remedies like backpay for workers fired 

because of union activity as a routine cost of doing business, well 

worth it to get rid of organizing leaders and derail workers’ organizing efforts.’’ 49

In protecting fundamental human rights of workers, the NLRA’s 

remedial scheme fails miserably. Its offer of reinstatement and 

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50The Dunlop Commission found that most illegally discharged workers do not take up the 

offer of reinstatement. Dunlop Fact Finding, 71–72. 51 29 U.S.C. 160(j). 52 42nd through 69th NLRB Annual Reports (fiscal years 1977–2004); ‘‘Workers Rights Under 

Attack by Bush Administration: President Bush’s National Labor Relations Board Rolls Back 

Labor Protections,’’ Report by Honorable George Miller, Senior Democratic Member, Committee 

on Education and the Workforce, U.S. House of Representatives (July 13, 2006), at 18–19. 53 29 U.S.C. 160(l). 

backpay, minus interim earnings, to workers whose Section 7 

rights have been violated stands in stark contrast to other federal 

labor laws. The Fair Labor Standards Act, for instance, provides for 

double backpay to workers who are not paid proper overtime. Antidiscrimination statutes, such as Title VII of the Civil Rights Act of 

1964 and the Americans with Disabilities Act, provide for further 

compensatory damages, such as for emotional distress and inconvenience, as well as punitive damages. The remedial or punitive 

differences between the NLRA and these other statutes sends a 

disturbing message about the seriousness with which federal law 

treats workers’ organizing and collective bargaining rights violations. This lack of serious treatment has resulted in employers running roughshod over workers’ rights. It is time for the NLRA to be 

updated and strengthened. 

In the case of firings, it should be pointed out that, in addition 

to the problem of weak monetary penalties under the NLRA, the 

affirmative order of reinstatement is weakened by long delays. By 

the time the order is issued, the employee has likely moved on to 

other work or simply does not wish to return to the employer who 

treated him so unfairly.50 Under current law, the NLRB has the 

option—but not the requirement—to seek an injunction in federal 

court against unlawful employer activity.51 Such an injunction— known as a 10(j) injunction—might order a fired worker reinstated 

pending the outcome of her unfair labor practice charge. That option is rarely utilized by the NLRB and is today more rarely utilized than ever before. In the first four years of the George W. 

Bush Administration, for example, the NLRB filed just 69 injunctions, compared to 219 in President Clinton’s first term and 142 in 

President Clinton’s second term.52 By contrast, under current law, 

the NLRB is required to seek an injunction where there is reasonable cause to believe that a union has violated the NLRA’s secondary boycott prohibitions.53 In other words, while the NLRA currently mandates that the NLRB seek an injunction when a business fears negative economic repercussions from an allegedly unlawful picketing, it does not mandate an injunction request when 

a working family fears negative economic repercussions from an allegedly unlawful firing. This imbalance is in need of correction. 

Firings themselves are not the only labor law violations that 

anti-union employers find effective in battling organizing drives. 

Forms of fear and intimidation which fall short of firings or discipline are also frequently used. Although employers often illegally 

threaten to close plants, or unlawfully fire or discipline workers, 

the remedies under current law for such threats inadequate. Under 

current law, threats of that nature are punished merely with a 

cease and desist order and an order to post a notice in the workplace that the employer will not engage in those activities again. 

By the time the decision is issued and the order enforced—sometimes years later—the damage to workers’ organizing rights has 

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54Lawrence B. Lindsey, ‘‘Abrogating Workers’ Rights,’’ Wall Street Journal (February 2, 

2007). 

been long done. There is no fine. No backpay is awarded unless a 

worker was actually fired or disciplined in some manner that resulted in a loss of pay. 

Penalties for employers’ labor law violations must be enhanced 

and rendered more effective in deterring unlawful behavior. Even 

outright opponents of the Employee Free Choice Act have admitted 

as much. Lawrence B. Lindsey, an opponent of H.R. 800 and a visiting scholar at the American Enterprise Institute, wrote on February 2, 2007, that ‘‘it would be reasonable to stiffen the penalties 

for employers who break the law.’’ 54

Accordingly, as explained in more detail in the Section-by-Section 

Analysis of this Report, the Employee Free Choice Act increases 

the monetary penalty and injunctive remedies for illegal firings 

and discrimination against employees during any period while employees are attempting to organize a union or bargain a first contract. The Committee finds that seriously stiffening the penalties 

for violations of workers’ fundamental human rights is absolutely 

necessary to restore workers’ freedom to organize and collectively 

bargain. 

THE NEED FOR MAJORITY SIGN-UP CERTIFICATION

Under current law, employees generally have two means to obtain union representation. The employer, however, decides which 

means will be used: 

1. NLRB Election Process. If 30% of the workforce signs a 

petition or cards asking for union representation or an election, 

the NLRB will conduct an election. If a majority of those voting 

favor union representation, the NLRB certifies the union, and 

the employer must recognize and bargain with the union. This 

election process sets up the union and the employer as adversaries and is tilted dramatically in favor of the employer. 

2.Voluntary recognition (card check or majority sign-up). If a 

majority of the workforce signs cards asking for union representation, the employer may recognize the union and begin 

bargaining. The employer, however, is not required to recognize a union when a majority signs cards. Instead, the employer may insist that the employees undergo the NLRB election process described above. Given the advantages afforded in 

that election process, many employers do insist on an election,. 

Under majority sign-up, a union is formed only if a majority 

of all employees signs written authorization forms (compared 

to a majority of those who actually vote in an NLRB election). 

A worker who does not sign a card is presumed to not support 

the union. 

Majority-sign up has always been allowed under the NLRA. Indeed, the original framers of the NLRA viewed NLRB secret ballot 

elections as a tool for deciding between unions (given both the phenomenon of company unions and the rivalry between the American 

Federation of Labor and the Congress of Industrial Organizations), 

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55David Brody, ‘‘Why U.S. Labor Law Has Become a Paper Tiger,’’ New Labor Forum (Spring 

2004). 56Strengthening America’s Middle Class through the Employee Free Choice Act, Hearing Before the Subcommittee on Health, Employment, Labor & Pensions, 110th Cong., 1st Sess. (2007) 

(written testimony of Gordon Lafer, at 1) [hereinafter Lafer Testimony]. 57 Id. at 2. 

not as a tool for deciding whether there would be collective bargaining in the workplace or not.55

Today, many employers insist on NLRB elections because they 

are a tool for killing an organizing drive. In short, this election 

process is broken and undemocratic. In the NLRB election process, 

delays of months and even years are common in obtaining and certifying election results. Management has almost unlimited and 

mandatory access to employees, while union supporters have almost none. Management has total access to a complete and accurate list of employees at all times, while union supporters may 

have access very late in the process to a list that is often intentionally inaccurate. Under the NLRB election process, the union 

and employer are pitted against one another as campaign adversaries. One party—the employer—has inherently coercive power 

over those voters, controlling their work lives and having the authority to reward, punish, promote, or fire the voters. 

At the HELP Subcommittee hearing on February 8, 2007, Professor Lafer presented his research on the nature of NLRB elections and how they measure up to American standards for free, 

fair, and democratic elections. He testified: ‘‘Unfortunately, I must 

report that NLRB elections look more like the discredited practices 

of rogue regimes abroad than like anything we would call American.’’ 56

As Professor Lafer pointed out, American democratic elections involve, as a first step, obtaining a list of eligible voters. Under U.S. 

election law, both parties have equal access to the voter rolls. In 

NLRB elections, on the other hand, ‘‘management has a complete 

list of employee contact information, and can use this for campaigning against unionization at any time—while employees have 

no equal right to such lists.’’ Once an election petition is filed and 

an election scheduled, the union is entitled to an ‘‘Excelsior List’’—

with employee names and addresses—with no right to apartment 

numbers, zip codes, or telephone numbers. On average, the Excelsior list is received less than 20 days before an election, even 

though the employer had total access to every employee for the entire period of the organizing drive. 57

Professor Lafer also made the point that economic coercion is the 

hallmark of NLRB elections but entirely forbidden under American 

democratic standards. He quoted Alexander Hamilton, who warned 

that ‘‘power over a man’s purse is power over his will.’’ Accordingly, 

under U.S. election law, it is unlawful for an employer to tell employees how to vote or suggest that the victory or loss of a particular candidate would result in job or business loss. In NLRB 

elections, however, the employer is free to tell its employees how 

to vote—and often does so in perfectly legal, mandatory captive audience meetings and what are termed ‘‘eyeball to eyeball’’ or oneon-one supervisor meetings with employees. Under the NLRA, an 

employer can ‘‘predict’’ that a plant will close if the workers 

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58 Id. at 2–3. 59 Id. at 3–4. 60See e.g., ‘‘Partnerships that Work, In Focus: Cingular Wireless,’’ American Rights at Work, 

Socially Responsible Business Program (2006) (quoting Rick Bradley, Executive Vice President 

of Human Resources at Cingular Wireless, regarding its majority sign-up agreement with the 

Communications Workers of America, ‘‘We believe that employees should have a choice. . . . Making that choice available to them results, in part, in employees who are engaged in the business and who have a passion for customers.’’). 

unionize, so long as it does not cross the line into ‘‘threatening’’ closure if they unionize. 58

In NLRB elections, there is no such thing as free speech or equal 

access to the media, as American democracy understands them. 

Employers have total access to the eligible voters, as they convene 

everyday in the workplace. The union would be trespassing if it attempted to access the voters in the workplace. Relegated to standing on public sidewalks outside a worksite or making house calls, 

the union obviously would be trespassing if it attempted to access 

a voter at home—the only other place a voter is certain to be— when the voter tells a union organizer to leave. Pro-union workers 

also find their speech and access to the media circumscribed. Management can plaster a workplace with anti-union propaganda, 

wherever and whenever it wants. Pro-union workers cannot. Management can hand out leaflets and talk to employees whenever and 

wherever it wants. Pro-union workers can only talk about the 

union on non-work time. Management can force employees to attend mass captive audience meetings or one-on-one supervisory 

meetings against the union, under threat of discipline if they do 

not attend—and even under threat of discipline if they speak up 

during the meeting. Unions have no such ability to force workers 

to attend meetings—and certainly have no right to equal time at 

a company-sponsored captive audience meeting. According to Professor Lafer, ‘‘in a typical campaign, most employees never even 

have a single conversation with a union representative.’’ 59

While much is made of the ‘‘secret ballot’’ in NLRB elections, 

these elections are fundamentally undemocratic. Moreover, the ‘‘secret ballot’’ is often not secret at all. As Professor Lafer explained 

in response to Congresswoman Linda Sanchez at the HELP Subcommittee hearing, employers often know how every employee is 

voting on election day. They engage in eyeball-to-eyeball or one-onone supervisor meetings with employees to discern their union sentiments. They conduct interrogations of employees. They conduct 

surveillance of employees—which is perfectly legal, so long as it is 

not overt. In short, employers keep count of the votes. 

In recent years, because of increased anti-union activity—both illegal and perfectly legal—by employers in the context of NLRB 

elections, unions have turned more and more to majority sign-up 

or card check agreements as a means to gain recognition. Many 

cutting-edge employers, such as Cingular Wireless, Kaiser Health, 

Marriott, and the National Linen Company, have embraced these 

agreements. Majority sign-up procedures have been shown to reduce conflict between workers and management, reduce employer 

coercion and interference, and allow workers to freely choose for 

themselves, whether to bargain with their employer for better 

wages and benefits.60

A recent survey of employees at worksites that had undergone 

organizing drives found that, across the board, coercion and presmstockstill on PROD1PC66 with HEARING

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61 Adrienne Eaton & Jill Kriesky, ‘‘Fact Over Fiction: Opposition to Card Check Doesn’t Add 

Up,’’ American Rights at Work Issue Brief (March 2006). 62Strengthening America’s Middle Class through the Employee Free Choice Act, Hearing Before the Subcommittee on Health, Employment, Labor & Pensions, 110th Cong., 1st Sess. (2007) 

(written testimony of Teresa Joyce) [hereinafter Joyce Testimony]. 63 Joyce Testimony, at 6. 

sure (both anti-union and pro-union) drop under majority sign-up 

or card check procedures, compared to the NLRB election process. 

Specifically, the survey revealed that ‘‘NLRB elections invite far 

more exposure to coercion than card check campaigns.’’ In NLRB 

elections, 46 percent of workers reported that management coerced 

them to oppose the union, compared to 23 percent of workers in 

card check campaigns. In NLRB elections, 22 percent of workers reported that they felt peer pressure from coworkers to support the 

union, compared to 17 percent in card check campaigns. In short, 

the majority sign-up process reduces both pressure and coercion, 

compared to NLRB elections.61

The HELP Subcommittee heard testimony on February 8, 2007, 

that affirmed these findings. Cingular Wireless employee Teresa 

Joyce testified about the differences between AT&T Wireless and 

Cingular Wireless, which signed a card check and neutrality agreement.62 When her worksite was owned by AT&T Wireless, management ‘‘did everything they could to stop us from exercising our 

right to form a union. Our supervisors constantly threatened that 

AT&T Wireless would leave our town and that we would lose our 

jobs,’’ she explained. When she and her coworkers tried to distribute union flyers in the break room, supervisors ‘‘would immediately gather the information and dispose of it.’’ She described efforts by management to keep employees uninformed or misinformed about the union and to ‘‘instill fear through constant 

threats and lies about the union.’’ When Cingular Wireless bought 

AT&T Wireless and brought the facility under a card check agreement, however, ‘‘the harassment and intimidation stopped.’’ Employees were allowed to distribute literature in the break room and 

even set up a table with literature about the union, the Communications Workers of America (CWA). Then, in 2005, a majority of 

the employees signed union authorization cards. Cingular Wireless 

recognized their union and soon bargained a contract with them. 

Ms. Joyce argued that all workers should be given the same free 

and fair opportunity she received with Cingular Wireless: 

Cases such as mine, where the employer agrees to take 

no position and allow their workers to freely choose whether or not they want a union, are few and far between . . . 

I had two uncles sacrifice their lives for this great country 

during World War II. I lost a cousin in the war in Iraq. 

I have another cousin in Afghanistan and my daughter, 

Laura, and her husband serve in the U.S. Navy. Every day 

they risk their lives to protect our freedoms. Every day 

they work to spread democratic principles and values to 

audiences abroad. It’s outrageous and it’s shameful when 

the very freedoms they fight to preserve are the very freedoms that are routinely trampled on, here, at home.63

Not all workers enjoy the same freedoms that Ms. Joyce has had 

as an employee at Cingular Wireless. Current law allows workers 

to organize via majority sign-up only where the employer agrees to 

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64See Levitz Furniture Company of the Pacific, 333 NLRB No. 105 (2001). 

it. The critical change that the Employee Free Choice Act makes 

is providing the option of majority sign-up to all workers. The bill 

would amend the NLRA by providing that if the NLRB finds that 

a majority of the employees in the proposed bargaining unit have 

signed union authorization cards, then the Board will certify the 

bargaining unit. In other words, the employer may not refuse to 

recognize the union and insist on an NLRB election when a majority of workers sign cards saying they want a union. 

H.R. 800 does not eliminate the NLRB election process, as some 

critics incorrectly claim. The election process would remain available as an option. If 30 percent of the bargaining unit signed cards 

or a petition asking for an NLRB election, they would have one. If, 

however, 50 percent plus one of the bargaining unit signed authorization cards asking for recognition of their union, and the NLRB 

verified their validity, their union would be certified and recognized. Instead of the employer having the authority to veto that 

majority employee choice, the choice of the employee majority 

would rule. More details on how this majority sign-up process 

works under the Employee Free Choice Act are provided in the Section-by-Section Analysis. 

It is also important to note that H.R. 800 does not change the 

process for decertifying or withdrawing recognition from a union. 

Under current law, majority sign-up is effectively already available 

to workers seeking to decertify or disband their union. In fact, the 

withdrawal of recognition doctrine requires an employer to withdraw recognition from a union—which has the same effect as a decertification—when the employer has objective evidence that the 

union has in fact lost majority support. Such evidence might come 

in the form of cards or a petition against the union. In those cases, 

unless an election is pending, the employer is obligated to withdraw recognition.64 H.R. 800 does nothing to alter this doctrine. 

Finally, it is important to note that the signed authorization 

cards in H.R. 800’s majority sign-up process are not ‘‘publicly 

signed,’’ as some critics claim. These cards are treated no differently than signed authorization cards under the majority signup agreements that have been in existence since the NLRA’s inception. And they are treated no differently than the cards or petitions 

that have been used to obtain an NLRB election. 

THE NEED FOR FIRST CONTRACT MEDIATION AND BINDING

ARBITRATION

Even when workers, against all odds, manage to win recognition 

of their union, the victory often proves a hollow one. For workers, 

the entire point of organizing is often to negotiate and adopt a collective bargaining agreement with the employer. But rather than 

bargaining in good faith with the intention of reaching a final contract, many employers delay and undermine the collective bargaining process to frustrate employee aspirations for a contract and 

ultimately bust the union. 

A 2001 report on the status of first contract negotiations following union election victories in 1998 and 1999 found that 34 percent of those victories still had not resulted in a collective bargaining agreement—in some cases three years after the union’s cermstockstill on PROD1PC66 with HEARING

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65Kate Bronfenbrenner, ‘‘Uneasy Terrain: The Impact of Capital Mobility on Workers, Wages, 

and Union Organizing, Part II: First Contract Supplement,’’ Submitted to the U.S. Trade Deficit 

Review Commission (June 1, 2001), at 7. The Dunlop Commission also found high rates of first 

contract failures. See Dunlop Fact Finding Report, at 73. 66 Human Rights Watch Report. 67 John Logan, ‘‘Consultants, Lawyers and the ‘Union Free’ Movement in the USA Since the 

1970s,’’ 33 Industrial Relations Journal 197 (August 2002). 68 Ronald Meisburg, ‘‘First Contract Bargaining Cases,’’ General Counsel Memorandum, GC 

06–05 (April 19, 2006). 

tification.65 While the parties have an obligation to bargain in good 

faith, this obligation is difficult to enforce. Employers easily drag 

their feet in negotiations in order to avoid reaching a contract. Employers do so to run out the clock because, after a year of bargaining without a contract, employees may decertify the union or 

the employer may unilaterally withdraw recognition, if there is a 

showing of lack of majority support for the union. As Human 

Rights Watch pointed out: ‘‘The problem is especially acute in 

newly organized workplaces where the employer has fiercely resisted employee self-organization and resents their success.’’ 66

First contract negotiations often become part and parcel of an 

employer’s anti-union campaign. Rather than bargaining in good 

faith to reach an agreement, as one scholar points out: 

Consultants advise management on how to stall or prolong the bargaining process, almost indefinitely—‘‘bargaining to the point of boredom,’’ in consultant parlance. 

Delays in bargaining allow more time for labor turnover, 

create employee dissatisfaction with the union and prevent 

the signing of a contract. Without a contract, the union is 

unable to improve working conditions, negotiate wage increases or represent workers effectively with grievances; 

and by exhausting every conceivable legal maneuver, certain firms have successfully avoided signing contracts with 

certified unions for several decades.67

Even the current Bush II National Labor Relations Board recognizes that ‘‘[i]nitial contract bargaining constitutes a critical stage 

of the negotiation process because it forms the foundation for the 

parties’ future labor-management relationship.’’ 68 In a memorandum, Bush II General Counsel Meisburg wrote in April 2006 

that, ‘‘when employees are bargaining for their first collective bargaining agreement, they are highly susceptible to unfair labor practices intended to undermine support for their bargaining representative.’’ According to General Counsel Meisburg, ‘‘our records indicate that in the initial period after election and certification, 

charges alleging that employers have refused to bargain are meritorious in more than a quarter of all newly-certified units (28%). 

Moreover, of all charges alleging employer refusals to bargain, almost half occur in initial contract bargaining situations (49.65%).’’ These statistics are high despite the fact that proving a lack of 

good faith in bargaining is notoriously difficult. 

Under existing law, the Federal Mediation and Conciliation Service (FMCS) may provide mediation and conciliation services upon 

its own motion or upon request of one or more of the parties to the 

dispute, whenever it believes that the dispute threatens a substantial interruption to commerce. The NLRA currently does not provide for the use of binding arbitration to resolve disputes. When an 

employer bargains in bad faith or otherwise unlawfully refuses to 

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69 Alberta Federation of Labour Backgrounder—First Contract Arbitration (November 9, 

2005), at 1. 70 Id. at 2. 

bargain, the NLRA’s remedy is merely an order from the NLRB to 

resume bargaining. 

The Employee Free Choice Act would provide for more meaningful good faith bargaining in first contract cases. As detailed in the 

Section-by-Section analysis, it would provide that the parties must 

begin bargaining within 10 days of receiving a written request to 

begin. Either party may request mediation of a first contract after 

90 days of bargaining. If the mediation does not result in a contract 

within 30 days, the parties then go to binding arbitration. This 

process would only be available during the highly sensitive first 

contract negotiation. It would not be available for subsequent contracts. And the time frames are extendable by mutual agreement 

of the parties. 

To effectuate a fundamental purpose of the NLRA—encouraging 

collective bargaining—it is critical that the law facilitate bargaining particularly in first contract situations. This stage serves 

as ‘‘the foundation for the parties’ future labor-management relationship,’’ as NLRB General Counsel Meisburg has pointed out. 

Achieving a first contract fosters a productive and cooperative collective bargaining relationship. 

Binding contract arbitration has a proven track record. It has 

long been available for postal service union contracts. In Canadian 

provinces where binding contract arbitration is available, it has 

served to encourage labor and management to settle their agreement on their own terms, ‘‘knowing that the alternative may be an 

imposed agreement.’’ 69 For example, in 2002, Ontario saw a total 

of nine applications for first contract arbitration, and eight of those 

were withdrawn or settled. British Columbia saw a total of 16 applications, and 15 were withdrawn or settled.70

SECTION-BY-SECTION ANALYSIS

Section 1. Provides that the short title of H.R. 800 is the ‘‘Employee Free Choice Act.’’

Section 2(a). Provides that Section 9(c) of the NLRA is amended 

to provide for a majority sign-up certification process for gaining 

union recognition. 

Specifically, whenever any employee, group of employees, individual, or labor organization files a petition alleging that a majority 

of employees in an appropriate bargaining unit wish to be represented by an individual or labor organization for collective bargaining purposes, the NLRB shall conduct an investigation. Such 

investigation shall involve determining whether a majority of employees in an appropriate bargaining unit have signed valid authorization cards. If the NLRB finds that they have, the NLRB shall 

certify their designated representative as their exclusive bargaining representative. 

Section 2(a) eliminates the employer’s prerogative to deny recognition on the basis of a majority sign-up with cards and eliminates the employer’s right to insist upon an NLRB election before 

recognizing a union. This Section does not eliminate the NLRB 

election process, which remains an option for employees as it is 

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71This long-standing rule, preserved by the Employee Free Choice Act, is consistent with the 

call for ‘‘secret ballot elections’’ in Mexico, made in 2001 by Members of Congress, in the unique 

context of Mexican labor law and in a situation where the workers were attempting to abandon 

an allegedly sham union controlled by the government and company and replace it with their 

own independent union. 

under current law. However, employees, individuals, or labor organizations may submit signed authorization cards to the NLRB, as 

part of a petition for certification, and gain recognition without undergoing the NLRB election process. Indeed, if a majority sign and 

submit valid authorization cards to the NLRB, notwithstanding 

any other provision in the NLRA, the NLRB must certify their 

union. 

Section 2(a) also directs the NLRB to establish guidelines and 

procedures for the designation of a bargaining representative under 

the majority sign-up process. Such guidelines and procedures must 

include model language for the authorization card to ensure that 

the purpose of the card will be clearly understood by employees, 

making clear, for example, that the card may be used to gain recognition of an exclusive bargaining representative without conducting an NLRB election. Such guidelines and procedures must 

also include procedures that the NLRB shall use to determine the 

validity of signed authorization cards. The Committee envisions 

that the NLRB will establish procedures similar to those currently 

used to hear election objections. Importantly, the Employee Free 

Choice Act of 2007, as introduced in the 110th, makes clear that 

the cards must be valid. An invalid card would be any card that 

is coerced, obtained by fraud, or inauthentic. Such invalid cards 

may not be counted toward a showing of majority support. 

Section 2(a) also makes clear that the NLRB cannot certify an 

exclusive bargaining representative via the majority sign-up process in cases where the employees in question already have a certified or otherwise already recognized exclusive bargaining representative. In those cases, where one union seeks to replace an existing union, the appropriate determination of employees’ wishes is 

via an NLRB election under current rules. Indeed, conducting elections in cases of competing unions was the original intent of the 

NLRA’s election process.71 This section does not change current 

law on decertification or the withdrawal of recognition doctrine. 

Section 2(b). Provides for conforming amendments in light of the 

new majority sign-up certification process. Specifically, under this 

Section, regional directors of the NLRB may be authorized to conduct majority sign-up processes, just as they are currently authorized to conduct NLRB elections. Also, under this Section, the prohibitions on recognitional picketing are adjusted to conform with the 

availability of the majority sign-up process for NLRB union certification. 

Section 3. Provides for the mediation and binding arbitration of 

initial collective bargaining agreements in order to facilitate a good 

faith bargaining relationship from the very beginning between the 

parties. This Section only applies in cases involving a newly certified or otherwise newly recognized exclusive bargaining representative and an employer negotiating an initial collective bargaining agreement. Under this Section, the parties must begin good 

faith collective bargaining within 10 days of receiving a request for 

bargaining from the other party. If the parties do not execute a colmstockstill on PROD1PC66 with HEARING

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lective bargaining agreement within 90 days of the start of bargaining, either party may request mediation from the FMCS. The 

FMCS is directed to use its best efforts, via mediation and conciliation, to then bring the parties to agreement. If, 30 days after mediation request is made, there is still no first contract, the FMCS is 

directed to refer the contract negotiations to an arbitration board, 

under regulations as may be prescribed by the FMCS. The arbitration board must issue a decision settling the negotiations, binding 

on the parties for two years. The parties may amend the binding, 

arbitrated settlement agreement by written consent during that 

two year period. All time frames within this section may be extended by mutual agreement of the parties. 

Section 4(a)(1). Provides for mandatory requests for injunctions 

against employer unfair labor practices during organizing and first 

contract drives. Specifically, in cases where an employer is charged 

to have fired or otherwise discriminated against an employee in 

violation of the employee’s Section 7 rights, or threatened to do so, 

or engaged in activities that significantly interfere with, restrain, 

or coerce employees in the exercise of their Section 7 rights, during 

an organizing or first contract drive, if the NLRB finds that there 

is reasonable cause to believe that the charge is true and a complaint should issue, the NLRB must petition the appropriate 

United States District Court and seek appropriate injunctive relief 

pending final adjudication of the matter. 

Section 4(a)(2). Provides for a conforming amendment to ensure 

that investigating and pursuing such unfair labor practice charges 

are given top priority at the NLRB, just as was required for other 

charges subject to mandatory injunctions, such as unlawful secondary boycott charges. 

Section 4(b)(1). Provides for treble backpay for employees discriminated against by an employer during an organizing or first 

contract drive. Specifically, an employee who lost pay under such 

circumstances is entitled to receive their backpay, plus two times 

that amount, as liquidated damages. 

Section 4(b)(2). Provides for civil penalties for employer unfair 

labor practices during organizing and first contract drives. Specifically, this Section subjects employers during organizing and first 

contract drives to civil penalties of up to $20,000 for each willful 

or repeated unfair labor practice, so long as those unfair labor practices constitute interfering, restraining, coercing, or discriminating 

against employees in the exercise of their Section 7 rights. The 

NLRB is directed to consider the gravity of the unfair labor practice and its impact on the charging party, other persons seeking to 

exercise rights under the NLRA, or the public interest when determining the amount of the civil penalty. 

Under this formulation, for example, the civil penalty should be 

larger for larger employers and smaller for smaller employers in 

order to act as an appropriate deterrent to unlawful behavior, i.e., 

to ensure the civil penalty has a positive impact on the exercise of 

Section 7 rights by other persons. In any event, these civil penalties are punitive in nature, not remedial, and are intended to 

serve as a deterrent to unlawful behavior. 

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EXPLANATION OF AMENDMENTS

The Amendment in the Nature of a Substitute is explained in the 

body of this report. 

APPLICATION OF LAW TO THE LEGISLATIVE BRANCH

Section 102(b)(3) of Public Law 104–1 requires a description of 

the application of this bill to the legislative branch. The purpose of 

H.R. 800 is to strengthen and expand the middle class. The bill reforms the National Labor Relations Act to provide for union certification through simple majority sign-up procedures, first contract 

mediation and binding arbitration, and tougher penalties for violation of workers’ rights during organizing and first contract drives. 

As the Congressional Accountability Act provides for the application of the Federal Labor Relations Act but not the application of 

the National Labor Relations Act, 29 U.S.C. 151 et seq., to the legislative branch, H.R. 800 has no application to the legislative 

branch. 

UNFUNDED MANDATE STATEMENT

Section 423 of the Congressional Budget and Impoundment Control Act (as amended by Section 101(a)(2) of the Unfunded Mandates Reform Act, P.L. 104–4) requires a statement of whether the 

provisions of the reported bill include unfunded mandates. CBO 

has determined that the requirement would increase the costs of an 

existing mandate and would thereby impose a mandate under the 

Unfunded Mandates Reform Act (UMRA). CBO estimates, however, 

that the direct cost of complying with the new requirements would 

be negligible. H.R. 800 contains no governmental mandates as defined in UMRA and would not affect the budgets of state, local, or 

tribal governments. 

EARMARK STATEMENT

H.R. 800 does not contain any congressional earmarks, limited 

tax benefits, or limited tariff benefits as defined in clause 9(d), 9(e) 

or 9(f) of rule XXI. 

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COMMITTEE CORRESPONDENCE

None. 

STATEMENT OF OVERSIGHT FINDINGS AND RECOMMENDATIONS OF

THE COMMITTEE

In compliance with clause 3(c)(1) of rule XIII and clause 2(b)(1) 

of rule X of the Rules of the House of Representatives, the Committee’s oversight findings and recommendations are reflected in the 

body of this report. 

NEW BUDGET AUTHORITY AND CBO COST ESTIMATE

With respect to the requirements of clause 3(c)(2) of rule XIII of 

the Rules of the House of Representatives and section 308(a) of the 

Congressional Budget Act of 1974 and with respect to requirements 

of 3(c)(3) of rule XIII of the House of Representatives and section 

402 of the Congressional Budget Act of 1974, the Committee has 

received the following estimate for H.R. 800 from the Director of 

the Congressional Budget Office: 

U.S. CONGRESS, 

CONGRESSIONAL BUDGET OFFICE, 

Washington, DC, February 16, 2007. 

Hon. GEORGE MILLER, 

Chairman, Committee on Education and Labor, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 800, the Employee Free 

Choice Act of 2007. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Christina Hawley Anthony. 

Sincerely, 

PETER R. ORSZAG, 

Director. 

Enclosure. 

H.R. 800—Employee Free Choice Act of 2007 

H.R. 800 would amend the National Labor Relations Act to allow 

workers to unionize by signing a card or petition, in lieu of a secret-ballot election. The bill also would provide a time frame for 

employers to begin discussions with the workers’ union. In addition, the bill would impose civil monetary penalties of up to 

$20,000 for repeated violations of fair labor practices. Enacting 

H.R. 800 could increase revenues from those penalties. However, 

CBO estimates that the amount is likely to be less than $500,000 

annually. 

H.R. 800 would impose a mandate on private-sector employers by 

adding requirements under the National Labor Relations Act, including requiring that employers commence an initial agreement 

for collective bargaining no later than 10 days after receiving a request from an individual or a labor organization that has been 

newly organized or certified. CBO has determined that the requirement would increase the costs of an existing mandate and would 

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thereby impose a mandate under the Unfunded Mandates Reform 

Act (UMRA). CBO estimates, however, that the direct cost of complying with the new requirements would be negligible. H.R. 800 

contains no intergovernmental mandates as defined in UMRA, and 

would not affect the budgets of state, local, or tribal governments. 

The CBO staff contacts for this estimate are Christina Hawley 

Anthony (for federal costs) and Paige Shevlin (for private-sector 

mandates). This estimate was approved by Peter H. Fontaine, Deputy Assistant Director for Budget Analysis. 

STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES

In accordance with clause 3(c) of House rule XIII, the goal of 

H.R. 800 is to strengthen and expand America’s middle class by restoring workers’ freedom to organize and collectively bargain under 

the National Labor Relations Act. The bill reforms the National 

Labor Relations Act to provide for union certification through simple majority sign-up procedures, first contract mediation and binding arbitration, and tougher penalties for violation of workers’

rights during organizing and first contract drives. The Employee 

Free Choice Act of 2007 furthers the long-standing policy of the 

United States to encourage the practice and procedure of collective 

bargaining and to protect the exercise by workers of full freedom 

of association, self-organization, and designation of representatives 

of their own choosing, for the purpose of negotiating the terms and 

conditions of their employment or other mutual aid or protection. 

CONSTITUTIONAL AUTHORITY STATEMENT

Under clause 3(d)(1) of rule XIII of the Rules of the House of 

Representatives, the Committee must include a statement citing 

the specific powers granted to Congress in the Constitution to 

enact the law proposed by H.R. 800. The Committee believes that 

the amendments made by this bill, which amend the National 

Labor Relations Act, are within Congress’ authority under Article 

I, section 8, clause 1 and clause 3. 

COMMITTEE ESTIMATE

Clause 3(d)(2) of rule XIII of the Rules of the House of Representatives requires an estimate and a comparison of the costs 

that would be incurred in carrying out H.R. 800. However, clause 

3(d)(3)(B) of that rule provides that this requirement does not 

apply when the Committee has included in its report a timely submitted cost estimate of the bill prepared by the Director of the Congressional Budget Office under section 402 of the Congressional 

Budget Act. 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italics, 

existing law in which no change is proposed is shown in roman): 

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NATIONAL LABOR RELATIONS ACT 

* * * * * * * 

NATIONAL LABOR RELATIONS BOARD

SEC. 3. (a) * * * 

(b) The Board is authorized to delegate to any group of three or 

more members any or all of the powers which it may itself exercise. 

The Board is also authorized to delegate to its regional directors its 

powers under section 9 to determine the unit appropriate for the 

purpose of collective bargaining, to investigate and provide for 

hearings, and determine whether a question of representation exists, øand¿ to direct an election or take a secret ballot under subsection (c) or (e) of section 9 øand certify the results thereof,¿, and 

to issue certifications as provided for in that section, except that 

upon the filing of a request therefor with the Board by any interested person, the Board may review any action of a regional director delegated to him under this paragraph, but such a review shall 

not, unless specifically ordered by the Board, operate as a stay of 

any action taken by the regional director. A vacancy in the Board 

shall not impair the right of the remaining members to exercise all 

of the powers of the Board, and three members of the Board shall, 

at all times, constitute a quorum of the Board, except that two 

members shall constitute a quorum of any group designated pursuant to the first sentence hereof. The Board shall have an official 

seal which shall be judicially noticed. 

* * * * * * * 

UNFAIR LABOR PRACTICES

SEC. 8. (a) * * * 

(b) It shall be an unfair labor practice for a labor organization 

or its agents— (1) * * * 

* * * * * * * 

(7) to picket or cause to be picketed, or threaten to picket or 

cause to be picketed, any employer where an object thereof is 

forcing or requiring an employer to recognize or bargain with 

a labor organization as the representative of his employees, or 

forcing or requiring the employees of an employer to accept or 

select such labor organization as their collective bargaining 

representative, unless such labor organization is currently certified as the representative of such employees: 

(A) * * * 

(B) where within the preceding twelve months a valid 

election under section 9(c) of this Act has been conducted 

or a petition has been filed under section 9(c)(6), or 

(C) where such picketing has been conducted without a 

petition under section 9(c) being filed within a reasonable 

period of time not to exceed thirty days from the commencement of such picketing: Provided, That øwhen such 

a petition has been filed¿ when such a petition other than 

a petition under section 9(c)(6) has been filed the Board 

shall forthwith, without regard to the provisions of section 

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9(c)(1) or the absence of a showing of a substantial interest 

on the part of the labor organization, direct an election in 

such unit as the Board finds to be appropriate and shall 

certify the results thereof: Provided further, That nothing 

in this subparagraph (C) shall be construed to prohibit any 

picketing or other publicity for the purpose of truthfully 

advising the public (including consumers) that an employer does not employ members of, or have a contract 

with, a labor organization, unless an effect of such picketing is to induce any individual employed by any other 

person in the course of his employment, not to pick up, deliver or transport any goods or not to perform any services. 

* * * * * * * 

(h) Whenever collective bargaining is for the purpose of establishing an initial agreement following certification or recognition, 

the provisions of subsection (d) shall be modified as follows: 

(1) Not later than 10 days after receiving a written request for 

collective bargaining from an individual or labor organization 

that has been newly organized or certified as a representative 

as defined in section 9(a), or within such further period as the 

parties agree upon, the parties shall meet and commence to bargain collectively and shall make every reasonable effort to conclude and sign a collective bargaining agreement. 

(2) If after the expiration of the 90-day period beginning on 

the date on which bargaining is commenced, or such additional 

period as the parties may agree upon, the parties have failed to 

reach an agreement, either party may notify the Federal Mediation and Conciliation Service of the existence of a dispute and 

request mediation. Whenever such a request is received, it shall 

be the duty of the Service promptly to put itself in communication with the parties and to use its best efforts, by mediation 

and conciliation, to bring them to agreement. 

(3) If after the expiration of the 30-day period beginning on 

the date on which the request for mediation is made under 

paragraph (2), or such additional period as the parties may 

agree upon, the Service is not able to bring the parties to agreement by conciliation, the Service shall refer the dispute to an 

arbitration board established in accordance with such regulations as may be prescribed by the Service. The arbitration panel 

shall render a decision settling the dispute and such decision 

shall be binding upon the parties for a period of 2 years, unless 

amended during such period by written consent of the parties. 

REPRESENTATIVES AND ELECTIONS

SEC. 9. (a) * * * 

* * * * * * * 

(c)(1) * * * 

* * * * * * * 

(6) Notwithstanding any other provision of this section, whenever 

a petition shall have been filed by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a majority of employees in a unit appropriate for the 

purposes of collective bargaining wish to be represented by an indimstockstill on PROD1PC66 with HEARING

47 

vidual or labor organization for such purposes, the Board shall investigate the petition. If the Board finds that a majority of the employees in a unit appropriate for bargaining has signed valid authorizations designating the individual or labor organization specified in the petition as their bargaining representative and that no 

other individual or labor organization is currently certified or recognized as the exclusive representative of any of the employees in the 

unit, the Board shall not direct an election but shall certify the individual or labor organization as the representative described in subsection (a). 

(7) The Board shall develop guidelines and procedures for the designation by employees of a bargaining representative in the manner 

described in paragraph (6). Such guidelines and procedures shall 

include—

(A) model collective bargaining authorization language that 

may be used for purposes of making the designations described 

in paragraph (6); and 

(B) procedures to be used by the Board to establish the validity of signed authorizations designating bargaining representatives. 

* * * * * * * 

PREVENTION OF UNFAIR LABOR PRACTICES

SEC. 10. (a) * * * 

* * * * * * * 

(c) The testimony taken by such member, agent, or agency or the 

Board shall be reduced to writing and filed with the Board. Thereafter, in its discretion, the Board upon notice may take further testimony or hear argument. If upon the preponderance of the testimony taken the Board shall be of the opinion that any person 

named in the complaint has engaged in or is engaging in any such 

unfair labor practice, then the Board shall state its findings of fact 

and shall issue and cause to be served on such person an order requiring such person to cease and desist from such unfair labor 

practice, and to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the 

policies of this Act: Provided, That where an order directs reinstatement of an employee, back pay may be required of the employer or labor organization, as the case may be, responsible for the 

discrimination suffered by him: øAnd provided further,¿ Provided 

further, That if the Board finds that an employer has discriminated 

against an employee in violation of subsection (a)(3) of section 8 

while employees of the employer were seeking representation by a 

labor organization, or during the period after a labor organization 

was recognized as a representative defined in subsection (a) of section 9 until the first collective bargaining contract was entered into 

between the employer and the representative, the Board in such 

order shall award the employee back pay and, in addition, 2 times 

that amount as liquidated damages: Provided further, That in determining whether a complaint shall issue alleging a violation of 

section 8(a)(1) or section 8(a)(2), and in deciding such cases, the 

same regulations and rules of decisions shall apply irrespective of 

whether or not the labor organization affected is affiliated with a 

labor organization national or international in scope. Such order 

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may further require such person to make reports from time to time 

showing the extent to which it has complied with the order. If upon 

the preponderance of the testimony taken the Board shall not be 

of the opinion that the person named in the complaint has engaged 

in or is engaging in any such unfair labor practice, then the Board 

shall state its findings of fact and shall issue an order dismissing 

the said complaint. No order of the Board shall require the reinstatement of any individual as an employee who has been suspended or discharged, or the payment to him of any back pay, if 

such individual was suspended or discharged for cause. In case the 

evidence is presented before a member of the Board, or before an 

examiner or examiners thereof, such member, or such examiner or 

examiners, as the case may be, shall issue and cause to be served 

on the parties to the proceeding a proposed report, together with 

a recommended order, which shall be filed with the Board, and if 

no exceptions are filed within twenty days after service thereof 

upon such parties, or within such further period as the Board may 

authorize, such recommended order shall become the order of the 

Board and become effective as therein prescribed. 

* * * * * * * 

(l) øWhenever it is charged that any person has engaged in an 

unfair labor practice within the meaning of paragraph (4)(A), (B), 

or (C) of section 8(b), or section 8(e) or section 8(b)(7), the preliminary investigation of such charge shall be made forthwith and 

given priority over all other cases except cases of like character in 

the office where it is filed or to which it is referred.¿ (1) Whenever 

it is charged— (A) that any employer— (i) discharged or otherwise discriminated against an employee in violation of subsection (a)(3) of section 8; 

(ii) threatened to discharge or to otherwise discriminate 

against an employee in violation of subsection (a)(1) of section 8; or 

(iii) engaged in any other unfair labor practice within the 

meaning of subsection (a)(1) that significantly interferes 

with, restrains, or coerces employees in the exercise of the 

rights guaranteed in section 7; 

while employees of that employer were seeking representation by 

a labor organization or during the period after a labor organization was recognized as a representative defined in section 9(a) 

until the first collective bargaining contract is entered into between the employer and the representative; or 

(B) that any person has engaged in an unfair labor practice 

within the meaning of subparagraph (A), (B) or (C) of section 

8(b)(4), section 8(e), or section 8(b)(7); 

the preliminary investigation of such charge shall be made forthwith and given priority over all other cases except cases of like character in the office where it is filed or to which it is referred. 

(2) If, after such investigation, the officer or regional attorney to 

whom the matter may be referred has reasonable cause to believe 

such charge is true and that a complaint should issue, he shall, on 

behalf of the Board, petition any district court of the United States 

(including the United States District Court for the District of Columbia) within any district where the unfair labor practice in question has occurred, is alleged to have occurred, or wherein such permstockstill on PROD1PC66 with HEARING

49 

son resides or transacts business, for appropriate injunctive relief 

pending the final adjudication of the Board with respect to such 

matter. Upon the filing of any such petition the district court shall 

have jurisdiction to grant such injunctive relief or temporary restraining order as it deems just and proper, notwithstanding any 

other provision of law: Provided further, That no temporary restraining order shall be issued without notice unless a petition alleges that substantial and irreparable injury to the charging party 

will be unavoidable and such temporary restaining order shall be 

effective for no longer than five days and will become void at the 

expiration of such period: Provided further, That such officer or regional attorney shall not apply for any restraining order under section 8(b)(7) if a charge against the employer under section 8(a)(2) 

has been filed and after the preliminary investigation, he has reasonable cause to believe that such charge is true and that a complaint should issue. Upon filing of any such petition other courts 

shall cause notice thereof to be served upon any person involved in 

the charge and such person, including the charging party, shall be 

given an opportunity to appear by counsel and present any relevant testimony: Provided further, That for the purposes of this 

subsection district courts shall be deemed to have jurisdiction of a 

labor organization (1) in the district in which such organization 

maintains its principal office, or (2) in any district in which its duly 

authorized officers or agents are engaged in promoting or protecting the interests of employee members. The service of legal 

process upon such officer or agent shall constitute service upon the 

labor organization and make such organization a party to the suit. 

In situations where such relief is appropriate the procedure specified herein shall apply to charges with respect to section 8(b)(4)(D). 

(m) Whenever it is charged that any person has engaged in an 

unfair labor practice within the meaning of subsection (a)(3) or 

(b)(2) of section 8 under circumstances not subject to section 10(l), 

such charge shall be given priority over all other cases except cases 

of like character in the office where it is filed or to which it is referred and cases given priority under subsection (i). 

* * * * * * * 

SEC. 12. øAny¿ (a) Any person who shall willfully resist, prevent, 

impede, or interfere with any member of the Board or any of its 

agents or agencies in the performance of duties pursuant to this 

Act shall be punished by a fine of not more than $5,000 or by imprisonment for not more than one year, or both. 

(b) Any employer who willfully or repeatedly commits any unfair 

labor practice within the meaning of subsections (a)(1) or (a)(3) of 

section 8 while employees of the employer are seeking representation 

by a labor organization or during the period after a labor organization has been recognized as a representative defined in subsection 

(a) of section 9 until the first collective bargaining contract is entered into between the employer and the representative shall, in addition to any make-whole remedy ordered, be subject to a civil penalty of not to exceed $20,000 for each violation. In determining the 

amount of any penalty under this section, the Board shall consider 

the gravity of the unfair labor practice and the impact of the unfair 

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labor practice on the charging party, on other persons seeking to exercise rights guaranteed by this Act, or on the public interest. 

* * * * * * * 

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MINORITY VIEWS 

INTRODUCTION

The right to a private ballot is the cornerstone of our democracy. 

For centuries, Americans—regardless of race, creed, or gender—

have fought for the right to vote, and the right to keep that vote 

to themselves. In the context of the question of whether employees 

wish to form and join a union, the right to vote on that question—

free of harassment, coercion, or intimidation—and the right to have 

one’s vote known only to oneself—not an employer, not a coworker, 

and not a union—has been among the most vital protections our 

federal labor law provides to workers. 

H.R. 800, the deceptively-named ‘‘Employee Free Choice Act,’’

would strip that right from every American worker. Moreover, the 

bill makes changes to federal labor law’s scheme of penalties and 

remedies that are one-sided, unnecessary, and unprecedented. Finally, H.R. 800, for the first time in labor law’s history, imposes a 

one-size-fits-all scheme of mandatory, binding interest arbitration 

with respect to initial contracts, on bargaining parties, again stripping American workers of the right to vote on the terms and conditions of their employment. For these reasons, we oppose this legislation. 

THE ‘‘EMPLOYEE FREE CHOICE ACT’’

H.R. 800 represents a three-pronged attack on worker rights, 

each prong of which should be rejected. Specifically, the bill: 

Strips Workers of the Right to Private Ballot Elections. Current 

law protects employees from harassment, intimidation, and coercion, and ensures that their voices are heard on the vital question 

of whether to form and join a union, by providing for a federallysupervised private ballot election conducted and supervised with 

rigorous scrutiny by the National Labor Relations Board (the 

‘‘NLRB’’ or the ‘‘Board’’). Simply put, H.R. 800 would strip American workers of this right. Although bill supporters have attempted 

to dissemble and characterize mandatory ‘‘card check recognition’’

as something that has been in the law for 60 years, that is simply 

not the case. As noted in the Majority’s own views, supra, H.R. 800 

provides that if a union presents a majority of signed union authorization cards to the Board, the union must be certified, and the 

right of employees to a private ballot election is immediately and 

absolutely extinguished. This change in the law is unprecedented, 

unwise, and unsupportable. 

Strips Workers of the Right to Vote on Their Collective Bargaining Agreement. H.R. 800, for the first time in the history of 

federal labor law, provides that if an employer and a union are unable to reach agreement on a first contract within 90 days, the Federal Mediation and Conciliation Service is provided 30 additional 

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1Polling conducted by McLaughlin & Associates of Alexandria, Virginia, of 1,000 likely general election voters in the United States, January 28–31, 2007. 

days to do so. If the parties cannot reach agreement, the matter is 

removed entirely from the hands of the employer and the union 

and a federal arbitrator is charged to set the terms and conditions 

of employment for all covered employees for two years. Wholly 

missing from this equation is the voice of workers, and the ability 

of the men and women who will be forced to live with this contract 

for two years, to express their views. This provision rewards bad 

behavior, and allows parties to overpromise, posture, and bargain 

in bad faith, while devolving all responsibility for the outcome onto 

a federal bureaucrat. Employers lose, unions lose, but most importantly, workers lose. 

Imposes One-Sided and Unwarranted Penalties on Employers, 

but Not Unions. Federal labor law embodied in the National Labor 

Relations Act (‘‘NLRA’’ or the ‘‘Act’’) is a balanced system of rights, 

responsibilities, and penalties that mete out justice to employers 

and unions on a fair and level basis. H.R. 800’s provisions regarding remedies would, for the first time, require the NLRB to seek 

mandatory injunctive relief, and impose triple backpay and civil 

penalties, on employers who violate specified sections of the NLRA. 

Wholly missing from the bill’s proposal is any provision applying 

these same penalties to unions who violate the Act. Put more simply, under the bill, an employer who violates the rights of an employee faces harsh and immediate punishment, while unions who 

engage in exactly the same behavior are not. These provisions unfairly tip the balance of law in favor of one side, and should be rejected. 

REPUBLICAN VIEWS

The right to a secret ballot is sacrosanct 

Republican Members of the Committee could not be more clear 

or resolute on this point: the right to a federally-supervised private 

ballot election represents perhaps the greatest protection American 

workers are afforded under federal labor law. We cannot and will 

not support efforts to strip workers of this right. Nor, would it appear, do American workers want us to. They too recognize the importance of this right, and in overwhelming numbers reject efforts 

for it to be eliminated. A January 2007 polling 1 of likely voters in 

all fifty states makes their views on this clear: 

• Almost 9 in 10 voters (87 percent) agree that ‘‘every worker should continue to have the right to a federally supervised 

secret ballot election when deciding whether to organize a 

union’’; 

• Four in five voters (79 percent) oppose the Employee Free 

Choice Act; 

• When asked to make a choice as to whether a worker’s 

vote to organize a union should remain private or be public information, 9 in 10 voters (89 percent) say it should remain private; and 

• Nine in ten voters (89 percent) believe having a federallysupervised secret ballot election is the best way to protect the 

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individual rights of workers. Only 6 percent think that the Employee Free Choice Act’s card signing process is better. 

The American public recognizes that the private ballot should be 

sacred, and that a federally-supervised private ballot election conducted by the NLRB is the best way to ensure that the rights of 

all workers are protected, and that the outcome reflects an employee’s true sentiments with respect to the question of unionization. 

They are not alone. The Supreme Court, federal appeals courts, 

and the National Labor Relations Board itself each recognize that 

a federally-monitored private ballot election provides workers with 

the most protection, and is the only true way to ascertain whether 

a majority of workers support unionization: 

[A secret ballot election is the] ‘‘most satisfactory—indeed the preferred—method of ascertaining whether a 

union has majority support.’’ Gissel Packing, 395 U.S. 395 

U.S. 575, 602 (1969). 

[Card checks are] ‘‘admittedly inferior to the election 

process.’’ Id. 

‘‘[I]t is beyond dispute that secret election is a more accurate reflection of the employees’ true desires than a 

check of authorization cards collected at the behest of a 

union organizer.’’ NLRB v. Flomatic Corp., 347 F.2d 74, 78 

(2d Cir. 1965). 

‘‘It would be difficult to imagine a more unreliable method of ascertaining the real wishes of employees than a 

‘card check,’ unless it were an employer’s request for an 

open show of hands.’’ NLRB v. S. S. Logan Packing Co., 

386 F.2d 562,565 (4th Cir. 1967). 

‘‘An election is the preferred method of determining the 

choice by employees of a collective bargaining representative.’’ United Services for the Handicapped v. NLRB, 678 

F.2d 661, 664 (6th Cir. 1982). 

‘‘Workers sometimes sign union authorization cards not 

because they intend to vote for the union in the election 

but to avoid offending the person who asks them to sign, 

often a fellow worker, or simply to get the person off their 

back, since signing commits the worker to nothing (except 

that if enough workers sign, the employer may decide to 

recognize the union without an election).’’ NLRB v. Village 

IX, Inc., 723 F.2d 1360, 1371 (7th Cir. 1983). 

‘‘Freedom of choice is ‘a matter at the very center of our 

national labor relations policy,’ . . . and a secret election 

is the preferred method of gauging choice.’’ Avecor, Inc. v. 

NLRB, 931 F.2d 924, 934 (D.C. Cir. 1991) (citations omitted). 

Unions themselves appear to recognize the importance of the private ballot, and the critical protections they provide for worker 

rights—at least when the issue is a question of whether to decertify 

a union. The United Food and Commercial Workers were direct 

and succinct in their assertion that secret ballot elections run by 

the National Labor Relations Board are far superior to ‘‘card check’’

schemes: 

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‘‘Board elections are the preferred means of testing employees’ support.’’ Brief of United Food and Commercial 

Workers (UFCW), Levitz Furniture Co. of the Pacific, 333 

NLRB 717, 725 (2001). 

In the 109th Congress, former NLRB Member John Raudabaugh 

testified at length as to the superiority of the secret ballot election, 

its recognition by courts as the preferred means of testing employee 

support, and perhaps most important, the rigorous and scrupulous 

regulation of these elections by the federal labor board. As Mr. 

Raudabaugh explained, 

Under current law, employee designation or selection 

may be by a Board supervised secret-ballot election or by 

voluntary recognition based on polls, petitions, or union 

authorization cards. 29 U.S.C. δδ 159 (a), (c) (2004). Of 

these various methods, the United States Supreme Court 

and the Board have long recognized that a Board conducted secret-ballot election is the most satisfactory, indeed 

preferred method of ascertaining employee support for a 

union. (emphasis added). 

Mr. Raudabaugh continued: 

As the Board announced in General Shoe Corp., 77 

NLRB 124 (1948), ‘‘In election proceedings, it is the 

Board’s function to provide a laboratory in which an experiment may be conducted, under conditions as nearly ideal 

as possible, to determine the uninhibited desires of the employees. . . .Conduct that creates an atmosphere which 

renders improbable a free choice will sometimes warrant 

invalidating an election, even though that conduct may not 

constitute an unfair labor practice. An election can serve 

its true purpose only if the surrounding conditions enable 

employees to register a free and untrammeled choice for or 

against a bargaining representative.’’ The Board’s ‘‘laboratory conditions’’ doctrine sets a considerably more restrictive standard for monitoring election 

related misconduct impairing free choice than the unfair 

labor practice prohibitions of interference, restraint and/or 

coercion. Over many years, the Board has developed specific rules and multi-factored tests to evaluate and rule on 

election objections. In contrast, recognition based on methods other than a Board conducted secret-ballot election is 

without these ‘‘laboratory conditions’’ protections and unless the interfering conduct amounts to an unfair labor 

practice, there is no remedy for compromising employee free 

choice (emphasis added; citations omitted). 

Very few points of labor law are black and white. This is one of 

those few. Courts, agencies, experts, lawmakers, and most important, American workers, recognize that the secret ballot election 

process is the only way to ensure that workers are given true 

‘‘choice’’ in determining whether to form and join a union. Again, 

in the very words of organized labor: 

[A representation election] ’’is a solemn . . . occasion, 

conducted under safeguards to voluntary choice,’’ . . . 

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[Other means of decision-making] are ‘‘not comparable to 

the privacy and independence of the voting booth,’’ and 

[the secret ballot] election system provides the surest 

means of avoiding decisions which are ‘‘the result of group 

pressures and not individual decision[s].’’ Joint Brief of the 

United Automobile, Aerospace, and Agricultural Implement Workers of America, the United Food and Commercial Workers, and the AFL–CIO, Chelsea Industries and 

Levitz Furniture Co. of the Pacific, Inc., Nos. 7–CA–36846, 

7–CA–37016 and 20–CA–26596 (NLRB) at 13 (May 18, 

1998) (citations omitted). 

Finally, it bears note that some of the very same Members of 

Congress who support this bill have made clear their belief that the 

right to a secret ballot ought to be protected in other countries—

but not here. No amount of contextualizing, pigeonholing, or explanation can deny the inconsistency in these Members arguments. As 

they wrote: 

AUGUST 29, 2001. 

Junta Local de Conciliacion y Arbitraje del Estado de Puebla, 

Lic. Armando Poxqui Quintero, 7 Norte, Numero 1006 Altos, 

Colonia Centro, Puebla, Mexico C.P. 

DEAR MEMBERS OF THE JUNTA LOCAL DE CONCILIACION Y

ARBITRAJE OF THE STATE OF PUEBLA: As members of Congress of 

the United States who are deeply concerned with international 

labor standards and the role of labor rights in international trade 

agreements, we are writing to encourage you to use the secret ballot 

in all union recognition elections. 

We understand that the secret ballot is allowed for, but not required by, Mexican labor law. However, we feel that the secret ballot is absolutely necessary in order to ensure that workers are not 

intimidated into voting for a union they might not otherwise choose. 

We respect Mexico as an important neighbor and trading partner, and we feel that the increased use of the secret ballot in union 

recognition elections will help bring real democracy to the Mexican 

workplace. 

Sincerely, 

George Miller, Marcy Kaptur, Bernard Sanders, William 

J. Coyne, Lane Evans, Bob Filner, Martin Olav 

Sabo, Barney Frank, Joe Baca, Zoe Lofgren, Dennis 

J. Kucinich, Calvin M. Dooley, Fortney Peter Stark, 

Barbara Lee, James P. McGovern, Lloyd Doggett. 

(Emphasis added). 

The Republican Members of the Committee could not say it better. 

The One-Sided Penalty Provisions of the Bill Are Unjust and Unwarranted, and Its Mandatory Arbitration Provisions Further 

Strip Workers of Rights 

Extended discussion of the other flaws in this bill is not necessary. As noted above, the bill’s penalty provisions are, simply 

put, a one-sided swipe at only one side of the bargaining equation, 

namely, employers. Neither the bill nor its supporters attempt to 

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disguise this fact. Indeed, as detailed below, Committee Democrats 

unanimously opposed an effort to bring some fairness to this provision in rejecting an amendment that would have provided that the 

enhanced penalties contained in the bill would apply to union violations as well as employer violations of the Act. Under H.R. 800, if 

an employer engages in a variety of specified behavior, it is immediately subject to new and severe labor law penalties. A union engaging in exactly the same behavior is exempted. That’s not fair, 

that’s not right, and that’s not good policy. 

Nor do Republicans support the bill’s effort to take away a worker’s right to vote on his or her contract. As the Supreme Court has 

noted, the Act is founded on the notion that the parties, not the 

government, should determine the applicable terms and conditions 

of employment: 

The object of this Act was not to allow governmental regulation of the terms and conditions of employment, but 

rather to ensure that employer and their employees could 

work together to establish mutually satisfactory conditions. The basic theme of the Act was that through collective bargaining the passions, arguments, and struggles of 

prior years would be channeled into constructive, open discussions leading, it was hoped, to mutual agreement. But 

it was recognized from the beginning that agreement 

might in some cases be impossible, and it was never intended that the Government would in such cases step in, 

become a party to the negotiations and impose its own 

views of a desirable settlement. H K. Porter v. NLRB, 397 

U.S. 99, 103–04 (1970) (emphasis added). 

Current law embodies a delicate balance with respect to the parameters within which unions and employers negotiate the terms 

and conditions of employment for workers in a particular bargaining unit. H.R. 800 would dramatically upset that balance by 

imposing, via government fiat, mandatory binding arbitration—essentially rendering the collective bargaining process nearly useless. 

As federal labor law expert and former NLRB Member Charles 

Cohen testified: 

[T]his interest arbitration requirement is unwise public 

policy. With respect to employees, it would parlay the taking away of a vote on representation with the taking away 

of a vote on ratification. This is because the contract mandated by the interest arbitrator renders moot employee endorsement. Likewise, it is the employer that must run the 

business, remain competitive, and pay the employees each 

week. The union has the opportunity to influence the employer’s thinking by engaging in economic warfare. But, 

the actual agreement is forged in the crucible of what the 

business can sustain. 

Testimony of Charles Cohen, Subcommittee on Health, Employment, Labor, and Pensions Hearing ‘‘Strengthening the Middle 

Class Through the Employee Free Choice Act’’ (February 8, 2007). 

Apart from eliminating their right to vote with a secret ballot on 

the question of unionization, it is hard to imagine a more undemomstockstill on PROD1PC66 with HEARING

57 

cratic provision, or a rule that provides employees with less 

‘‘choice.’’ For all of these reasons, we oppose this legislation. 

COMMITTEE CONSIDERATION OF H.R. 800

In light of the significant problems in H.R. 800 discussed above, 

during the Committee’s consideration of the legislation on February 

14, 2007, Committee Republicans offered a series of amendments 

designed to protect the rights of workers and ensure that federal 

labor law remains fair, balanced, and equitable with respect to all 

parties. Despite the Majority’s rhetorical flourishes about protecting the rights of workers, each of these amendments met with 

unanimous Democrat opposition. 

The Committee’s Senior Republican Member, Mr. McKeon, offered an amendment in the nature of a substitute which would 

have ensured that employees remain free of harassment, intimidation, or coercion by any party—union, employer, or co-worker—by 

affirmatively prohibiting the use of card check recognition, and providing that a union may only be recognized and certified after a secret ballot election conducted by the NLRB. The McKeon Amendment embodied the text of H.R. 866, the Secret Ballot Protection 

Act, sponsored by the late Honorable Charlie Norwood, who chaired 

the Education and Workforce Subcommittee on Workforce Protections in the 107th, 108th, and 109th Congresses. All Committee 

Democrats voted against this proposal. 

Health, Education, Labor and Pensions Subcommittee Ranking 

Republican Mr. Kline offered an amendment that would have provided equity and fairness to the card check process by allowing employees who wish to decertify a union as their bargaining agent to 

do so by way of a card check decertification. All Committee Democrats voted against this proposal. 

Dr. Boustany offered an amendment to ensure that workers are 

afforded the opportunity to sign cards free of harassment and coercion, and that they have a neutral party from whom to seek information, by requiring that an authorization card is not valid unless 

signed in the presence of an NLRB representative. All Committee 

Democrats voted against this proposal. 

Mr. Davis of Tennessee offered an amendment to provide fairness and equity in H.R. 800’s remedial scheme, by ensuring that 

the bill’s new civil penalty provisions would apply equally to employers and unions who violate the National Labor Relations Act. 

All Committee Democrats voted against this proposal. 

Mr. Walberg offered an amendment designed to ensure that 

workers—whose economic livelihood and survival bear the greatest 

risk when union leadership calls a strike—are able to choose for 

themselves whether to strike, by providing that a union may not 

commence strike unless its members voted on management’s last, 

best contract offer. All Committee Democrats voted against this 

proposal. 

In light of the evidence the Subcommittee heard at its hearing 

on February 8, 2007 on H.R. 800 from employees who had been 

badgered and harassed by union organizers, Ms. Foxx offered an 

amendment to ensure that workers are free of intimidation, harassment, and coercion by allowing workers to notify a union that they 

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did not wish to be contacted in connection with a recognition drive 

and requiring the union to honor the worker’s request. All Committee Democrats voted against this proposal. 

At that same hearing, the Subcommittee also heard testimony 

that union organizers are routinely trained to ignore requests from 

employees to return signed authorization cards, despite employees’

requests to do so, and that thereafter unions use these cards to 

seek recognition as a bargaining representative of these employees. 

See Testimony of Jennifer Jason, Subcommittee on Health, Employment, Labor, and Pensions Hearing ‘‘Strengthening the Middle 

Class Through the Employee Free Choice Act’’ (February 8, 2007) 

(‘‘I know many workers who later, upon reflection, knew that they 

had been manipulated and asked for their card to be returned to 

them. The union’s strategy, of course, was never to return or destroy such cards, but to include them in the official count towards 

the majority. This is why it is imperative that workers have the 

time and the space to make a reasoned decision based on the facts 

and their true feelings.’’). In light of this testimony, Dr. Price offered an amendment which would have made it an unfair labor 

practice for a union to fail to return a signed authorization card 

within five days of an employee’s request, and prohibited the union 

from using them to establish a card check majority or for any other 

purpose. All Committee Democrats voted against the proposal. 

Over the years, the Committee has heard ample testimony as to 

the union practice of ‘‘salting’’ a workforce. To ensure that newlyhired union organizers who have no interest in the long-term wellbeing of a company and no vested interest in their employment 

could not bind their bona fide coworkers to union representation, 

Mr. Ehlers offered an amendment to protect the right of bona fide 

workers. The Ehlers Amendment would simply have provided that 

a worker be employed with a company for 180 days before being 

eligible to sign a union authorization card. All Committee Democrats voted against this proposal. 

To ensure that the safety and well-being of all workers are protected from the very real threat of union violence, Mr. Wilson of 

South Carolina offered an amendment that would have enhanced 

the NLRB’s authority with respect to union organizers and labor 

organizations engaged in or encouraging violent and dangerous behavior, prohibited the NLRB from ordering reinstatement of an organizer or employee who has engaged or is engaging in union violence, and required the NLRB to decertify any union found to engage in or encourage the use of violence. All Committee Democrats 

voted against this proposal. 

To protect the right of all workers to be protected from forced unionism, Mr. Wilson also offered an amendment which would have 

ensured that no employee can be forced to join a union or pay 

union dues or agency fees. This legislation, based on the National 

Right to Work Act that Mr. Wilson of South Carolina has previously sponsored, simply amends the National Labor Relations Act 

to prohibit the use of ‘‘union security agreements’’ and provide that 

employees may not be required to use their hard-earned pay to pay 

union dues, simply as a condition of keeping their job. All Committee Democrats voted against this proposal. 

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59 

To address one of the widest-spread problems facing the United 

States—the flagrant violation of its immigration laws, and the 

massive and growing crisis of illegal immigration, Mr. Marchant offered an amendment that would have simply required that to be 

considered valid by the Board, a signed authorization card be accompanied by an attestation (supported by documentary evidence) 

that the employee was, in fact, a legal resident of the United 

States. Notably, the Marchant Amendment would have required no 

more of unions than is already required of employers under federal 

immigration law, and simply would have insured that illegal aliens 

are not given the right to dictate the terms and conditions of legal 

coworkers. All Committee Democrats voted against this proposal. 

Mr. Kline offered an amendment recognizing the special and sovereign nature of our nation’s Indian tribes, which would have provided that the card check provisions contained in H.R. 800 could 

not be used to organize employees working for businesses owned by 

Indian tribes and operating on their tribal lands. The Kline 

Amendment would have simply provided that much in the way federal labor law does not mandate ‘‘card check’’ agreements for sovereign state and local governments, it should not do so for sovereign Indian tribes. All Committee Democrats voted against this 

proposal. 

Finally, recognizing the wholesale and unprecedented change to 

federal labor law embodied in H.R. 800’s provisions mandating 

binding first-contract interest arbitration, Mrs. Biggert offered an 

amendment to strike that section of the bill. The Biggert Amendment would have at least ensured that while employees may be 

stripped of a right to vote on whether to unionize via H.R. 800’s 

‘‘card check’’ provisions, their right to vote on a collective bargaining agreement governing the terms and conditions of their employment could not be taken away. All Committee Democrats opposed this proposal. 

Given the irremediable flaws in this politically-motivated legislation, Committee Republicans were unanimous in opposing this bill, 

and voting against reporting this measure to the full House of Representatives. 

CONCLUSION

Despite its contortionist title, the so-called ‘‘Employee Free 

Choice Act’’ represents an egregious and frontal assault on worker 

rights, the likes of which have not come before the Committee in 

more than a decade. The bill would strip American workers of their 

right to vote their conscience on the question of unionization in a 

federally-supervised private ballot election. Instead, the bill is an 

open invitation to subject workers to intimidation, harassment, and 

deception until they ‘‘sign the card.’’ The bill’s provisions increasing 

damages, penalties, and remedies are unwarranted and one-sided, 

and unfairly tip the balance of labor law in the direction of one 

party. Finally, H.R. 800’s mandatory, binding arbitration provisions 

would strip workers of the right to vote on the terms of a collective 

bargaining agreement, and would serve only to foster more overpromising and misleading claims, with even less fear of repercussion. 

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60 

H.R. 800 represents the worst sort of legislation, and we respectfully oppose it. 

HOWARD P. MCKEON. TOM PETRI. PETER HOEKSTRA. MIKE CASTLE. MARK SOUDER. VERNON J. EHLERS. TODD R. PLATTS. RIC KELLER. JOE WILSON. JOHN KLINE. 

CATHY MCMORRIS RODGERS. 

K. MARCHANT. 

TOM PRICE. 

LUIS FORTUN ̃ O. 

C. W. BOUSTANY, Jr. 

VIRGINIA FOXX. ROB BISHOP. 

DAVID DAVIS. 

TIM WALBERG. 

Æ 

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