COMPULSORY UNION DUES 

AND CORPORATE CAMPAIGNS

HEARING

BEFORE THE 

SUBCOMMITTEE ON WORKFORCE PROTECTIONS 

OF THE 

COMMITTEE ON EDUCATION AND 

THE WORKFORCE 

HOUSE OF REPRESENTATIVES

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

HEARING HELD IN WASHINGTON, DC, JULY 23, 2002 

Serial No. 107-74 

Printed for the use of the Committee on Education 

and the Workforce

82-142 pdf 

For sale by the Superintendent of Documents, U.S. Government Printing Office 

Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area (202) 512-1800 

 FAX: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001 
ii

COMMITTEE ON EDUCATION AND THE WORKFORCE 

JOHN A. BOEHNER, Ohio, Chairman 

THOMAS E. PETRI, Wisconsin GEORGE MILLER, California 

MARGE ROUKEMA, New Jersey DALE E. KILDEE, Michigan 

CASS BALLENGER, North Carolina MAJOR R. OWENS, New York 

PETER HOEKSTRA, Michigan DONALD M. PAYNE, New Jersey 

HOWARD P. “BUCK” McKEON, California PATSY MINK, Hawaii 

MICHAEL N. CASTLE, Delaware ROBERT E. ANDREWS, New Jersey 

SAM JOHNSON, Texas TIM ROEMER, Indiana 

JAMES C. GREENWOOD, Pennsylvania ROBERT C. “BOBBY” SCOTT, Virginia 

LINDSEY O. GRAHAM, South Carolina LYNN C. WOOLSEY, California 

MARK E. SOUDER, Indiana LYNN N. RIVERS, Michigan 

CHARLIE W. NORWOOD, JR., Georgia RUBEN HINOJOSA, Texas 

BOB SCHAFFER, Colorado CAROLYN McCARTHY, New York 

FRED UPTON, Michigan JOHN F. TIERNEY, Massachusetts 

VAN HILLEARY, Tennessee RON KIND, Wisconsin 

VERNON J. EHLERS, Michigan LORETTA SANCHEZ, California 

THOMAS G. TANCREDO, Colorado HAROLD E. FORD, JR., Tennessee 

JIM DeMINT, South Carolina DENNIS KUCINICH, Ohio 

JOHNNY ISAKSON, Georgia DAVID WU, Oregon 

BOB GOODLATTE, Virginia RUSH D. HOLT, New Jersey 

JUDY BIGGERT, Illinois HILDA L. SOLIS, California 

TODD RUSSELL PLATTS, Pennsylvania SUSAN DAVIS, California 

PATRICK J. TIBERI, Ohio BETTY McCOLLUM, Minnesota 

 RIC KELLER, Florida 

 TOM OSBORNE, Nebraska 

 JOHN ABNEY CULBERSON, Texas 

JOE WILSON, South Carolina 

Paula Nowakowski, Chief of Staff 

 John Lawrence, Minority Staff Director

SUBCOMMITTEE ON WORKFORCE PROTECTIONS 

CHARLIE NORWOOD, Georgia, Chairman

JUDY BIGGERT, Illinois, Vice Chairman MAJOR R. OWENS, New York

CASS BALLENGER, North Carolina DENNIS KUCINICH, Ohio 

LINDSEY O. GRAHAM, South Carolina PATSY T. MINK, Hawaii 

JOHNNY ISAKSON, Georgia LYNN C. WOOLSEY, California 

BOB GOODLATTE, Virginia LORETTA SANCHEZ, California 

RIC KELLER, Florida HILDA L. SOLIS, California 

JOHN ABNEY CULBERSON, Texas 
iii

Table of Contents 

OPENING STATEMENT OF CHAIRMAN CHARLIE NORWOOD, SUBCOMMITTEE ON 

WORKFORCE PROTECTIONS, COMMITTEE ON EDUCATION AND THE WORKFORCE

........................................................................................................................................................ 2

OPENING STATEMENT OF RANKING MEMBER MAJOR OWENS, SUBCOMMITTEE 

ON WORKFORCE PROTECTIONS, COMMITTEE ON EDUCATION AND THE 

WORKFORCE ............................................................................................................................... 3

STATEMENT OF JAROL B. MANHEIM, PROFESSOR OF MEDIA AND PUBLIC 

AFFAIRS, AND OF POLITICAL SCIENCE, THE GEORGE WASHINGTON UNIVERSITY, 

WASHINGTON, D.C..................................................................................................................... 6

STATEMENT OF TERRY GETLER, CHIEF SHOP STEWARD, HOTEL EMPLOYEES AND 

RESTAURANT EMPLOYEES INTERNATIONAL UNION, MGM GRAN D HOTEL, LAS 

VEGAS, NV ................................................................................................................................... 8

STATEMENT OF BRUCE G. ESGAR, EMPLOYEE, MGM GRAND HOTEL, LAS VEGAS, 

NV................................................................................................................................................. 10

STATEMENT OF RON KIPLING, DIRECTOR OF ROOM OPERATIONS, THE NEW 

ONTANI HOTEL AND GARDEN, LOS ANGELES, CA ......................................................... 12

STATEMENT OF CHARLES B. CRAVER, MERRIFIELD RESEARCH PROFESSOR OF 

LAW, THE GEORGE WASHINGTON UNIVERSITY, WASHINGTON, D.C........................ 14

STATEMENT OF DANIEL V. YAGER, SENIOR VICE PRESIDENT AND GENERAL 

COUNSEL, LPA, THE LABOR POLICY ASSOCIATION, WASHINGTON, D.C. ................ 16

APPENDIX A - WRITTEN OPENING STATEMENT OF CHAIRMAN CHARLIE 

NORWOOD, SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON 

EDUCATION AND THE WORKFORCE................................................................................... 35

APPENDIX B - WRITTEN OPENING STATEMENT OF RANKING MEMBER MAJOR 

OWENS, SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON 

EDUCATION AND THE WORKFORCE................................................................................... 39

APPENDIX C - WRITTEN STATEMENT OF JAROL B. MANHEIM, PROFESSOR OF 

MEDIA AND PUBLIC AFFAIRS, AND OF POLITICAL SCIENCE, THE GEORGE 

WASHINGTON UNIVERSITY, WASHINGTON, D.C............................................................. 43
iv

APPENDIX D - WRITTEN STATEMENT OF TERRY GETLER, CHIEF SHOP STEWARD, 

HOTEL EMPLOYEES AND RESTAURANT EMPLOYEES INTERNATIONAL UNION, 

MGM GRAN D HOTEL, LAS VEGAS, NV .............................................................................. 53

APPENDIX E - WRITTEN STATEMENT OF BRUCE G. ESGAR, EMPLOYEE, MGM 

GRAND HOTEL, LAS VEGAS, NV .......................................................................................... 59

APPENDIX F - WRITTEN STATEMENT OF RON KIPLING, DIRECTOR OF ROOM 

OPERATIONS, THE NEW ONTANI HOTEL AND GARDEN, LOS ANGELES, CA............ 77

APPENDIX G - WRITTEN STATEMENT OF CHARLES B. CRAVER, MERRIFIELD 

RESEARCH PROFESSOR OF LAW, THE GEORGE WASHINGTON UNIVERSITY, 

WASHINGTON, D.C................................................................................................................... 87

APPENDIX H - WRITTEN STATEMENT OF DANIEL V. YAGER, SENIOR VICE 

PRESIDENT AND GENERAL COUNSEL, LPA, THE LABOR POLICY ASSOCIATION, 

WASHINGTON, D.C................................................................................................................... 95

APPENDIX I – SUBMITTED FOR THE RECORD, STATEMENT OF CONGRESSMAN 

DENNIS KUCINICH, SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE 

ON EDUCATION AND THE WORKFORCE.......................................................................... 111

APPENDIX J – SUBMITTED FOR THE RECORD, LETTER TO CHAIRMAN CHARLIE 

NORWOOD AND RANKING MEMBER MAJOR OWENS, SUBCOMMITTEE ON 

WORKFORCE PROTECTIONS, FROM ALAN REUTHER, LEGISLATIVE DIRECTOR, 

INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE & AGRICULTURAL 

IMPLEMENT WORKERS OF AMERICA – UAW, WASHINGTON, D.C., JULY 23, 2002 117

Table of indexes.......................................................................................................................... 121
1

COMPULSORY UNION DUES 

AND CORPORATE CAMPAIGNS 

___________________

Tuesday, July 23, 2002 

Subcommittee on Workforce Protections 

Committee on Education and the Workforce 

U.S. House of Representatives 

Washington, D.C. 

 The Subcommittee met, pursuant to call, at 2 p.m., in Room 2175, Rayburn House Office 

Building, Hon. Charlie Norwood, Chairman of the Subcommittee, presiding. 

 Present: Representatives Norwood, Owens, Kucinich, Woolsey, and Sanchez. 

 Staff Present: Stephen Settle, Professional Staff Member; Loren Sweatt, Professional Staff 

Member; Travis McCoy, Legislative Assistant; Kevin Smith, Senior Communications Counselor; 

Heather Valentine, Press Secretary; Patrick Lyden, Professional Staff Member; and, Deborah L. 

Samantar, Committee Clerk/Intern Coordinator. 

Mark Zuckerman, Minority General Counsel; Peter Rutledge, Minority Senior Legislative 

Associate/Labor; Maria Cuprill, Minority Legislative Associate/Labor; and, Dan Rawlins, Minority 

Staff Assistant/Labor. 

Chairman Norwood. A quorum being present, the Subcommittee on Workforce Protections of the 

Committee on Education and the Workforce will come to order. We are meeting today to hear 

testimony on compulsory union dues and corporate campaigns. 
2

 Under committee rule 12(b), opening statements are limited to the Chairman and Ranking 

Minority Member of the Subcommittee. Therefore, if other Members have statements, they will be 

included in the hearing record. So ordered. 

 With that, I ask unanimous consent for the hearing record to remain open 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. 

 I will yield to myself first for an opening statement, and I would like to wish all of you a 

good afternoon and thank you very much for taking your time to be with us today.

OPENING STATEMENT OF CHAIRMAN CHARLIE NORWOOD, 

SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON 

EDUCATION AND THE WORKFORCE

Today's hearing continues the efforts of this Subcommittee to determine if workers are 

afforded their basic American rights. In a previous hearing, we looked at the issue of whether the 

rights of workers not to be forced to contribute to candidates and causes that they do not support is 

honored by unions and protected by the National Labor Relations Board. During that hearing, we 

heard from witnesses that unions continually try to evade their responsibilities under the Supreme 

Court decision in the Beck, Hudson, and Street cases. We also heard persuasive evidence that the 

National Labor Relations Board has been lax, to put it mildly, in its enforcement of the Beck case. 

 At another hearing, we looked at whether the religious rights of workers were being 

protected. We heard from witnesses who have their religious rights denied by unions that force 

them to pay dues as a condition of employment and then use their dues money to promote causes 

that are condemned by the Bible. 

 Today our inquiry continues into two very fundamental rights. One is the right to be 

represented by people whom we elect and are not appointed by others. The other is that money 

should not be taken from us without the vote of people who are held accountable to us in an 

election. These are fundamental American rights. Our Nation's founders dumped tea into the 

Boston harbor and risked their lives, fortune, and sacred honor to stop King George from taxing 

them without allowing them representation. 

Today's workers, as the American colonists did in the 18th century, confront a situation 

whereby they can be forced to be represented by and contribute to a union that they did not choose 

and which they may oppose. I believe that with a few exceptions, workers should have the right to 

choose whether they want union representation. I believe that choice should be left to the workers.

It should not be imposed on them by deals made by any other parties. I especially believe that 

workers should not be forced to pay compulsory dues to a union that was not elected by them, their 

coworkers, or the workers that preceded them in their jobs. 

 In that belief, I am guided by the Democratic principles upon which this Nation was 

founded and for which brave men took up arms and, some, the ultimate sacrifice. Ours is a great 
3

country because ordinary people from all backgrounds can choose their representatives in 

government in free and fair elections. It is time that these basic American rights are extended to 

workers who should have the right to choose whether they want representation by a particular 

union in a government-conducted secret ballot election. 

 With that said, I will now yield to the distinguished Ranking Minority Member, Mr. Owens, 

for whatever statements he might wish to make. 

WRITTEN OPENING STATEMENT OF CHAIRMAN CHARLIE NORWOOD, 

SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON 

EDUCATION AND THE WORKFORCE – SEE APPENDIX A 

OPENING STATEMENT OF RANKING MEMBER MAJOR OWENS, 

SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON 

EDUCATION AND THE WORKFORCE 

Thank you, Mr. Chairman. I think we have covered this territory before. It is most 

unfortunate that this Committee, Education and the Workforce Committee, which has jurisdiction 

over most laws governing pension funds, is not directing so much time and energy toward the 

protection of pension funds and the present crooked actions of corporations with respect to pension 

funds and their practices which whittle away the investments of shareholders. I think that there are 

many more urgent things to do than repeat what we have done several times here in terms of 

harassment of unions with respect to their use of dues. Nevertheless, I want to welcome today's 

witnesses, especially Mr. Getler and Professor Craver, who are here on very short notice at my 

request.

 Unions have long contended that the election process under the National Labor Relations 

Act is one-sided and unfair. Human Rights Executive Director Kenneth Roth summarized a recent 

report by that organization on the right to organize in the United States as follows. I am quoting: 

 “Our findings are disturbing, to say the least. Loophole-ridden laws, paralyzing delays, and 

feeble enforcement have led to a culture of impunity in many areas of U.S. Labor law and practice. 

Legal obstacles tilt the playing fields so steeply against workers' freedom of association that the 

United States is in violation of international human rights standards for workers.” 

 Under the National Labor Relations Act, employers may lawfully require employees as a 

condition of employment to attend meetings on paid time. Sometimes these are large audience 

meetings and sometimes they are one-on-one meetings at which the reasons the employee should 

oppose organizing efforts are explained to the worker. While employers may lawfully pay workers 

to hear the employer's views on organizing at the one place that workers' congregate, the job site, 

employers may also deny the union access to employer property. Unions cannot compel workers to 

listen to pro-union arguments, and it is unlawful for the union to attempt to buy votes. 
4

The decision to be represented by a union should be an independent, autonomous choice by 

employees alone. Among the principal purposes of the NLRA is protecting the right of workers to 

freely choose to be represented by unions. In reality, however, employers have greater rights and 

access to attempt to influence workers than is afforded to the unions. Furthermore, because the 

laws and remedies are too weak to deter violation, unlawful tactics such as unlawful discharge can 

further magnify an employer's legal advantages. 

 Where an employer refuses to voluntarily recognize a union, the only way a union may be 

certified to represent workers is through a certification election, with all the pitfalls that that 

process entails. In order to obtain an election, the union must show sufficient interest among the 

employees for an election. The minimum required is 30 percent; that is, the union must show that 

at least 30 percent of the employees the union seeks to represent have signed a petition or a card 

showing that they support union representation or desire an election to choose the union 

representative. In fact, because of the inevitable inroads that will be made into union support 

because of the one-sided election process, union organizers typically say they have to have support 

of 70 percent or more of the workers at the time they petition for an election in order to have a 

good chance of winning the election. 

 In 1999, 22,879 workers received back pay as a result of unfair employer labor practices.

Stated another way, nearly 23,000 workers were unlawfully cheated out of pay because of 

anti-union efforts by employers. When workers try to form unions, 92 percent of employers force 

workers to attend mandatory anti-union meetings; 78 percent of employers require supervisors to 

conduct one-on-one anti-union meetings with workers; 51 percent of employers threaten that the 

company may have to close the plant if the union wins. And one out of four employers illegally 

fires workers in order to prevent workers from organizing. It is against this backdrop that some of 

my Republican colleagues want to contend that the real problem with labor laws is that we allow 

employers to voluntarily recognize unions. 

 The right of workers to form and join unions and to organize for the purpose of collective 

bargaining is a fundamental human right and among the most meaningful embodiments of freedom 

of association and speech. Unions enable workers to protect themselves, to achieve dignity and 

respect, and to participate effectively in the economic and social decisions that affect their lives. 

Collective bargaining is also good for the community. It is an effective tool for combating poverty 

and ensuring equality of opportunity. It brings democracy to the workplace and ensures that 

workers receive a fairer share of the wealth their labors generate. By lifting workers' earnings, 

collective bargaining promotes consumer demand; and by ensuring the workers are treated as 

partners rather than servants, collective bargaining promotes productivity. Unfortunately, it is 

apparent that the Chairman of the Subcommittee has no interest whatsoever in protecting the right 

to organize, but is intent on eliminating the figment of that right that still exists. 

WRITTEN OPENING STATEMENT OF RANKING MEMBER MAJOR OWENS, 

SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON 

EDUCATION AND THE WORKFORCE – SEE APPENDIX B 
5

Mr. Owens. Mr. Chairman, I ask unanimous consent to submit a letter from the United Auto 

Workers for the hearing record, and in addition I would like unanimous consent to submit a 

statement for the record from my colleague, Representative Kucinich. 

Chairman Norwood. If there is no objection, so ordered. 

 We are indeed fortunate today to have a panel of witnesses that mixes legal and practical 

and real-world experiences in the area of corporate campaigns. Our first witness today will be Jarol 

B. Manheim, Professor of Media and Public Affairs, and of Political Science at The George 

Washington University here in Washington D.C. 

Our second witness is Mr. Terry Getler. He is a member of the Hotel Employees and 

Restaurant Employees International Union employed at the MGM Grand Hotel in Las Vegas, 

Nevada. Next we have Mr. Bruce Esgar. Mr. Esgar is also employed at the MGM Grand Hotel in 

Las Vegas. Welcome to both of you and thank you for coming today. 

 Our fourth witness is Mr. Ron Kipling who joins us from Los Angeles, California. Mr. 

Kipling is the Director of Rooms at the New Ontani Hotel in Los Angeles, California. 

 Next we have Professor Charles Craver. Like Professor Manheim, Professor Craver teaches 

at The George Washington University right here in Washington, D.C. We are delighted to have 

you. I noticed in your statement that you titled our hearing today, Hearing on Proposed Bill on 

“Workers' Bill of Rights”. Actually it is an oversight hearing about compulsory union dues and 

corporate campaigns. 

 Our final witness is Mr. Dan Yager, Senior Vice President and General Counsel for the 

Labor Policy Association here in Washington, D.C. I would note that Mr. Yager is an alumnus of 

this Committee. Not that many years ago he served as general counsel for the Republican Members 

on this Committee. We welcome you back, Mr. Yager. 

 Before the witnesses begin their testimony I would like to remind the Members that we will 

be asking questions after the entire panel has testified. And in addition, Committee Rule (2) 

imposes a 5-minute limit on our questions. I really don't like interrupting people that have come 

such long distances to testify, but I would ask you to try to stay within the 5-minute time frame. 

The members know about the red, green, and yellow lights in front of you. However, I will not 

stop you when the red light comes on if you will help me. 

Professor Manheim, could we start with you, please? 
6

STATEMENT OF JAROL B. MANHEIM, PROFESSOR OF MEDIA AND 

PUBLIC AFFAIRS, AND OF POLITICAL SCIENCE, THE GEORGE 

WASHINGTON UNIVERSITY, WASHINGTON, D.C. 

Mr. Chairman and distinguished Members of the Committee, thank you very much for 

inviting me to share with you this afternoon some of the results of my research on corporate 

campaigns. 

 A corporate campaign is an organized assault by a union or some other group, literally a 

form of warfare designed to undermine a company's relationships with its key stakeholders and to 

define that company as an outlaw that must be stopped before it does further damage to our society. 

One of the most common uses of the corporate campaign is to pressure non-union companies to 

accept representation of their employees without a secret ballot election. Where the unions once 

claimed victory and a solid majority of such elections, today their chances of winning are at best 

even, and perhaps less than that. The unions attribute their reduced success rate to the increasing 

sophistication of union avoidance strategies used by management. Also unions share with 

corporations themselves relatively low standing in public esteem, and that may be a factor as well. 

 But whatever the cause, it is clear that the risk entailed in the unions investing significant 

time and resources in a traditional organizing drive at a non-union company is higher today than in 

years past. This has led labor leaders to seek innovative strategies for organizing workers and 

rebuilding their movement. The corporate campaign is one component of such an organizing 

strategy. These attack campaigns do not accomplish unionization, so they are often used in tandem 

with two organizing demands, card check and neutrality, which the unions seek as an alternative to 

a secret ballot vote by workers. Card check reduces the costs and the risks of organizing, and it 

takes organizing outside the process anticipated in the National Labor Relations Act, mirroring the 

union's claims about corporate union avoidance activity. Management often claims that card check 

procedures can lead to intimidation of workers. 

 Card check clearly does increase the likelihood that organizing efforts will be successful. 

In 1999, an analysis, for example, reported that more than 70 percent of card check organizing 

campaigns were successful, which is significantly better from labor's perspective than the outcomes 

of secret ballot elections. To enhance the effectiveness of a card check drive, unions generally 

insist that management adopt a position called “neutrality,” which is to say that the company 

promises not to communicate to its workers any indication that it opposes the union. Neutrality is, 

in effect, the labor-management equivalent of unilateral disarmament in an organizing campaign. 

 This raises the question of why a company that does not favor unionization of its employees 

would agree to card check and neutrality, and that is where the corporate campaign comes in. 

There are things that non-union companies fear more than the unionization of their workforce: loss 

of customers, loss of financing or insurance, bulky institutional shareholders, overly zealous 

regulators, querulous media and others. The corporate campaign is designed to convert some 

number of these stakeholders from supporters of the company into aggressive pressure points 
7

against it. The core message from the union to the company is very straightforward: Give us what 

we want and all of these troubles will suddenly go away. 

 Bruce Raynor, President of the United Clothing and Textile Workers Union, once made this 

point when he said, and I quote: “employers think we are out of our minds, and the result is we 

win because we are willing to do what is necessary. We are not businessmen and, at the end of the 

day, they are. We are willing to cost them enough, they will give in.” 

 Secret ballot elections can be thought of as retail organizing. Workers are organized from 

the bottom up, one vote at a time. Card check and neutrality, on the other hand, can be thought of 

as wholesale organizing, workers organized from the top down, one company at a time. This 

process was aptly summarized by Joe Crump, a local official of the United Food and Commercial 

Workers, some years ago when he said: “employees are complex and unpredictable. Employers 

are simple and predictable. Organize employers, not employees.” 

 My research does not address whether the combination of card check and neutrality and 

corporate campaigns to pressure non-union employers protects and advances the interests of 

workers as the unions argue, or deprives them of their rights and protections as many employers 

argue. It does show, however, that non-union companies targeted in corporate campaigns have felt 

considerable pressure to forego their rights under the law in return for being permitted to conduct 

their daily business without the threat of continued damage to their reputations and financial wellbeing. And so on that point, the effectiveness of the corporate campaign in organizing is clear and 

unambiguous. Thank you very much. 

WRITTEN STATEMENT OF JAROL B. MANHEIM, PROFESSOR OF MEDIA 

AND PUBLIC AFFAIRS, AND OF POLITICAL SCIENCE, THE GEORGE 

WASHINGTON UNIVERSITY, WASHINGTON, D.C. – SEE APPENDIX C 

Chairman Norwood. Do you want to repeat that last sentence? 

Professor Manheim. On that point, the effectiveness of the corporate campaign in organizing is 

clear and unambiguous. 

Chairman Norwood. Mr. Getler, you are recognized for 5 minutes. 
8

STATEMENT OF TERRY GETLER, CHIEF SHOP STEWARD, HOTEL 

EMPLOYEES AND RESTAURANT EMPLOYEES INTERNATIONAL 

UNION, MGM GRAN D HOTEL, LAS VEGAS, NV

Thank you. Good afternoon, Mr. Chairman and Members of the Subcommittee. Thank you 

for inviting me here to tell you about our success at the MGM Grand with our card and neutrality 

agreement. 

 My name is Terry Getler. I have worked as a bellman at the MGM Grand since December 

10, 1993 when the hotel first opened. I was actively involved in the MGM's original decision for 

the workers to unionize. I am now chief shop steward, and have been involved in the negotiations 

of both of our contracts. 

 Workers at the MGM Grand wanted a union because they realized the company, which was 

then under different management at the time, was breaking promises they made to us when we 

were hired. Management was beginning to make decisions about things like seniority, health 

benefits, and guaranteed tips without consulting the workers. Their management style was 

changing and we were afraid we were going to lose what we had. Nothing was in writing. We felt 

we needed representation. Whenever we raised concerns with hotel management, it fell on deaf 

ears. Problems about human resources were neither addressed nor resolved. 

 The company's informal dispute resolution process was called “guarantee of fairness.” 

There were 26 of these guarantees of fairness hearings, of which one was decided for the employee. 

The process turned out not to be so fair. Workers were upset. We held public demonstrations in 

the streets. At one point, the MGM was having union demonstrators arrested, whenever they 

stepped up on the sidewalks. You could be out there on the sidewalks leafleting pornography and 

you were left alone, but if you are leafleting union material you were arrested. 

 So we had a march one day with 5,000 union members and we were going to take the 

sidewalks back. Five hundred of them were arrested. The union later filed a lawsuit over those 

arrests and won. 

 We asked for a card check neutrality agreement, which means free choice for all the 

workers. With a neutrality agreement, there is little or no pressure from the employer on the 

individuals. There are no captive audience meetings where management walks you into a room 

and tells you why you shouldn't join a union. We felt neutrality was the only way we could get a 

level playing field with management. Another reason we wanted a neutrality card check agreement 

was because we knew winning an NLRB election is no guarantee we would ever get a contract. For 

instance, we knew about the Santa Fe Hotel. They won an NLRB election despite the obstacles, 

but it turned out they lost in the end because they never got a contract. For 7 years the company 

filed frivolous suits. And in the end, the hotel was sold to a new operator that fired all of the 

employees. 

 In our case, fortunately, new management came aboard the MGM Grand and agreed to 

neutrality card check. I think they made the right choice for themselves and the workers. Among 

other things, card check neutrality meant that workers would have access to union representatives 
9

to ask questions and get information. The atmosphere was still tense but we made steady headway 

until over 50 percent of the workers signed authorization cards. The card check also meant once 

we got cards from more than 50 percent of the workers, a neutral arbitrator could be selected to 

compare the signatures from the information the company provided, and the arbitrator declared the 

union had a majority and ordered us to start collectively bargaining. 

 We started meeting with our coworkers to see what they wanted in our contract. Some of 

the most important issues were our vacation package and the need to solve problems at the lowest 

possible level. We needed to negotiate what is called a living contract, not a set of rigid rules, but a 

labor management cooperation that would adapt to changing circumstances. 

 It was at the negotiating table when we had started to search for something new, because 

the company didn't want a contract to resemble what any of the other hotels had, that we found out 

that there was a very small, very strong anti-union group starting to collect signatures to decertify 

the union. We felt that this decertification petition was undermining our bargaining position. The 

company knew that there was a small group of anti-union workers working against us. The longer 

it took for us to finish negotiations, the more chances there would be for workers to lose confidence 

with the union. This meant that management had interest in dragging their feet when they were 

finishing with the group, because they knew the anti-union people were working against us. 

 For whatever reason, the negotiations dragged on for a year. During the time that we were 

trying to negotiate the contract, the anti-union went to the NLRB three times to try to get the union 

decertified. The last time was in November 1997. They claimed they had signatures from 1,900, 

or about 60 percent of our workers. We couldn't figure how that could be possible that they could 

get signatures from 60 percent of our workers, because we had already had more than 50 percent of 

them signed on authorization cards. 

 I think one explanation is that union authorization cards, on its face, tell you exactly what 

you are signing. These decertification petitions, on the other hand, were just pieces of paper with 

rows of signatures. Some people had no idea what they were signing. Another explanation is that 

the signatures on a decertification petition were never verified by anybody, as far as I know. By 

contrast, a neutral arbitrator, Professor Harback, closely scrutinized union authorization cards. He 

and his students compared signatures and Social Security numbers with information supplied by 

the company. If there was any intimidation towards the anti-union people they could have filed an 

NLRB complaint to nullify the cards. In fact, that is exactly what they tried to do, but the NLRB 

dismissed every single one of those charges. Fortunately the NLRB decided not to interfere with 

our contract negotiations because we already demonstrated that we had a majority and we needed 

to negotiate a contract without being undermined. 

 We completed our negotiations just days after the third decertification petition was filed.

Workers at the MGM obviously were happy with the contract and the union. They ratified the 

contract by a 7-to-1 ratio. We are very happy with our accomplishment. Though the contract may 

not have been perfect, it was a start. It was creative and it dealt with workers' issues. And we 

succeeded in creating a living contract. 
10

 One of the most important successes of our contract was establishing mutual respect 

between management and labor. If we had never gotten card check neutrality, I don't think we 

would have ever been able to negotiate a contract like this. I think the NLRB election would allege 

to pitch battle between workers and the company on an unlevel playing field. 

 While we were back bargaining at the table to negotiate our second contract in 2000, the 

anti-union started collecting signatures for yet another decertification petition. They were lying 

and telling workers things like, if you don't sign the decertification petition you are going to lose 

your vacation package. But even so, the anti-union group didn't come close to getting the 30 

percent of necessary signatures for decertification. They got something like 18 percent. And the 

fact that our second contract was overwhelmingly approved shows that we had the majority. 

 We will be negotiating our third contract next year. I doubt there will be another 

decertification petition. I heard the anti-union group is basically throwing in the towel. They know 

that people are happy with our union and happy with our contract. About 75 percent of our 

bargaining units are union members and that is in a right-to-work State. The numbers of union 

members are still growing, and I am confident after we negotiate our next contract we will gain 

more members. In the case of the MGM I think that card check neutrality process worked very 

well. The company agreed voluntarily. Workers freely made their own decisions to form a union. 

We were productive to negotiate two good contracts, and again 75 percent of the workers have 

freely joined. 

 Thank you very much. 

WRITTEN STATEMENT OF TERRY GETLER, CHIEF SHOP STEWARD, 

HOTEL EMPLOYEES AND RESTAURANT EMPLOYEES INTERNATIONAL

UNION, MGM GRAN D HOTEL, LAS VEGAS, NV – SEE APPENDIX D 

Chairman Norwood. Mr. Esgar, you are recognized for 5 minutes. 

STATEMENT OF BRUCE G. ESGAR, EMPLOYEE, MGM GRAND HOTEL, 

LAS VEGAS, NV 

 I was invited here because I was on the other side of the union campaign for the card check. 

When the MGM opened, they announced that they would be a non-union hotel, offering wages, 

health benefits and a 401(k) retirement plan that far exceeded anything the union had ever done.

They also stated that if the members or employees, who they call cast members, wanted to be 

union, they would recognize it in a NLRB election only. No card check. 

 Well, they changed their management about a year into it, and everybody got worried that 

they were going to have the union. Card check came in and we were told no. They announced that 
11

they were going to go into the Detroit market and at that point, almost simultaneously they 

announced that the card check would be recognized. So that opened it up to the union coming in. 

The minute they came in, they divided groups, union/non-union. Because we wanted the right to 

vote, which we felt we had, believing in America, we asked where is our right to vote, and they 

would not give it to us. For two years we fought for our right to vote. 

 Now, because they had never faced a group of people that wanted a right to vote, they 

started calling us anti-union. That came about because we went to the NLRB board to ask how to 

obtain the right to vote, and we were told there is none. Get a lawyer. We found us a lawyer. We 

found out that in a NLRB petition, that an employer can ask for the right, the union can ask for a 

vote. The employee whose life is affected by it has no right to call for a vote. 

 So the only thing left on this form is a decertification. Once we signed the decertification 

notice, then we got labeled very strongly as anti-union. That is when union representatives and 

organizers told us many things. They walked in. People were coming to us and asking, can they 

do this? Can they say this? Can they promise this? And one of the first things that came up was 

what to do if you were having a problem with a supervisor. Well, yes, we fired supervisors in the 

past. We can have that done. If you don't sign a card and we get in, you lose your job. If you are 

non-union you lose it. You lose your benefits. 

 You need everything, as he just mentioned, in writing, which I still to this day do not 

understand. People were told to just sign on the card who was calling for the vote. They were 

offered or told, you sign the card, we will give you a free turkey. This is around Thanksgiving 

time. It sounds good to most people. 

 People were being harassed in their dressing rooms while they were dressing for work, 

which to a lot of people, that is privacy at most. And they were signing these cards at that point, 

saying that is it, I am signing it, let me out of here, get away from me. These are just some of the 

things that we put up with. 

 One gentleman told me that the union had told him we know where your wife works and 

she is at another union hotel. If you don't sign the card, we will have her fired. I had one 

gentleman, I promised I would keep quiet, apologize to me because he said that union 

representatives had come and told him, “We know where you work, we know where your wife 

works and know where your kids go to school. Accidents can happen.” 

 These are things that the employees put up with. We did it for 2 years. And all we were 

asking for was our right to vote. In America, you vote for your future. We felt that if the union 

was right and they had the majority, they would win the election and we would say fine, that is 

what the majority wants. But, as he said, yes, we did come up with 1,900 signatures, 1,900 

signatures of people saying we want to vote. Does that mean they are all non-union or anti-union? 

I can honestly tell you, no, they weren't. Some were union members; because they also felt it is 

only fair in America to vote. There were those that would sign the card check under protest and the 

only way back was to sign the petition. So, yes, you have the give and take. But I feel that the 

1,900 weren’t saying we don't want the union as they tried to portray it. 
12

 What we were saying for 2 years was give us our right to vote. Let us tell you whether we 

want to be represented by a union. And if we do, we want the right to tell you which union we 

want to represent us. We don't want to be told this one will do it. 

Thank you. 

WRITTEN STATEMENT OF BRUCE G. ESGAR, EMPLOYEE, MGM GRAND 

HOTEL, LAS VEGAS, NV – SEE APPENDIX E 

Chairman Norwood. Thank you. I was so intrigued by your statement I wasn't watching the 

clock. Thank you very much Mr. Esgar. 

Mr. Kipling, you are now recognized for 5 minutes. 

STATEMENT OF RON KIPLING, DIRECTOR OF ROOM OPERATIONS, 

THE NEW ONTANI HOTEL AND GARDEN, LOS ANGELES, CA 

Thank you. Mr. Chairman and Members of the Committee, I would like to thank you for 

allowing me the opportunity to appear before you today. I appreciate the opportunity to offer my 

company's support in your attempt to ensure that the wishes of our country's workers are given full 

consideration by the Nation's labor laws. 

 Again, my name is Ron Kipling; I am Director of Rooms for the New Ontani Hotel in Los 

Angeles, California. The New Ontani is a 434-room hotel located in the heart of the civic center in 

downtown Los Angeles. The employee base of the New Ontani is made up of over 90 percent 

minority workers. And what is highly unusual in an industry noted for its high turnover rate of 

personnel, a number of New Ontani employees have been with the hotel since it opened in 1977.

Many others joined the property shortly thereafter and have been with the property over 20 years.

We feel we have an outstanding group of employees and the comments of our guests seem to 

reflect that view as well. 

 It is precisely because we feel so strongly about this family of employees that we wanted 

the opportunity to appear before you today. In 1982 the Hotel Employees and Restaurant 

Employees Union of Los Angeles, Local 11, petitioned the National Labor Relations Board to 

represent our employees. Shortly later during that same year, our employees voted 

overwhelmingly, 88 percent, to reject union membership. Over the last decade, Local 11 has 

attempted again to have our employees join their union. But no longer do they wish to have a 

NLRB-certified election to determine whether the employees favor that relationship. Local 11 

instead made great use of a weakness in our labor laws to bypass the employees' wishes and 

attempt to deal directly with hotel management. They proposed doing this by having hotel 
13

management sign a neutrality agreement with Local 11 and then having the union obtain signatures 

on authorization cards, with no oversight as to how or under what circumstances signatures are 

obtained. Hotel management would inspect those cards and those signatures, without any form of 

verification, and then designate the union to represent our employees. 

 We, of course, have made it abundantly clear that we will not in the present or in the future 

accept this type of arrangement. We have made it equally clear that we feel very strongly that only 

employees have both the moral right and the legal right to make that determination about their own 

future. This is precisely why we have insisted throughout the years that an NLRB-supervised 

election is the only way to truly permit these employees to express their views on this subject. We 

believe so strongly in this principle that twice we have petitioned the National Labor Relations 

Board for an election and twice, the last time up on appeal at the national level, those petitions have 

been denied. 

 Yet despite our declarations on issues, Local 11 has continued to spend much of the last 

decade attempting to coerce hotel management and ownership into accepting a card check 

agreement in place of our supervised election. They have intimidated our employees to the extent 

that in 1996 we were forced to go to Los Angeles Superior Court and obtain an injunction 

forbidding the union representatives from going to the employees' homes late at night and harassing 

them on their porch, sometimes as many as 8 to 10 union representatives at a time. They have sent 

letters to both our business and social clients advising them that if they hold an event at the New 

Ontani, then they can expect labor demonstrations will have an adverse effect on those activities, 

and as meeting planners, they will be responsible for answering to their clients for the atmosphere 

that they put their guests in. 

 They have gone as far as going to the Los Angeles International Airport and greeted our 

arriving guests from overseas and handing them flyers printed in Japanese that indicate our 

kitchens are infested with insects and that our restaurants serve spoiled and rotten food. And they 

have held confrontational and noisy demonstrations in the streets in front of our hotel condemning 

the majority stockholder of the hotel as a corrupt and evil company governed by war criminals. 

 Local 11 has been able to exert their influence over the local political community. And as 

such, the majority of the city council, local clergy, and local universities have sent delegations to 

our hotel or have written us urging us to accept Local 11's offer of neutrality agreement and a card 

check, saying that it would bring peace to the community and that it would be better relations for 

all of us combined. Yet amazingly, not one of these officials or clergy have ever offered to speak 

directly to the hotel workers to find out how they feel on this very important subject. 

 And I feel that is what we are discussing here today: the issue of workers' rights, the 

opportunity for the employees themselves to have some degree of control over their work 

environment, some degree of control over their own future. I don't think there is anyone in this 

room who would deny that the strength of this country is the willingness of its citizens to accept the 

results of the ballot box as the means to lawfully and respectfully determine the issues that are 

important to us as a country. Why would we expect the workers of this Nation not to have that 

same privilege? 
14

 It is now time that the Nation's labor laws reflect that their intent is not only to protect the 

worker's rights, but also to protect the worker’s right to choose. 

 Thank you very much. 

WRITTEN STATEMENT OF RON KIPLING, DIRECTOR OF ROOM 

OPERATIONS, THE NEW ONTANI HOTEL AND GARDEN, LOS ANGELES, 

CA – SEE APPENDIX F 

Chairman Norwood. Thank you very much Mr. Kipling. 

 Professor Craver, you are now recognized for 5 minutes. 

STATEMENT OF CHARLES B. CRAVER, MERRIFIELD RESEARCH 

PROFESSOR OF LAW, THE GEORGE WASHINGTON UNIVERSITY, 

WASHINGTON, D.C. 

Mr. Chairman, and Members of the Committee, thank you very much for inviting me to be 

here. I apologize for having the wrong caption, but I was asked yesterday afternoon if I could 

appear, and I was given the indication that it was based on that bill. 

 I am glad to see Congress concerned about the rights of employees, but as Congressman 

Owens has so eloquently pointed out, the rights that tend to be violated the most frequently are not 

the rights of employers, they are the rights of employees. 

 In our society, we have at-will employment relationships where an individual can be fired 

for good cause, bad cause, or no cause at all. Under the National Labor Relations Act as originally 

established in 1935, a union could be certified either by winning a certification election or the 

Labor Board could, quote, “utilize any other suitable method to ascertain representatives.” 

 In 1947, Congress eliminated that provision to require a secret ballot election for a certified 

union, but did not diminish the right of employers to grant voluntary recognition based on card 

checks or other indications of union majority support. 

 Much of what we heard today would be illegal under the current National Labor Relations 

Act. If a union were to promise people benefits and give them turkeys to sign authorization cards, 

it would most likely violate section 8(b)(1)(a). They would be coercing or restraining employees in 

the exercise of their protected rights. 
15

 And the free speech provision, section 8(c), says you cannot threaten reprisals or promise 

benefits. Throughout the 1940s, 1950s and 1960s, it wasn't that uncommon to see voluntary 

recognition. Neutrality agreements weren't that common, but voluntary recognition was. In the 

last two to three decades we rarely see neutrality agreements. We used to see it occasionally when 

I was in practice with hospitals not covered at that time by the National Labor Relations Act. 

 We saw just this week United Parcel Service and the Teamsters Union entered into a 

neutrality agreement, but it is rare where you don't already have a union at that place of 

employment, as you have with UPS and the Teamsters Union. Most of the time when you see a 

neutrality agreement, it is a unionized firm, and the employers are agreeing not to oppose 

unionization of other employees of that particular firm. 

 I believe wholeheartedly in the election process and I think an uncoerced election is the 

preferred method for determining representation rights. But so often the employers clearly have 

the advantage. I can give a captive audience speech. I can stuff pay envelopes. I can do so many 

things that the union can't possibly do. Day in and day out, my supervisors can issue anti-union 

statements as long as they are not in and of themselves coercive. If a union coerces someone in the 

signing of an authorization card, it is already illegal under the statute. The Labor Board should 

hear the case and order a cease and desist. 

 If you look at the abuses that have taken place over the last several decades, as Mr. Owens 

pointed out, every year thousands of employees are discharged for supporting union organizing 

campaigns. Frequently employers suggest if you unionize, the plant will close or the production 

will be moved to another location in the United States or elsewhere. Most employers don't want a 

union, for obvious reasons. They would prefer to have complete control over their wages, hours, 

and terms and conditions of employment. Most employers lawfully exercise their rights under the 

statute to oppose unionization, and most good law firms who represent management do a very good 

job in making sure that you don't illegally discharge people, you don't threaten reprisals, and they 

win 90 to 100 percent of the elections that they participate in on behalf of their clients. A small 

number, but a growing number, do not hesitate to threaten employees and do not hesitate to 

discharge employees. 

 In the bill that I was asked to talk about, there are provisions that require double or triple 

back pay, perhaps even punitive damages. I would strongly recommend that Congress think about 

imposing those penalties on employers who violate the rights of people who support unions. 

 I will also say I am happy to report the same thing if you could prove that a union has also 

violated their rights. I don't think that people should automatically vote for a union. I am a real 

believer in the right under the statute of employees to decide with their own free will whether they 

wish to be represented. If they vote no and that is their choice, I would totally support that 

decision. If they wish to have a union, however, and they are thwarted because of threats or 

reprisals or, worse yet, discharges, I think that should be illegal and the penalty should be 

sufficiently significant that we wouldn't continue to tolerate that in the future. 

 Thank you very much. 
16

WRITTEN STATEMENT OF CHARLES B. CRAVER, MERRIFIELD 

RESEARCH PROFESSOR OF LAW, THE GEORGE WASHINGTON 

UNIVERSITY, WASHINGTON, D.C. – SEE APPENDIX G 

Chairman Norwood. Thank you Professor Craver. 

And Mr. Yager, we will finish up with you. You are now recognized. 

STATEMENT OF DANIEL V. YAGER, SENIOR VICE PRESIDENT AND 

GENERAL COUNSEL, LPA, THE LABOR POLICY ASSOCIATION, 

WASHINGTON, D.C. 

Thank you, Mr. Chairman. Our organization represents the senior human resources vice 

presidents or executives of over 200 leading American companies. I have actually been watching 

the activities of this Committee for about 20 years, and I believe this is probably the first time that 

an employer group has ever actually suggested that a new employer unfair labor practice be 

created. But I really think that that is probably the only way that you can solve this issue that has 

been raised by some of the other witnesses and guarantee that in situations like the MGM Grand 

situation, that people like Mr. Esgar and 1,900 other employees, which was 60 percent of the 

workforce in that situation, do actually get a chance to vote in an uncoerced, confidential manner 

on whether or not to be represented by a union. The alternative is the kind of campaign that Mr. 

Kipling described, and there are numerous of those.

 I commend Professor Manheim's book to you. Over the last 10 or 15 years, the number of 

instances of corporate campaigns, and most of them don’t get reported accurately, is very 

numerous. Because of that, employers are put in the untenable position of either having to deny 

their employees an uncoerced, confidential choice whether or not to be represented by a union or 

face potential serious damage to their business or especially, even in the case of a small business, 

possibly even extinction. 

 I would quote from the number two person at the AFL-CIO, Rich Trumka, who refers to a 

corporate campaign as “the death of a thousand cuts.” In fact one United Food and Commercial 

Workers official, in a Law Review article that I discuss in my testimony, describes how that UFCW 

local put a local grocery concern out of business after they refused to agree to a card check. And he 

then described the corporate campaign as putting enough pressure on employers, costing them 

enough time, energy, and money to either eliminate them or get them to surrender to a union. 

 When an employer is under that kind of pressure, it is pretty hard to resist. Now, I am not 

here to ask for sympathy for the employer. What I am suggesting is at the end of the day, 

employees ought to have the chance to vote. And for all of the criticisms you will hear about how 
17

NLRB elections work, and you will hear just as many from the management side as you will hear 

from the union side, the one thing that I think everybody is pretty certain of is that at the end of the 

day, no matter how incompetent that NLRB agent was, those employees got to actually register 

their choice with no one looking over their shoulder, no one knowing how they marked their ballot. 

And I have never read an NLRB decision where that was a reason for overturning the decision.

Those votes are always sacrosanct. And in fact 80 percent of those elections occur within 60 days, 

95 percent within 90 days. So usually it is a pretty quick process. 

 In contrast, how does a card check work? Well, a union organizer, a pro-union 

co-employee, goes up to a worker and asks them to sign the card in their presence, and everyone 

knows how that employee registered their views. Even in the most innocent of circumstances, even 

when that organizer did not use coercive tactics, at a minimum, that employee is subjected to peer 

pressure from their co-employees. This led the Supreme Court to observe in a case that the 

unreliability of authorization cards is inherent in the absence of secrecy and the natural inclination 

of most people to avoid stands which appear to be nonconformist and antagonistic to friends and 

fellow employees. 

 Now, that is the innocent situation. The reality is there are numerous examples of the kind 

of coercion that Mr. Esgar suggested in his testimony and actually there are in many cases much 

worse. There is one case, the HCF, where a pro-union worker threatened that the union would 

come and get your children and it will also slash your tires if you don't sign this card. And in that 

case, the board refused to hold the union accountable for that. They said it was a pro-union worker 

that had made that threat. 

 In fact, attached to our testimony, we list over 100 cases that detail these kinds of threats 

and deception. It is rare that they get reported because, as I said, there is no supervision of what 

happens in a card signing process. It is usually anybody's guess as to how that signature was 

obtained.

 I would close by saying that the decision of whether a group of employees is represented by 

a union should not be a deal between the employer and the union. It should be a decision made by 

the employees in the sacrosanct confines of an election booth, with no one looking over their 

shoulder as to how they cast their ballot. And we would encourage the Congress to look at 

mechanisms for correcting this abuse. 

WRITTEN STATEMENT OF DANIEL V. YAGER, SENIOR VICE PRESIDENT AND 

GENERAL COUNSEL, LPA, THE LABOR POLICY ASSOCIATION, WASHINGTON, D.C. 

SEE APPENDIX H 

Chairman Norwood. Thank you, Mr. Yager. And I want to thank each of our witnesses today for 

sharing their thoughts with us. 

 We will now begin the Subcommittee's questioning and we will proceed in 5-minute 

intervals, rotating between the Majority and Minority members. 
18

I would like to begin our inquiry. Professor Manheim, you made some strong statements, 

“outright assaults on companies,” I believe were some of the words you used. Can you prove that? 

Professor Manheim. In a word, yes. I did a study over a period of years of about 200 of these 

corporate campaigns. And where I use the word “assault,” I don't mean a physical assault, but 

there are a lot of different ways of waging war. There is economic warfare, regulatory warfare, 

legal warfare, psychological warfare, and in some combination, one or more of those will be a 

central component of a corporate campaign or an attack on a company. 

Chairman Norwood. Professor Craver, we have heard a lot today about illegal activities, all up 

and down the table, and the fact that these illegal activities continue. You stated in your testimony 

if illegal activities are continuing what is going on? You pointed out all of these things were 

against the law. If they are against the law, why should they be occurring? My question is, they are 

against the law and I am told they are occurring; are we not enforcing the law? 

Professor Craver. I would say what we have are anemic NLRA remedies. When I start teaching 

the remedies available under the National Labor Relations Act, my students sort of look shocked 

and say, what are the real remedies? I say well, if the union coerces somebody, there is cease-anddesist order. If an employer threatens someone, there is a cease-and-desist order. And they say, 

where is the disincentive? And I say there isn't any. 

 Now, if you are fired, you will be entitled to back pay. But that may be a year or two after 

you have been discharged. No compensatory damages for other losses or for the emotional trauma, 

no punitive damages, nothing of that type. 

 I think we need to have serious remedies so that when either side, labor organizations or 

employers, violates the law they should be sanctioned. What we are seeing now on a wholesale 

basis in this country with the economic situation, Enron and WorldCom and other companies, is 

that there is no penalty. I mean, what I want to see is anybody who has stolen hundreds of millions 

of dollars from their workers and their shareholders go to prison or we send them to prison camps. 

Chairman Norwood. You need to testify before Mr. Oxley. He is doing that now in his 

Subcommittee. Let us try to stay on the subject here. 

Professor Craver. But what I am saying is, we don't have the remedies. When I heard Mr. 

Kipling's testimony, if I were his lawyer and they said that this restaurant, their eating 

establishment is filthy, and they have rats running through it, I would have sued them for 

defamation in a minute. And I would have a good case if he can prove it, and I have every reason 

to believe that he can and that his kitchen is perfect. There are recourses available, when someone’s 

wife and son are threatened. 

Chairman Norwood. Mr. Kipling, how do you feel about that? 

Mr. Kipling. Well, I actually have a copy of that flier here. But when we translated it, it also 

pointed out that all of the information they provided was based on anonymous comments from 
19

anonymous hotel workers who could not be identified, and there was a possibility that they were 

not fact. But that was the fine print, printed on the corner. 

 So although it was obvious to us who was behind this, I don't believe in that particular 

situation they printed, “This flier is sponsored by Local 11.” This is just a group of people handing 

out fliers. And so the legal issues are such that lawyers will in some cases advise you to take it to 

court; in other cases they won't. 

 The case I mentioned about the union representatives going to our employees' home late at 

night and intimidating them, we took to the NLRB twice, and twice it was denied. And finally, I 

think a year and a half later, it was taken to Los Angeles Superior Court where the administrative 

court judge found that the union representatives were guilty under the California Penal Code, and 

actually used a section of it that utilized the anti-stalking provision of the California Penal Code. 

And that is the only way we were able to get representatives to stay a reasonable distance from the 

employees at their homes. 

 They also stopped them at schools when they were trying to pick up their children and 

wouldn't let the cars leave unless they signed a card. Those kinds of things will occur sort of on a 

more minor basis. But in a lot of these, when we went to the local police, or instructed our 

employees to call the police, the police were very reticent to get involved in what they felt was a 

labor dispute and not something they should be involved in. 

Chairman Norwood. Just one other quick thought, but I see my time is up. I will yield to 

Congressman Owens. 

Mr. Owens. I want to yield my first 5 minutes to the gentlelady from California, Ms. Sanchez. 

Ms. Sanchez. Thank you, Mr. Owens. 

 You know, I was sitting here and I was listening to a couple of these things, and as an 

elected official and also as a politician and also as a consumer, I wanted to ask a couple of 

questions of Professor Manheim and Mr. Yager. 

You know, I don't shop at Wal-Mart, I don't buy Domino's Pizza, and I don't stay at the 

Marriott. I hold my events at hotels and restaurants that are good to their employees, in my 

opinion. I don't eat at Carl's Jr. I think it is my personal prerogative to spend my money with 

people who believe the same things I do. 

 I believe that unions are pretty good to their people, and I come from a long union family 

and I support unions. And when they ask me to go talk to an employer who is not interested at this 

point to have their members unionized, I do; I go and talk to them. They are usually friends in the 

business community with me. I don't intimidate them; I don't talk badly about them. I tell them I 

think it is a good thing for them to sit down at the table. 

 I believe I spend my money in a good way, and I put my money where my mouth is. And, 

you know, if I felt strongly enough, I probably would go and picket in front of the Ontani Hotel or 
20

go to the airport and tell people that I don't think you are doing the right thing. I can see all of 

those things as an American: the right to assemble, the right of free choice, and the right to spend 

my money the way I want to. And, by the way, I have an MBA. I come from the corporate world. 

I have helped corporations decide how to be better companies, how to make more money. 

 I would like to ask you two gentlemen, why do you think that doing these types of things is 

a bad thing? 

Professor Manheim. I don't think it is bad at all. I think that all citizens have those rights. My 

concern is that sometimes organizations have objectives, and they engage in communication 

strategies. I didn't go into that in the testimony today, though I have made some reference to it in 

my written statement. I believe that there are strategies available in the political process for 

managing opinion and managing organizations to get them to do things that you want them to do. 

And that kind of philosophy drives the corporate campaign. 

 The people who develop corporate campaigns are very, very smart about that, and they have 

learned a lot of ways to do it. They have manuals that describe how to organize people. Not to do 

anything that they wouldn't want to do, but to organize them to do the things where there is a 

commonality of interest. 

Ms. Sanchez. To effect the change that one is trying to get. 

Professor Manheim. From the citizen's perspective, yes, I agree with that. 

Ms. Sanchez. So I think it is a pretty smart way. 

Professor Manheim. I think it is an extremely smart way. 

Ms. Sanchez. I mean it is what politicians do. We try to back people who we think are going to 

do and affect policy the way we want them to. 

Professor Manheim. I think it is an exceptionally smart way. I think that it is a very, very 

sophisticated strategy. It has been thought out over many years, 25, 30 years. It has been fully 

developed. There is a supporting infrastructure; there is an educational process to teach people 

how to do this. It is very smart. 

 And that is actually the aspect of it that interests me as a scholar, how smart it is. I think 

that it has some applications that personally I find troubling. But I am not an expert on labor law, 

and so I only look at those from the perspective of what constitutes an effective or ineffective 

strategy in the campaign itself. 

Mr. Yager. I have to disagree. I think it is a bad thing. And I think your suggestion that one of 

the things that you might do is go down and picket the New Ontani Hotel. And yet if you heard Mr. 

Kipling's testimony, he was saying that what that movement against that hotel represented had 

nothing to do with the sanitation of the facilities, had really nothing to do with the way they were 

treating their employees. You heard they had a very low turnover rate. It really had to do with 
21

organized labor's agenda, the hotel union's agenda of trying to organize downtown Los Angeles. 

 And so it creates these kinds of effects. And, you know, for all we know, there may be a lot 

of other hotels out there that do have serious sanitation problems, perhaps mistreat their employees 

to a large extent. But because they aren't part of labor's agenda, the public doesn't focus on them; 

government officials don't focus on them. That is one of the reasons why I think it is bad. 

 I think the other reason is what I talked about in my testimony. Because at the end of the 

day, a lot of employers don't stand up to the unions like the New Ontani has. At the end of the day, 

they go along with what the union is asking, and their employees are therefore deprived a right to 

vote. And maybe the only way to prevent this is to make it so that the employees will only be 

represented where there is a secret ballot vote. 

Ms. Sanchez. Well, you know many of us in Congress might vote differently if we didn't have to 

have an open vote on the House floor. So I think an open vote is a very good thing, because it lets 

us know where people are. But anyway, I have seen that my time has expired. And I thank the 

Ranking Member for allowing me to ask my questions ahead of time. 

Chairman Norwood. Thank you, ma'am. 

Mr. Kipling, you said that you petitioned the NLRB twice in order to have an election, and 

it was denied both times. Why did you petition them for an election to determine whether the 

employees wanted to unionize or not? 

Mr. Kipling. Well, essentially because we wanted, obviously, to bring this long campaign to a 

conclusion. They portrayed us as an anti-union hotel. We are not that. We have a contract with 

the Local 501 Engineering Union that we have had for 24 years, and have an excellent working 

relationship with them. Management is not in any way anti-union. 

Chairman Norwood. How did you think it was going to turn out? 

Mr. Kipling. Our assumption is that the employees are happy with the working conditions, and 

would not prefer a change in the nature of that relationship with their employer. 

Chairman Norwood. So it was your attitude that the people who were going to be involved in the 

union actually would vote no, not to unionize, and that would stop this outright assault on your 

hotel? 

Mr. Kipling. Correct. 

Chairman Norwood. Why did the NLRB not allow the vote? 

Mr. Kipling. They essentially have stated that, and to some extent, Local 11 has been careful, in 

their literature at least in their earlier stages, to state that their campaign is of an informational 

nature and not actually an attempt to organize the hotel. They are trying to provide information to 

the general public that the hotel is not union, although this has been going on, as I said, for over a 
22

decade, rather than actually organize the employees. 

 We, in our petition that we filed, pointed out that we had a number of letters from union 

officials asking for a neutrality agreement and a card check agreement. Well, we felt that their 

asking for a card check was ample evidence that they wished to organize the hotel, and therefore 

we attempted to petition for that election, but it was denied. 

Chairman Norwood. So the employees of your hotel asked for the vote? 

Mr. Kipling. No, no. The management of the hotel as was mentioned here previously. It is very 

difficult for the employees under the law to ask for a petition for a vote themselves; but 

management under certain conditions can petition for a vote with the National Labor Relations 

Board, and that is what we attempted to do. We pledged throughout the campaign that we 

obviously would abide by the results of that vote, and that we would negotiate a contract. 

Chairman Norwood. Well, that is pretty clearly wrong to me. The employees ought to have had 

the opportunity, in my view by the way in case anybody wonders, to vote every time. There ought 

not to be any such thing as a card check. If the employees want to unionize, they need to be able to 

vote under the supervision of the NLRB. 

Mr. Esgar, if 1,900 employees signed your petition, how could the union have obtained a 

real majority in their card count? Now, simple mathematics indicates that 400 or 500 people 

seemed to have signed both forms. What was the motivation there? What do you think could be 

behind this situation where so many people fundamentally signed both things? What was going on 

with that? 

Mr. Esgar. One was asking for their right to vote. The other was, the union has pressured me into 

signing a card; the only way I can get back would be to ask for the vote; then I can honestly say 

what I want. 

Chairman Norwood. Well, 1,900 signed the petition, but more than 50 percent had signed the 

corporate campaign cards, the card check. Why would they sign the card check if they wanted to 

sign the petition? 

Mr. Esgar. Let us call that speculation on the union's card check. Because after the contract was 

signed and dues were taken out, people were saying, how come they are taking dues from me? I 

never signed a card. So we had them send in a resignation. They were taken out immediately, and 

dropped off the payroll. They were not required, as everybody else was, to wait the 15-day 

window period of the anniversary of the signing of the card. 

 Speculation. That is all I can give you. 

Chairman Norwood. Mr. Yager, do you have any opinions on this? This is difficult for me to 

understand. Somebody is not telling something correctly somewhere. 
23

Mr. Yager. And I think that gets to the point of this hearing; which is, we will never know 

because it is not supervised. No one really knows what is said to these individuals or what is going 

through their mind when they actually sign these cards. I mean, a lot of the cases that we cite to 

you are cases where the union was telling the employee, if you sign the card, we will get an 

election. We need these cards so we can file them with the NLRB to show sufficient interest for an 

election. And then the card winds up being used for something completely different. 

 It becomes kind of a “who shot John” type of situation. And that is the beauty of an NLRBconducted election. You know, at the end of the day, what an employee wanted because they 

actually had the opportunity to register their views. 

Chairman Norwood. But can you say the same thing with the 1,900 who signed the petition? We 

don't know what was said to them. 

Mr. Yager. You could say that. I'm not saying that all of those were uncoerced. It gets back to 

how are you going to resolve it? Have an election. Find out what they want. And that is the only 

way you are going to resolve those kinds of situations. I would say the fact that 60 percent signed 

the petition says that there are some serious flaws. 

Mr. Esgar. When you say, “What were they told?" you have got to remember, we were just 

talking to the workers. I can't tell you that you are going to lose your job. I can't tell you I am 

going to deport you. I can't tell you any of those things. All I can do is hand you a form. And on 

top, written in English and Spanish, this is what this petition is doing. You have the right to sign it 

or not." That is it. 

Professor Craver. Could I just say one tragic thing? We assume that the election will be 

absolutely fair. When you think of a political election, it usually is. Most of us go in a booth and 

we decide how we are going to vote. In a labor election, tragically, the union can't very effectively 

threaten people. I mean, yes, we have heard they said you could lose your job. 

Chairman Norwood. Did you say the union couldn’t effectively threaten people? 

Professor Craver. The union can’t threaten my job. And the reason for that is they don't control 

my job. Yes, they could threaten me with physical harm or unfair labor practices. I realize there 

isn't much of a remedy but they can't really say you are going to lose your job. The employer has 

the power in every election, either explicitly or implicitly, to suggest your job will probably be 

gone.

Chairman Norwood. How does the employer know how you vote in a secret ballot? How do 

they know if I voted yes or no? 

Professor Craver. Oh, they don't know how you vote. What they suggest is, and they do this in 

numerous elections today, if you vote for a union, the job will probably be gone. 

 So when I go in that booth conducted by the NLRB, I think despite what Mr. Yager says the 

Labor Board normally does an exceptionally good job of conducting elections, if I am an 
24

employee. I mean, you read the book by Goldberg, Getman and Herman about the union 

representations, Law and Reality. While they say that most people don't remember the threats, they 

were affected by it. 

 If I heard a rumor that George Washington University might close, trust me, I would pay 

more attention to that than if I heard a rumor coming out of Congress or the White House, unless it 

was something about terror. My job is far more significant to me than whether we have a 

Democrat or Republican. Most of us really are so dependent economically and emotionally for our 

well being on our jobs. 

 If the party that has the most control over my job can suggest I might lose it if I vote the 

wrong way, and I don't mean me personally because they will not know how I voted in the booth. 

But if they suggest that if a majority votes for the union, the job may be gone or transferred, I am 

going to really think about that. 

 One thing I will also point out. In 1955, unions represented over 35 percent of private 

sector employees. Today it is about 9 percent. If unions are doing as well as everybody at this 

table is talking about, why does the decline continue? 

Chairman Norwood. That is not the point, though, is it? It doesn't matter if it is 9 percent or 1 

percent. The point of this hearing is what is right and fair for people who live in this country.

Are you telling me unions can't work? There is no way to have an election? There is no 

way to have anything without coercion? I have to believe that in an election, just like the one that I 

am elected by, both sides have an opportunity to make their point. And people go behind a closed 

curtain and they vote. And it ought to be up to the people who are in the union, going to be in the 

union or not be in the union to make that determination. 

 My time is long past due. Congressman Owens, you are now recognized. 

Mr. Owens. In all fairness, Mr. Chairman, instead of picking our way through these minute 

details, would you like to join me in fostering a study of how union elections are conducted in 

some other industrialized nations, like France and Germany and a few others? 

 In my statement I quoted a summary by Human Rights Watch, Executive Director, Kenneth 

Roth of the election process under the NLRA: “Loophole-ridden laws, paralyzing delays, and 

feeble enforcement have led to a culture of impunity in many areas of the U.S. labor law and 

practice. Legal obstacles tilt the playing field so steeply against workers' freedom of association 

that the United States is in violation of international human rights standards for workers.” 

 You know, the bulwark of democracy, when it comes to workers, is a hellhole in terms of 

getting workers organized. And it is significant that there has been a decline in the number of 

workers organized in private industry. There are great increases in the number of firms, 

commercial operations that work, in effect, to defeat union efforts to organize. When union 

cashiers make 37 percent more than non-union cashiers, or union library clerks earn 33 cents more 

than non-union, union textile sewing machine operators make 19 percent more, union janitors make 
25

39 percent more, when you have this kind of obvious benefit flowing to the workers, is it 

reasonable that unions should only win half of the certification elections that they attempt, given 

the reputation that unions have? 

 A great deal of pressure is brought to bear by employers, and the simple matter of the 

neutrality, as you said, is that an employer should have a voice in this decision as to whether 

employees become union members or not. Is that not saying that the spouse you are divorcing 

should have a choice in choosing your divorce lawyer? Where is the harm in more effective laws 

that would make employers more neutral? Also, laws that would require that on the job site, where 

the employer can force employees to listen to arguments against having a union, why not mandate 

that they have the same kind of opportunity for union organizers to make the argument in favor of 

organizing unions? 

 Does the NLRA protect the right of employers to organize or not organize employees, or 

does it protect the right of workers to organize? Are they not really supposed to be there to protect 

the workers' right to organize? 

Professor Craver, would you like to answer that? 

Professor Craver. The one thing I would say, the recent study by Professors Richard Freeman and 

Joel Rogers found that a fairly high percentage of American workers would like to have some form 

of representation, less adversarial than the traditional labor management relationship, which I think 

is a good thing; but they would like to have some representation, because now they have none. 

 What is their biggest concern? They are afraid of retaliation by their employers if they 

support unions. And I think that is a very tragic thing. Because when I go vote in the election for 

President, I happen to be a city resident so I don't get to vote for Congress, but when I do vote for 

the President or I vote for members of the city commission, I really do have an unfettered right to 

go in there and vote any way I wish. No one can tell me if I voted the wrong way. I mean Mayor 

Williams isn't going to terminate my job. 

 On the other hand, if I am voting for or against the union, yes, the union can tell me to do 

this, and I am going to promise you all sorts of thing. But underneath it all, at the end I know one 

party controls my employment destiny: the employer, not the labor organization. And I am very 

intimidated when employers make it clear that a yes vote by a majority of people will have longterm consequences of a negative variety. 

Mr. Owens. Two industrialized countries, Germany and France, what procedure do they follow? 

Professor Craver. Many countries have faster elections. Canada is a classic example. Canada 

has several provinces that allow card check certification, and they don't seem to have any real 

problem. On the other hand, there is no country in the world where the antipathy towards unions 

by employers is greater than it is in the United States. 

Mr. Owens. During congressional campaigns and congressional elections, we have both sides 

with the same opportunity to campaign. It is pretty clear that in a union election the employer has 
26

the disproportionate ability to campaign. He has the advantage. And that explains why we have a 

decline in union participation. Employers are exercising those advantages in a more systemic way 

all the time, and using union-busting firms to accomplish it. And I think that we ought to take an 

objective look, Mr. Chairman, at what is going on here and see if we can establish a level playing 

field. Are we going to continue to explore this subject? 

Chairman Norwood. Would the gentleman yield? 

Mr. Owens. I am out of time. 

Chairman Norwood. Well, you are out of time, and I am going to take you to heart. You 

confused me. You started out saying we were having too many of these hearings, and now you 

have convinced me we need a lot more to get to the bottom of this. 

Mr. Owens. An objective study, I said. 

Chairman Norwood. Professor Craver, I don't need a comment. But I would be very interested in 

written proof from you regarding your statements that employers coerce so many members of 

unions not to become a union site. You have stated that over and over again, as if it is a common 

occurrence; which I don't question you, I just know you will be able to back that statement up in 

writing.

 Professor Manheim and Mr. Yager, I have a question aimed at the two of you. Is it more 

cost effective for a union to use a corporate campaign to leverage an employee's recognition of a 

union without using the secret ballot election? It seemed to me, in listening to the comments that 

both Mr. Esgar and Mr. Kipling shared with us, that it had to be a pretty darned expensive “PR” 

campaign that the union wages against them. 

 Talk to me a little bit about the economics of this. Somebody is spending a lot of money 

somewhere. And I don't question you gentlemen; I just wasn't there. But what they described to 

me, somebody went to a great deal of trouble and a great deal of expense to bring as many lawsuits, 

on and on and on. Talk to me about the economics. 

Professor Manheim. I think organizing is an expensive undertaking no matter how you go about 

it. I saw a recent estimate that organizing within the election process costs approximately $1,000 a 

head. So at a large company that is serious money. Corporate campaigns vary a great deal in terms 

of how expensive they are, but they can run into millions of dollars as well. 

 I am not sure it is an economic decision. I think it is a question of weighing the economics 

against the likelihood of success. And that somewhere along the way someone has made the 

judgment that in a lot of instances, it is more cost effective to go the corporate campaign card check 

route than to go the election route. 

Chairman Norwood. Do you understand that? I don't. It seems to me it costs a lot less for a 

union simply to go to the NLRB and say we want to unionize a certain hotel; let us have a vote. It 

would seem to me that would be less expensive than all the things that are going on in corporate 
27

campaigns, of which I know only one personally at home. 

Professor Manheim. I can't answer that. I don't have a basis for answering that. I could answer a 

question about the cost of the corporate campaign, but I really don't know more than having read 

the estimates. 

Mr. Owens. Would the gentleman yield for a minute? 

Chairman Norwood. I will. 

Mr. Owens. While he is on the subject of cost, can you give us some figures on the fees charged 

by union-busting organizations? 

Professor Manheim. I have never looked at that issue. 

Mr. Owens. Union-busting firms? 

Professor Manheim. I have no idea. 

Mr. Owens. You have no idea? 

Professor Manheim. [Indicating no.] 

Chairman Norwood. Do you mean law firms when you say that? What do you mean? 

Mr. Owens. I mean law firms that specialize in busting unions. They are pretty well known. 

Professor Craver. And there are people that are just labor relations consultants who also do the 

same service. 

Chairman Norwood. Mr. Yager, do you want to comment on that? 

Mr. Yager. Well, lumped into that are also people that advise employers, because it can be a real 

minefield when you are being organized on how to comply with the law and make sure that there is 

a fair election where the results aren't going to get overturned. 

 To answer your question to Professor Manheim, I don't think it is a cost-driven decision 

made by the union, because I think more often than not it is going to be a situation where they just 

don't think there is sufficient interest or they are going to be able to organize those employees. But 

you should also realize, there is a vast array of weapons available in a corporate campaign, and a 

lot of them are not costly at all. 

For example, filing charges with the NLRB; that is very easy. You can do it online now.

You can file complaints with government agencies. And actually, using government agencies is 

one of the most effective tools that organized labor has learned how to use in waging a corporate 
28

campaign. And that costs the taxpayer a lot, but it doesn't cost the union a whole lot. 

Chairman Norwood. I am somewhat familiar with that part because of OSHA. I have watched 

some of that happen as well. 

Mr. Yager. Exactly. 

Chairman Norwood. Mr. Kipling, what do you mean by the statement in your testimony that it 

became not feasible financially for the New Ontani Hotel to contest all the charges that were filed 

by the union with the National Labor Relations Board. Is that a suggestion on your part that maybe 

some of these charges were used as harassment, or some of these charges were used to just spin 

you down? 

Mr. Kipling. That was our opinion, obviously, that many of the charges had no basis for filing. 

We found out early in the campaign that legal expenses could be very, very costly if we fought all 

such charges individually. 

 We had a meeting with another company that was undergoing a corporate campaign in 

Northern California in the mid-1990s, and one of the first things they told us was, if you utilize 

your lawyers the way your lawyers would like you to utilize them, you will be out of business in 2 

years. You need to put your lawyers on retainer, and you need to back up and take a good look at 

the overall situation because the problem with the corporate campaign is it becomes very personal. 

A lot of the attacks are directed at individuals of hotel management and at the way the company 

treats their workers. They accuse them of abusing their workers and such. So you tend to want to 

fight various charges to prove your innocence in this area. 

 But the result is at some point you have to say that we simply can't afford to do this and still 

run our company in an economically feasible manner. So what you do in a lot of cases, if the 

charges are such that they don't really concern how your company is run, you can simply reach a 

settlement. And the NLRB encourages you to reach a settlement. They prefer that you not, 

obviously, fight these charges. They encourage both parties to come together and reach some kind 

of a middle ground. So in many cases we have done so. 

Chairman Norwood. In your case, you had an unusual number of charges. 

Mr. Kipling. Yes. We have had them through the years. 

Chairman Norwood. Do you see it that way, Professor? In their particular case, was it just a 

greater number of NLRB charges than you might normally see in other cases? 

Professor Manheim. I don't remember the exact number of unfair labor practice charges in that 

case. That number does vary widely. But the New Ontani campaign was relatively typical in terms 

of the intensity of the attack and the attempt to define the company as a pariah within the economic 

system in Los Angeles. But from campaign to campaign, the mix of unfair labor practice charges 

versus other kinds of regulatory initiatives versus attacks on products or services and other lines of 
29

attack on the business will vary quite a bit. 

Chairman Norwood. Mr. Owens. 

Mr. Owens. I have to go for another appointment, so I will just ask one question. 

Professor Craver, do you have some idea of the percentage of NLRB cases that are never 

brought, that they refuse to even process? 

Professor Craver. I don't know. Every year they have an annual report from the general counsel's 

office, and I don't know the percentage of charges where they don't issue a complaint. I don't 

happen to know that off the top of my head. 

Mr. Owens. Well, I will just acknowledge that it is about two thirds that are never brought. Two 

thirds never brought; only one third are brought. 

Professor Craver. Well, what they do is they initially investigate them; and if they don't find 

cause to believe there is a violation, they refuse to issue a complaint. And if the regional office 

makes that decision, you can appeal it to the advice branch in Washington. 

 But I think the Labor Board does an exceptionally good job of trying to work with the 

statute where the remedies are simply weak. And even when I have been on panels with board 

members, both Republicans and Democrats alike say the remedies are simply inadequate to deter 

illegal behavior by both labor organizations and employers who are willing to ignore their moral 

obligation to comply simply because it is illegal. 

Mr. Owens. With that, Mr. Chairman, I have to depart. Thank you, sir. 

Professor Craver. Mr. Chairman, can I just say one thing? You asked me earlier if I had any 

evidence on the coercion. I would cite three things. 

Chairman Norwood. I would prefer it for the record. If you give it to me in great detail in 

writing, I would be grateful. 

Professor Craver. I will do that. 

Chairman Norwood. Mr. Yager, you have some experience in labor law, and I am learning a lot.

Let us continue to talk about enforcement a little bit and the NLRB election process. How quickly 

are these elections held, for example, if someone requests that of NLRB? 

Mr. Yager. As I indicated, the data on that is very good. You will frequently hear horror stories 

about elections that drag on for 2 or 3 years because of a lot of the legal complications associated 

with them. And no one would suggest that that doesn't happen. But according to data that was 

released a couple years ago actually by the NLRB general counsel, Fred Feinstein, 88 percent of all 
30

elections take place within 52 days. So the norm is that it is going to happen very quickly. 

 And that is actually the same on enforcement. If an employee has been unjustly discharged 

or at least has filed a charge that they have been, that is usually resolved within a matter of a couple 

of months. So it is really not a good idea to allow a lot of these horror stories that you will hear and 

that have been raised in several congressional hearings over the year, to lead you to think that those 

are actually the norm. 

 Most of the times things happen pretty quickly. And, actually, a lot of times employees 

capitulate very quickly on unfair labor practices, because as the charging party, it doesn't cost them 

a cent. Well, it costs them whatever it costs to take the time to file the charge. The employer, on 

the other hand, is sitting there on the other side. They have got to retain their own attorney. The 

charging party has the NLRB general counsel as their attorney. It is not going to cost them 

anything. And a lot of employers look at those situations; they look at an ambiguous situation 

where they see there is going to be an argument that I violated the law; I don't think I did, but I just 

can't afford to retain a lawyer for the 1 or 2 years it might take to fight this thing. So they settle. 

Chairman Norwood. It looks like the loser ought to pay. What percentage of these elections that 

happen fairly quickly result in an objection being filed by either party? 

Mr. Yager. That is actually very low, and this status stayed pretty consistent over the years. The 

most recent year I looked at, which was I think 1999, unions only filed objections in about 1 out of 

every 20 elections that year, and actually only 1 in 50 were actually overturned. And that is 

actually pretty impressive, because there are a lot of pitfalls for an employer in the election process. 

Once that commences, every word they say, every action their supervisors take gets very, very 

closely supervised, scrutinized. And very frequently, if they tripped up at all and the union loses 

this election, they are going to file an objection. So those numbers show that most of the time, at 

least, they work pretty well. 

Chairman Norwood. I am going to close this up, but I wanted to ask Mr. Getler a question. 

As an employee, if you had the choice of a fairly quick election by secret ballot versus the 

card check agreement, that may or may not occur quickly because you have to have a certain 

amount of signatures and it may take time to get them, why wouldn't you want to take away any 

mystery from this by simply having a fair, closed, secret election and be done with it one way or 

the other? Let the folks who work there decide, period. Why wouldn't you want to choose that 

election? Or maybe you did. I don't want to put words in your mouth. 

Mr. Getler. Well, I think where the problem comes is the hotel goes or the company goes so far 

on the offensive before the election, and basically individuals are scared into voting not possibly 

the way they wanted to vote. So there is no recourse for an employee. You basically get backed 

into a corner, and the hotel or the company has the opportunity to actually put you in that position. 

 In our particular case, when the hotel opened and we went through the casting center, they 

went from segment to segment to segment whether it was signing up for benefits or signing up for 

the 401(k). They took a tremendous amount of opportunities to let you know that you didn't need a 
31

union and, in their opinion, this is why you didn't need a union. 

Chairman Norwood. And are you saying with the card check, that the employer can't say 

anything to anybody? Is that what you liked about it? 

Mr. Getler. With the card check and the neutrality, it is not as much. At least you have an 

opportunity to talk to the employees; the employees have an opportunity themselves to ask 

questions. If they are unclear about something, they can ask questions about it, and at least they 

can get some more information to make a good decision one way or the other. And with the 

neutrality, the company is not leaning on the employees to vote one way or the other. 

Chairman Norwood. The employee can't ask questions prior to a secret ballot? 

Mr. Getler. Well, I don't know if they can't ask questions. But you kind of get put in positions 

where you feel uncomfortable because they are leading you to believe you don't need a union, and 

there is no other side to the story. 

Chairman Norwood. In your particular case, you had 51 percent of the people sign up that were 

asking for a union with a card check, or was it 52 or 58? What did it turn out to be? 

Mr. Getler. I am actually not quite clear on what the number was. I know we had to have 50 

percent plus 1, and we were over that number. And a neutral party checked the cards and the 

signatures were checked and the Social Security numbers were checked, and the cards were said to 

be accurate. 

Chairman Norwood. Well, it is of interest, because clearly some people who were employed 

where you work didn't want to be unionized. It wasn't 100 percent. 

Mr. Getler. That is correct. Yes. 

Chairman Norwood. So that means some percent didn't really want to be unionized. Were they 

treated badly? 

Mr. Getler. By whom? 

Chairman Norwood. By those of you who did want to unionize. 

Mr. Getler. I never witnessed any part of that. You either wanted to sign a card or you didn't want 

to sign a card, and there were pros and cons to both sides. 

Chairman Norwood. They weren't considered anti-union? 

Mr. Getler. Well, I am sure people had that perspective, just like I am sure from the other side that 

they considered the union people to be bad and the ones that were trying to get people to sign cards. 
32

Chairman Norwood. Well, is it bad; fellow employees on one side are bad because they want to 

unionize or the other side is bad because they don't? I mean, it is a matter of opinion what the 

employees as a whole want to do in that group. And I have heard and read some testimony here, 

where there is some pretty heavy-handed stuff that goes on to get over that 51 percent. 

 Now, I don't know anything about your situation personally. I personally know about some 

stuff at home. But some heavy-handed stuff goes on in all of this. And when you can get a guy in a 

back room by himself, or with four or five other guys who want to unionize, you can convince him 

that signing that card is the right thing to do. And even if I am wrong, the perception is there. 

 Why not get rid of that perception and simply say if the employer doesn't want to unionize, 

he ought to have the right to try to convince his employees not to do that. If the union wants them 

to unionize, they ought to have the right to say let us do that. They ought to be able to give the 

employees all the information they want to, either side, and then at the end of the day go behind a 

closed door and vote. The employer doesn't know who voted yes and who voted no. 

 In your case, 49 voted no and 51 voted yes. Which 49 are they going to fire? Are they 

going to close the hotel or are they going to close down the entire establishment because of that? I 

think not. 

 We have heard some very interesting and informative testimony. And I mean this, I 

appreciate the effort all of you made to be here, particularly those of you that have come so far, 

because it is important that we hear from you. And I know there are not a lot of people here, but 

we pay attention to what we are hearing from you and what we are reading in this testimony. 

 The testimony today is further evidence to me that powerful interests for their own benefit 

are manipulating many of our laws. Now I didn't say one side or the other, I just said there are 

manipulations going on out there. And, as a result of this, the law does not benefit the average 

citizen, which it is about, the employee. That is absolutely what this is about. And it doesn't 

benefit correctly the average employee for whom the law was enacted to start with. 

 Congress enacted labor laws that give workers the right to organize themselves into unions.

That is the law of the land. We said you could do that. And we did that because Congress wants to 

give workers a voice in their workplace so that they can have some say-so on what happens to them 

in their daily life. And I support that, as I suspect everyone in this room does. 

 However, with the increase of corporate campaigns, our labor laws are not benefiting 

workers and are benefiting union leaders who are seeking to gain the power and the money 

contributed to it. And that means something is not working, because that is not what Congress 

intended, ever. It was about the employee. 

 Professor Manheim, you quote from Monica Russo, the President of Service Employees 

International Union District 1199 in Florida. That quote tells me a lot. You quoted her as saying:

“organizing is about power, not a 50-cents-per-hour wage increase.” One of you quoted Trumka 

when he said corporate campaigns are “the death of a thousand cuts.” I don't have to be a genius to 
33

catch on to that; Professor Craver, you don't either. You know exactly what he means by that. 

 Well, excuse me, Ms. Russo; to most of the textile workers in my district, 50 cents per hour 

is important, those that are left. It pays the bills, it puts food on the table, and it buys the kids 

clothes. Where I come from, people go to work to earn a living, not to win power for a cause.

Maybe that is why unions are losing elections. They are more interested in politics than they are in 

improving the lot of the ordinary working people whose dues money they live off of. 

 That is something I do know something about. I know how they have used their money, 

and I know how they use their money in my district, supporting causes that my constituents who 

happen to be union members don't agree with. I am beginning to believe that the reason unions are 

losing elections and are using corporate campaigns is that they don't have enough respect for the 

people they want to join them. 

 Professor Manheim, your quote from Joe Crump, the official of the United Food and 

Commercial Workers Union, is a real eye opener. He states in an article published by Labor 

Research Review: “Employees are complex and unpredictable. Employers are simple and 

predictable. Organize employers, not employees.” Makes a lot of sense. 

 Well, sure, employees are complex and they are unpredictable, just like all of us sitting up 

here at this dais. We are all human beings. They are individuals with their own backgrounds, with 

their own needs, and their own desires. In the Soviet Union, they sent complex and unpredictable 

people to Siberia. In Cuba, they send complex and unpredictable people to mental institutions. In 

this country, we send those complex and unpredictable people to the voting booth. In this country 

the government is supposed to serve and to be accountable to the people. That is why we are here.

That is why the Soviet Union is no longer, and Cuba is an island full of people praying for the 

death of a very old man. 

 In Washington everything becomes a battle between powerful interests and their lobbyists.

Health care is seen from the perspective of insurance companies and trial lawyers, the only people 

not involved in health care. The only people in health care are the patient and the doctor. And we 

forget about the rights of the patients who need the health care. In this town, labor unions are 

viewed from the perspective of unions or employers. That is not why the laws were enacted. They 

were enacted to protect those complex and unpredictable workers and to give them a voice. There 

is no better way of assuring that the voices of the workers are heard than through the secret ballot 

election.

 I did not get elected by getting people to sign authorization cards. I got elected at the ballot 

box, as does the President of the United States and all of my colleagues. 

 Corporate campaigns are nothing but an end run around the will of workers. I believe it is 

disgraceful when a union official brags that he puts a company out of business, as was the case 

with Family Foods in Michigan. I thought unions were supposed to help workers. I do not think 

that those unemployed workers at Family Food were better off because of the union's corporate 

campaign. 
34

 Our labor laws need to be brought back in line with their original purpose; that is, to give 

workers rights. That is why we have to put a stop to this certification through authorization cards.

We need to have legislation that says a union cannot get certified as a collective bargaining 

representative unless it is elected. And I don't mind saying, the employer cannot coerce them in 

any way in that process. That is how democracy works, and that is the way America works. 

 I thank both the witnesses and the Members for their valuable time and participation. If 

there is no further business, this Subcommittee now stands adjourned. 

Whereupon, at 3:49 p.m., the Subcommittee was adjourned. 
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Table of indexes 

Chairman Norwood, 1, 5, 7, 10, 12, 14, 16, 17, 18, 19, 21, 22, 23, 24, 26, 27, 28, 29, 30, 31, 32 

Mr. Craver, 18, 23, 25, 27, 29 

Mr. Esgar, 22, 23 

Mr. Gettler, 30, 31 

Mr. Kipling, 18, 21, 22, 28 

Mr. Manheim, 7, 18, 20, 26, 27, 28 

Mr. Owens, 5, 19, 24, 25, 26, 27, 29 

Mr. Yager, 20, 23, 27, 28, 29, 30 

Ms. Sanchez, 19, 20, 21