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96-151 PDF 2004

H.R. 4343, SECRET BALLOT 

PROTECTION ACT OF 2004

HEARING

BEFORE THE

SUBCOMMITTEE ON EMPLOYER-EMPLOYEE 

RELATIONS

OF THE

COMMITTEE ON EDUCATION 

AND THE WORKFORCE 

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

September 30, 2004

Serial No. 108-74

Printed for the use of the Committee on Education and the Workforce

(

Available via the World Wide Web: http://www.access.gpo.gov/congress/house 

or 

Committee address: http://edworkforce.house.gov 

(II)

COMMITTEE ON EDUCATION AND THE WORKFORCE 

JOHN A. BOEHNER, Ohio, Chairman

Thomas E. Petri, Wisconsin, Vice Chairman 

Cass Ballenger, North Carolina 

Peter Hoekstra, Michigan 

Howard P. ‘‘Buck’’ McKeon, California 

Michael N. Castle, Delaware 

Sam Johnson, Texas 

James C. Greenwood, Pennsylvania 

Charlie Norwood, Georgia 

Fred Upton, Michigan 

Vernon J. Ehlers, Michigan 

Jim DeMint, South Carolina 

Johnny Isakson, Georgia 

Judy Biggert, Illinois 

Todd Russell Platts, Pennsylvania 

Patrick J. Tiberi, Ohio 

Ric Keller, Florida 

Tom Osborne, Nebraska 

Joe Wilson, South Carolina 

Tom Cole, Oklahoma 

Jon C. Porter, Nevada 

John Kline, Minnesota 

John R. Carter, Texas 

Marilyn N. Musgrave, Colorado 

Marsha Blackburn, Tennessee 

Phil Gingrey, Georgia 

Max Burns, Georgia 

George Miller, California 

Dale E. Kildee, Michigan 

Major R. Owens, New York 

Donald M. Payne, New Jersey 

Robert E. Andrews, New Jersey 

Lynn C. Woolsey, California 

Rube ́n Hinojosa, Texas 

Carolyn McCarthy, New York 

John F. Tierney, Massachusetts 

Ron Kind, Wisconsin 

Dennis J. Kucinich, Ohio 

David Wu, Oregon 

Rush D. Holt, New Jersey 

Susan A. Davis, California 

Betty McCollum, Minnesota 

Danny K. Davis, Illinois 

Ed Case, Hawaii 

Rau ́l M. Grijalva, Arizona 

Denise L. Majette, Georgia 

Chris Van Hollen, Maryland 

Tim Ryan, Ohio 

Timothy H. Bishop, New York

Paula Nowakowski, Staff Director 

John Lawrence, Minority Staff Director 

SUBCOMMITTEE ON EMPLOYER–EMPLOYEE RELATIONS 

SAM JOHNSON, Texas, Chairman

Jim DeMint, South Carolina, Vice Chairman 

John A. Boehner, Ohio 

Cass Ballenger, North Carolina 

Howard P. ‘‘Buck’’ McKeon, California 

Todd Russell Platts, Pennsylvania 

Patrick J. Tiberi, Ohio 

Joe Wilson, South Carolina 

Tom Cole, Oklahoma 

John Kline, Minnesota 

John R. Carter, Texas 

Marilyn N. Musgrave, Colorado 

Marsha Blackburn, Tennessee 

Robert E. Andrews, New Jersey 

Donald M. Payne, New Jersey 

Carolyn McCarthy, New York 

Dale E. Kildee, Michigan 

John F. Tierney, Massachusetts 

David Wu, Oregon 

Rush D. Holt, New Jersey 

Betty McCollum, Minnesota 

Ed Case, Hawaii 

Rau ́l M. Grijalva, Arizona 

George Miller, California, ex officio 

(III)

C O N T E N T S 

Page

Hearing held on September 30, 2004 ..................................................................... 1

Statement of Members: 

Andrews, Hon. Robert E., Ranking Member, Subcommittee on EmployerEmployee Relations, Committee on Education and the Workforce .......... 4

Johnson, Hon. Sam, Chairman, Subcommittee on Employer-Employee Relations, Committee on Education and the Workforce ................................ 1

Prepared statement of ............................................................................... 2

Norwood, Hon. Charlie, a Representative in Congress from the State 

of Georgia ...................................................................................................... 3

Statement of Witnesses: 

Garren, Brent, Esq., Senior Associate General Counsel, UNITE-HERE, 

New York, NY ............................................................................................... 16

Prepared statement of ............................................................................... 17

Hermanson, Richard, Vice President, United Screeners Association Local 

1, San Francisco, CA ..................................................................................... 13

Prepared statement of ............................................................................... 14

Raudabaugh, John N., Partner, Butzel Long, Former Member of the 

National Labor Relations Board (1990-1993), Detroit, MI ........................ 6

Prepared statement of ............................................................................... 8

Riley, Thomas, Service Sales Representative, CINTAS Corporation, Emmaus, PA ....................................................................................................... 26

Prepared statement of ............................................................................... 28

Additional materials supplied: 

Checking the Premises of ‘‘Card Check’’, submitted for the record by 

Hon. Charlie Norwood .................................................................................. 47

Junta Local De Conciliscion, submitted for the record by Hon. Charlie 

Norwood ......................................................................................................... 46

National Right to Work Committee, memorandum with fact sheet submitted for the record by Hon. Marilyn N. Musgrave ................................. 51

(1)

H.R. 4343, SECRET BALLOT PROTECTION ACT 

OF 2004

Thursday, September 30, 2004

U.S. House of Representatives 

Subcommittee on Employee-Employer Relations 

Committee on Education and the Workforce 

Washington, DC 

The Subcommittee met, pursuant to notice, at 10:38 a.m., in 

room 2175, Rayburn House Office Building, Hon. Sam Johnson 

[Chairman of the Subcommittee] presiding. 

Present: Representatives Johnson, McKeon, Kline, Musgrave, 

Andrews, Kildee, Tierney, Holt, McCollum, Grijalva, and Norwood. 

Staff present: Kevin Frank, Professional Staff Member; Ed 

Gilroy, Director of Workforce Policy; Richard Hoar, Staff Assistant; 

Jim Paretti, Workforce Policy Counsel; Deborah L. Samantar, Committee Clerk/Intern Coordinator; Loren Sweatt, Professional Staff 

Member; Jody Calemine, Minority Counsel, Employer-Employee 

Relations; Margo Hennigan, Minority Legislative Assistant/Labor; 

and Peter Rutledge, Minority Senior Legislative Associate/Labor. 

Chairman JOHNSON. Good morning. A quorum being present, the 

Subcommittee on Employer-Employee Relations of the Committee 

on Education and the Workforce will come to order. 

We are meeting today to hear testimony on H.R. 4343, the ‘‘Secret Ballot Protection Act of 2004.’’ Under Committee Rule 12(b), 

opening statements are limited to the Chairman and the Ranking 

Minority Member of the Subcommittee. Therefore, if other members have statements, they may be included in the record. 

Mr. Norwood, whose bill this is, will be with us shortly, and we’ll 

give him some time, with your approval, later. 

With that, I ask unanimous consent for the hearing record to remain open for 14 days to allow members’ statements and other extraneous material referenced during the hearing to be submitted in 

the official hearing record. Without objection, so ordered. 

STATEMENT OF HON. SAM JOHNSON, CHAIRMAN, SUBCOMMITTEE ON EMPLOYER-EMPLOYEE RELATIONS, COMMITTEE ON EDUCATION AND THE WORKFORCE 

Good morning to all of you. Thank you for being here. I’m 

pleased to chair today’s hearing on the Secret Ballot Protection Act, 

introduced by my good friend from Georgia, Charlie Norwood, the 

Chairman of the Workforce Protection Subcommittee. 

2

Today’s hearing continues our comprehensive review of our nation’s labor laws, which in many instances have not been substantively changed in seven decades. Given that our labor market 

reflects a vastly different and modern era, these hearings will determine how our labor laws may be changed to better address the 

21st century workforce. 

As I noted at our hearing back in April, in the last 10 years 

we’ve seen an increased effort by big labor to circumvent current 

worker protection laws by abusing the secret ballot process. Indeed, 

the use of so-called card check agreements has become a critical 

component of big labor’s organizing strategy. This can undermine 

the trust between workers and their employers, and it’s just wrong 

that employers are often pressured into accepting card checks by 

unions. 

We also heard expert testimony suggesting that secret ballot 

elections are more accurate indicators than authorization cards of 

whether or not employees actually wish to join a union. This bill 

responds to these concerns and would prohibit the use of card 

checks to ensure that all employees are allowed to cast their vote 

in a fair and secret ballot election. 

I look forward to the hearing today and yield the balance of my 

time for an explanation of the bill to the Chairman of the Workforce Protection Subcommittee, Congressman Norwood. Thank you 

for being with us. 

[The prepared statement of Chairman Johnson follows:]

Statement of Hon. Sam Johnson, Chairman, Subcommittee on Employeremployee Relations, Committee on Education and the Workforce 

GOOD MORNING. I AM PLEASED TO CHAIR TODAY’S HEARING ON THE 

‘‘SECRET BALLOT PROTECTION ACT OF 2004’’—INTRODUCED BY MY GOOD 

FRIEND FROM GEORGIA, CHARLIE NORWOOD, THE CHAIRMAN OF THE 

WORKFORCE PROTECTIONS SUBCOMMITTEE. 

TODAY’S HEARING CONTINUES OUR COMPREHENSIVE REVIEW OF OUR 

NATION’S LABOR LAWS, WHICH, FOR THE MOST PART, HAVE NOT BEEN 

SUBSTANTIVELY CHANGED IN 7 DECADES. 

GIVEN THAT OUR LABOR MARKET REFLECTS A VASTLY DIFFERENT AND 

MODERN ERA, THESE HEARINGS WILL DETERMINE HOW OUR LABOR 

LAWS MAY BE CHANGED TO BETTER ADDRESS A 21ST CENTURY WORKFORCE. 

AS I NOTED AT OUR HEARING BACK IN APRIL, IN THE LAST TEN YEARS 

WE HAVE SEEN AN INCREASED EFFORT BY BIG LABOR TO CIRCUMVENT 

CURRENT WORKER PROTECTION LAWS BY ABUSING THE SECRET–BALLOT 

PROCESS. 

INDEED, THE USE OF SO–CALLED ‘‘CARD CHECK AGREEMENTS’’ HAS BECOME A CRITICAL COMPONENT OF BIG LABOR’S ORGANIZING STRATEGY. 

THIS CAN UNDERMINE THE TRUST BETWEEN WORKERS AND THEIR EMPLOYERS. 

IT IS JUST WRONG THAT EMPLOYERS ARE OFTEN PRESSURED INTO ACCEPTING ‘‘CARD CHECKS’’ BY THE UNIONS. 

WE ALSO HEARD EXPERT TESTIMONY SUGGESTING THAT SECRET BALLOT ELECTIONS ARE MORE ACCURATE INDICATORS THAN AUTHORIZATION CARDS OF WHETHER OR NOT EMPLOYEES ACTUALLY WISH TO JOIN 

A UNION. 

H.R. 4343 RESPONDS TO THESE CONCERNS, AND WOULD PROHIBIT THE 

USE OF CARD–CHECKS TO ENSURE THAT ALL EMPLOYEES ARE ALLOWED 

TO CAST THEIR VOTE IN A FAIR AND SECRET BALLOT ELECTION. 

I LOOK FORWARD TO HEARING THE TESTIMONY OF OUR WITNESSES 

TODAY, AND YIELD THE BALANCE OF MY TIME FOR AN EXPLANATION OF 

THE BILL TO THE CHAIRMAN OF THE WORKFORCE PROTECTIONS SUBCOMMITTEE, CONGRESSMAN NORWOOD. 

3

STATEMENT OF HON. CHARLIE NORWOOD, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF GEORGIA 

Mr. NORWOOD. Thank you very much, Mr. Chairman, and thank 

you for holding this hearing. I commend my colleague from Texas 

on his leadership on these important issues, and I appreciate more 

than you know your convening this hearing today, given the significance, in my mind, of the issues before us. 

We have all heard far too many stories about big labor bosses 

mounting aggressive and coercive card check campaigns to organize 

a non-union workplace. Now these aren’t just stories. These are 

real people with real problems coming in to talk to us about them. 

It seems that they coerce employees—or employers—into agreeing 

to card check agreements, then pressure employees into signing the 

so-called authorization cards, which do little more, frankly, than 

deny employees the right to a fair and secret ballot election where 

nobody knows how you vote, nobody knows what your position is 

on this, and that is the only fair way that this can be done. 

These cards often force employees to declare their support for 

union representation in front of union operatives and fellow employees. That’s just not right. If you vote on a secret ballot, nobody 

knows how you voted. If you have to sign a card, everybody knows 

how you voted. Workers are not offered a chance to vote in private. 

They are instead subjected to pressure tactics that rob them of a 

free choice. Those pressure tactics can come from many places, but 

they shouldn’t come from anywhere if you’re allowed a secret ballot. 

Mr. Chairman, my legislation, the Secret Ballot Protection Act, 

is simply a matter of common sense. It puts an end to these coercive tactics by making clear in the National Labor Relations Act 

that a union must be elected by a majority, unhampered majority, 

in a free and fair secret ballot election. 

Simply put, the Secret Ballot Protection Act does three things. 

First, it preserves the sanctity of workers’ free choice and the right 

to a secret ballot election, meaning nobody knows how you vote. 

Second, it protects workers from intimidation, threats, misinformation or coercion by a union to sign an authorization card. 

Third, it eliminates the union’s ability to pressure employees to 

agree to a card check recognition. 

H.R. 4343 would amend the National Labor Relations Act to provide that the NLRB may only recognize a union selected in a 

board-administered secret ballot election. I fail to understand 

what’s so wrong about that. 

So many people in this Congress for years have urged that same 

thing on the rest of the world. Now it’s not good enough in America. H.R. 4343 would make it an unfair labor practice for an employer to recognize a union which has not been selected by a majority of the employees in a secret ballot election, and would make it 

an unfair labor practice for a union to cause or attempt to cause 

an employer to bargain if the union was not selected in such an 

election. 

My colleagues, this legislation is supported by all of the evidence 

that we have heard concerning abuse of the card check program, 

and that has been a lot of evidence. Though I’m sure we’ll hear a 

4

lot of political rhetoric today, as we have whenever we address 

these issues, the facts remain the facts. 

But one thing I’ve never heard is a convincing answer to just one 

simple question: What can be more fair, what can be more democratic and more protective of employees’ rights, than the right to 

vote in a secret ballot election where nobody knows how you vote? 

I urge all of my colleagues to support this legislation. Again, I 

truly thank the Chairman. Mr. Chairman, I yield back the balance 

of my time. 

Chairman JOHNSON. Thank you for being with us, Mr. Norwood. 

Thank you for your comments. Now I yield to my distinguished 

Ranking Minority Member from New Jersey, Mr. Andrews, for 

whatever comments you wish to make. 

STATEMENT OF HON. ROBERT E. ANDREWS, RANKING MEMBER, SUBCOMMITTEE ON EMPLOYER-EMPLOYEE RELATIONS, COMMITTEE ON EDUCATION AND THE WORKFORCE 

Mr. ANDREWS. Thank you, Mr. Chairman. Good morning to the 

witnesses and our guests. The issue before the Committee this 

morning is how to assure that when a worker is confronted with 

a choice between choosing to join a union or not choosing to join 

a union, that that choice is made in a noncoercive, fair, free manner. 

I think there is unanimity on the Committee that every man and 

woman faced with that choice should be able to make the choice 

freely, free of intimidation or coercion by anyone—by the union 

that’s trying to organize them, by another union that might be 

competing to organize them, and certainly by the employer, as well. 

My friend from Georgia indicated that we would hear a lot of political rhetoric today. We’ve already heard a lot of political rhetoric 

today from him. We hear caricatures of union bosses abusing the 

secret ballot process. We hear caricatures of coercion and intimidation. I have no doubt that there have been incidents of coercion and 

intimidation by workers in this process by union organizers. I have 

no doubt that that’s true. I also have no doubt that it’s true that 

there has been intimidation and coercion of employees by employers in captive meetings, in notices being put in people’s paychecks, 

in promotion and hiring practices, as well. Our job is to look beyond the caricatures and look at the evidence, and I’m hopeful that 

this hearing will yield evidence as to several questions which I 

think need to be answered. 

First, I do not think, as my friend, the Chairman, indicated, that 

the card check is an abuse of the secret ballot process per se. In 

fact, the card check process as a duly recognized route to employee 

unionization has been recognized by the National Labor Relations 

Board for a very long time. It is potentially the subject of abuse, 

but the mere existence of the card check process, in my view, is not 

evidence of abuse, which undercuts the principal argument for Mr. 

Norwood’s bill. 

The questions we ought to be asking here are how broad is the 

factual record of abuse of employees’ free choice in the card check 

process? How often does it happen? How often are complaints filed? 

What is the resolution of those complaints? What remedies exist to 

5

safeguard against that process under present law? Are those remedies being properly enforced? 

Another set of questions we ought to look at is just how free and 

fair is the election process under a set of rules where the employer 

has virtually unfettered access to the voters, but where the organizers have virtually no access to the voters, particularly in the 

workplace? How often do people change their positions out of reasons of coercion during that process? 

I do not bring to this hearing a prejudice with respect to the answer to those questions. As I said earlier, I am certain, and I’m 

sure we’ll hear from some of the witnesses this morning, that there 

has been misconduct by union organizers in the process of pursuing 

card check registration. I’m also certain that there has been misconduct by employers in the process of trying to intimidate and influence the votes of employees in elections. 

We should make law in this Congress based upon evidence, not 

instinct. We should look at the record that exists. We should not 

exaggerate anecdotal evidence. We should give it due weight. We 

should certainly understand, as Mr. Norwood said, that there are 

human beings attached to these problems. But the answer to every 

problem is not a new law. Very often, the answer to a problem is 

the proper enforcement of an existing law. And most certainly, the 

answer to a problem is not to overreact to a problem and extinguish a valid method of determining employee choice in the context 

of card check registration. 

Mr. Norwood is my friend, and I’m particularly respectful of the 

incredible effort he is making to serve his constituents in the face 

of some very serious health issues. A lot of people here, Charlie, 

would not do what you’re doing right now, and we admire you for 

it. But I disagree with my friend on this issue. I think that when 

he asks the simple question, what could be more fair than a secret 

ballot choice for an employee, I have an answer to his question. 

What could be more fair is an election that is conducted in a noncoercive environment where neither side has the ability to unduly 

influence the vote of the employee before it is taken. 

That’s the goal of the present law. I think that goal is contradicted by Mr. Norwood’s proposal. 

We look forward to hearing the testimony of the witnesses this 

morning and thank them for their participation. 

Chairman JOHNSON. Thank you, Mr. Andrews. A profound statement, I think. You’re getting better with age. 

We’ll begin with our panel of distinguished witnesses. Our first 

witness today is Mr. John Raudabaugh. Mr. Raudabaugh is a partner in the law firm of Butzel Long in Detroit, Michigan. From 1990 

to 1993, he served as a member of the National Labor Relations 

Board. Mr. Raudabaugh is a nationally recognized expert in the 

fields of labor law and labor relations. 

The next witness is Mr. Richard Hermanson. Mr. Hermanson is 

Vice President of the United Screeners Association Local Number 

1 in San Francisco, California. Mr. Hermanson is an employee of 

Covenant Aviation Services at the San Francisco Airport. Thank 

you for being here. 

Next on the panel is Mr. Brent Garren. Mr. Garren is a Senior 

Associate General Counsel with the international union, UNITEVerDate 0ct 09 2002 19:20 Dec 05, 2004 Jkt 000000 PO 00000 Frm 00009 Fmt 6633 Sfmt 6602 H:\DOCS\96151 EDUWK PsN: NNIXON
6

HERE, in New York, editor-in-chief of ‘‘How to Take a Case Before 

the NLRB,’’ and is a former union co-chair of the ABA’s Labor and 

Employment Section Committee on Practice and Procedure under 

the NLRA. Mr. Garren is testifying on behalf of UNITE-HERE. 

Finally, we’ll hear from Mr. Thomas Riley. Mr. Riley is a service 

sales representative with Cintas Corporation in Allentown, Pennsylvania. 

Before our witnesses begin their testimony, I would like to remind the members, we will ask questions after the entire panel has 

testified. In addition, Committee Rule 2 imposes a 5-minute limit 

on all questions. And we also would ask that you adhere to a 5-

minute rule, as well. And I don’t know if you watched the lights 

when we were talking, but they’re down there in front of you, and 

the green gives you four, and the yellow comes on when you’ve got 

a minute left, and the red, we’d like for you to tie it down if you 

would. 

With that, I want to recognize Mr. Raudabaugh for an opening 

statement. Go ahead, sir. 

STATEMENT OF JOHN N. RAUDABAUGH, ESQ., PARTNER, 

BUTZEL LONG, FORMER MEMBER OF THE NATIONAL LABOR 

RELATIONS BOARD (1990-1993), DETROIT, MI 

Mr. RAUDABAUGH. Good morning. Chairman Johnson and members of the Subcommittee, I’m honored to be here today, and I 

thank you for your kind invitation. 

The only right extended by the National Labor Relations Act is 

conferred on employees—the Section 7 right to choose an exclusive 

bargaining representative or to refrain from such activity. The Act 

protects this right to choose by prohibiting any employer and/or 

union encroachment on employee free choice. To be sure, the Act 

encourages the resolution of disputes and indeed values industrial 

stability. However, third party exclusive representation may not be 

achieved at the expense of employee rights. 

So how is employee choice registered and majority status validated? 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. Of 

these various methods, the United States Supreme Court and the 

Board have long recognized what a Board-conducted secret ballot 

election is the most satisfactory, indeed preferred method of 

ascertaining employee support for a union. 

As the Board announced in General Shoe Corporation: 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. 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. 

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 rises to the level of 

7

an unfair labor practice, there is no remedy for compromising employee free choice. 

Today, organized labor embraces organizing tactics bypassing 

Board-conducted secret ballot elections. The AFL-CIO reports that 

more than 80 percent of newly organized employee in 2002 were organized through corporate campaigns and bargained-for neutrality 

and card check agreements. Indeed, organized labor finds the 

Board election procedures broken. 

The issues of protecting free choice and validating employee majority preference has received periodic Congressional attention over 

the Act’s 69-year history. During the first few years following the 

Act’s passage, the Board determined majority choice by union cards 

and even strike votes. But as early as 1939, the Board became convinced by its experience that it is best to determine majority status 

by secret ballot. 

The Taft-Hartley debates considered but rejected an amendment 

to require an employer to bargain only with a union certified following an election or already recognized. But with little debate, 

Congress did amend Section 9(c) limiting certification to the secret 

ballot election process. 

In 1977, Congress again considered labor law reform, and in the 

early ’90’s witnessed renewed efforts for labor law modernization. 

Of concern is organized labor’s latest effort to convince some legislators to deny employees access to information and to discard the 

secret ballot. Election systems are blamed for lower certification 

success rates because management has notice of the campaign period and can voice opposing views, whereas card check is viewed 

as successful because union organizers may be able to inflate the 

level of support through peer pressure for pro-union colleagues. 

Well, yes, it is true that the Board’s secret ballot election is highly regulated to ensure laboratory conditions. And it is also true 

that solicitation of authorization cards is virtually unregulated. 

Justice Douglas writing for the Supreme Court was clearly aware 

of the distinctions, and he said, ‘‘If we respect, as we must, the 

statutory right of employees to resist efforts to unionize a plant, we 

cannot assume that unions exercising powers are wholly benign toward their antagonists, whether they be non-union protagonists or 

the employer. The failure to sign a recognition slip may well seem 

ominous to non-unionists who fear that if they do not sign them 

they will face a wrathful union regime should the union win.’’

Interestingly, while organized labor and certain legislators advance card check and eschew the secret ballot election process for 

certifying union representation, they embrace the secret ballot 

process as a check on the employer’s withdrawal of recognition. Apparently, organized labor wants the deliberative secret ballot election and attendant laboratory conditions on the back end when loss 

of majority status is at issue, but they reject it on the front end 

when soliciting signatures to demand recognition. 

This Secret Ballot Protection Act of 2004 should be enacted. The 

manual election is the Board’s crown jewel. To realize the sole right 

extended by the Act to choose whether to be represented for purposes of collective bargaining, the employee/voter should not be denied information or informed choice, a secret ballot to enhance seVerDate 0ct 09 2002 19:20 Dec 05, 2004 Jkt 000000 PO 00000 Frm 00011 Fmt 6633 Sfmt 6602 H:\DOCS\96151 EDUWK PsN: NNIXON
8

lection integrity and the validation of the exercise through maximum participation by the electorate. 

In the final analysis, organized labor’s push to abandon the secret ballot and necessarily compromise the employee’s right to 

choose is nothing new. It is high time for Congress to bring congruity to its 1947 effort where it amended 9(c) by now amending 

Section 9(a) to make certain that choice will be free because it is 

secret. 

Congressman Norwood and Senator Graham’s bills seek a limited 

but critical repair to our nation’s labor law. The long awaited 

chance to Section 9(a) will eliminate needless litigation. Representation rights will be determined by a single method, the secret ballot. These bills are not radically streamlining the Act by borrowing 

controversial interest arbitration from the public sector to force 

first contracts or devaluing the secret ballot and end running informed choice. 

If Board procedures result in delay or Board administration is 

not consistent or Board unit determinations are outdated, or if 

Board laboratory conditions are too antiseptic, or if Board remedies 

for violations are——

Chairman JOHNSON. Sir, can you tie it down a little bit? 

Mr. RAUDABAUGH. I’m sorry. 

Chairman JOHNSON. That’s all right. We’ve given you about 7 

minutes already. 

Mr. RAUDABAUGH. I will finish it immediately. Then gather these 

facts to address these others problems, and with my colleague from 

Cornell, where we disagree on this issue, those matters can be addressed separately, but the secret ballot is the essence of our democracy, and we extend that throughout the world. 

Thank you. 

[The prepared statement of Mr. Raudabaugh follows:]

Statement of John N. Raudabaugh, Esq., Partner, Butzel Long, Former 

Member of the National Labor Relations Board (1990–1993), Detroit, MI 

Chairman Johnson and Members of the Subcommittee, I am honored to be here 

today and I thank you for your kind invitation. 

I testify today in support of H.R. 4343/S.2637, The ‘‘Secret Ballot Protection Act 

of 2004.’’ The Secret Ballot election is the foundation of America’s industrial democracy established by the National Labor Relations Act of 1935. As President Reagan 

observed in November 1985 on the occasion of the National Labor Relations Board’s 

50th Anniversary: ‘‘Our system of peaceful industrial relations and the National 

Labor Policy that has evolved from the Act rests on this principle of free choice.’’

By way of introduction, I was nominated by President George H.W. Bush, confirmed by the Senate and served as a Member of the National Labor Relations 

Board (‘‘Board’’ or ‘‘NLRB’’) from August 27, 1990 through November 26, 1993. Prior 

to my confirmation, I practiced labor relations law representing management from 

1977 to 1990. Before entering law school, I served four years as a U.S. Navy Supply 

Corps officer and earned a graduate degree in labor economics. Since leaving the 

Board, I returned to private practice. I am a Shareholder in the law firm of Butzel 

Long now celebrating 150 years of client service. On July 15, 2004, I, along with 

former Board Members J. Robert Brame III and Dennis M. Devaney, authored and 

filed a brief on behalf of 21 Members of the U.S. House of Representatives led by 

Education and Workforce Committee Chairman Boehner and Employer–Employee 

Relations Subcommittee Chairman Johnson and Workforce Protections Subcommittee Chairman Norwood in the Dana/Metaldyne cases pending before the 

9

Board concerning union card-check voluntary recognition. The brief is available at 

www.nlrb.gov for your convenience.

‘‘The free choice of the worker is the only thing I am interested in.’’

Senator Robert F. Wagner, 1 Leg. History 440 (1935)

The only right extended by the National Labor Relations Act (‘‘Act’’ or ‘‘NLRA’’) 

is conferred on employees—the Section 7 right to choose an exclusive bargaining 

representative or to refrain from such activity. 29 U.S.C. § 157 (2004); Lechmere, 

Inc. v. NLRB, 502 U.S. 527 (1992) The Act protects this right to choose by prohibiting any employer and/or union encroachment on employee free choice. 29 U.S.C. 

§§ 158(a), (b) (2004) To be sure, the Act encourages the resolution of disputes and 

values ‘‘industrial stability.’’ 29 U.S.C. § 151 (2004) However, third party exclusive 

representation may not be achieved at the expense of employee rights—‘‘[i]ndividual 

and collective employee rights may not be trampled upon merely because it is inconvenient to avoid doing so.’’ International Ladies’ Garment Workers v. NLRB, 366 

U.S. 731 (1961); see also Allentown Mack Sales & Serv. v. NLRB, 522 U.S. 359 

(1998); Brooks v. NLRB, 348 U.S. 96 (1954). 

So how is employee choice registered and majority status validated? Under current law, employee designation or selection may be by a Board supervised secretballot election or by voluntary recognition based on polls, petitions, or union authorization cards. 29 U.S.C. §§ 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. NLRB v. Gissel Packing Co., 395 U.S. 

575, 602 (1969) 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. Dal–Tex 

Optical, 137 NLRB 1782 (1962) Over many years, the Board has developed specific 

rules and multi-factored tests to evaluate and rule on election objections. Harsco 

Corp., 336 NLRB 157 (2001) 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. 

Notably, recognition of a majority representative affords certain privileges. Board 

certification of a bargaining representative elected by a majority precludes a challenge for one year, despite any interim loss of majority, to facilitate bargaining for 

an initial contract. Brooks v. NLRB, 348 U.S. 96 (1954) The Board created voluntary 

recognition bar attempts to do the same thing nurture the nascent bargaining relationship for a ‘‘reasonable period of time.’’ But what is reasonable has grown from 

three weeks to just two days short of a year essentially the same as that obtainable 

only by a Board conducted secret ballot election and ‘‘laboratory conditions.’’ MGM–

Grand Hotel, 329 NLRB 464 (1999) Should a collective bargaining agreement be 

reached, the contract bar attaches effectively precluding employee choice for up to 

four years. General Cable Corp., 139 NLRB 1123 (1962) 

Today, organized labor embraces organizing tactics bypassing Board conducted secret ballot elections. The AFL–CIO reports that more than 80 percent of newly organized employees in 2002 were organized through corporate campaigns and bargained-for neutrality and card-check agreements. Remarks of AFL–CIO President 

John T. Sweeney, Executive Council Meeting, March 20, 2004. Organized labor finds 

the Board election procedures broken. Id. 

Apparently what’s old is new again. The issues of protecting free choice and validating employee majority preference has received periodic Congressional attention 

over the Act’s 69 year history. During the first few years following the Act’s passage, 

the Board entertained many different means to record employee choice—authorization cards, union membership cards, strike votes, strike participation, and the acceptance of strike benefits. Sheila Murphy, ‘‘A Comparison of the Selection of Bargaining Representatives in the United States and Canada: Linden Lumber, Gissel 

and the Right to Challenge Majority Status,’’ 10 Lab. L.J. 65, 69 (1988) (citing 

10

McFarland & Bishop, Union Authorization Cards and the NLRB: A Study of Congressional Intent, Industrial Research Unit Univ. of Pa. Press (1969)). As early as 

1939, the Board commented: 

Although in the past we have certified representatives without an election 

. . . we are persuaded by our experience that, under the circumstances of 

this case, any negotiations entered into pursuant to determination of representatives by the Board will be more satisfactory if all disagreements between the parties regarding the wishes of the employees have been, as far 

as possible, eliminated. We shall therefore direct that an election by secret 

ballot be held. Armour & Co., 13 NLRB 567 (1939) 

The Taft–Hartley debates considered, but rejected, an amendment to require an 

employer to bargain only with a union certified following an election or already recognized. But with little debate, Congress did amend Section 9(c) limiting certification to the secret ballot election process. In 1977 Congress again considered labor 

law reform and in the early nineties witnessed renewed efforts for labor law modernization. And, throughout the Act’s history, academicians have contributed to the 

debate. E.g., Craig Becker, ‘‘Democracy in the Workplace: Union Representation 

Elections and Federal Labor Law,’’ 77 Minn. L. Rev. 495 (1993) 

Putting the philosophical debate aside—representative democracy as distinguished from industrial democracy—organized labor’s complaints are several: election timing/delay, constituencies/unit gerrymandering, regulation of campaign tactics/laboratory conditions, remedies/penalties, and defining the employer’s role, if 

any. Id.; Adrienne E. Eaton and Jill Kriesky, ‘‘Union Organizing Under Neutrality 

and Card Check Agreements,’’ 55 ILR Rev. 42 (2001); Human Rights Watch, ‘‘Unfair 

Advantage: Workers’’ Freedom of Association in the United States under International Human Rights Standards,’’ (2002); Brent Garren, ‘‘The High Road to Section 7 Rights: The Law of Voluntary Recognition Agreements,’’ 54 Labor L.J. No. 

4 (2003); Nancy Schiffer, Testimony before U.S. Senate Labor—HHS Subcommittee 

Hearing, (September 23, 2004) To be sure, labor’s complaints, as well as critique 

from all affected constituencies, deserve hearing. But begin by considering Senator 

Wagner’s observation: 

[A]s to . . . representation of the workers you cannot have anymore genuine 

democracy than this. We say under Government supervision let the workers 

themselves . . . go into a booth and secretly vote, as they do for the political 

representatives in a secret ballot, to select their choice. 1 Leg. Hist. 642 

(1935) 

And related to the secret ballot is the necessity of information to enable a choice. 

In Thomas v. Collins, 323 U.S. 516 (1945), Justice Jackson observed: 

Free speech on both sides and for every faction on any side of the labor relation is . . . useful . . . Labor is free to turn its publicity on any labor oppression, substandard wages, employer unfairness, or objectionable working 

conditions. The employer, too, should be free to answer, and to turn publicity on the records of the leaders or the unions which seek the confidence 

of his men. 

Of concern is organized labor’s latest effort to convince some legislators to deny 

employees access to information and to discard the secret ballot. Schiffer, Testimony, supra.; Chris Riddell, ‘‘Union Certification Success Under Voting Versus 

Card–Check Procedures: Evidence from British Columbia,’’ 57 ILR Rev. 493 (2004); 

H.R. 3078, S. 1513 Election systems are blamed for lower certification success rates 

because management has notice of the campaign period and can voice opposing 

views, whereas card check is viewed as successful since union organizers may be 

able to inflate the level of support through peer pressure from pro-union colleagues. 

Id. 

Yes, it is true that the Board’s secret ballot election is highly regulated—to ensure 

‘‘laboratory conditions.’’ And, it is also true that solicitation of authorization cards 

is virtually unregulated. ‘‘Union Authorization Cards,’’ 75 Yale L.J. 305 (1966). Justice Douglas, writing for the Court, was clearly aware of the distinctions: 

If we respect, as we must, the statutory right of employees to resist efforts 

to unionize a plant, we cannot assume that unions exercising powers are 

wholly benign towards their antagonists whether they be nonunion protagonists or the employer. The failure to sign a recognition slip may well seem 

ominous to nonunionists who fear that if they do not sign they will face a 

wrathful union regime, should the union win. NLRB v. Savair Mfg. Co., 414 

U.S. 270, 280 (1973) 

And the comments of the Fourth Circuit Court of Appeals cannot be ignored: 

The unsupervised solicitation of authorization cards by unions is subject to 

all of the criticisms of open employer polls. It is well known that many people, solicited alone and in private, will sign a petition and, later, solicited 

11

alone and in private, will sign an opposing petition, in each instance, out 

of concern for the feelings of the solicitors and the difficulty of saying ‘‘No.’’ 

This inclination to be agreeable is greatly aggravated in the context of a 

union organizational campaign when the opinion of fellow-employees and of 

potentially powerful union organizers weighs heavily in the balance. . . . 

Though the card be [sic] an unequivocal authorization of representation, its 

unsupervised solicitation may be accompanied by all sorts of representations. . . . 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 

Packaging Co., 386 F.2d 562, 565 (1967) See also, HR Policy Assoc. Memoranda 02–88 (2002), 04–10 (2004); National Right to Work Legal Defense 

Foundation, Inc. News Releases 9/27/04, 9/8/04. 

Interestingly, while organized labor and certain legislators advance card check 

and eschew the secret ballot election process for certifying union representation, 

they embrace the secret ballot process as a check on an employer’s withdrawal of 

recognition. Levitz Furniture Co. of the Pacific, 333 NLRB 717 (2001) Organized 

labor wants the deliberative secret ballot election and attendant ‘‘laboratory conditions’’ on the ‘‘back end’’ when loss of majority status is at issue but rejects it on 

the ‘‘front end’’ when soliciting signatures to demand recognition. 

Organized labor’s objections with Board elections are directed at the procedural 

process, not the act of voting by secret ballot. Election delay, whether in time between petition filing and scheduled election or between vote tally and certification, 

has to do with Board procedures, not the act of voting by secret ballot. The issue 

of unit determination is a Board analytical procedure, not the act of voting by secret 

ballot. Ensuring ‘‘laboratory conditions’’ in the critical period and on election day 

has nothing to do with the act of voting by secret ballot. Whether the employer can 

or may speak has nothing to do with the act of voting by secret ballot (but much 

to do with informed choice). 

H.R. 4343/S.2637, the ‘‘Secret Ballot Protection Act of 2004’’ should be enacted. 

The manual election is the Board’s ‘‘crown jewel.’’ San Diego Gas & Electric, 325 

NLRB 1143, 1150 (1998) (Hurtgen, Brame dissenting). To realize the sole right extended by the Act—to choose whether to be represented for purposes of collective 

bargaining, the employee/voter should not be denied information for informed 

choice, a secret ballot to enhance selection integrity, and the validation of the exercise through maximum participation by the electorate. 

Nothing emphasizes the importance of the voter’s choice more than the 

symbolism and the drama which accompanies a manual ballot. . . . The 

drama begins with the preelection hearing and formal announcement by 

conspicuously posted election notices. The next day the Board agent appears, surveys the facility, marks off the no-campaign areas, and instructs 

the observers. Usually with great solemnity and visibility, the agent seals 

the ballot box, opens the polls and superintends the campaign free area. Everything points to the solemnity and importance of the employee’s choice, 

and more than any words, this process says to the employee, ‘‘This is important—so important that the United States Government has sent its agent 

to protect your right to vote is a free and unfiltered election.’’ Id. 

In the final analysis, organized labor’s push to abandon the secret ballot and necessarily compromise the employee’s right to choose is nothing new. It is time for 

Congress to bring congruity to its 1947 effort amending Section 9(c) by now amending Section 9(a) to make certain that choice will be free because it will be secret. 

Congressman Norwood’s and Senator Graham’s bills seek a limited, but critical, 

repair to our nation’s private sector labor relations law. The long awaited change 

to Section 9(a) will eliminate needless litigation—representation rights will be determined by a single method, the secret ballot. H.R. 4343 and S. 2637 are not radically 

‘‘streamlining’’ the Act by borrowing interest arbitration from the public sector to 

force first contract settlements or devaluing the secret ballot and end-running informed choice while enshrining card-check recognition. If Board procedures result in 

‘‘delay’’ or Board administration is not consistent or the lack of Board funds is the 

excuse for mail ballots or Board unit determinations are outdated or inappropriately 

rigid or Board ‘‘laboratory conditions’’ are too antiseptic or remedies for violations 

are too weak or non-existent or employers must be muzzled, then gather the facts, 

hold the hearings and let the debate air. But none of this has anything to do with 

the preservation and enabling of the right to vote, to choose intelligently, and in secret. 

As to the neutrality component of this new-age organizing, again, what is old is 

new again. In 1981, neutrality agreements were reviewed as the ‘‘new frontier: 

12

Although it can be argued that neutrality agreements contain an element 

of protected expression and that such agreements reinforce the goal of reducing labor strife through peaceful cooperation, these considerations must 

be weighed against the interest of employees and, indeed, the interest of 

the public at large in ‘‘free, fair and informed representation elections.’’ 

When these competing interests are considered, it seems that the interest 

of the individual employees in making an informed decision in a ‘‘free and 

fair election’’ and the interest of the public in maintaining the integrity of 

the electoral process should prevail. It follows from this that neutrality 

agreements violate the ‘‘laboratory conditions’’ required for holding representation elections pursuant to the National Labor Relations Act. Labor 

elections are not conducted under ‘‘laboratory conditions’’ when employees 

are legally restricted from receiving information from their employer—the 

only interested party who realistically is able to provide a point of view that 

differs from that of the union seeking to organize the employees. Neutrality 

agreements therefore impermissibly impair the right of employees to receive information during organizing campaigns and should be held to violate section 7 of the NLRA. 

Employers may agree to go along with such agreements to buy labor peace, 

particularly if they have only a limited number of unorganized facilities and 

do not foresee opening any new ones in the immediate future. However, the 

group that loses the most when neutrality agreements are entered into are 

the individual employees. They are the least powerful of the relevant 

groups and have no say in the decision to enter into such agreements. Neutrality agreements prevent such employees from getting the full story during an election campaign. Ultimately, under neutrality agreements, the 

choice to be represented by a union is not really a free and informed one 

as envisioned by the drafters of the NLRA. 

An employer is and should be completely free to decide to remain neutral 

in any given campaign. It is one thing, however, for an employer to decide 

to remain neutral in a given campaign, but it is entirely different matter 

to agree to remain neutral in all future campaigns involving a certain 

union. . . . [I]t would seem that neutrality agreements threaten the very 

assumption upon which the selection of a representative under NLRA depend. 

Even an employer who has a constructive working relationship with a 

union could be expected to balk at entering into an agreement which will 

cast doubt on the integrity of the electoral process and which will jeopardize 

individual employee rights. However, regardless of an individual employer’s 

willingness to enter into a neutrality agreement, the NLRB and the courts 

have the ultimate responsibility for insuring the rights of individual employees to a free and fair representation election under the National Labor 

Relations Act. In keeping with the responsibility, the National Labor Relations Board and the courts should hold that neutrality agreements fall outside the proper bounds of the National Labor Relations Act. Andrew M. 

Kramer, Lee E. Miller, Leonard Bierman, ‘‘Neutrality Agreements: The 

New Frontier in Labor Relations,’’ 23 Boston College L. Rev. 39 (1981) 

The card check—neutrality–‘‘bargaining to organize’’–union corporate campaign 

debate is critical. Organized labor’s objections to the procedures for Board representation casehandling deserve airing. But to reverse declining membership by circumventing the secret ballot is unacceptable. Yellow-dog contracts were considered despicable by the unions in the 1920’s. Inducing employees into de-facto pre-hire agreements is much the same. Bargaining for employer silence and its impact on informed choice gives new meaning to the old adage—‘‘Silence is Golden.’’

Conclusion 

This concludes my prepared oral testimony. I look forward to further discussion 

during the question/answer period. I thank each of you for your service to our country, to considering the ever important evolution of U.S. labor relations law, and for 

inviting me here today. 

Chairman JOHNSON. Thank you, sir. 

Mr. Hermanson. Did you have any trouble getting out of the airport this morning? 

Mr. HERMANSON. Pardon me? 

13

Chairman JOHNSON. Did you have any trouble getting out of the 

airport? 

Mr. HERMANSON. No problem whatsoever. 

Chairman JOHNSON. Thank you. Go ahead. 

STATEMENT OF RICHARD HERMANSON, VICE PRESIDENT, 

UNITED SCREENERS ASSOCIATION LOCAL 1, SAN FRANCISCO, CA 

Mr. HERMANSON. My name is Richard Hermanson. I am employed as a transportation security screener at San Francisco International Airport. It is a privilege to speak before the Subcommittee 

today. 

When Covenant Aviation Security hired me in November 2002, 

I attended a new hire orientation where company officials introduced themselves and gave an overview of company goals as a contractor to the Transportation Security Administration. Midway in 

the orientation, a union representative from Service Employees 

International Local 790 was also given a turn at the podium. He 

spoke briefly, explained what a union security clause is, and that 

we had 30 days to comply with the security clause. To this day, I 

do not know why the company recognized the union, but it did for 

a time until a charge was filed with the NLRB Region 20 and the 

company and union agreed to no longer enforce the existing collective bargaining agreement. 

United Screeners Association Local 1 was then started by a number of my co-workers, who, like myself, were extremely displeased 

with SEIU representation. A petition was passed, and once it was 

signed by 30 percent of the workforce, we met to discuss filing the 

petition. 790 was also passing representation cards at this time. As 

we discussed filing the petition, we were stuck on one critical 

issue—a proper filing would exclude SEIU 790 from the ballot. We 

did what we felt was the right thing. We fled the petition as a 

‘‘guard’’ unit, and Region 20 ultimately approved the filing. 

Undeterred, SEIU 790 immediately switched gears, telling 

screeners that an NLRB election was not the only way to achieve 

union recognition. They said that they could use signature cards for 

recognition if a majority of the workforce voted no and signed a petition for SEIU 790. They said that they could use political pressure to gain recognition. They also said that they could use the San 

Francisco Airport Labor Peace Card Check Ordinance to force recognition that is meant to be voluntary under the NLRA. Although 

SEIU 790 was initially successful in their attempt to divide the loyalties of the screeners by suggesting that a federally supervised secret ballot election was merely a prerequisite to their card count 

demand for recognition, the ultimate resolution of the campaign is 

still in doubt. 

SEIU 790 has been giving away a lot of food during the campaign—pizza, chocolate, chicken, and burritos are among the items 

given out. Our organizers on more than one occasion observed 

screeners ask SEIU organizers for a bite to eat and saw them directed to a representation petition as a prerequisite to receiving the 

good. On one occasion, an organizing dangling a lunch cooler in 

front of me to capture my attention approached me. I looked at 

him. He then asked me if I’ve signed the petition. I was on the 

14

clock, but I lost my cool anyway. It was an insult to have merchandise used as an enticement for a representation petition. 

One co-worker of mine has relayed the SEIU organizers showed 

up at his house unannounced and that he had difficulty getting 

them to leave after he let them in the house. The organizers finally 

left after he threatened to call the police. Organizers have been 

known to call the same person four times late in one evening in 

the hope that they would give in and commit to support SEIU. 

Sometimes these tactics work. We’ve had co-workers tell us that 

they just signed to get the organizer or co-worker off their back, 

that they were made uncomfortable by the peer pressure to sign a 

card, that they signed a fake name to get a free lunch cooler, or 

even that they believed signing was for the meal. 

The decision on whether to be represented by a labor organization is to me the most important decision an employee can make 

in the workplace. This decision should be determined by a secret 

ballot election. The campaign has a scheduled election date, and 

the campaign has the privacy of a secret ballot. Employees are not 

faced with the pressure of fielding the same questions over and 

over, questions such as are you ready to sign the card? and the 

myriad of other coercive tactics that I’ve seen employed over the 

past year at San Francisco International. 

My experience over this period suggests to me that card count 

campaigns carry the risk of a union being granted recognition 

while it does not carry true majority support; that there is a big 

difference between a majority of signatures and majority support. 

As an officer of United Screeners Association Local 1, I am not 

interested in our union being extended recognition where privacy 

is compromised and support is inherently tainted. These concerns 

led me to advocate for a secret ballot election at the workplace well 

before the introduction of H.R. 4343. I’m very fortunate to have fellow officers that are also committed to a secret ballot, and it follows 

that I support the passage of H.R. 4343. 

I look forward to the day where we will no longer be disadvantaged by filing for a secret ballot election because a rival, 

uncertifiable union has an incentive to divide the loyalties of the 

workers merely for the opportunity to conduct an inherently coercive card-count campaign. 

Thank you. 

[The prepared statement of Mr. Hermanson follows:]

Statement of Richard Hermanson, Vice President, United Screeners 

Association Local 1, San Francisco, CA 

My name is Richard Hermanson. I am employed as a transportation security 

screener at San Francisco International Airport. It is a privilege to speak before the 

subcommittee today. 

When Covenant Aviation Security hired me in November 2002, I attended a new 

hire orientation where company officials introduced themselves and gave an overview of company goals as a contractor to the Transportation Security Administration. Midway in the orientation, a union representative from Service Employees 

International Union Local 790 was also given a turn at the podium. He spoke briefly, explained what a union security clause is, and that we had thirty days to comply 

with the security clause. To this day I do not know why the company recognized 

the union, but it did for a time until a charge was filed with the National Labor 

Relations Board Region 20, and the company and union agreed to no longer enforce 

the existing collective bargaining agreement. 

15

United Screeners Association Local 1 was then started by a number of my coworkers who, like myself, were extremely displeased with SEIU representation. A 

representation petition was passed, and once it was signed by 30% of the workforce, 

we met to discuss filing the petition. SEIU 790 was also passing representation 

cards at this time. As we discussed filing the petition, we were stuck on one critical 

issue–a proper filing would exclude SEIU 790 from the ballot. We did what we felt 

was the right thing–we filed the petition as a ‘‘guard’’ unit, and Region 20 ultimately approved the filing. 

Undeterred, SEIU 790 immediately switched gears, telling screeners that an 

NLRB election was not the only way to achieve union recognition. They said that 

they could use signature cards for recognition if a majority of the workforce voted 

‘‘No’’ and signed a petition for SEIU 790. They said that they could use political 

pressure to gain recognition. They also said that they could use the San Francisco 

Airport Labor Peace Card Check Ordinance to force recognition that is meant to be 

voluntary under the National Labor Relations Act. Although SEIU 790 was initially 

successful in their attempt to divide the loyalties of the screeners by suggesting that 

a federally supervised secret-ballot election was merely a prerequisite to their card 

count demand for recognition, the ultimate resolution of the campaign is still in 

doubt. 

SEIU 790 has been giving away a lot of food during the campaign. Pizza, chocolate, chicken and burritos are among the items given out. Our organizers on more 

than one occasion observed screeners ask SEIU organizers for a bite to eat, and saw 

them directed to a representation petition as a prerequisite to receiving the food. 

On one occasion, an organizer dangling a lunch cooler in front of me to capture my 

attention approached me. I looked at him and he asked me if I’ve signed the petition. I was on the clock but I lost my cool anyway. It was an insult to have merchandise used as an enticement for a representation petition. 

The SEIU organizers clearly keep a database on who has not signed a card. They 

wait after work for the unsigned to clock out and pressure them to ‘‘make a commitment’’ and sign cards. This one-on-one targeting is not merely attempts to convey 

information about the benefits of unionization–they are attempts to get signatures 

for recognition without the privacy of a secret ballot. 

One coworker of mine has relayed that SEIU organizers showed up at his house 

unannounced, and that he had difficulty getting them to leave after he let them in 

the house. The organizers finally left after he threatened to call the police. Organizers have been known to call the same person four times late one evening in the 

hope that they would give in and commit to support SEIU. 

Sometimes these tactics work. We’ve had coworkers tell us that they just signed 

to get the organizer or coworker off their back, that they were made uncomfortable 

by the peer pressure to sign a card, that they signed a fake name to get a free lunch 

cooler, or even that they believed signing was for the meal. 

The decision on whether to be represented by a labor organization is to me the 

most important decision an employee can make in the workplace. This decision 

should be determined by a secret ballot election. The campaign has a scheduled election date, and the campaign has the privacy of a secret ballot. Employees are not 

faced with the pressure of fielding the same questions over and over, questions such 

as ‘‘Are you ready to sign the card?’’ and the myriad of other coercive tactics that 

I’ve seen employed over the past year at San Francisco International Airport. My 

experience over this period suggests to me that card count campaigns carry the risk 

of a union being granted recognition while it does not carry true majority support, 

that there is a big difference between a majority of signatures and majority support. 

As an officer of United Screeners Association Local 1, I am not interested in our 

union being extended recognition where privacy is compromised and support is inherently tainted. These concerns led me to advocate for a secret-ballot election at 

the workplace well before the introduction of H.R. 4343. I am very fortunate to have 

fellow officers that are also committed to a secret ballot, and it follows that I support the passage of H.R. 4343. I look forward to the day where we will no longer 

be disadvantaged by filing for a secret-ballot election because a rival, uncertifiable 

union has an incentive to divide the loyalties of the workers merely for the opportunity to conduct an inherently coercive card-count campaign. 

Thank you. 

Chairman JOHNSON. Thank you, sir. I appreciate your comments. 

Mr. Garren, you may begin your testimony. 

16

STATEMENT OF BRENT GARREN, ESQ., SENIOR ASSOCIATE 

GENERAL COUNSEL, UNITE-HERE, NEW YORK, NY 

Mr. GARREN. Thank you, Mr. Chairman, and thank you, 

Congresspeople, for giving me this opportunity to speak to you on 

a subject which I think we can all agree is of enormous importance 

to millions of working people in this country and enormous importance to our society. And I thank you for holding a hearing on the 

subject of defending employees’ freedom of choice whether to 

unionize or not, because you are 100 percent right in your sense 

that that right is under attack. 

Where we disagree is the source of that attack. It is employers’ 

fierce, unrelenting, and often unlawful opposition to unionization 

that has been strangling employees’ freedom to choose whether to 

organize or not; and H.R. 4343 would make this problem far worse, 

not better. 

The National Labor Relations Board election process that is 

being held up as the instrument through which employees can exercise their free choice is extraordinarily flawed and ineffective in 

at least four ways. One, there’s enormous delay built into the election process, not just delay prior to the election, but delay of up to 

three or 4 years is routine between an election and certification if 

an employer chooses to pursue even the most frivolous sort of objections. And there are hundreds of such cases. Our courts of appeals 

and the NLRB have hundreds of such cases. 

Delay in obtaining the right to bargain means effectively denying 

that right to bargain. Workers get discouraged, and the impulse to 

unionization is effectively destroyed. 

Second, the current election system allows employers to engage 

in massive, unrelenting Vote No campaigning, the sheer volume 

and intensity of which is extraordinarily coercive, and it is even 

more so in contrast to the extraordinarily limited access that union 

organizers have to employees. 

Employers regularly have multiple captive audience meetings 

where employees are required on paid time to listen to anti-union 

message and can be discharged if they either refuse to listen to 

that message or choose to stand up and express their viewpoint 

when they have been instructed to remain silent. 

I don’t believe that’s democracy. I don’t believe that’s how we run 

political elections. I don’t believe that any of you would find it fair 

when you were running for Congress if your opponents could require the voters to attend meetings, and if they didn’t attend, your 

opponent could fire them. That does not strike me as American 

elections. Maybe it’s the way they run elections in some dictatorships around the world, but not in America. 

There was recently a case where the NLRB approved the right 

of employers to send ride-alongs with truck drivers so that for 10 

to 12 hours a day, a management official rode with a truck driver 

to tell them why the company opposed the union, and this averaged 

three times for each driver during the election campaign. 

What is the access the union gets to voters in an election campaign? They have the right to go to their home and try to talk to 

them if the worker has the time and the interest. What does this 

mean for deciding the election, for swing voters, for undecided and 

uninterested voters? It means the company can force them to hear 

17

1One study found that the rates of success across organizing campaigns governed by card 

check recognition and card check recognition with so-called ‘‘neutrality’’ provisions were 62.5% 

and 78.2%, respectively, as compared with the NLRB election win rate for 1983–98 of 45.64%. 

Adrienne E. Eaton and Jill Kriesky, Union Organizing Under Neutrality and Card Check Agreements, 55 Ind. & Lab. Rel. Rev. 42, 51–52. See also David E. Weisblatt, Neutrality Agreements 

are Neither Neutral Nor Very Good for Employers, McDonald Hopkins, at http://www.mhbh.com/

topics/business/neutrality.html (citing percentages of union victories in card check recognition 

campaigns [78%] and secret ballot elections [53%]). 

their message endlessly, and the union has no meaningful opportunity to speak to them. That is not American elections as I understand them. 

Third, there are enormous unfair labor practices committed by 

employers. And I remind you of the old saying, data is not the plural of anecdote. There are facts that the NLRB has compiled in 

terms of unfair labor practices. The number of firings of union supporters in organizing drives has skyrocketed. Every single study 

that has examined NLRB statistics has shown an enormous increase in such firings. Depending on the timeframe, from the ’50’s 

to the ’80’s, the ’60’s to the ’90’s, you’re looking at increases of 800 

or 1,400 percent. 

Finally, with the NLRB election procedure, once workers have 

run the gauntlet of an NLRB election, they still do not have a contract. And approximately half the time that workers vote for unionization, they never get a contract. That is a massive denial for tens 

of thousands of workers of their right to freedom to choose, and 

that’s what I would urge you to consider solving. 

Thank you very much. 

[The prepared statement of Mr. Garren follows:]

Statement of Brent Garren, Esq., Senior Associate General Counsel, 

UNITE–HERE, New York, NY 

Thank you for inviting me to testify before this Sub-committee today. My name 

is Brent Garren, and I am the Senior Associate General Counsel of the international 

labor union, UNITE-HERE, AFL–CIO, CLC, on whose behalf I am testifying. The 

subject of today’s hearing is H.R. 4343, the ‘‘Secret Ballot Protection Act of 2004.’’ 

We oppose H.R. 4343 because it would inflict great harm on the twin goals of our 

federal labor policy protecting employees’’ free choice to organize a union or not and 

promoting industrial stability. In addition, H.R. 4343 would displace private agreements among parties with a major expansion of government prohibitions and regulations, a serious blow to the uniquely American system of industrial relations, 

which relies so heavily on private party agreements to determine terms and conditions of employment. 

Voluntary recognition agreements (‘‘VRAs’’), also known as ‘‘neutrality agreements’’ or ‘‘card check agreements’’ depending on their features, are an increasingly 

widespread and important aspect of America’s labor relations landscape. Unions are 

turning to VRAs with increasing frequency because of their enormous frustration at 

the weakness of the NLRB machinery to realize the promise of employees’ right to 

organize. The great majority of newly-organized members of my union, UNITEHERE, which organizes very aggressively, come in through VRAs. Both opponents 

and proponents of VRAs agree that they produce a far higher rate of union success 

than the NLRB’s election process.1 VRAs are critical to the realization of employees’’ 

right to organize in the 21st century. 

As we argue below, VRAs are a good thing, because they further the twin goals 

of our national labor policy: employee freedom of choice and industrial stability. 

Moreover, VRAs further another cornerstone of our labor policy: the principle that 

voluntary agreements developed in the give and take between private parties best 

tailor solutions for their specific circumstances. Part I of this discussion looks at the 

range of provisions available in creating VRAs. Part II demonstrates that VRAs further federal labor policy and, therefore, should be viewed favorably by our national 

labor policy. Part III examines H.R. 4343 specifically. 

18

2 Eaton and Kriesky, supra note 2, at 48. In one common variation, over 65% cards signed 

leads to card check recognition, 50–65% triggers a non–NLRB election, and between 33%–50% 

leads to a Board election. 3 International Union v. Dana Corp., 278 F.3d 548, 551 (6th Cir. 2002) (quoting Joint Agreement at 92). 4 Roger C. Hartley, Non–Legislative Labor Law Reform and Pre–Recognition Labor Neutrality 

Agreements: The Newest Civil Rights Movement, 22 Berkeley J. Emp. & Lab. L. 369, 380 n.59 

(2001) (quoting Kerri J. Selland, AK Propaganda War Erupts, Am. Mtl. Mkt., May 18, 1995, 

at 2, available in 1995 WL 8070195). 5 Eaton and Kriesky, supra note 2, at 47. 

6 Id. at 48. 

7 Id. 

8 Id. 

9 Id. 

10 Id. 11 Id. 

I.WHAT ARE VOLUNTARY RECOGNITION AGREEMENTS? 

The general term ‘‘VRA’’ refers to a broad range of agreements between an employer and a union that affect the representation process for the employer’s employees. We use the term ‘‘VRA’’ rather than ‘‘neutrality/card check agreement’’ because 

VRAs contain a very wide range of provisions. Many require neither employer neutrality nor card check recognition. 

VRAs can occur when a union represents some of the employees and seeks to represent others, or when a union seeks representation for the first time with an employer’s employees. Most VRAs address some or all of the following subjects: 

(1) Recognition procedures. Most agreements call for recognition based on a certification of the union’s majority status demonstrated by a review of signed authorization cards by a third party. However, VRAs may instead provide for private, non–

Board elections or NLRB-conducted elections. Some agreements have a hybrid, in 

which the nature of the recognition process depends on the strength of union support manifested by authorization cards.2

(2) Definition of the bargaining unit. Most agreements provide for a stipulated 

group of employees for which the VRA will operate and whom the union seeks to 

organize. 

(3) Access provisions. Some VRAs provide for limited union access to the employer’s facilities and/or the provision of employee rosters. 

(4) Dispute resolution procedures. The vast majority of VRAs outline dispute resolution procedures to address violations of the VRA, unfair labor practices, or other 

disputes. 

(5) Limits on campaigning. The variety of campaigning provisions is especially 

great. Some VRAs require that the employer be ‘‘neutral,’’ by not supporting or opposing the union’s organizing efforts. Many others limit the employer’s campaign by 

prohibiting the fear-mongering attacks on unions and the dire predictions of disaster 

following unionization that have become commonplace in NLRB election campaigns. 

These provisions permit the employer to stress the positives of its employment 

record, or to conduct ‘‘fact-based’’ campaigns to present the company’s position. In 

one such clause, the employer committed itself to ‘‘communicat[ing] with [its] employees, not in an anti-[union] manner, but in a positive pro-[company] manner.’’ 3

In another agreement, the employer pledged ‘‘to communicate fairly and factually 

to employees in the unit sought concerning the terms and conditions of their employment with the company and concerning legitimate issues in the campaign.’’ 4 Yet 

another variant is to limit the methods in the employer’s campaign, rather than its 

content. In one UNITE VRA, we agreed that the employer would address all the 

employees at the onset of a short campaign period (in a debate format in which the 

union also spoke). It was free to argue against unionization in any manner it 

wished. It was, however, thereafter prohibited from campaigning, including holding 

captive-audience speeches or conducting one-on-one meetings. Finally, in some such 

clauses the employer merely pledges to ‘‘strive to create a climate free of fear, hostility, or coercion.’’ 5

Many VRAs also include restrictions on the union’s campaigning. More than 

three-quarters of Eaton and Kriesky’s sample of agreements set limits on the 

union’s behavior.6 Unions often commit to notifying the employer of the union’s intention to initiate a union organizing campaign.7 Commonly, they also prohibit the 

union from picketing or striking during the recognition process. They may also limit 

the length of the union’s campaign period, 8 ban the union from denigrating or disparaging the employer, 9 or allow the employer special rights to respond to 

misstatements of fact by the union.10 As noted above, they may require the union 

to obtain a supermajority of employee support to obtain card check recognition.11

19

12 Id. 13See Fall River Dyeing & Finishing Corp. v. N.L.R.B., 482 U.S. 27, 38 (1987); National Labor 

Relations Board, The NLRB: What It Is, What It Does, available at http://www.nlrb.gov/publications/whatitis.html. 14See N.L.R.B. v. American National Ins. Co., 343 U.S. 395 (1952); Stanley D. Henderson, 

Labor Law: Cases and Comment 90 (Foundation Press 2001). 15 ‘‘I wonder why the Unions were unwilling to go to elections to avoid this result. Was it because they doubted that the employees who signed cards would vote the same way in secret 

elections?’’ Jonathan Kane and James P. Thomas, Pall Corp. v. NLRB What About Section 7? 

7 (2003) (unpublished paper presented to ABA Labor and Employment Law Section Sub—Committee on Practice and Procedure under the NLRA, Pepper Hamilton LLP). (quoting Houston 

Div. of the Kroger Co. (Kroger II), 219 N.L.R.B. 388, 391 (1975) (Kennedy, M., dissenting)). See 

also Weisblatt, supra note 2. 16See Hartley, supra note 6, at 381–82; Andrew Strom, Rethinking the NLRB’s Approach to 

Union Recognition Agreements, 15 Berkeley J. Emp. & Lab. L. 50, 53–55 n.59 (1994) 17See Parts Depot, Inc., 332 N.L.R.B. No. 64, slip. op. at 7 (2000) (citing Garvey Marine, 328 

N.L.R.B. No. 147, slip. op. at 7 (1999)). 18Paul C. Weiler, Promises to Keep: Securing Workers’ Rights to Self Organization under the 

NLRA, 96 Harv. L. Rev. 1769, 1777 (1983) (citing Prosten, The Longest Season: Union Organizing in the Last Decade, a/k/a How Come One Team Has to Play with its Shoelaces Tied Together?, 31 PROC. ANN. MEETING INDUS. REL. RESEARCH A. 240, 243 (1978)). 19 Id. (citing Roomkin & Juris, Unions in the Traditional Sectors: The Mid—Life Passage of 

the Labor Movement, 31 PROC. ANN. MEETING INDUS. REL. RESEARCH A. 212, 217—18 

(1978)). 

Finally, if disputes occur, unions (as well as employers) are typically committed to 

participate in dispute resolution processes.12

II.THE POLICY RATIONALE FOR VRAS

The primary goals of national labor policy, as implemented by the Act, are twofold: to assure employee free choice to engage in or refrain from organizing and collective bargaining, and to maintain industrial peace.13 In furthering these principles, federal labor policy highly values ‘‘freedom to contract’’ between employers 

and unions.14 All three of these aims are promoted by giving deference to VRAs, and 

each will be examined in turn. 

A. VRAs Promote Employee Free Choice 

The differential in organizing success between VRAs and NLRB elections is undisputed. Are NLRB elections distorted by employer coercion, or is recognition under 

VRAs instead distorted by union coercion, as the critics of VRAs charge? 15 In today’s labor relations landscape, scarred by massive employer interference with employee Section 7 rights, the answer is crystal-clear: VRAs are an antidote to venomous employer ‘‘vote no’’ campaigns which routinely poison the NLRB election 

process. 

1. NLRB Elections Do Not Protect Employee Free Choice 

The current framework of NLRB representation procedures and unfair labor practice doctrines, including remedies, was established in the decades following the passage of Taft–Hartley. The law developed at a time when employer hostility to unions 

was much less vehement. In the 1950s and 60s, employers did not routinely engage 

in the massive legal and illegal sabotage of employee Section 7 rights that are commonplace today. Despite these changes, the NLRB has taken no serious measures 

to ensure that its representation and unfair labor practice procedures effectively 

protect employee free choice in today’s context. 

The representation process is flawed in four fundamental respects. First, an employer can delay the representation process so that it can either dissipate the 

union’s majority before the election or destroy the union’s bargaining power before 

it is required to bargain.16 My union, for example, endured a delay while an employer litigated a single issue whether UNITE (a predecessor union) was a labor organization under the Act. Many other hearings have little more merit than this. 

Moreover, even after a union has won an election, no enforceable court order will 

issue requiring bargaining until three or four years have passed.17 The effects on 

employees are well-documented and disastrous. One study found that the unionization rate drops by 2.5% for each additional month between petition and election, 18

while another found a drop of 0.29% for each day of delay.19

Second, even if the employer limits its campaign to lawful activity, the volume 

and vehemence of the employer’s campaign can terrorize workers. Employers often 

drown workers in a tidal wave of predictions about the calamities that will befall 

any workplace so unwise as to unionize. The incessant pounding of captive audience 

meetings and one-on-one meetings has nothing to do with a rational exchange of 

20

20Parts Depot, Inc., 332 N.L.R.B. No. 64 (2000). 21 Id., slip op. at 14. 22 341 NLRB No. 65 (March 31, 2004) 23See Brent Garren, When the Solution is the Problem: NLRB Remedies and Organizing 

Drives, 51 Lab. L.J. 76, 76–8 (2000) (surveying numerous studies). 24 Id. at 77 (citing Charles J. Morris, A Tale of Two Statutes: Discrimination for Union Activity Under the NLRA and RLA, 2 Emp. Rts. Emp. Pol. J. 317, 329–30 (1998)). 25 Id. (citing Robert J. LaBlonde & Bernard D. Meltzer, Hard Times for Unions: Another Look 

at the Significance of Employer Illegalities, 58 U. Chi. L. Rev. 953 (1991)). 26Garren, supra note 21, at 77 (citing Commission on the Future of Worker–Management Relations, Fact Finding Report, issued by the Commission on the Future of Worker–Management 

Relations, June 2, 1994, as reprinted in the Daily Labor Report, June 3, 1994 at WL * 191). 27Kate Bronfenbrenner, The Effects of Plant Closings or Threats of Plant Closing on the 

Rights of Workers to Organize, Labor Secretariat of the North American Commission for Labor 

Cooperation (1996). 28 Human Rights Watch, Unfair Advantage: Workers’ Freedom of Association in the United 

States Under International Human Rights Standards (2000) (quoting Theodore St. Antoine, Federal Regulation of the Workplace in the Next Half Century, 61 Chi.–Kent L. Rev. 631, 639 

(1985). 29See Garren, supra note 21, at 77–78 (citing Paul C. Weiler, Hard Times for Unions: Challenging Time for Scholars, 58 U. Chi. L. Rev. 1015, 1029–30 (1991); William Dickens, The Effect 

opinions in the free marketplace of ideas, but is intended to intimidate. The ALJ 

in Parts Depot, Inc., 20 which upheld UNITE’s claim of several employer unfair labor 

practices, discussed the employer’s captive audience meetings, which he found completely lawful: 

If phrased in terms of war, [the company’s] response was equivalent to 

America’s B–52 carpet bombing of the Iraqi front line forces at the 1991 

opening of ‘‘Desert Storm’’ in the Persian Gulf War. As the Iraqis stumbled 

from their trenches begging the advancing United States soldiers to accept 

their surrender, so too, figuratively, the [company’s] employees, shell 

shocked from the long series of verbal ‘‘carpet bombing’’ speeches and videos, would have stumbled toward the voting booths, begging for the chance 

to vote against the Union. . . This is not to say that the speeches and videotapes . . . constitute a threat . . .21

The great disparity in access to the voters makes NLRB elections unfair. Employers can and routinely do, require employees to listen to multiple anti-union speeches 

and watch anti-union videos. An employee may be disciplined for refusing to attend 

anti-union meetings or for speaking out in favor of the union when instructed to 

be silent 

In a recent NLRB case, Frito–Lay, Inc., 22 the employer sent ‘‘ride-alongs’’ to ride 

10–12 hours a day with truck driver-voters, explaining the employer’s opposition to 

the union. These ride-alongs, including high level management officials, accompanied the voters on a average of 3 times each during the election campaign. An 

employee had to specifically tell management that he did not want a ride-along to 

avoid them. The Board found this perfectly acceptable. In contrast, the union has 

no access to voters during work time and cannot compel voters to hear its message. 

An undecided or uninterested voter can completely avoid the union’s message if he 

prefers, but can be forced to listen to the employer’s anti-union message virtually 

without limit. 

Third, employer unfair labor practices during NLRB election campaigns have become routine.23 All available statistics tell the same story: employer unfair labor 

practices have soared since the 1950s and 1960s, devastating Section 7 rights. One 

study showed that, in 1969–1976, the number of workers receiving back pay under 

Section 8(a)(3) of the Act totaled approximately 1.2% of voters in representation 

elections. In 1984–1997, that figure increased by almost 800%, to a level of 9.5%.24

LaBlonde and Meltzer, who criticized figures in earlier studies as being exaggerated, 

nevertheless found a 600% increase in the relative incidence of discriminatory discharges from the late 1960s to late 1980s, 25 while another study revealed a 14-fold 

increase in employer discrimination against union activists during organizing drives 

between the 1950s and the late 1980s.26 Yet another report found that 31% of all 

employers illegally fire at least one worker for union activity during organizing campaigns.27 The former president of the National Academy of Arbitrators, the nation’s 

leading organization of labor—management neutrals, stated in 1996 that ‘‘[t]he intensity of opposition to unionization which is exhibited by American employers has 

no parallel in the western industrial world.’’ 28

The rising tide of employer unfair labor practices, and particularly discriminatory 

discharges, against union supporters has contributed directly to the erosion of union 

win rates in elections.29

21

of Company Campaigns On Certification Elections: Law and Reality Once Again, 36 Ind. and 

Lab. R. 560, 574 (1983)); Eaton and Kriesky, supra note 2, at 43. 30 In light of the findings of a 1991 poll (that 59% of workers believed they would lose favor 

with their employer for supporting a union and 79 % agreed that workers and ‘‘very’’ or ‘‘somewhat’’ likely to be fired for trying to organize a union), ‘‘the idea that a piece of paper on the 

wall dissipates the effect of employer threats borders on the absurd.’’ Id. at 78. 31See id. at 80 (citing Les Aspin, Legal Remedies under the NLRA Under 8(a)(3), (1970), as 

reprinted in Julius G. Getman & Jerry R. Andersen, 6 Labor Relations and Social Problems 133, 

134 (1972)). 32 Id. at 81 (citing Daniel Pollitt, NLRB Re-run Elections: A Study, 41 N.C. L. Rev. 209, 212 

(1963)). 33 Id. at 78 (citing Benjamin W. Wolkinson, et. al., The Remedial Efficacy of Gissel Bargaining 

Orders, 10 Ind. Rel. L.J. 509–10 n.3 (1989); Dunlop Commission Report, supra note 24, at WL 

* 197–98). 34 Commission on the Future of Worker–Management Relations, Fact Finding Report (Dunlop 

Commission), p. 40. 35Gissel at 614. 36For example, UNITE has entered into agreements limiting the campaign period to 15 days. 37 Agreement, [Employer] and Service Emp. Int’l Union (1991) (on file with author). 38 Hartley, supra note 6, at 382. 

The remedies available to workers coerced in exercising their Section 7 rights (including postings and reinstatement with back pay) are insufficient both to deter 

such abuses or to erase their undermining of employee free choice. Postings are not 

likely to dissipate the effect of employer threats.30 Reinstated workers often are ‘‘so 

scarred by the discharge experience that they do not resume union activities,’’ and 

studies show most reinstated workers are gone within a year, many reporting bad 

company treatment.31 More than two-thirds of rerun elections produce the same result as the election overturned due to objectionable conduct.32

Fourth, winning an NLRB election, with all its delay and emotional drain on employees, is, by itself, insignificant. If employees cannot obtain a collective bargaining 

agreement, then their freedom to choose unionization has been denied. Continuing 

employer hostility results in only a narrow majority of election victories leading to 

the achievement of collective bargaining agreements. From 1975 to 1993, the success rate for obtaining first contracts fell from 78% to 55.7%.33

The result of these factors is that the usual NLRB election is poisoned by employer coercion. A 1991 poll showed that 59% of workers believed they would lose 

favor with their employer for supporting a union and 79% agreed that workers are 

‘‘very’’ or ‘‘somewhat’’ likely to be fired for trying to organize a union, with 41% of 

non-union workers believing ‘‘it is very likely that I will lose my job if I tried to 

forma union.’’ 34 This widespread and (unfortunately) reasonable fear means that in 

most NLRB elections employer coercion has ‘‘the tendency to undermine [the 

union’s] majority strength and impede the election process.’’ 35 For the same reasons 

that the Supreme Court found that requiring recognition based on a card majority 

appropriate in Gissel, so too is voluntary recognition appropriate and necessary to 

protect employees’ right to organize. 

2. VRAs Further Employee Free Choice 

VRAs protect employee free choice by eliminating crippling delay and employer 

coercion. Typically, representation issues are definitively resolved through VRAs in 

weeks or months rather than years. VRAs severely restrict delay prior to determining the union’s majority support. The parties agree to a definition of the bargaining unit, eliminating the lengthy NLRB process of a hearing and appeal to 

Washington. Disagreements are typically resolved through arbitration, often with 

expedited procedures. Because the elimination of delay at the ‘‘front end’’ of the 

process is of great important to defending employee free choice, VRAs often limit 

the campaign period to further produce a speedy result.36

For example, one SEIU agreement stated that the parties would jointly choose an 

election officer, who would both direct an election within five working days following 

the union’s presentation of cards from at least 30% of the employees and oversee 

the election within 35 days in accordance with NLRB guidelines for assessing the 

validity of election results.37 Other VRAs may provide for NLRB elections, but contain commitments by the employer not to cause delay.38

VRAs may also minimize the delay between recognition, if attained, and the completion of a first contract. Many VRAs allow for decision by an arbitrator or similar 

neutral in the event that a party to the agreement fails in its duty to bargain. As 

discussed below, unions may obtain court orders under Section 301 enforcing arbitration decisions. Such a process is far quicker than an unfair labor practice proceeding through the Board to the Court of Appeals. An intransigent employer may, 

22

39Despite this flexibility, however, ‘‘arbitrators arguably have been quite conservative in the 

remedies they have, in practice, ordered.’’ Eaton and Kriesky, supra note 2, at 54 (citing Adrienne Eaton and Debra Casey, Bargaining to Organize: Disputes and Their Resolution, unpublished manuscript, Rutgers University (2001)). But see George N. Davies, Neutrality Agreements: Basic Principles of Enforcement and Available Remedies, 16 Lab. Law. 215, 220–221 

(2000) (highlighting the strong remedies awarded by arbitrators and subsequently challenged 

unsuccessfully in United Steelworkers of American v. AK Steel Corp., 163 F.3d 403 (6th Cir. 

1998) and International Union v. Dana Corp., 278 F.3d 548 (6th Cir. 2002)). 40See, e.g. Pall Biomedical Products Corp., 331 N.L.R.B. 1674, 1676 (2000); Hotel Emp., Local 

2 v. Marriott Corp., 961 F.2d 1464, 1468–69 (9th Cir. 1992); Hotel & Restaurant Emp. Union 

v. J.P. Morgan, 996 F.2d 561, 566 (2nd Cir. 1993); Local 3–193 Int’l Woodworkers v. Ketchikan 

Pulp Co., 611 F.2d 1295, 1299–1301 (9th Cir. 1980); Strom, supra note 18, at 62 (citing Advice 

Memorandum of the NLRB General Counsel, General Motors Corp., Saturn Corp., and UAW, 

122 L.R.R.M. 1187, 1190–91 (1986)). Even if VRAs do not explicitly condition recognition on the 

showing of majority support, the Board will read the requirement into such contracts. Houston 

Div. of the Kroger Co. (Kroger II), 219 N.L.R.B. 388, 389 (1975). 41 J.P. Morgan, 996 F.2d at 566. 42See Eaton and Kriesky, supra note 2, at 59 n.1 (citing two articles arguing that VRAs prevent employees from ‘‘getting the full story’’); Kane and Thomas, supra note 17, at 6–7. 43 Yale University Office of Public Affairs, Labor Negotiations at Yale University: Frequently 

Asked Questions about Union Neutrality, at http://www.yale.edu/opa/labor/faq—neutrality.html. 44 278 F.3d 548 (6th Cir. 2002). 45 Id. at 558. 46Section 8(c) of the NLRA states: ‘‘The expression of any views, arguments or opinions or 

the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any provision of this. . .[law], if such 

expression contains no threat of reprisal or force or promise of benefit.’’ 29 U.S.C. § 158(c). 47Dana, 275 F.3d at 558 (citing Hotel Emp., Local 2 v. Marriott Corp., 961 F.2d 1464, 1470 

(9th Cir. 1992)). 48 Id. at 559–60 (citing N.L.R.B. v. St. Francis Healthcare Ctr., 212 F.3d 945, 954 (6th Cir. 

2002). 49 Id. 

of course, appeal the district court’s enforcement of an arbitration award, but this 

is unlikely to be successful. 

VRAs also can help curb employer intimidation, through the variety of campaign 

limitations discussed above. Not only are coercive employer actions less likely in 

such an environment, but arbitration or other dispute resolution processes in VRAs 

can resolve potential violations much more expeditiously, and impose a wider array 

of remedies, than NLRB proceedings.39 For example, one UNITE agreement provided for one of a panel of arbitrators to hold a hearing on complaints of campaign 

misconduct within 24 hours of the complaint and for a bench decision to issue. 

3. VRAs Do Not Interfere With Employee Free Choice 

Employer advocates claim that VRAs hamper employee free choice by limiting the 

ability of employees to hear the employer’s ‘‘vote no’’ campaign and because card 

check recognition as a mechanism for assessing employee desires is less reliable 

than an NLRB secret-ballot election. 

However, VRAs must be based on employee free choice. Enforcement of VRAs by 

the federal courts hinges upon the union’s demonstration of a ‘‘fair opportunity’’ for 

employees to freely decide whether to accept it as a representative.40 The Second 

Circuit summarized the requirement in no uncertain terms: ‘‘[c]ritical to the validity 

of such a private contract is—whether the employees were given an opportunity to 

decide whether to have a labor organization represent them.’’ 41

Employer advocates claim that campaign limitation clauses undemocratically limit 

the ability of employees to hear both sides.42 The Yale University Office of Public 

Affairs’ statement on the issue is typical: ‘‘[E]mployees lose the benefit of a full and 

open debate that would occur prior to a union election.’’ 43 Similarly, the employer 

in Dana 44 argued that the VRA it signed should not be enforced because limits on 

employer campaigning violate public policy; it ‘‘effectively silence[d]’’ the company, 

and thereby violated the statutory rights of its employees.45 Rejecting the employer’s argument, the court stressed two pertinent themes. 

First, the court stressed that Section 8(c) 46 merely limits what employer speech 

may constitute evidence of an unfair labor practice, but does not require an employer to express its views.47 ‘‘In fact, far from recognizing § 8(c) as codifying ‘‘an 

absolute right’’ of an employer to convey its view regarding unionization to its employees . . . we have stated that an expression of an employer’s views or opinion 

under § 8(c) is merely ‘‘permissible.’’ 48 Thus, Dana’s ‘‘voluntary agreement to silence itself during union organizing campaigns does not violate federal labor policy.’’ 49

Second, the court held that limits on the employer’s campaign could not interfere 

with the employees’ Section 7 rights. ‘‘As Section 7 grants employees the right to 

23

50 Id. at 559. 51 383 U.S. 53 (1966). 52 Id. at 62. 53 Id. at 62 n.5. 54Dana, 275 F.3d at 552. 55See Eaton and Kriesky, supra note 2, at n.1; Kane and Thomas, supra note 17, at 6–7; Yale 

University Office of Public Affairs, supra note 38. 56 Eaton and Kriesky found that 73% of the sample of 118 agreements they collected from a 

wide variety of sources called for card check arrangements. Eaton and Kriesky, supra note 2, 

at 48. 57 Central Parking System, Inc., 335 N.L.R.B. No. 34, slip op. at 2 n.5 (2001). As Strom notes, 

adopting a policy of deference to arbitration awards resulting from disputes in voluntary recognition situations would not preclude the Board from stepping in to curb genuine Section 

8(a)(2) violations. Strom, supra note 18, at 81. 

organize or to refrain from organizing...it is unclear how any limitation on Dana’s 

behavior during a UAW organizational campaign could affect Dana’s employees’ Section 7 rights.’’ 50

This understanding of the limited relevance of Section 8(c) to Section 7 rights is 

consistent with Linn v. United Plant Guard Workers of America, Local 114, 51 in 

which the Court protected union members’ speech against state law defamation 

claims absent actual malice. While stating that Section 8(c) reflected an ‘‘intent to 

encourage free debate on issues dividing labor and management, 52 the Court also 

stated that 

[i]t is more likely that Congress adopted this section for a narrower purpose, i.e., to prevent the Board from attributing anti-union motive to an employer on the basis of his past statements. . .. Comparison with the express 

protection given union members to criticize the management of their unions 

and the conduct of their officers . . . strengthens this interpretation of congressional intent.53

Additionally, most VRAs do not ‘‘silence’’ employers, but rather limit their campaigning, often with restrictions on the unions’ campaigns as well. The arbitrator’s 

decision reviewed in the Dana decision concluded that ‘‘what the parties appear to 

have had in mind is that Dana argue its case in an objective high-minded fashion 

without resort to the kind of threats and innuendos which have often accompanied 

employer speech in organizing campaigns.’’ 54 In today’s climate, it is hard to imagine that employees in any case will not get an opportunity to hear and fairly evaluate anti-union arguments. 

Employers also claim that card check recognition is less reliable than an NLRB 

election because they are susceptible to fraud and coercion.55 These arguments are 

unavailing for two reasons. VRAs provide mechanisms for preventing these problems, and the possibility of coercion in obtaining cards is in actuality far less of a 

threat to employee self-determination than employer coercion. 

Card check procedures remain the primary mechanism for recognition within 

VRAs, 56 and labor law as well as the terms of most VRAs themselves—require that 

any recognition following a VRA be free from coercion. If a union is accused of obtaining card support through fraud or coercion, an employer could refuse to recognize a union’s claim of majority support. Such a refusal would trigger arbitration 

procedures, if provided by the VRA, or direct recourse under Section 301 to federal 

court. As noted above, the federal courts will not enforce VRAs if the union cannot 

demonstrate that employees had a ‘‘fair opportunity’’ to freely decide whether to accept it as a representative. If an arbitrator ever failed to require majority support, 

such failure would give the employer recourse at the Board.57

J.P Morgan, however, demonstrates that arbitration is fully capable of taking 

irregularities into account in determining majority status. The employer alleged 

that the union had coerced employees into signing authorization cards. In response, 

the arbitrator ordered a delay in the card count ‘‘until coercion charges were resolved because authorization cards obtained through coercion were invalid.’’ After 

the arbitrator found no union coercion, the employer continued to fight recognition 

unsuccessfully in the Second Circuit, which upheld the arbitrator’s decision. 

Thus, the Board’s existing case law governing card check irregularities will stand 

as a safeguard whether enforced through arbitration, the courts, or the Board 

against recognition of a union who has engaged in unfair labor practices. 

4. VRA’s Facilitate First Contracts 

As discussed above, almost half the time employees run the gauntlet of an NLRB 

election, they are still denied the benefits of collective bargaining because they cannot obtain a contract. It is in the first contract area that VRA’s unarguably demonstrate their value. Research shows that in 96.5% of the occasions studies, card 

24

58 Eaton & Kriesky, supra, note 1, p. 53. 59 Id. at 566. 60 996 F.2d at 566 (citing N..L.R.B. v. Drivers, Chauffeurs, Helpers, Local Union No. 639, 362 

U.S. 274 (1960)). 61 Commission for Labor Cooperation, Union Organizing Systems in the Three NAALC Countries, available at http://www.naalc.org/english/publications/nalmcp—7.htm. 62 Hartley, supra note 6, at 380. For a discussion of the content of various VRAs, see supra 

Part I. 63 International Union v. Dana Corp., 278 F.3d 548, 551 (6th Cir. 2002) at 551–52. 64 Id. at 552. 65 ‘‘Neutrality means that the Company shall neither help nor hinder the Union’s conduct of 

an organizing campaign, nor shall it demean the Union as an organization or its representatives 

as individuals’’. [T]he Company reserves the right—[t]o communicate fairly and factually to employees—concerning the terms and conditions of their employment with the Company and concerning legitimate issues in the campaign. For its part, the Union agrees that all facets of its 

organizing campaign will be conducted in a constructive and positive manner which does not 

misrepresent their employment and in a manner which neither demeans the Company as an 

organization nor its representatives as individuals.’’ AK Steel Corp. v. United Steelworkers of 

America, 163 F.3d 403, 410–11 (6th Cir. 1998) (Appendix A). 66 Agreement (on file with author). 

check recognitions led to first contracts.58 As discussed below, this is because VRA’s 

stem from and help deepen a cooperative labor-management relationship which is 

the bedrock of industrial stability. 

B. VRAs Promote Industrial Peace and Stability 

VRAs also curtail the industrial strife common in organizing drives. Indeed, one 

prerequisite for the enforcement of such contracts through Section 301 suits is that 

they ‘‘forward labor peace.’’ 59 The receptivity of federal courts to enforcing such 

agreement indicates that those agreement have generally met this test. 

That organizing campaigns often produce bitterness and divisiveness is 

uncontested. J.P. Morgan refers to ‘‘those tensions inevitably flowing from a union 

organizing effort.’’ 60 Similarly, ‘‘intensive workplace discussions and arguments are 

common. After several weeks of such campaigning, the final days before an election 

usually reach a high level of tension.’’ 61 In a typical campaign, the employer bombards employees with the message that, if the facility unionizes, the employees 

‘‘may’’ lose their jobs, suffer reductions in wages and benefits due to collective bargaining, or face strikes and violence, and the union counters with greater promises 

in addressing the last attack and in anticipation of the next. Not surprisingly, such 

a campaign spirals into enormous division and bitterness among employees. The 

hostility in the workplace generated by a hard-fought and prolonged organizing 

campaign hurts employers, employees, and the general public. 

VRAs dramatically ameliorate the strife and tension of organizing drives by 

changing their character. Most VRAs commit the employer (and typically also the 

union) to what the arbitrator in the Dana dispute called a ‘‘high-minded’’ campaign, 

in which the parties agree not to disparage each other but rather to promote themselves. Most often, campaign limitation clauses do not ‘‘silence’’ the employer, but 

rather require of the parties ‘‘a civil atmosphere for the discussion of the issues surrounding the question of union representation.’’ 62 Indeed, the clause to which Dana 

agreed permitted the corporation to ‘‘communicate with employees, not in an anti–

UAW manner, but in a positive pro–Dana manner.’’ 63 In interpreting the clause, the 

parties’ arbitrator concluded that ‘‘what the parties appear to have had in mind is 

that Dana argue its case in an objective high-minded fashion without resort to the 

kind of threats and innuendos which have often accompanied employer speech in 

organizing campaigns.’’ 64 The agreement reached between AK Steel Corporation 

and United Steelworkers of America provides another example.65 Eliminating the 

fear-mongering common in ‘‘vote no’’ campaigns is a huge step toward furthering 

labor peace and stability. 

SEIU’s agreement with one health care employer committed the parties ‘‘to a 

process that resolves issues between [them] in a manner that not only reduces conflict, but also fosters a growing appreciation for [their] respective missions ‘‘ 66 In 

a situation involving UNITE, the employer and union were locked in a bitter dispute for many months, with many NLRB charges and accusations flying back and 

forth. The parties entered into a VRA which provided for an expedited arbitration 

process to resolve complaints of campaign misconduct. Significantly, neither side invoked the process. Instead, the level of tension decreased dramatically after the 

VRA, and the communication between the parties improved so that disputes were 

settled without the need for arbitration. 

Moreover, VRAs provide for expedited campaigns and dispute resolution, if and 

when charges arise. In addition to committing the employer not to engage in delayVerDate 0ct 09 2002 19:20 Dec 05, 2004 Jkt 000000 PO 00000 Frm 00028 Fmt 6633 Sfmt 6621 H:\DOCS\96151 EDUWK PsN: NNIXON
25

67 Eaton and Kriesky, supra note 2, at 48. 68 Id. (reporting that more than 90% of the agreements they studied called for dispute resolution, and that the process most frequently outlined was arbitration). 69Supra note 2, at 48. 70 996 F.2d at 566. 71 N.L.R.B. v. American National Ins. Co., 343 U.S. 395, 401 (1952). 72 N.L.R.B. v. Broadmoor Lumber Co., 578 F.2d 238, 241 (9th Cir. 1978). 73MGM Grand Hotel, 329 N.L.R.B. 464, 467 (1999). 74 Cited in the Daily Labor Reporter, 9/24/04, p. AA–1. 

ing tactics, many agreements impose time limits on the union for organizing.67

Shortening the campaign process helps minimize tension. Moreover, arbitration provisions 68 allow for quick resolution of charges of coercion, which also minimize tension. As noted above, a UNITE agreement permitted arbitration of alleged campaign 

conduct violations within 24 hours with a bench decision. More than three-quarters 

of Eaton and Kriesky’s sample of agreements set limits on the union’s behavior.69

Analyzing one such agreement, in which the union agreed to refrain from picketing 

and the employer agreed to card-check recognition, the Sixth Circuit concluded that 

‘‘each gave up rights under the Act—in an effort to make the union recognition process less burdensome for both.’’ 70 VRAs leave the representation process itself far 

freer from strife and tension than the usual NLRB election. 

C. Promoting VRAs Advances Party Resolution in Labor Relations 

Encouraging private party solutions to labor disputes is a cornerstone of federal 

labor policy. American National Insurance Company stated that ‘‘[t]he [NLRA] is designed to promote industrial peace by encouraging the making of voluntary agreement governing relations between unions and employers.’’ 71 Specifically, ‘‘voluntary 

recognition is a favored element of national labor policy.’’ 72

Arms-length bargaining will create better, more specifically tailored solutions to 

particular disputes than standard Board processes. ‘‘[I]t is incumbent upon the 

Board,’’ the Board held in a recent case, ‘‘to recognize and encourage the efforts expended by [the parties] in attempting innovative bargaining structures and processes and novel contractual provisions.’’ 73

VRAs can solve problems in ways in which the Board cannot. Clearly, constitutional and statutory concerns of free speech and due process affect the Board’s ability to limit campaigning and to provide expedited representation processes. VRAs 

are not so limited. As discussed below, H.R. 4343 would be a major step away from 

private party resolution and towards government regulation depriving parties of 

their freedom to solve specific problems. 

III. H.R. 4343 IS DANGEROUS AND ILL–CONCEIVED

We oppose H.R. 4343 because voluntary recognition is essential to vindicating employee choice in the coming decades, just as it has been an essential and favored 

element of our national labor policy since the passage of the Wagner Act. Passage 

of H.R. 4343 would inflict serious harm on the right to organize and should be opposed for that overarching reason. In addition, particular consequences of H.R. 4343 

should be examined. 

Voluntary recognition is essential for the Board to process the existing level of 

representation cases. The NLRB’s staffing and funding levels are already woefully 

inadequate. The Board does not have the resources to conduct secret ballot elections 

in every organizing campaign. As NLRB General Counsel Rosenfeld testified to the 

Senate Subcommittee on Labor, Health and Human Services and Education: ‘‘We 

could not continue day-to-day operations if there weren’t voluntary recognitions.’’ 74

Prohibiting voluntary recognitions would create horrendous backlog at the Board, 

thereby denying employees’ any meaningful freedom to choose representation. 

By prohibiting voluntary recognition, H.R. 4343 displaces the private party agreements by government regulation. Our labor relations policy relies heavily on private 

agreements. Unlike other industrialized countries, our labor law does not specify 

holidays, vacations, health insurance or virtually any other terms and conditions of 

employment, save minimum wage and overtime. We favor private party arbitration 

of contract disputes rather than judicial resolutions. Even within the Board processes, we give great latitude to private party agreements. For example, the parties 

can agree on the definition of a bargaining unit, even if the Board would not have 

ordered such a unit following a hearing. In all areas, American labor law is uniquely 

and heavily reliant on private parties devising specific solutions to particular problems. Outlawing private agreements in the recognition area is out of synch with the 

structure of our labor law and prevents innovative problem-solving. 

26

75 NLRB v. Gissel, 395 U.S. 575 (1969). 

H.R. 4343 would ban any recognition if it did not result from a Board election, 

no matter what the circumstances. A consequence of H.R. 4343, which I hope is unintended, would be to eliminate Gissel 75 bargaining orders. No matter how egregious an employer’s unfair labor practices and no matter how overwhelming the 

union’s support prior to the commission of those illegal practices, an employer would 

be forever immunized against having to recognize the union, so long as it successfully tainted the atmosphere preventing a fair election. 

As discussed above, some VRA’s call for private elections. No matter how impeccably run and how free from even allegations of coercion, H.R. 4343 would ban 

them. Other VRA’s require a super-majority of card signers, a demonstration of employee support far beyond that required by the NLRA. Yet, this too would be prohibited. 

The impact of H.R. 4343 on wide areas of labor law is unclear, but extremely dangerous. Would H.R. 4343 prohibit unit clarification petitions, which might add newly 

created or changed job classifications to a bargaining unit? Would it prohibit labor 

and management from reaching an agreement on including groups of employees in 

a bargaining unit? What about an arbitrator’s resolution of a dispute over new or 

changed job titles? Even if unit clarifications were permitted, banning private resolution of these issues would send the backlog problem at the Board to Himalayan 

heights. Would H.R. 4343 prohibit a judicial or Board order requiring an alter ego 

company that unlawfully ran away from its unionized employees to recognize the 

union? Would it affect successorship doctrine, thereby allowing employers to deprive 

employees’ of their unions by shuffling corporate forms? 

H.R. 4343’s banning any ‘‘attempt to cause’’ voluntary recognition is particularly 

pernicious. I am not aware of any other aspect of our labor law that outlaws ‘‘attempted’’ behavior. For example, while a union may not obtain a ‘‘hot cargo’’ agreement within the meaning of Sec. 8(e) of the Act, it is not unlawful to propose (without insisting to impasse) such an agreement. By adding the vague and elusive concept of ‘‘attempt’’ to our labor law, H.R. 4343 opens a Pandora’s Box. If a union filed 

a unit clarification petition which sought to add employees to an existing unit and 

lost the case, would that constitute ‘‘attempting’’ to gain recognition without an election? What if the union sought the same result through an arbitration, which it lost? 

What if a union engaged in pure speech, without any promise or threat, advocating 

that employers in general or a specific employer grant voluntary recognition? The 

‘‘attempt’’ provision is unwise and unconstitutional. Indeed, the current representation petition form requires petitioners to state whether they have asked the employer for recognition. Is checking that box to become an unfair labor practice? 

IV. CONCLUSION 

The sponsors of H.R. 4343 are correct in identifying the assault on employees’ 

rights to choose unionization or not as a critically important issue, requiring a legislative solution. However, the source of the attack is employers’ fierce, coercive and 

often illegal opposition to unionization. Increasingly, employers resist providing affordable health insurance, pensions or wages that allow working families to enjoy 

the American Dream. Voluntary recognition is a keystone of a labor policy that protects the right to organize and opens the door to a middle class future for millions 

of working families. We urge you to oppose H.R. 4343. 

Chairman JOHNSON. Thank you, sir. I understood you perfectly. 

You talk at my speed. 

Mr. Riley, you may begin your testimony. 

STATEMENT OF THOMAS RILEY, SERVICE SALES 

REPRESENTATIVE, CINTAS CORPORATION, EMMAUS, PA 

Mr. RILEY. Mr. Chairman and Honorable Members of the Subcommittee, my name is Tom Riley, and I am an employee of Cintas 

Corporation out of Allentown, Pennsylvania. 

It is my pleasure to share with you my experience in the union 

card check campaign so that you can see this from an employee’s 

perspective. 

27

As background, I have served my country by enlisting for 6 years 

in the U.S. Army with tours in Kuwait and Korea. I was honorably 

discharged at the rank of Sergeant E–5 and proud to have defended my country, particularly in today’s troubled times. 

I believe our democratic freedoms are the foundations of our 

great country, which is why I’m personally troubled by the recent 

union tactics against me, my family, and my co-workers. 

I’ve worked for Cintas for 2 years, starting as a sales service representative. My job is to take care of my customers, keep them 

happy and meet their needs. We provide our customers with uniforms for their employees and doormats, restroom supplies and 

other products for their business. We visit every one of our customers on a weekly basis, and we take great personal pride in the 

work. 

After I started working for Cintas, the union campaign started. 

The union distributed notices to the union, to other unions telling 

them to find ways to quit doing business with Cintas. I had one 

union, one unionized customer who 1 day was very happy with our 

products and my service and the next day gone. No more—we 

weren’t in business anymore. 

Mr. Chairman, I was paid on commissions, as are all other SSRs. 

This union campaign hurt me and my family directly by taking 

money out of my paycheck, and it hurts a lot of other people, too. 

And this is the same union on the one hand that says that it wants 

to represent me, and on the other, at the other time, he’s taking 

food off my table. 

I draw the line, Mr. Chairman, when the union organizers come 

to my house on a Sunday afternoon telling my wife that they’re 

with the company and they need to talk to me. When I came to the 

door, they admitted that they were really with the union, and they 

started trying to tell me all sorts of bad things about Cintas. I told 

them to leave, and they eventually did. 

I called a friend of mine from work, and he said that they had 

been to his house already. What is disturbing is that I have an unlisted telephone number and address, on purpose. I have a wife and 

two small children. Our privacy is very, very important, and I don’t 

like the fact that union organizers are now coming to my door, 

lying to my wife about who they are and what they want. My wife 

is now scared whenever the doorbell rings or one knocks on the 

door, you know, and she shouldn’t have to be, at least not in America. 

I have since learned that the union had gotten my personal information illegally by copying down my license plate number and getting the information from the state’s vehicle registration files, 

which we understand is a violation of the Federal Driver’s Privacy 

Protection Act. In one case, there was a co-worker who doesn’t live 

with his parents but his car that he drives was still registered at 

his parents’ address. His parents got a visit from the union organizer. That’s why several of my fellow employees and me, along 

with a number of our family members, have filed a lawsuit against 

the union for what we believe they’ve done in violation of Federal 

law. 

There have been other situations at our facility that are also 

troubling. One woman who works on late shift was followed home 

28

one night. She purposely drove past her house and the car still followed her. She then pulled into her driveway, and before the car 

drove off, she got the license plate number and called the police. 

They told her that the rental car was rented by a union employee 

using the union’s corporate account. 

We have a process supervised by the government so that individuals like me can go into a voting booth and check yes or no as to 

whether I want to be in a union. Nobody, either my employer or 

the union, would know how I vote. I would rather—I would vote, 

or I’d be free to vote with my heart, not based on whether or not 

I was concerned about my wife and my family or whether union organizers might continue to bother them at home, or not concerned 

about whether anyone might follow me home at night or because 

I felt pressured to signing a union card just because I wanted to 

be left alone. 

Mr. Chairman and Honorable Members of the Subcommittee, I 

enlisted to serve in our military because I believe in the democratic 

freedoms that are the foundation of our company. I fought for and 

was willing to die for these beliefs. And now when I get home and 

into civilian life, I find the unions are trying to take away that 

same democratic freedoms that my brothers and sisters in uniform 

are dying for around the world. 

We have a democratic election process. I say we use it, I say we 

protect it. Mr. Chairman, I and many other employees like me are 

in favor of legislation that protects our democratic rights, and we 

support the Secret Ballot Protection Act. Thank you very much for 

the invitation to talk to you today. 

[The prepared statement of Mr. Riley follows:]

Statement of Tom Riley, Service Sales Representative, CINTAS 

Corporation, Emmaus, PA 

Mr. Chairman and honorable members of the Subcommittee, my name is Tom 

Riley and I am an employee of Cintas Corporation in Allentown, Pennsylvania. It 

is my privilege to share with you my experience in a union card-check campaign, 

so that you can see this from an employee’s perspective. 

As background, I served my country by enlisting for six years in the U.S. Army, 

with tours in Kuwait and Korea. I was honorably discharged at the rank of Sergeant E–5 and am proud to have defended my country, particularly in today’s troubled times. I believe our democratic freedoms are the foundation of our great country, which is why I am personally troubled by recent union tactics against me, my 

family and my co-workers. 

After serving our country in the military, I went to work for a small family-based 

grocery store chain in Lansdale, Pennsylvania that was facing a union organizing 

campaign. The family owners were very clear that the decision of whether or not 

to be in a union was our choice, and I thought they were a very good employer. 

I then got the opportunity to work for Cintas, which has a reputation as a great 

company. After talking with a number of people and interviewing with the company, 

I was attracted by their culture and ‘‘can-do’’ attitude that is very much like family. 

I love my job and the people I work with. 

I’ve worked for Cintas for two years, starting as a Sales and Service Representative. My job is to take care of my customers, keep them happy and meet their needs. 

We provide our customers with uniforms for their employees, and door mats, restroom supplies and other products for their business. We visit with every one of our 

customers on a weekly basis, and we all take great personal pride in our work. I 

was recently promoted to Service Training Coordinator, which means that I help 

train other SSRs in managing their routes and taking care of customers—in addition to filling in and helping SSRs on their routes from time to time. 

After I started to work for Cintas, the union campaign started and union people 

began showing up, and there have been all kinds of bad things said about my company. The union started sending information to my customers, making all kinds of 

29

allegations about the company—and about the products and services that we provide. Like I said, I take great pride in what I do and I was personally offended by 

what the union was saying to my customers. 

The union distributed notices to other unions, telling them to find ways to quit 

doing business with us. I had one unionized customer who one day was very happy 

with our products and my service, and the next day stopped doing business with 

us. Mr. Chairman, I was paid on commission—as are all other SSRs. This union 

campaign hurt me and family directly, by taking money out of my paycheck. And 

it’s hurt a lot of other people, too. And this is the same union that, on one hand, 

says it wants to represent me, while at the same time is taking food off my family’s 

table. We shouldn’t overlook the fact that it’s the workers who are harmed many 

times by these union campaigns. 

But I draw the line, Mr. Chairman, when union organizers come to my house on 

a Sunday afternoon, telling my wife that they were with the company and needed 

to talk with me. When I came to the door they admitted that they were really with 

the union, and started trying to tell me all sorts of bad things about Cintas. I told 

them to leave and they eventually did. I called a friend of mine from work, and he 

said that they had been to his house, too. 

What is disturbing is that I have an unlisted telephone number and address—

on purpose. I have a wife and two small children, and our privacy is very, very important to me. And I don’t like the fact that union organizers are now coming to 

my door, lying to my wife about who they are and what they want. My wife is now 

scared whenever anyone knocks at the door, and she shouldn’t be—at least, not in 

America. 

I have since learned that the union may have gotten my personal information illegally, by copying down my license plate number and getting information from the 

state’s vehicle-registration files—which we understand is violation of the federal 

‘‘Driver’s Privacy Protection Act.’’ In one case, there is a co-worker who doesn’t live 

with his parents, but the car he drives was registered at his parents’ address—and 

his parents got visits by union organizers. That’s why several of my fellow employees and me, along with a number of our family members, have filed a lawsuit 

against the unions for what we believe they’ve done in violation of federal law. 

And, it appears that the unions have been doing this to other employees in other 

parts of the country, too. So our lawsuit has been expanded into a nationwide classaction lawsuit on behalf of all Cintas employees so that we can perhaps protect the 

privacy of other employees and their families. 

There have been other situations at our facility that are also troubling. One 

woman, who works on the late shift, was followed home one night. She purposefully 

drove past her house, and the car still followed her. She then pulled into her driveway and, before the car drove away, she got the license plate number and called 

the police. They told her it was a rental car, rented by a union employee using the 

union’s corporate account. It this what union organizing today is all about—following women home at night? 

We have a process supervised by the government, so that individuals like me can 

go into a voting booth and check ‘‘yes’’ or ‘‘no’’ as to whether I want to be in a union. 

Nobody—either my employer or the union—would know how I vote. And I would 

be free to vote my heart, not based on whether or not I was concerned about my 

wife and family, or whether union organizers might continue to bother them at 

home. Or, not concerned about whether anyone might follow me home at night. Or, 

because I felt pressured into signing a union card just because I wanted to be left 

alone. 

Mr. Chairman and honorable members of the subcommittee, I enlisted and served 

in our military because I believe in the democratic freedoms that are the foundation 

of our country. I fought for, and was willing to die for, these beliefs. 

And now, when I get home and into civilian life, I find that unions are trying to 

take away the same democratic freedoms that my brothers and sisters in uniform 

are dying for around the world. We have a democratic election process. I say we use 

it. And I say we protect it. Mr. Chairman, I and many other employees like me, 

are in favor of legislation that protects our democratic rights, and we support the 

‘‘Secret Ballot Protection Act.’’

Thank you for your invitation to talk with you today. 

Chairman JOHNSON. Thank you for being here. What branch of 

the service were you in? 

Mr. RILEY. I was in the Army, sir. 

30

Chairman JOHNSON. Good for you. Thanks for your service. We 

appreciate it. Mr. Raudabaugh, you know, we’ve heard some conflicting testimony this morning already. I’d like to ask you kind of 

point blank, in your experience both in practice and on the Board, 

is it your conclusion that even in this day and age, union organization often relies on intimidation of workers, and could you cite any 

examples, or do you know of any? 

Mr. RAUDABAUGH. To answer that specific question, yes, there 

are examples. I refer to it in my paper. The H.R. Policy Association 

brief that I reference gives a long list of cases. Most recently, there 

are cases pending before the Board that raise this question brought 

by the courtesy of the representation of the National Right to Work 

Foundation, which monitors and assists employees in championing 

their rights to be left alone. And there are cases now coming before 

the Board yet again raising issues of overreaching, intimidation, 

threats, coercion. 

Chairman JOHNSON. Well, you know, some of the others—Mr. 

Garren, I think—indicated that employers are not clean all the 

time, either. Is there something that we need to do to rectify those 

kind of problems that exist on both sides, I guess? 

Mr. RAUDABAUGH. I think that it’s absolutely the case. If you 

look at Board case law, employers violate the law, as do unions. 

The question here in the free choice act is whether or not we have 

a secret ballot process to put a piece of paper in a box supervised 

by a member of the Board regional office. 

Just like the gentleman at the end of the table just said, it’s not 

public knowledge how I choose to vote. But your question goes to 

other issues that the unions have raised and the labor law reformers looked at. I think that calls into question whether the remedies 

are adequate under the statute. It calls into other issues unrelated, 

though, to the secret ballot. 

Chairman JOHNSON. OK. 

Mr. GARREN. May I comment on that, Mr. Chairman? 

Chairman JOHNSON. Yes, sir. Please do. Any of you who would 

like to make a comment on the questions, please do. Go ahead. 

Mr. GARREN. Again, I think some of the answers are there in 

numbers. The number of employer unfair labor practices, including 

discharges during organizing drives, has gone up enormously, a 

thousand percent, 1,400 percent, again, depending on the timeframe. There’s absolutely nothing comparable, and no one has 

pointed to anything comparable, in terms of union unfair labor 

practices. In fact, the number of union unfair labor practices has 

declined. 

Compared to 10, 20, 30 years ago, any point you wish to compare 

it to, the relative incidence of employer unfair labor practices, destroying employees’ right to organize, is growing, and the incidence 

of union unfair labor practices is shrinking. I think it suggests 

which problem needs most immediate attention. 

Chairman JOHNSON. Well, that’s possible, but, you know, those 

two guys made cases for—against the unions in particular, and I’m 

sure that he’s right. We don’t want our guys protecting the freedoms that we enjoy here in this country to have to worry about 

some union guy coming up and knocking on your door at night. 

That’s not right. You would agree on that, I think. 

31

Mr. GARREN. Well, I would agree very much, Mr. Chairman, and 

I think it goes directly to the point that unions have no right to 

campaign in the workplace; that under the statute and its interpretation as we have it now, unions are only permitted to campaign 

outside the workplace, which means the only real choice we have 

to give employees any message about the union is their homes. And 

that is a very bad situation, I agree with you thoroughly that that 

is bad, and the solution for it is to give unions access to workplaces 

so we can have a fair campaign process, which we don’t. 

Chairman JOHNSON. I presume that’s been discussed before, 

hasn’t it? 

Mr. RAUDABAUGH. Indeed. Indeed. And of course, my good colleague chooses to ignore—we’ve had the campaign process for 69 

years under the Wagner Act. We have pro-union advocates in the 

workplace. They talk to each other at breaks. They talk before and 

after work. They go to union organizational meetings. Mr. Garren’s 

own union has been the subject of the Board’s case law. I won’t go 

into it, but the fact of the matter, this has gone on for a long time. 

The issue before the committee as I understand is, are we going 

to correct what has troubled the Board and the courts since the discussion in 1947 where this Congress amended Section 9(c) to attach 

certification to secret ballot election and attempted to parallel and 

correct Section 9(a), and they did not. And so the courts have been 

troubled for years over the Section 9(a) reference to selection or 

designation with the Section 9(c) process. 

So what we have right now and what I’m hearing is we have this 

very antiseptic and very careful election process to ensure that my 

fellow citizens at this table do not get intimidated and pushed 

around and everyone else in the workplace knows how they voted. 

That’s the secret ballot process and laboratory conditions. 

And then we have, because we haven’t addressed Section 9(a), 

which this bill would do, we allow voluntary recognition, we allow 

people to go to their homes. We allow all of this. This bill is focusing on one simple, necessary reform. When I and you choose to decide yes or no, why is it your business how I’m voting? Why is it 

my business how you’re voting? The secret ballot is nothing more 

than an act of supervision. 

Chairman JOHNSON. Thank you very much. My time has expired. 

Mr. Andrews? 

Mr. ANDREWS. Thank you, Mr. Chairman. I’d like to thank the 

witnesses for their preparation and their time this morning. 

I don’t think anybody who listens to Mr. Riley’s comments can’t 

be disturbed about the fact that a knock on the door when you’re 

not home and your spouse and children are is disturbing. I’ve been 

there. It happens to people in public life a lot, where some constituent knocks on your door and you don’t want it. 

I did want to ask a question of my fellow alumnus, Mr. 

Raudabaugh. If a union approached an employer and said ‘‘‘‘We 

don’t want to do home visits; what we’d like is to be able to set up 

shop in the lunch room and make a presentation in the lunch room 

for the employees, and that’s what we’re going to do,’’ does the employer under present law have the right to say no, they don’t want 

that? 

32

Mr. RAUDABAUGH. The employer has the right to say no, and no 

access to third parties, yes. 

Mr. ANDREWS. OK. So I think one of the areas of reform we 

ought to look at as a solution to the very real problem Mr. Riley 

talked about is modifying that so there is a reasonable right of access to the workplace in a non-coercive way so that we can address 

that problem. 

And you, Mr. Raudabaugh, used the word ‘‘antiseptic’’ to describe 

the election process a few minutes ago. I read and listened to Mr. 

Hermanson’s testimony very closely, and I took a look at a filing 

that Mr. Hermanson’s union made before the NLRB about some 

concerns they had about the conduct of the competing union that’s 

trying to organize them, as well as the employer. And I wanted to 

ask Mr. Hermanson about how antiseptic the process has been in 

the election that he’s going through. And I fully understand that 

Mr. Hermanson’s comments are directed at the competing union as 

well as the employer. But I wanted to look at these. 

Mr. Hermanson, is it correct that organizers from your union 

were monitored by the employer during the campaign period? 

Mr. HERMANSON. I believe we made the charge, but it was dismissed. 

Mr. ANDREWS. But do you believe it happened? 

Mr. HERMANSON. Well, yeah, because we were denied access to 

our work area off hours by name. 

Mr. ANDREWS. Is it correct that during the campaign period that 

all formal discipline was rolled back? And I assume that means favoritism, that somebody who’s seeing things the way the company 

wants to see it gets preferential treatment? 

Mr. HERMANSON. Well, it was across the board. So that they 

changed terms and conditions of employment drastically prior to 

the election. 

Mr. ANDREWS. Why do you think the company did that? 

Mr. HERMANSON. Probably out of fear that we would win the 

election. 

Mr. ANDREWS. Because they had a desire to see a certain outcome. They wanted you to lose and the no votes to win, for whatever reason? 

Mr. HERMANSON. Correct. 

Mr. ANDREWS. All right. The filing also says that vacations, sick 

leave and the quality service program were consolidated to create 

a new leave policy. Is that pretty much the same problem? Do you 

think that was done to try to influence the outcome of the vote? 

Mr. HERMANSON. Right. Certain people are going to react to certain incentives different ways, so they, you know, rather scientifically, addressed different outlooks, and they addressed it in order 

to influence the votes, yes. 

Mr. ANDREWS. And the pleading also says that employee councils 

were created that were designated to deal directly with the management. Several employees on the company council were members 

of the competing union here. What’s the point there? Is it that you 

think that the company tried to show there was a better route to 

getting what you want than voting yes on your union? 

Mr. HERMANSON. Yes. I mean, in my terminology, I would say 

they tried to create a sham union. 

33

Mr. ANDREWS. You see, this—I don’t know the facts of your specific case and the Board’s going to rule on that, but I think this at 

least points out the fact that the antiseptic that we hear that’s 

used to describe this process is not quite as clean as one would 

think. 

And the record as I understand it does show that in at least 25 

percent of all organizing efforts, employers are found to have illegally fired employees when those actions are grieved. The record 

shows that in one recent year, 1998, approximately 24,000 employees won compensation for being unlawfully discriminated against 

or fired for union activity during an election process. 

Now, Mr. Raudabaugh, I don’t claim that the case in Mr. 

Hermanson’s case is representative of all cases. But how many 

cases do you think it’s representative of? 

Mr. RAUDABAUGH. I’m glad you asked me that question. The 

antisepsis to which I refer goes to the process of the Board being 

extremely concerned with putting a stop to the very kinds of things 

you’re talking about, and which an election——

Mr. ANDREWS. Which happened during election process, not a 

card check process. 

Mr. RAUDABAUGH. Yes. But the antisepsis, sir, is allowed by filing objections and bringing it before the Board for the Board to put 

a stop to it, whereas in a non-election, a nonsupervised election, we 

go to something much more akin to what we see in the citizenship 

sector, which is interest groups, blogs and all of the screaming talk 

shows that we have this season with no regulation of any kind. So 

in the workplace, the Board’s process that this institution put into 

place in 1935 through Board case law and the development of the 

conditions for supervising the election, if they want to object to 

those behaviors, the Board will resolve it. 

Mr. ANDREWS. Well, my time is up, but I would just comment 

that the relevant issue in this bill is the secret ballot. I don’t think 

the secret ballot cures any of those ills that we just talked about 

right here. 

Mr. RAUDABAUGH. No, but it sure protects all of us from knowing 

how you vote. 

Mr. ANDREWS. But it doesn’t cure the ills that we just talked 

about. 

Mr. RAUDABAUGH. That’s a different issue, unrelated to the secret ballot. 

Mr. ANDREWS. It’s a very important issue. 

Mr. RAUDABAUGH. Absolutely. But it’s not the secret ballot. 

Mr. ANDREWS. Mr. Hermanson, I’m sure, thinks it’s a very important issue. 

Mr. HERMANSON. They’re not repeat offenders, except for the 

case of the sham union, because they recognized the service employees union without an uncoerced majority. So in my opinion, 

they are encroaching upon some very dangerous territory, you 

know, the strongest remedy available, which is a 10(J) injunction. 

Mr. ANDREWS. Has an election been scheduled yet, Mr. 

Hermanson, in your case? 

Mr. HERMANSON. The second election? Not yet. 

Mr. ANDREWS. How long have you been waiting? 

Mr. HERMANSON. Since February. 

34

Chairman JOHNSON. Mr. McKeon, do you care to question? 

Mr. MCKEON. Yes, thank you. 

Chairman JOHNSON. You’re recognized for 5 minutes. 

Mr. MCKEON. Thank you. Mr. Raudabaugh, we’ve heard a lot 

about the card check recognition and corporate campaigns to pressure an employee or an employer to agree to them. Now unlike the 

traditional bargaining process, corporate campaigns center on making the employer look bad in the public eye and often include intensively negative media campaigns, frivolous litigation and picketing??????? 

Now I understand that the National Labor Relations Act prohibits a union from engaging in certain secondary activity, such as 

unlawful picketing of employers. But other activities are allowed. 

This is a pretty thorny area of the law. However, can you explain 

to us, perhaps in layman’s terms, exactly what prohibited secondary activity is and what’s permissible? And if we pass legislation prohibiting card checks, do you think we’d see an end to these 

sort of corporate campaigns? 

Mr. RAUDABAUGH. Yes, sir. What we’ve seen is the development 

of the neutrality agreement that goes along with the vehicle of card 

checks as the method for soliciting signatures. If a majority is obtained, then the agreement would be that we will now recognize 

the union as the representative. 

In that neutrality agreement goes along sometimes with issues 

of agreeing to access or agreeing not to say anything negative. 

What also goes along with it is a very subtle issue that is only this 

week going to be now entertained before the Board in the beginning of litigation, which is the violation of Section 8(e) of the statute and the hot cargo agreement where an employer agrees with 

the union with the wink and the nod that in its dealings with other 

third party suppliers, for example, that it will only do business 

with, wink, wink, good corporate citizens. We will only do business 

with other people who are also agreeing to neutrality, to agreeing 

to card check recognition. And this issue, this inherent boycott, is 

an issue that comes up in the secondary process of avoiding doing 

business with anyone that’s not going to agree in advance to the 

union being allowed to go through and get cards signed and avoid 

the Board process. 

A secondary corollary to that issue is the issue before—that 

should be before agencies soon, as I understand it, which is whether or not it’s a criminal violation for those parties, i.e., the employer and the union, to agree in advance to bypass these procedures because it constitutes a thing of value, which in Section 302 

is specifically carved out as being illegal, criminal. 

Now what is it that’s of value? Well, it’s significantly of value if 

you’re going to be able to bypass what apparently is being frustrated here, which is why does it take so long to go through an 

election? Why does it take so long for the Board to resolve if there’s 

overreaching? If you want to circumvent the due process, that 

saves money and time. If you want to save the electioneering process and just go up and push people around and get signatures, that 

saves time. So that’s a thing of value. That’s also criminal. 

Those two issues are very much at the core of the neutrality card 

check effort to save the time and money, avoid the opportunity for 

35

employers to know that there is a campaign going on, circumvent 

the opportunity of—the most critical aspect short of the secret ballot is informed choice. How on earth could anyone make a decision 

to vote Republican or Democrat this fall if you didn’t hear, like tonight, the views of the candidates? How could you possibly select 

one candidate or the other if you didn’t hear from them and what 

their positions are? And this is exactly what’s at stake, is trying 

to get a one-sided presentation, get a guaranteed first contract 

through the Kennedy-Miller bill of doing something that’s unheard 

of in Federal labor law. Even in national emergency disputes under 

the Railway Labor Act involving railroads and airlines, we don’t 

cram down third party interest negotiated—or third party arbitrated agreements. 

And all of this is going on simply because we have issues of the 

inability to communicate a message, apparently, unsuccessful organizing efforts. And I would submit all of these issues that Congressman Andrews quite appropriately highlighted should be addressed. But the process exists. It’s taken several years to prosecute Enron. Now are we going to get rid of that and just hang 

them? 

The process is there. The process works. And, surely, the United 

States of America is not going to walk away from the secret ballot. 

Mr. GARREN. May I comment on that? 

Mr. MCKEON. Thank you very much. 

Mr. GARREN. May I comment on that? 

Mr. MCKEON. It’s up to the Chairman. My time is up. 

Chairman JOHNSON. Please do. 

Mr. GARREN. Yes. Just to answer your question very briefly, you 

asked what secondary conduct is and what isn’t in terms of corporate campaigns. Unions are not permitted, it’s unlawful to coerce 

or picket or disrupt the business of a secondary. What is permitted 

is conduct protected by the First Amendment. 

And it is scary to me to hear attacks that there’s something 

wrong with unions publicizing what in their opinion are bad labor 

conditions, such as companies that don’t pay a living wage and violate living wage ordinances, or don’t provide health insurance, or 

don’t provide pensions. And that’s what the core of corporate campaigns are is explaining and exposing bad labor conditions. And in 

America, that’s protected by the First Amendment. 

Mr. MCKEON. Would you agree then that in the instance of Mr. 

Riley that it’s OK to go to other companies and discourage them 

from doing business with his company and taking food off his——

Mr. GARREN. Yes. I think it is absolutely right for UNITE-HERE 

to go to customers of Cintas and tell them that Cintas does not pay 

a living wage, even though it’s required to by the city of Haywood, 

California and the city of Los Angeles; that Cintas violates the National Labor Relations Act——

Mr. MCKEON. We have a real difference of opinion on that. 

Thank you, Mr. Chairman. 

Chairman JOHNSON. Thank you. Mr. Grijalva, do you care to 

question? And I want to thank you for joining us for a hearing 

down in Texas. Did you have a good time down there? 

Mr. GRIJALVA. Yes, it was a good time. Thank you, Mr. Chairman. 

36

Chairman JOHNSON. You bet. You bet. Go ahead. 

Mr. GRIJALVA. Let me, if I may, just a couple of short questions 

to Mr. Riley, if I may. Just to get more information on your testimony. In your complaint about the union organizers calling you up 

and coming to your house, as you described, inappropriately and 

frightening your family, let me ask you about your employer, 

Cintas. Has the company and the management guys urged you and 

other employees not to sign cards? Have they called you into meetings to explain to you the pros and cons of unionization? 

Mr. RILEY. I just want to let you know, it is in the full statement, 

that since I’ve been out of the military, this is my second job. This 

is my second encounter with union organizations. Both employers 

have educated us that it is our choice. Not one time did they tell 

us do not vote union. If anything, I proposed the question, am I allowed to speak out if I oppose it? But at no time did they have any 

meetings encouraging us not to vote union. They educated us what 

the union is, what the purpose of a union is, and it’s our choice 

whether or not we want to be unionized or not. 

Mr. GRIJALVA. And that same work site, workplace, were union 

organizers or union representatives had the freedom to come and 

approach you directly and give you literature and talk to you about 

their union? 

Mr. RILEY. The only issue I have with them coming up freely is, 

you know, it started out standing in the parking lot as all employees of Cintas enters the facility. And then they start showing up 

at my house. Again, I have an unlisted address and an unlisted 

phone number for reasons. How did the union find out where I 

lived? I’m a very approachable person, but if, you know——

Mr. GRIJALVA. My question was in the workplace. 

Mr. RILEY. In the workplace. No, at no time was the union granted permission to come talk to any of us freely. 

Mr. GRIJALVA. Granted that you questioned the process by which 

access to the address, but if a union organizer or a person trying 

to convince you or give you information about the union is essentially prohibited from making that contact with you at the workplace, a phone call, what other avenue do they have, other than to 

try to approach you away from the workplace? 

Mr. RILEY. Well, if they accidentally bumped into me at the shopping market. 

Mr. GRIJALVA. Let’s talk about that. 

Mr. RILEY. Well, the reason why I say that is because I have 

proof that there was an unlawful tactic on how to get my address. 

You know, had they come to my house and I was in the phone 

book, I would have just assumed that they got a list of employees, 

maybe, you know, however they would have done that, and then 

they looked us all up in the phone book and they show up at my 

house. 

Mr. GRIJALVA. Let me—given that, and it’s a valid point, given 

that, let me follow up with another question. Let’s say that a local 

candidate or someone running for Congress is out campaigning and 

comes and knocks on your door to ask you for you and your wife’s 

vote. Has that happened? 

Mr. RILEY. That has happened. That was the intent of them 

showing up to my house. 

37

Mr. GRIJALVA. OK. And so they asked you for your support. I’m 

not going to ask you whether you backed them or not, but the fact 

that they came and knocked on your door, did that—that eliminated your free choice when you went to the ballot box? 

Mr. RILEY. No. 

Mr. GRIJALVA. Or the support that you gave one candidate or another? 

Mr. RILEY. You know, with them showing up to my door, you 

know, really has no effect on my decision on how I would vote. 

Mr. GRIJALVA. Isn’t that equivalent to what the union is doing 

when they came to your door? You’ve still got the choice to make. 

Mr. RILEY. Sure. 

Mr. GRIJALVA. OK. And just one thing about the company, and 

I’m very aware of Cintas. Our caucus is on record dealing with this 

particular corporation, the Hispanic Caucus, but beyond that, 

you’re aware that there is a class action suit filed on behalf of customer sales representatives such as yourself for nonpayment of 

overtime of nearly $100 million? They’ve already settled one on the 

same—a similar lawsuit in California for $10 million. 

I mention that because sometimes that legal avenue is available 

to the union or to representatives of employees because you can’t 

get redress of these kinds of issues through the process as it’s set 

up by the company. And I mention that. 

I yield back, sir. I have no further questions. 

Chairman JOHNSON. Thank you, Mr. Grijalva. 

Mr. GARREN. Can I make one brief comment on that, Mr. Chairman? It will be very brief. 

Chairman JOHNSON. Go ahead. 

Mr. GARREN. On the question of union organizers being at the 

parking lots, we did a lot of that. There were 26 different locations 

in which the NLRB investigated our charges that Cintas illegally 

interfered with our attempts to communicate with employees at 

those parking lots. They found merit in the 26 locations, and 

Cintas had to enter into a settlement agreement concerning interfering with our communications with employees at their parking 

lots. 

Chairman JOHNSON. Were they trying to use card checks in 

those? 

Mr. GARREN. Yes. Yes, we were. 

Chairman JOHNSON. OK. Mr. Norwood? 

Mr. NORWOOD. Thank you very much, Mr. Chairman. And I’m 

going to try to get us focused back on what this hearing is about. 

And it isn’t about whether employers have more time with employees than unions do. It is not about who intimidates who. It is about 

one simple all- American thing: Do people have the right to join a 

union and vote secretly so employers and unions don’t know how 

they voted, regardless of who coerces who? If you don’t know how 

an employee voted, you can’t fire them. If you don’t know how an 

employee voted, you can’t coerce them if you’re a union. Now what 

is wrong with this Congress saying clearly that in America you 

have the right to vote privately? And it is nobody else’s business 

whether you spend your adult employment life as a union member 

or not. 

38

My question is for Mr. Garren. In your testimony, we heard a lot 

about how employers allegedly coerce or intimidate employees during an election campaign. Perhaps someday we’ll have a hearing on 

that subject, or whether employers have greater access to employees than the union does. Maybe we can have a hearing on that. 

Now I would probably take a lot of exception, Mr. Garren, to 

some of your conclusions, and I suspect you and I could probably 

spend the rest of the day arguing these points. But that’s not the 

point of this hearing. Let’s set that aside. My question to you is 

very basic. Even if everything you’ve said today is completely true 

and accurate, why does that mean then an employee should have 

to give up their right to a secret ballot vote? Employers have socalled, quote, ‘‘greater access’’ to employees when there’s a secret 

ballot election. But they have the same access to employees with 

a card check. None of that changes. The only difference I see in the 

card check is that the employee is forced to publicly declare how 

they’re voting. 

Why in the world would they have to do that? Why would they 

have to do that in front of management? Why would they have to 

do that in front of the union? Why would they have to do that with 

their co-workers rather than privately casting their ballot for their 

intention? A man ought to be able to vote his own conscience without interference from me or you. How do you respond to that? 

Mr. GARREN. Well, in two ways. One, the Supreme Court in 

Gissell Packing explained very, I think, clearly and cogently that 

when the election process, when employer opposition to unionization impedes the election process and makes a fair election improbable—not impossible, just improbable—then the best—and these 

are the words of the Supreme Court—in those cases, the best indicator of majority support of the employees’ free choice is authorization cards. 

If you look at our industrial landscape today, the overwhelming 

majority of employees——

Mr. NORWOOD. Just put a comma there just for a second. Are you 

familiar with that Supreme Court ruling that says that? I’m not a 

lawyer, so maybe somebody else can help me. 

Mr. RAUDABAUGH. Well, it’s interesting. Obviously people see 

things differently. What Gissell said was in those instances where 

you have hallmark violations so serious that a rerun election would 

not bring about a fair result because of the intimidation being so 

toxic and so long- standing, then in those very rare circumstances, 

then we will proceed to order bargaining if there has been at some 

point an indication of majority. 

Now my quick answer—I’ve watched too many talk shows. 

Mr. NORWOOD. I got the time, baby. You just keep talking. 

Mr. RAUDABAUGH. My quick answer to Mr. Garren is to raise this 

Gissell issue is—I’m sorry. That’s just beside the point. If he wants 

to focus on the very few cases where appellate courts approve and 

endorse a Board Gissell bargaining order, then we can. But the 

overwhelming number of cases have nothing to do with that at all, 

and I would like to come back to your very fair point, which I think 

summarizes it all, because it’s—it would be—this is what was said 

in Logan Packing. It would be difficult to imagine a more unreliable method of ascertaining the real wishes of employees than a 

39

card check unless it were an employer’s request for an open show 

of hands. 

I mean, the fact of the matter is, all we’re talking about with this 

bill is we’re not talking about overreaching. We’re not talking about 

whether employers or unions are evil or worse than the other. 

We’re only talking about why is it that Congressman Norwood’s 

choice to join a union or not is public knowledge to everyone in the 

room. I can’t conceive why that should be. 

Mr. GARREN. May I answer the question, since it was asked of 

me? 

Mr. NORWOOD. Mr. Chairman, I ask unanimous consent for one 

last minute if no one objects on the other side. 

Chairman JOHNSON. You’ve already gone over, but we’ll give you 

another half. Go ahead. 

Mr. NORWOOD. All I really wanted to end up by saying is that 

I would think that as many Members of this Congress has done in 

the last—well, in 2001, and in particular many of my friends on 

the other side of the aisle—have encouraged foreign nations to at 

least allow their unions to have a secret ballot election because it’s 

fair. The very people who are opposing this, my good friend Mr. 

Miller, is the one who led the fight to encourage the rest of the 

world to go to secret ballot elections. Now what’s going on here? 

Thank you, Mr. Chairman. 

Mr. GARREN. Mr. Chairman, may I have just a moment to answer the question? Because Mr. Raudabaugh answered it, not me. 

Chairman JOHNSON. I’d prefer not to, because we’re about to run 

out of time. We’re about to get a vote on the floor of the House, 

and I’d like to allow some further questioning. Mr. Kildee, you’re 

recognized for 5 minutes. 

Mr. KILDEE. Thank you very much, Mr. Chairman. This has been 

a good cross-section. An attorney from Detroit, my state. Very familiar with Ford Motor Company back in the early days, probably 

before you were born, though. But I was. 

We have a smaller union represented here. We have a large 

union represented here, and we have someone working for a nonunion company who served in the military. By the way, I have two 

sons who served in the military. One was an airborne ranger. He’s 

still in. I pinned his ranger tag on him when he finished ranger 

school. It’s a pretty tough school. 

So this has been a good cross-section, and I think we find those 

who represent all America, including those who have very recently 

defended our country. 

All of us bring into Congress our own background or our own 

perspective. Mr. Norwood, who is a very good friend of mine, and 

he knows that, and I’m a very good friend of his. He brings his perspective in. I bring my perspective in. 

When I was growing up, you know, there was certain companies 

that had certain receptivity to unions and certain companies that 

had hostility and intimidation, including the Ford Motor Car Company, which now has a great labor record. 

But we all bring that background in. I can recall that back in the 

days my dad was joining the United Auto Workers, albeit in Flint, 

not in Dearborn, but in Flint, that the method of intimidation then 

was generally the blackjack. And, you know, Walter Reuther got 

40

pretty well beaten up by blackjacks in the battle of the overpass. 

Now it’s more sophisticated, we know. And I don’t mean to—we 

have generally black briefcases, right? Labor consultants. You go 

through the telephone book and, you know, you can find your labor 

consultants who will help you keep a union out, and it’s certainly 

more sophisticated and more humane, I guess, to use the black 

briefcase rather than the blackjack. 

But we do know that there are companies out there that work 

assiduously to keep unions out. I was born in 1929. I can remember 

the sit down strike in Flint in 1936, ’37. I can remember 1940, the 

battle of the overpass. So we’re always going to have that, some 

companies being receptive, some being very hostile and using whatever means they can find, fair or foul, to keep the union out. 

Having said that, let me address a question here to Mr. Garren. 

As I understand Mr. Norwood’s bill, it would take away the freedom of contract between a union and an employer—specifically, the 

freedom to agree to a process whereby the employer might recognize a union that represents a majority of its workers. I can understand why unions might want a card check procedure. Are there 

reasons why employers would want a card check procedure instead 

of the NLRB elective process? 

Mr. GARREN. Yes. I think there are many reasons. One of the 

things that’s very common and virtually inevitable in NLRB election campaigns is an enormous amount of hostility and tension. 

The Supreme Court talks about that in Linn v. Plantguard, talks 

about the vituperation and tension that you have. It’s a very disruptive and divisive event. And many employers prefer to avoid 

that, prefer to have a much more amicable and less painful process. 

There was a decision I believe out of the Second Circuit enforcing 

a card check agreement in which both the union and the company 

had agreed to campaign only in a high-minded manner, and the 

court commented that it was enforcing it in the interests—because 

it was part of labor peace, and that both sides had given up things 

in order to make the recognition process less painful. 

So, yes, I think there are plenty of good reasons why employers 

make sound business decisions to enter into card check agreements, voluntary recognition agreements. 

Mr. KILDEE. All right. Thank you, Mr. Chairman. I’ll let you 

move on to the next member. 

Chairman JOHNSON. Yeah. Did you want to comment? You acted 

like you did. 

Mr. RAUDABAUGH. Indeed. I appreciate those remarks. I’ve carried this around since undergraduate days at Penn. This is the National Labor Relations Act. In 1935 in Section 7 it talks about free 

choice. There’s only one right in the statute. It’s lovely that unions 

and it’s lovely that management would like to avoid debate and discord. That’s wonderful. The point is, the statute only confers a 

right, and it’s not to unions or to management. It’s to employees, 

the people who live in the houses next to us. You and me. It is our 

right, not the employer’s right and not the union’s right. And it is 

the employee’s right to choose and freely. And what Mr. Norwood’s 

bill is attempting to do, thank you very much, is to allow me to decide whether I want to vote for this or for that. 

Chairman JOHNSON. Mr. Kline. 

41

Mr. KLINE. I want to thank you for your testimony and your answers. Mr.Riley, you’re from Allentown, Pennsylvania, at least in 

some—temporarily. I was born in Allentown. Always nice to see 

somebody from the old home town. And I want to thank you also 

for your military service. It means a lot to all of us and to me personally. Like Mr. Kildee, my son is serving in the Army today, and 

I just want to thank you for that service. 

We’ve had some testimony today about what American democracy is and voting. We have some experience, those of us here at 

this dais, about American democracy and voting. And it seems to 

me that at the core of that American democracy is the secret ballot, 

and it’s the reason I’m a co-sponsor of this bill. We’ve had testimony about coercion and bad tactics and terrible stories, Mr. Riley, 

from you and from Mr. Hermanson. And I know that there are instances of coercion by management and about unfair practices and 

ride time for employers and managers. 

But I go back to Mr. Norwood’s point, and I thank Mr. 

Raudabaugh for emphasizing this himself, is that this bill, and I 

just reread it again during the course of this, only addresses how 

the vote is cast. And it does seem to me that the secret ballot is 

at the core of our democracy, and it’s the least that we can do for 

those employees, as pointed out, the basic act addresses the rights 

of employees, and we want to guarantee those rights. 

But I’d like to—a question was asked by my colleague, Mr. Kildee, of Mr. Garren. He had some reasons why employers would 

want to move to a card check system. I appreciate that answer, and 

Mr. Raudabaugh, I’d like to hear from you of any reasons that you 

might know of that employers would want such a system that 

would move away from the secret ballot. 

Mr. RAUDABAUGH. I will put my hat on as a management side 

labor lawyer. I’m not sure I’m aware of any. What comes down to 

this issue of neutrality is beguiling to me. We assume that debate 

has to be acrimonious and disruptive and conducted with coercion 

and intimidation. I don’t think that is how we should view this. I 

know modern day campaigns and talk shows are pretty aggressive, 

but we can exchange difference of views without beating up on 

each other. 

But what is bothering me here on the whole issue of neutrality 

is going back to the single right in this statute to employees is to 

make a choice freely—which goes to Mr. Norwood’s secrecy—to 

make a choice necessarily suggests that I have some information 

to choose either this or that. And I don’t know how you learn with 

a one-sided presentation from one side or the other. Employees 

should have the right to hear all views. 

Mr. KLINE. Thank you. I’m going to run out of time here in just 

a moment. It seems to me, though, just another comment, because 

I can’t stop myself, that regardless of whatever coercion there 

might be on the part of union or employer or fellow workers, the 

secret ballot defends the employee from the effects of that. Because 

at the end of the day, neither the employer nor the union nor fellow co-workers know how you voted. 

Let’s just sort of put this in the scale of the—get an idea of the 

scale of this. I’ve got some figures here that show between 1999 

and 2003, there were roughly 14,000 elections held by the NLRB. 

42

And of those, there were objections filed in about 3 percent, and 

about half of those came from employers which would indicate that 

less than 2 percent came from the unions. Mr. Raudabaugh, can 

you address that and tell us what you think that says about the 

process? 

Mr. RAUDABAUGH. Yes. I think it’s like all things. Most people 

abide by the law. Most people try to do right. Most people don’t run 

into making violations of the law, and your statistics—those are 

similar to the ones I’ve obtained. I presume they come from annual 

reports from the Board—point out that isn’t it a wonderful thing 

that most people can conduct themselves, abide by the rules, and 

that these problems are the absolute infinitesimal portion of all 

cases and all elections, and we have procedures to deal with it. 

Mr. KLINE. Thank you, sir. I see my time has expired, Mr. Chairman. 

Chairman JOHNSON. Thank you. Mr. Tierney, you’re recognized. 

Mr. TIERNEY. Thank you. It’s interesting to note that Communist 

Russia used to have secret ballots, too, but they didn’t always work 

out so well. You know, I think that everybody here would say that 

they’re not opposed to the concept of a well-run election with secret 

ballots, but they also favor allowing the option of having a company 

and having employees decide if they want to go with the card check 

or some other way of resolving it voluntarily, and the law absolutely allows for that. And there’s good reason for that. 

You know, there are good reasons all the way down here. I mean, 

if you just look at Cintas’s conduct, it rivals Wal-Mart in some of 

these things here. I mean, a hundred violations of labor law in the 

United States and Canada. People getting $10 million settlements 

for back pay that was owed them for overtime that they didn’t get. 

Violations of OSHA regulations. A hundred times they’ve been 

cited by OSHA for violating Federal health and safety laws, not 

paying a living wage in violation, being sued by a city for that. We 

can see why people organize and why there’s a need for them to 

get out there. 

But if we look at elections as they’re run right now, once you petition for an election, you have on average 43 days to get to that 

election, but the problem is, there are many ways to continue that 

period of time, which then opens it up for manipulation and delay. 

If you go to a regional director’s decision, that can be appealed. 

Those take up to 265 days. The median number of days for representative cases before the Board is 473 days. If the employer 

then contests that, it could be years. 

And so I think that there are many reasons why an employer 

and employee would want to have another way to go on this situation. Two studies, one in 1998, one in 1999, both said that 36 percent of workers who voted against unions said that they did that 

because they were pressured by the employer to vote against them. 

So, Mr. Garren, I just want to ask you some questions. Are you 

aware of the 25 percent of employees who have been found to have 

been illegally fired or disciplined, at least one worker for union activity during organizing campaigns? 

Mr. GARREN. Yes. It’s certainly our experience that unfair labor 

practices are the norm. They’re the standard. 

43

Mr. TIERNEY. And that’s usually in that period when you’re waiting for your election, right? 

Mr. GARREN. Yes. When people are organizing either to get support to file a petition or after the petition has been filed. 

Mr. TIERNEY. And you’re aware that 75 percent of employers 

hired consultants or union busters to help them fight those organizing drives? 

Mr. GARREN. I would have guessed more, but if it’s 75 percent, 

I’ll accept that figure. 

Mr. TIERNEY. Are you aware that 78 percent of employers force 

employees to attend one-on-one meetings with their own supervisors against the union? 

Mr. GARREN. Yes. Certainly the overwhelming majority, in our 

experience. 

Mr. TIERNEY. I think the most egregious case I heard is you saying they’re putting people right in the truck and make them drive 

around with them all day. I think I’d rather have them come visit 

my wife as long as they weren’t threatening her, you know, than 

be sitting in the truck with them all day and badgering them. 

Are you aware that 92 percent of the employers force employees 

to attend mandatory closed door meetings against the union? 

Mr. GARREN. Yes, very well aware of that. And I don’t believe 

those statistics were at all true when the basic structure of the Act 

and the remedies and election procedures were adopted. And the 

volume and viciousness of the Vote No campaigning that you’ve 

just alluded to is exactly what makes the norm in NLRB elections 

today an unfair election. 

Mr. TIERNEY. And are you aware that there’s findings that 51 

percent of the companies threaten to close the plant if the union 

wins the election? 

Mr. GARREN. Yes. 

Mr. TIERNEY. I mean, that recalls to me the Wal-Mart case 

where they had the meat packers in their plant decide they wanted 

to unionize, so they just closed down all those divisions in their entire chain of stores, right? 

Mr. GARREN. That’s correct. 

Mr. TIERNEY. And you’re also aware that there’s a high finding, 

52 percent of the employers threaten to call immigration officials 

during organizing drives that include undocumented employees? 

Mr. GARREN. I have seen many organizing drives smashed to 

smithereens by that threat—people terrified, and that was the end 

of any thought of a union. 

Mr. TIERNEY. The last figures I have was that in 1998, there 

were 24,000 cases won by workers who had illegally been discriminated against for engaging in legally protected union activities. Do 

you have any more recent numbers than that? 

Mr. GARREN. No, I don’t. But, again, every study I’ve seen has 

shown dramatic increases in these numbers. Even studies that set 

out to show that no, that wasn’t the problem, ended up concluding 

that yes, it was. 

Mr. TIERNEY. All right. And I guess I’m going to close with this. 

In my district the problem is that even after elections are supposedly held and we go through all of this delay, you go through 

all of these tactics in that situation, 32 percent of the time, elecVerDate 0ct 09 2002 19:20 Dec 05, 2004 Jkt 000000 PO 00000 Frm 00047 Fmt 6633 Sfmt 6602 H:\DOCS\96151 EDUWK PsN: NNIXON
44

tions by workers to have a union still haven’t had their union 2 

years later. 

Mr. GARREN. Yes, that’s correct. 

Mr. TIERNEY. Does that figure bear out through the whole country? 

Mr. GARREN. I believe the figure is more like 50 percent, the 

studies I’ve seen, do not have a union, do not have a contract. And 

I think it is extremely important to note that in card check voluntary recognition arrangements, the studies show about 96 percent of the time, unions get contracts, workers get contracts. So it 

is in fact card check that proves to actually deliver the benefits of 

collective bargaining that workers sought. And the election system 

does not deliver that benefit. 

Mr. TIERNEY. I guess to some of us it’s fairly obvious as to why 

both companies and employees might opt to go some route other 

than the elective process. And with respect to the elections, I think 

we have a lot of work to do to make sure that in fact the employees 

are protected, do get both sides of the story, have fair access to all 

the information, and then have a fair vote that happens to give 

them results quickly. 

Chairman JOHNSON. The gentleman’s time has expired. Ms. 

Musgrave. 

Ms. MUSGRAVE. Thank you, Mr. Chairman. I have some written 

material that I’d like to submit for the record, if I may. 

Chairman JOHNSON. I understand Mr. Norwood has some, also. 

Without objection, they’ll all be entered. 

Ms. MUSGRAVE. Mr. Chairman, I’d like to yield Mr. Norwood the 

remainder of my time. 

Chairman JOHNSON. OK. I’m going to yield you 1 minute, because we’ve got a vote going. 

Mr. NORWOOD. I’m going to go fast. Everybody’s got studies, and 

I have one, too. Are you guys aware that 63 percent of the workers 

agree that stronger laws are needed to protect the existing secret 

ballot election process and to make sure workers can make the decision about union membership in private without the unions, their 

employers, or anyone else knowing how they vote? That’s a study, 

too. 

I’ve got another study that says 78 percent of the workers believe 

Congress should keep the existing secret ballot election union 

membership. 

Everybody’s got studies. Mine’s going in the record just along 

with Mr. Tierney. Mr. Tierney says everybody wants to keep the 

secret ballot election, but my friends, and they are over there, are 

all on a bill that totally eliminates the secret ballot election. You 

can’t have it both ways. 

Last, let’s make it clear. This bill does not tell employers how to 

think. If they want to be unionized, they can say so. They can say 

so under card check and they can say so under secret ballot. It’s 

not their business nor is it the union bosses’ business. This is about 

the workers deciding do they want to be unionized, Mr. Chairman. 

That’s all this bill is about. 

Thank you. 

Chairman JOHNSON. Thank you. Ms. McCollum, you’re recognized. 

45

Ms. MCCOLLUM. Thank you, Mr. Chair. When Mr. Riley was 

talking about how he felt intimidated, his right to privacy, I respected that. But I also think, Mr. Riley, that you would be outraged to know that businesses can photograph employees without 

them knowing it while they’re at work while union organizations 

are going on. That businesses hire people to photograph employees 

who come out of union meetings that are held in a VFW meeting 

after hours. And that businesses—and I know this from first-hand 

experience—businesses do intimidate and threaten employees in 

one-on-one meetings, and they do ask their supervisors to do that, 

because I was asked to do that. 

So two wrongs don’t make a right. But when you feel that your 

job is threatened, especially with the way the economy is right 

now, I think employers quite often have the upper hand on the 

issue. And that’s why we need to find a way in which unions in 

open sunshine can come in and have access without employees feeling that their job might be threatened, the hours that they work 

might be threatened. 

I scheduled commission employees. I had people come in and tell 

me ‘‘make sure that they don’t work weekends at big sales.’’ I know 

exactly what you’re talking about from your experience and how 

you were saying. But it also happens in the reverse. 

And Mr.—I’m afraid I’m mispronouncing——

Mr. RAUDABAUGH. Raudabaugh, yes. 

Ms. MCCOLLUM. Have you in your legal practice ever worked 

with an employer and suggested that an employer work with a 

union in an open fashion to have the union come into a business 

and have equal access? 

Mr. RAUDABAUGH. In very unique settings, in faculty situations 

or something like that. But I go back to the first year I was on the 

National Labor Relations Board, and this whole issue of access and 

so forth had been roundly debated. And Clarence Thomas’s first authored opinion was in Lechmere, and talking about property rights 

and accommodation of rights. And that is what is so interesting 

about our democracy is the balancing and what is fair. It’s a very 

complex, difficult question. 

Ms. MCCOLLUM. Thank you. I understand. Thank you. So the 

employers’ rights—I have a very limited amount of time. So the 

employers’ rights come over the employees’ rights to have equal access to information in the same setting. Because they own the 

property. And that’s just the way it is, right? 

Mr. RAUDABAUGH. But the public sidewalks, the public airways, 

the local media, billboards. This case law has been around a very 

long time in balancing those opportunities. 

Ms. MCCOLLUM. Reclaiming my time. I understand that. But I 

also know from talking to employees going through union organizations—and some of my employees supported the unions and some 

of them didn’t, and I felt very respected that they felt I as in management was a person that they could come to and get an honest 

answer—felt extraordinarily intimidated that while at work, they 

knew two things were going on. One, their supervisor, the manager 

could call them into the office and speak with them for an hour at 

a time if they wished. And two, that they were being photographed, 

watched and scrutinized by the same employer if they were seen 

46

talking to someone who was actively trying to get a union organized in the store. 

Thank you very much for the time, Mr. Chair. 

Chairman JOHNSON. Thank you. I appreciate your patience and 

your shortness. We’ve got votes on the floor. I want to thank the 

witnesses for their valuable time and testimony and thank you for 

coming here, some of you from a long way. 

If there’s no further business, the committee stands adjourned. 

[Whereupon, at 12:10 p.m., the Subcommittee was adjourned.] 

[Additional material submitted for the record follows:]

Letter to Junta De Conciliscion, Submitted for the Record by Hon. Charlie 

Norwood


96151.011
47

Checking the Premises of ‘‘Card Check’’, Submitted for the Record by Hon. 

Charlie Norwood


96151.001
48


96151.002
49


96151.003
50


96151.004
51

National Right to Work Committee, Memorandum with Fact Sheet, 

Submitted for the Record by Hon. Marilyn N. Musgrave


96151.005
52


96151.006
53


96151.007
54


96151.008
55


96151.009
56

Æ


96151.010