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93-255 PDF 2004

DEVELOPMENTS IN LABOR LAW: 

EXAMINING TRENDS AND 

TACTICS IN LABOR 

ORGANIZATION CAMPAIGNS

HEARING

BEFORE THE

SUBCOMMITTEE ON EMPLOYER-EMPLOYEE 

RELATIONS

OF THE

COMMITTEE ON EDUCATION 

AND THE WORKFORCE 

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

April 22, 2004

Serial No. 108-52

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

(

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

or 

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

(II)

COMMITTEE ON EDUCATION AND THE WORKFORCE 

JOHN A. BOEHNER, Ohio, Chairman

Thomas E. Petri, Wisconsin, Vice Chairman 

Cass Ballenger, North Carolina 

Peter Hoekstra, Michigan 

Howard P. ‘‘Buck’’ McKeon, California 

Michael N. Castle, Delaware 

Sam Johnson, Texas 

James C. Greenwood, Pennsylvania 

Charlie Norwood, Georgia 

Fred Upton, Michigan 

Vernon J. Ehlers, Michigan 

Jim DeMint, South Carolina 

Johnny Isakson, Georgia 

Judy Biggert, Illinois 

Todd Russell Platts, Pennsylvania 

Patrick J. Tiberi, Ohio 

Ric Keller, Florida 

Tom Osborne, Nebraska 

Joe Wilson, South Carolina 

Tom Cole, Oklahoma 

Jon C. Porter, Nevada 

John Kline, Minnesota 

John R. Carter, Texas 

Marilyn N. Musgrave, Colorado 

Marsha Blackburn, Tennessee 

Phil Gingrey, Georgia 

Max Burns, Georgia 

George Miller, California 

Dale E. Kildee, Michigan 

Major R. Owens, New York 

Donald M. Payne, New Jersey 

Robert E. Andrews, New Jersey 

Lynn C. Woolsey, California 

Rube ́n Hinojosa, Texas 

Carolyn McCarthy, New York 

John F. Tierney, Massachusetts 

Ron Kind, Wisconsin 

Dennis J. Kucinich, Ohio 

David Wu, Oregon 

Rush D. Holt, New Jersey 

Susan A. Davis, California 

Betty McCollum, Minnesota 

Danny K. Davis, Illinois 

Ed Case, Hawaii 

Rau ́l M. Grijalva, Arizona 

Denise L. Majette, Georgia 

Chris Van Hollen, Maryland 

Tim Ryan, Ohio 

Timothy H. Bishop, New York

Paula Nowakowski, Staff Director 

John Lawrence, Minority Staff Director 

SUBCOMMITTEE ON EMPLOYER–EMPLOYEE RELATIONS 

SAM JOHNSON, Texas, Chairman

Jim DeMint, South Carolina, Vice Chairman 

John A. Boehner, Ohio 

Cass Ballenger, North Carolina 

Howard P. ‘‘Buck’’ McKeon, California 

Todd Russell Platts, Pennsylvania 

Patrick J. Tiberi, Ohio 

Joe Wilson, South Carolina 

Tom Cole, Oklahoma 

John Kline, Minnesota 

John R. Carter, Texas 

Marilyn N. Musgrave, Colorado 

Marsha Blackburn, Tennessee 

Robert E. Andrews, New Jersey 

Donald M. Payne, New Jersey 

Carolyn McCarthy, New York 

Dale E. Kildee, Michigan 

John F. Tierney, Massachusetts 

David Wu, Oregon 

Rush D. Holt, New Jersey 

Betty McCollum, Minnesota 

Ed Case, Hawaii 

Rau ́l M. Grijalva, Arizona 

George Miller, California, ex officio 

(III)

C O N T E N T S 

Page

Hearing held on April 22, 2004 .............................................................................. 1

Statement of Members: 

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

National Labor Relations Board cases, submitted for the record ......... 38

Johnson, Hon. Sam, Chairman, Subcommittee on Employer-Employee Relations, Committee on Education and the Workforce ................................ 2

Prepared statement of ............................................................................... 3

Statement of Witnesses: 

Cohen, Charles I., Esq., Partner, Morgan Lewis, Counselors at Law, 

and Chairman, U.S. Chamber of Commerce, National Labor Relations 

Board Subcommittee, Washington, DC, on behalf of the U.S. Chamber 

of Commerce .................................................................................................. 7

Prepared statement of ............................................................................... 9

Letter submitted for the record ................................................................ 178

Jacob III, Clyde H., Esq., Partner (Labor & Employment), Jones Walker, 

New Orleans, LA ........................................................................................... 17

Prepared statement of ............................................................................... 19

Letter submitted for the record ................................................................ 192

Schiffer, Nancy, Esq., Associate General Counsel, AFL–CIO, Washington, 

DC .................................................................................................................. 13

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

Letter submitted for the record ................................................................ 60

Additional material supplied: 

Taubman, Glenn M., Staff Attorney, National Right to Work Legal Defense Foundation, Inc., Springfield, VA, Statement submitted for the 

record ............................................................................................................. 138

(1)

DEVELOPMENTS IN LABOR LAW: EXAMINING 

TRENDS AND TACTICS IN LABOR ORGANIZATION CAMPAIGNS 

Thursday, April 22, 2004

U.S. House of Representatives 

Subcommittee on Employer–Employee Relations 

Committee on Education and the Workforce 

Washington, DC 

The Subcommittee met, pursuant to notice, at 10:58 a.m., in 

room 2181, Rayburn House Office Building, Hon. Sam Johnson 

[Chairman of the Subcommittee] presiding. 

Present: Representatives Johnson, Ballenger, Kline, Andrews, 

Payne, McCarthy, Kildee, Tierney, Holt, and McCollum. 

Staff present: Kevin Frank, Professional Staff Member; Ed 

Gilroy, Director of Workforce Policy; Don McIntosh, Staff Assistant; 

Jim Paretti, Professional Staff Member; Molly Salmi, Director of 

Workforce Policy; Deborah Samantar, Committee Clerk; Kevin 

Smith, Senior Communications Counselor; Loren Sweatt, Professional Staff Member; Jody Calemine, Minority Counsel EmployerEmployee Relations; Margo Hennigan, Minority Legislative Assistant/Labor; Peter Rutledge, Minority Senior Legislative Associate/

Labor; and Marsha Renwanz, Minority Legislative Associate/Labor. 

Chairman JOHNSON. A quorum being present, the Subcommittee 

on Employer/Employee Relations of the Committee on the Education and the Workforce will come to order. 

We’re hearing today testimony on the developments in labor law, 

examining trends and tactics in labor organization campaigns. 

Under Committee rule 12B, opening statements are limited to the 

Chairman and ranking minority member of the Subcommittee, Mr. 

Rob Andrews. 

Therefore, if other members have statements, they will be included in the hearing. With that, I ask unanimous consent for the 

hearing record to remain open for 14 days till our member statements and other extraneous material referenced during the hearing 

to be submitted in the official hearing record. Hearing no objection, 

so ordered. 

2

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

Chairman JOHNSON. Good morning to you all. Thank you for 

being here. It’s an honor to chair today’s hearing, Developments in 

Labor Law: Examining Trends and Tactics in Labor Organization 

Campaigns. This is the first in a series of hearings that this Subcommittee will hold this year, both in Washington and in the country, in a comprehensive review of our nation’s labor laws. 

As we all know, the cornerstone of our nation’s labor policy, the 

National Labor Relations Act, dates back to the Great Depression. 

Other laws, such as Labor Management Reporting and Disclosure 

Act, have now passed the half-century mark. The substance of most 

of these laws remains largely unchanged. Yet, the labor market reflects a vastly different and modern era. 

It’s our intent that these hearings examine what is working and 

what is not. Where Federal labor law is played out as Congress intended, where it has fallen short, and where and how these laws 

might be changed to better address the 21st Century workforce. 

As we examine the trends in labor law, it’s fitting that this morning’s hearing focuses on a relatively new trend. More and more employers are being forced to recognize labor unions without first 

holding a secret ballot employee election. The election process that 

is guaranteed in law and administered by the National Labor Relations Board. 

Since enactment of the law in 1939, most common means by 

which a union has sought to represent employees is through secretballot elections administered by the NLRB. If the interest is there, 

the union then petitions for an election, the employer and union deliver their arguments, and then the employees decide by way of secret ballot whether or not to unionize. 

To ensure a free and fair process, the election is administered 

and supervised by the National Labor Relations Board. To prevent 

intimidation or harassment, the law establishes that neither the 

union nor an employer may coerce, harass, or restrain employees 

in exercising their right to choose whether or not to support the 

union. 

Perhaps most important is that the employee’s choice is made in 

the privacy of a voting booth with neither the employer nor the 

union knowing how any individual voted. You can call me old fashioned if you want to, but that sounds like a pretty good fair system 

to me. 

In the last 10 years, however, we’ve seen an increased effort by 

labor to seek union recognition outside the secret-ballot process. Indeed, the use of so-called card-check agreements has become a critical component of labor organizing strategy. Under a card-check 

system, a union gathers authorization cards signed by workers, 

which supposedly express their desire to unionize. 

Under current law, an employer may voluntarily recognize 

unions based on card checks but it’s not required. An employer can 

always insist upon an election administered by NLRB. However, 

employers are often pressured into accepting card checks by union 

picketing, threats, or comprehensive corporate campaigns to discredit or smear the employer publicly. 

3

It’s no secret that corporate campaigns have become a key weapon in organized labor’s arsenal of tactics. Unlike the traditional 

bargaining process, corporate campaigns center on making the employer look bad in the public eye. These campaigns often include 

intensely negative media campaigns, frivolous litigation, and picketing. Unions have even gone so far as to engage in other secondary activity on suppliers, distributors, and other businesses 

wholly unrelated to the election at hand. 

Increased use of these card checks and pressures that result from 

these corporate campaigns raise red flags for a number of reasons. 

First, their very nature card checks leave the employers—employees vulnerable to harassment, intimidation, and union pressure. 

Secret ballots are more accurate indicators than authorization 

cards. One court noted 18 percent of those who sign authorization 

cards do not want the union. It seems to me secret-ballot election 

taken with protections of law is something that works well, and 

that’s what we should attempt to make sure occurs in the future. 

With that said, our witnesses are three of the nation’s finest 

minds in the area of labor law, who will give us their analysis of 

the legal matters raised in these questions. And I welcome my witnesses and their testimony. 

I now yield to the distinguished minority member, Mr. Rob Andrews, for any comments he wishes to make. 

[The prepared statement of Chairman Johnson follows:]

Statement of Hon. Sam Johnson, Chairman, Subcommittee on Employer–

Employee Relations, Committee on Education and the Workforce 

Good morning: It is an honor to chair today’s hearing, ‘‘Developments in Labor 

Law: Examining Trends and Tactics in Labor Organization Campaigns.’’

This is the first in a series of hearings that this Subcommittee will hold this year, 

both in Washington and throughout the country, in a comprehensive review of our 

nation’s labor laws. 

As we all know, the cornerstone of our nation’s labor policy, the National Labor 

Relations Act, dates back to The Great Depression. 

Other laws, such as the Labor–Management Reporting and Disclosure Act, have 

now passed the half-century mark. 

The substance of most of these laws remains largely unchanged. Yet, the labor 

market reflects a vastly different and modern era. 

It is our intent that these hearings examine what is working and what is not: 

where federal labor law is played out as congress intended, where it has fallen 

short, and where and how these laws might be changed to better address a 21st 

century workforce. 

As we examine trends in labor law, it is fitting that this morning’s hearing focuses 

on a relatively new trend: 

More and more, employers are being forced to recognize labor unions without first 

holding a secret-ballot employee election—the election process that is guaranteed in 

law and administered by the National Labor Relations Board. 

Since enactment of the law in 1939, the most common means by which a union 

has sought to represent employees is through secret-ballot elections administered by 

the National Labor Relations Board. 

If the interest is there, the union then petitions for an election, the employer and 

union deliver their arguments, and then the employees decide by way of a secretballot election whether or not to unionize. 

To ensure a free and fair process, the election is administered and supervised by 

the National Labor Relations Board. 

To prevent intimidation or harassment, the law establishes that neither the union 

nor an employer may coerce, harass or restrain employees in exercising their right 

to choose whether or not to support the union. 

Perhaps most important is that the employee’s choice is made in the privacy of 

a voting booth, with neither the employer nor the union knowing how any individual 

voted. 

4

Now call me old-fashioned but that sounds like a good and fair system to me. 

In the last ten years, however, we have seen an increased effort by labor to seek 

union recognition outside of the secret-ballot process. 

Indeed, the use of so-called ‘‘card check agreements’’ has become a critical component of labor’s organizing strategy. 

Under a ‘‘card check’’ system, a union gathers ‘‘authorization cards’’ signed by 

workers which supposedly express their desire to unionize. 

Under current law, an employer may voluntarily recognize unions based on card 

checks, but it is not required. 

An employer can always insist upon an election administered by the NLRB. However, employers are often pressured into accepting ‘‘card checks’’ by union picketing, 

threats, or comprehensive ‘‘corporate campaigns’’ to discredit or smear the employer 

publicly. 

It is no secret that corporate campaigns have become a key weapon in organized 

labor’s arsenal of tactics. Unlike the traditional bargaining process, corporate campaigns center on making the employer look bad in the public eye. 

These campaigns often include intensely negative media campaigns, frivolous litigation, and picketing. 

Unions have even gone so far as to engage in other secondary activity on suppliers, distributors, and other businesses wholly unrelated to the election at hand. 

The increased use of these card checks, and the pressures that result from these 

corporate campaigns raise red flags for a number of reasons. 

First, by their very nature, card checks leave employees vulnerable to harassment, intimidation, and union pressure. Card checks strip workers of the right to 

choose, freely and anonymously. 

Equally important, the evidence suggests that secret ballot elections are more accurate indicators than authorization cards of whether employees actually wish to be 

recognized by a union. 

As one court noted, ‘‘18 percent of those who sign authorization cards do not want 

the union.’’

As we embark on these hearings, I am reminded of the old saying ‘‘if it ain’t 

broke, don’t fix it.’’

At least from where I’m sitting, it seems to me that the secret-ballot election, 

taken with the protections in law against harassment and retaliation, is something 

that works well. 

It seems to me that a secret-ballot election is the only way, in fact, to protect the 

integrity of a worker’s right to vote their conscience without fear of harassment, intimidation, retaliation, misinformation, or worse. 

With that said, our witnesses today are three of the nation’s finest minds in the 

area of labor law, who will give us their analysis of the legal issues raised on these 

important matters. 

I welcome our witnesses and look forward to their testimony today. 

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

Mr. ANDREWS. Thank you, Mr. Chairman, and good morning. We 

start from a common principle that no person should be coerced 

into making a decision against his or her own will as to whether 

to join a union. I think that’s the principle for which there is unanimity. 

My concern is that this hearing is going to build an inadequate 

and incomplete record on the question of coercion of people when 

they choose to join or not join a union. 

I fear that this record will be incomplete in three key respects. 

First, is that we heard the Chairman make a number of conclusory 

statements about widespread and rampant coercion by unions in 

the context of card check—card signings by union members. I look 

forward to hearing that record amplified during this hearing. I 

think if we’re going to make such statements, it’s the obligation of 

those who would support those statements to give evidence and factual statements that would back that up. It’s rather easy to make 

5

these conclusory statements. I’ll be anxious to see the record that 

supports that conclusion. 

Second, you know, coercion is a two-way street when it happens, 

and the focus should not simply be on the act that is the terminal 

act of deciding whether or not a union comes in, whether that’s a 

vote cast or a card signed, but it ought to be the entire context of 

the employer/employee relationship leading up to that. 

This record should also include discussions of one-on-one meetings, captive-audience meetings, examinations of in-house public 

relations and persuasion campaigns by employers. I do not submit 

that all employers engage in coercive tactics within an organizing 

drive context but some certainly do, and it’s important that the 

record bear out those facts, as well as facts about alleged coercion 

on the union’s side. 

Finally, there’s an important omission from the hearing as far as 

I can tell, and that is the question of what happens when there’s 

been a fair election and the employees have opted to be collectively 

bargained represented by a union and the employer fails to negotiate in good faith for the first contract. 

What remedies exist when an employer has fought and lost the 

election and just chooses not to recognize it, not by appealing the 

result of the election, but by interminably dragging out the bargaining process in bad faith. 

What kind of economic sanctions militate against that result. It 

can lead us through a situation where winning an election really 

isn’t winning at all, because the time that lapses from the victory 

in the election to the conclusion of the first contract is intolerably 

long and, in fact, costs the people in the union—the workers in the 

union—a significant amount, because there’s no raise or no increase in benefits while that is going on. 

So I do accept the notion that it’s our responsibility to look at coercion from any side; from all sides when a worker is about to 

choose whether to join a union or not. 

But any examination of coercion bears with it the responsibility 

of laying out on the record facts of coercive practices, carries with 

the responsibility of examining coercive practices by employers in 

the work place leading up to the decision, and I believe carries with 

it the responsibility of understanding what I believe is the course 

of practice of ignoring the result of a freely chosen union election 

in refusing to bargain in good faith with the duly elected representatives of the workers. 

I don’t see anything suggesting we’re going to raise those questions. We certainly will take an opportunity to do so during the discussion with the panel. So I do look forward to hearing from the 

witnesses and thank the Chairman for his courtesies. 

Chairman JOHNSON. Thank you, Mr. Andrews. I appreciate your 

confidence and, you know, I think you and I both look for open discussion in trying to find out the real facts. Despite the fact that 

you’re a lawyer, you’re a good guy. 

Mr. ANDREWS. Flattery will get you everywhere. 

Chairman JOHNSON. We have a very distinguished panel of witnesses before us today, and I thank you all for coming, and I’m 

going to introduce you each. I’m quite impressed by the backgrounds of all three of you. 

6

Mr. Charles Cohen is a partner in the labor and employment 

practice of Morgan Lewis, one of the country’s leading labor law 

firms. Mr. Cohen’s practice focuses on representing senior management in complex labor and employment law matters in the private 

sector. 

From ’94 to ’96, Mr. Cohen served as a member of the National 

Labor Relations Board. Prior to that, Presidential appointment. He 

had in-depth executive and staff labor law experience with the 

NLRB, as well as private practice. 

He has a comprehensive background in collective bargaining 

issues and all facets of labor and employee relations. Mr. Cohen 

also serves as chair of the United States Chamber of Commerce, 

NLRB Subcommittee, and is a fellow of the College of Labor and 

Employment Lawyers. 

Mr. Cohen is testifying today on behalf of the U.S. Chamber of 

Commerce. 

Our second witness, Ms. Nancy Schiffer, has been an associate 

general counsel with the American Federation of Labor Congress of 

Industrial Organization since 2000. Her areas of responsibility involve NLRB and organizing-related projects. 

Prior to coming to the AFL-CIO, Ms. Schiffer was deputy general 

counsel of the United Auto Workers in Detroit, Michigan. In addition to her administrative responsibilities there, her practice areas 

included NLRB, organizing, collective bargaining, and contract enforcement, arbitration, strikes, and lock outs, plant closings, relocations, and retiree health insurance litigation. 

She practiced with a union-side labor firm from ’79 till ’82, and 

prior to that, with the National Labor Relations Board, Detroit Regional Offices, a field attorney. Ms. Schiffer is a member of the 

ABA Labor and Employment Law Section and its committee on 

practice and procedures under the NLRB. 

Our third witness, Mr. Clyde Jacob, is a partner in the labor and 

employment section of Jones Walker, the leading national law firm. 

Mr. Jacob’s experience spans over 25 years, exclusively in the field 

of labor and employment relations, representing management. 

He has represented employers in responding to union organizing, 

boycotts, National Labor Relations Board, representation cases in 

corporate campaigns throughout the United States, Puerto Rico, 

Brazil, Norway, the United Kingdom, Singapore, and Nigeria. 

Before the witnesses begin their testimony, I would like to remind members that we will be asking questions after the entire 

panel has testified. In addition, Committee rule two imposes a 5-

minute limit on all questions. 

And we also would like to adhere to a 5-minute rule on your testimony initially, if you don’t mind. The lights down there that you 

saw them function for us they come on green when you first start, 

and then you’ll see a yellow light with 1 minute remaining, and if 

you would conclude your remarks when the red light comes on. 

I’d like to recognize the first witness now for your testimony. You 

may begin, sir. 

7

STATEMENT OF CHARLES I. COHEN, ESQ., PARTNER, MORGAN 

LEWIS, COUNSELORS AT LAW, AND CHAIRMAN, U.S. CHAMBER OF COMMERCE, NATIONAL LABOR RELATIONS BOARD 

SUBCOMMITTEE, WASHINGTON, DC, ON BEHALF OF THE U.S. 

CHAMBER OF COMMERCE 

Mr. COHEN. Chairman Johnson, Mr. Andrews, and members of 

the Subcommittee, I am pleased and honored to be here today. 

Thank you for your kind invitation. 

At the head of the National Labor Relations Act is the secret-ballot election process, administered by the National Labor Relations 

Board. If a group of employees in an appropriate collective bargaining unit wishes to select a union to represent them, the board 

will hold a secret-ballot election, based on a petition supported by 

at least 30 percent of the employees in the unit. 

The board administers the election by bringing portable voting 

booths, ballots, and a ballot box to the work place. The election 

process occurs outside the presence of any supervisors or managerial representatives of the employer. 

No campaigning of any kind may occur in the voting area. The 

only people who are allowed in the voting area are the NLRB 

agent, the employees who are voting, and certain designated employee observers. 

As the Supreme Court and numbers of Courts of Appeal have 

stated, a secret-ballot election is the preferred method of 

ascertaining whether a union has majority support. Although authorization cards may adequately reflect employee sentiment when 

the election process has been impeded, the Supreme Court recognized that cards are admittedly inferior to the election process. 

Yet, one of the highest priorities of unions today is to obtain 

agreements from employers, which would allow the union to become the exclusive bargaining representative of a group of employees without ever seeking an NLRB supervised election. 

These agreements, which are often referred to as neutrality or 

chard-check agreements, come in a variety of forms. In some cases 

the agreement calls for the employer to recognize the union if it 

produces signed authorization cards from a majority of employees. 

In many cases the agreement includes other provisions, which are 

designed to facilitate the union’s organizing campaign, such as limitations or a gag order on employer communications to employees 

about the union. 

An agreement to provide the union with a list of names and 

home addresses of employees in the unit. An agreement to allow 

the union access to the employer’s facility to distribute literature 

and meet with employees. And an agreement to extend recognition 

based on card checks rather than a secret-ballot election. 

Whatever form the agreement may take the basic goal is the 

same. To establish a procedure which allows the union to be recognized without the involvement or sanction of the NLRB. Neutrality 

agreements and card-check agreements, therefore, present a direct 

threat to the jurisdiction of the NLRB and its crown jewel the secret-ballot election process. There are many explanations for the 

precipitous decline of union density. The globalization of U.S. corporations, the increasing regulation of the work place through FedVerDate 0ct 09 2002 12:10 Oct 18, 2004 Jkt 000000 PO 00000 Frm 00011 Fmt 6633 Sfmt 6602 H:\DOCS\93255 EDUWK PsN: NNIXON
8

eral legislation, rather than collective bargaining, and the changing 

culture of the American work place. 

While unions may not disagree with these explanations to varying degrees, they claim that the NLRB’s election process and the 

current law is to blame. They argue that the election process is 

slow and ineffective, and that this alternate procedure is needed. 

I believe there are two basic problems with this argument. First, 

it is not supported by the facts. The NLRB’s election process is efficient and fair, as demonstrated by hard statistics cited in my statement. Second, neutrality card-check agreements limit employee 

free choice, and are generally the product of damaging leverage exerted by the union against the employer. 

To be sure, there are horror stories of employers who abuse the 

system and commit egregious unfair labor practices in order to prevail in an election. In such cases the law provides remedies for the 

employers’ unlawful behavior, including even bargaining orders 

based on authorization card majorities. But these situations are the 

exception rather than the norm. In the overwhelming majority of 

cases where employees choose not to be represented by a union, 

they do so based on the information that is presented by both sides 

during the campaign process. 

An important problem with neutrality card-check agreements is 

the method by which they are negotiated. They are typically a 

function of leverage rather than a groundswell from the employees 

to have the system determined by that. 

There is no cause, I submit, for abandoning secret-ballot election 

process, which the board has administered for seven decades. The 

Act’s system of industrial democracy has withstood the test of time, 

because its focus is on the true beneficiaries of the Act, the employees. 

In my view the Miller-Kennedy Bill is not sound public policy, 

because it would deprive employees of the fundamental right to determine the important question of union representation by casting 

their vote in a board-supervised secret-ballot election. Indeed, it 

would be unwise public policy to abandon government-supervised 

secret-ballot elections in favor of mandatory card check. I would 

think that that would, in fact, be a self-evident proposition that a 

secret-ballot government election would be preferable. 

I’m aware that the Committee has previously considered quite 

opposite legislation, which would require the union representation 

for currently unrepresented groups of employees be determined by 

a secret-ballot election. Without the increasing use of corporate 

campaigns and neutrality/card check agreements over the last decade—a trend which has eroded employee free choice and which reflects a shift in focus from organizing employees to organizing employers often as a result of corporate campaigns—such legislation 

would not be needed. 

But in light of this trend, such legislation in my view is necessary to protect the interests of employees the Act is intended to 

benefit by ensuring that the right to vote is not compromised by 

agreements which are the product of external pressure on their employer. 

This concludes my oral presentation. 

[The prepared statement of Mr. Cohen follows:]

9

Statement of Charles I. Cohen, Esq., Partner, Morgan Lewis, Counselors at 

Law, and Chairman, U.S. Chamber of Commerce, National Labor Relations Board Subcommittee, Washington, DC 

Chairman Johnson and Members of the Subcommittee, I am pleased and honored 

to be here today. Thank you for your kind invitation. 

By way of introduction, I was appointed by President Clinton, confirmed by the 

Senate, and served as a Member of the National Labor Relations Board from March 

1994 until my term expired in August 1996. Before becoming a Member of the 

Board, I worked for the NLRB in various capacities from 1971 to 1979 and as a 

labor lawyer representing management in private practice from 1979 to 1994. Since 

leaving the Board in 1996, I have returned to private practice and am a Senior Partner in the law firm of Morgan, Lewis & Bockius LLP. I am a member of the Labor 

Relations Committee of the U.S. Chamber of Commerce, and Chair of its NLRB subcommittee, and am testifying today on behalf of the U.S. Chamber of Commerce. 

The National Labor Relations Act was enacted in 1935 and has been substantially 

amended only twice—once in 1947 and once in 1959. The Act establishes a system 

of industrial democracy which is similar in many respects to our system of political 

democracy. At the heart of the Act is the secret ballot election process administered 

by the National Labor Relations Board. In order to understand how recent trends 

in organizing are diluting this central feature of the Act, some background is necessary. 

The NLRB’s Secret Ballot Election Process 

If a group of employees in an appropriate collective bargaining unit wishes to select a union to represent itself, the Board will hold a secret ballot election based 

on a petition supported by at least 30% of employees in the unit. The Board administers the election by bringing portable voting booths, ballots, and a ballot box to 

the workplace. The election process occurs outside the presence of any supervisors 

or managerial representatives of the employer. No campaigning of any kind may 

occur in the voting area. The only people who are allowed in the voting area are 

the NLRB agent, the employees who are voting, and certain designated employee 

observers. 

The ultimate question of union representation is determined by majority rule, 

based on the number of valid votes cast rather than the number of employees in 

the unit. If a majority of votes are cast in favor of the union, the Board will certify 

the union as the exclusive bargaining representative of all employees in the collective bargaining unit. Once a union is certified by the Board, it becomes the exclusive 

representative of all of the unit employees, whether or not they voted for the union. 

The employer is obligated to bargain with the union in good faith with respect to 

all matters relating to wages, hours, and working conditions of the bargaining unit 

employees. 

The Board is empowered to prosecute employers who engage in conduct that 

interferes with employee free choice in the election process, and may order a new 

election if such employer interference with the election process has occurred. The 

Board will also order the employer to remedy such unfair labor practices, for example by ordering the employer to reinstate and compensate an employee who was unlawfully discharged during the election campaign. In extreme cases, the Board may 

even order an employer to bargain with the union without a new election, if the 

Board finds that its traditional remedies would not be sufficient to ensure a fair 

rerun election and if there is a showing that a majority of employees at one point 

desired union representation. The Supreme Court affirmed the Board’s power to 

issue this extraordinary remedy in NLRB v. Gissel Packing Co., 395 U.S. 575 

(1969). When issuing a Gissel bargaining order, the Board will determine whether 

majority support for the union existed by checking authorization cards signed by 

employees during the organizing process. 

As the Board and the Supreme Court have acknowledged, the use of authorization 

cards to determine majority support is the method of last resort. A secret ballot election is the ‘‘most satisfactory—indeed the preferred—method of ascertaining whether a union has majority support.’’ Gissel Packing, 395 U.S. at 602. Although authorization cards may adequately reflect employee sentiment when the election process 

has been impeded, the Board and the Court in Gissel recognized that cards are ‘‘admittedly inferior to the election process.’’ Id. Other federal courts of appeal have expressed the same view: 

• ‘‘[I]t is beyond dispute that secret election is a more accurate reflection of the 

employees’ true desires than a check of authorization cards collected at the behest of a union organizer.’’ NLRB v. Flomatic Corp., 347 F.2d 74, 78 (2d Cir. 

1965). 

10

• ‘‘It would be difficult to imagine a more unreliable method of ascertaining the 

real wishes of employees than a ‘‘card check,’’ unless it were an employer’s request for an open show of hands. The one is no more reliable than the 

other...Overwhelming majorities of cards may indicate the probable outcome of 

an election, but it is no more than an indication, and close card majorities prove 

nothing.’’ NLRB v. S. S. Logan Packing Co., 386 F.2d 562, 565 (4th Cir. 1967). • ‘‘The conflicting testimony in this case demonstrates that authorization cards 

are often a hazardous basis upon which to ground a union majority.’’ J. P. Stevens & Co. v. NLRB, 441 F.2d 514, 522 (5th Cir. 1971). • ‘‘An election is the preferred method of determining the choice by employees of 

a collective bargaining representative.’’ United Services for the Handicapped v. 

NLRB, 678 F.2d 661, 664 (6th Cir. 1982). • ‘‘Although the union in this case had a card majority, by itself this has little 

significance. Workers sometimes sign union authorization cards not because 

they intend to vote for the union in the election but to avoid offending the person who asks them to sign, often a fellow worker, or simply to get the person 

off their back, since signing commits the worker to nothing (except that if 

enough workers sign, the employer may decide to recognize the union without 

an election).’’ NLRB v. Village IX, Inc., 723 F.2d 1360, 1371 (7th Cir. 1983). • ‘‘Freedom of choice is ‘‘a matter at the very center of our national labor relations 

policy,’’...and a secret election is the preferred method of gauging choice.’’ 

Avecor, Inc. v. NLRB, 931 F.2d 924, 934 (D.C. Cir. 1991) (citations omitted). 

Having recognized in Gissel that a secret ballot election is the superior method 

for determining whether a union has majority support, the Supreme Court in Linden Lumber v. NLRB, 419 U.S. 301 (1974), held that an employer may lawfully 

refuse to recognize a union based on authorization cards and insist on a Board-supervised secret ballot election. The only exceptions to an employer’s right to insist 

on an election are when the employer, as in the Gissel situation, has engaged in 

unfair labor practices that impair the electoral process or when the employer has 

agreed to recognize the union based on a check of authorization cards. Thus, an employer can agree to forgo a secret ballot election and abide by the less reliable card 

check method of determining union representation. 

The Increasing Use of Neutrality/Card Check Agreements in Organizing Campaigns 

One of the highest priorities of unions today is to obtain agreements from employers which would allow the union to become the exclusive bargaining representative 

of a group of employees without ever seeking an NLRB-supervised election. These 

agreements, which are often referred to as ‘‘neutrality’’ or ‘‘card check’’ agreements, 

come in a variety of forms. In so me cases, the agreement simply calls for the employer to recognize the union if it produces signed authorization cards from a majority of employees. In many cases, the agreement includes other provisions which are 

designed to facilitate the union’s organizing campaign, such as: 

• An agreement to provide the union with a list of the names and addresses of 

employees in the agreed-upon unit; 

• An agreement to allow the union access to the employer’s facilities to distribute 

literature and meet with employees; 

• Limitations or a ‘‘gag order’’ on employer communications to employees about 

the union; 

• An agreement to start contract negotiations for the newly-organized unit within 

a specified (and short) time frame, and to submit open issues to binding interest 

arbitration if no agreement is reached within that time frame; and 

• An agreement to extend coverage of the neutrality/card check agreement to 

companies affiliated with the employer. 

Whatever form the agreement may take, the basic goal is the same: to establish 

a procedure which allows the union to be recognized without the involvement or 

sanction of the National Labor Relations Board. Neutrality and card check agreements therefore present a direct threat to the jurisdiction of the Board and its crown 

jewel, the secret ballot election process. I have written two law review articles discussing this trend. See Charles I. Cohen, Neutrality Agreements: Will the NLRB 

Sanction Its Own Obsolescence?, The Labor Lawyer (Fall, 2000); Charles I. Cohen 

and Jonathan C. Fritts, The Developing Law of Neutrality Agreements, Labor Law 

Journal (Winter, 2003). 

The motivating force behind neutrality/card check agreements is the steady decline in union membership among the private sector workforce in the United States. 

Unions today represent only about eight percent of the private sector workforce, 

about half of the rate twenty years ago. See U.S. Department of Labor, Bureau of 

Labor Statistics, Union Members in 2003 (Jan. 21, 2004), available at http://

www.bls.gov/news.release/pdf/union2.pdf. There are many explanations for this preVerDate 0ct 09 2002 12:10 Oct 18, 2004 Jkt 000000 PO 00000 Frm 00014 Fmt 6633 Sfmt 6621 H:\DOCS\93255 EDUWK PsN: NNIXON
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cipitous decline: the globalization of U.S. corporations, the increasing regulation of 

the workplace through federal legislation rather than collective bargaining, and the 

changing culture of the American workplace. While unions may not disagree with 

these explanations to varying degrees, they claim that the NLRB’s election process 

is also to blame. Unions argue that the NLRB’s election process is slow and ineffective, and therefore an alternative process is needed—namely, neutrality/card check 

agreements. 

I believe there are two basic problems with this argument. First, it is not supported by the facts. The NLRB’s election process is efficient and fair, as demonstrated by hard statistics. Second, neutrality/card check agreements limit employee free choice and are generally the product of damaging leverage exerted by 

the union against the employer. 

The NLRB’s Election Process Is Efficient and Fair 

The standard union criticisms of the NLRB’s election process are more rhetorical 

than factual. Unions argue that the NLRB’s election process is slow and allows employers to exert undue influence over employees during the pre-election period. Both 

of these arguments are not supported by the facts. 

The NLRB’s election process is not slow. In fiscal year 2003, 92.5% of all initial 

representation elections were conducted within 56 days of the filing of the petition. 

Memorandum GC–04–01, Summary of Operations (Fiscal Year 2003), at p. 5 (December 5, 2003), available at http://www.nlrb.gov/nlrb/sharedlfiles/gcmemo/

gcmemo/gc04- 01.pdf?useShared=/nlrb/about/reports/gcmemo/default.asp. During 

that same time period, the median time to proceed to an election from the filing of 

a petition was 40 days. Id. Based on my experience over the past 30 years, these 

statistics demonstrate that the Board’s election process has become even more efficient over time. 

Unions are currently winning over 50% of NLRB secret ballot elections involving 

new organizing. This is the category of elections that unions are seeking to replace 

with neutrality/card check agreements, and it is also the same category of elections 

that would be replaced by the Miller–Kennedy bill. If anything, unions’ win rate in 

representation elections is on the rise. The NLRB’s most recent election report 

shows that unions won 58.9% of all elections involving new organizing. See NLRB 

Election Report; 6–Months Summary—April 2003 through September 2003 and 

Cases Closed September 2003, at p. 19 (March 26, 2004). 

This figure is about the same as it was 40 years ago. In 1965, unions won 61.8% 

of elections in RC cases (cases which typically involve initial organizing efforts, as 

opposed to decertification elections or employer petitions). See Thirtieth Annual Report of the National Labor Relations Board, at p. 198 (1965). After 1965, unions’ 

election win rate declined before rising back to the level where it is today: 

• In 1975, unions won 50.4% of elections in RC cases. See Fortieth Annual Report 

of the National Labor Relations Board, at p. 233 (1975). 

• In 1985, unions won 48% of elections in RC cases. See Fiftieth Annual Report 

of the National Labor Relations Board, at p. 176 (1985). 

• In 1995, unions won 50.9% of elections in RC cases. See Sixtieth Annual Report 

of the National Labor Relations Board, at p. 153 (1995). 

These statistics undermine any argument that the NLRB’s election process unduly favors employers, or that the recent decline in union membership among the 

private sector workforce is attributable to inherent flaws in the NLRB’s election 

process. Unions are winning NLRB elections at the same or higher rate now than 

they have in almost forty years. To be sure, there are ‘‘horror stories’’ of employers 

who abuse the system and commit egregious unfair labor practices in order to prevail in an election. In such cases, the law provides remedies for the employer’s unlawful behavior, including Gissel bargaining orders. But these situations are the exception rather than the norm. In the overwhelming majority of cases where employees choose not to be represented by a union, they do so based on the information 

that is presented by both sides during the campaign process. 

Problems with Neutrality/Card Check Agreements 

The fundamental right protected by the National Labor Relations Act is the right 

of employees to choose freely whether to be represented by a union. 29 U.S.C. § 157. 

Neutrality/card check agreements limit employee free choice by restraining employer free speech. Section 8(c) of the Act protects the right of employers to engage 

in free speech concerning union representation, as long as the employer’s speech 

does not contain a threat of reprisal or a promise of benefit. 29 U.S.C. § 158(c). 

Unions, through neutrality/card check agreements, seek to restrain lawful employer 

speech by prohibiting the employer from providing employees with any information 

that is unfavorable to the union during the organizing campaign. Such restrictions 

12

or ‘‘gag orders’’ on lawful employer speech limit employee free choice by limiting the 

information upon which employees make their decision. 

A second problem with neutrality/card check agreements is the method by which 

they are negotiated. In my experience, neutrality/card check agreements are almost 

always the product of external leverage by unions, rather than an internal 

groundswell from unrepresented employees. The leverage applied by the union can 

come from a variety of sources. In many cases, the union has leverage because it 

represents employees at some of the employer’s locations. The union may be able 

to use leverage it has in negotiations for employees in an existing bargaining unit, 

in order to win a neutrality/card check agreement that will facilitate organizing at 

other locations. Bargaining over a neutrality/card check agreement, however, has little or nothing to do with the employees in the existing bargaining unit, and it detracts from the negotiation of the core issues at hand—wages, hours, and working 

conditions for the employees the union already represents. 

In other cases, the union exerts pressure on the employer through political or regulatory channels. For example, if the employer needs regulatory approval in order 

to begin operating at a certain location, the union may use its political influence 

to force the employer to enter into a neutrality/card check agreement for employees 

who will be working at that location. Political or regulatory pressure may be coupled 

with other forms of public relations pressure in order to exert additional leverage 

on the employer. In general, this combination of political, regulatory, public relations and other forms of non-conventional pressure has become known as a ‘‘corporate campaign,’’ and it is this type of conduct—rather than employee free choice—

that has produced these agreements. 

Thus, when a union succeeds in obtaining a neutrality/card check agreement, it 

generally does so by exerting pressure on the company through forces beyond the 

group of employees sought to be organized. The pressure comes from employees at 

other locations, and/or it comes from politicians, regulators, customers, investors, 

and the public at large. It is a strategy of ‘‘bargaining to organize,’’ meaning that 

the target of the campaign is the employer rather than the employees the union is 

seeking to organize. 

The strategy of ‘‘bargaining to organize’’ stands in stark contrast to the model of 

organizing under the National Labor Relations Act. Under the Act, the pressure to 

organize comes from within—it starts with the employees themselves. If a sufficient 

number of employees (30%) desire union representation, they may petition the 

NLRB to hold a secret ballot election. If a majority votes in favor of union representation, the NLRB certifies the union as the employees’ exclusive representative and 

the collective bargaining process begins at that point. 

At all times, the focus is on the employees, rather than on the employer or the 

union. There is no cause for abandoning the secret ballot election process that the 

Board has administered for seven decades. The Act’s system of industrial democracy 

has withstood the test of time because its focus is on the true beneficiaries of the 

Act—the employees. In my view, the Miller–Kennedy bill is not sound public policy 

because it would deprive employees of the fundamental right to determine the important question of union representation by casting their vote in a Board-supervised 

secret ballot election. Indeed, that it would be unwise public policy to abandon government-supervised secret ballot elections in favor of mandatory card check appears 

to me to be a self-evident proposition. 

I am aware that this Committee has previously considered quite opposite legislation which would require that union representation for currently unrepresented 

groups of employees be determined by a secret ballot election. Without the increasing use of corporate campaigns and neutrality/card check agreements over the last 

decade—a trend which has eroded employee free choice and which reflects a shift 

in focus from organizing employees to organizing employers—such legislation would 

not be needed. But, in light of this trend, such legislation, in my view, is necessary 

to protect the interests of the employees the Act is intended to benefit, by ensuring 

that their right to vote is not compromised by agreements which are the product 

of external pressure on their employer. 

This concludes my prepared testimony. I look forward to discussing my comments 

in more detail during the question and answer period, but before that, I would again 

like to thank the Subcommittee for inviting me here today, and for its attention to 

these very important developments regarding labor law in the 21st century. 

Chairman JOHNSON. Thank you, sir. We appreciate that. Ms. 

Schiffer, you may begin. 

13

STATEMENT OF NANCY SCHIFFER, ASSOCIATE GENERAL 

COUNSEL, AFL-CIO 

Ms. SCHIFFER. Thank you. Chairman Johnson, Mr. Andrews, 

members of the Subcommittee, thank you for inviting me here 

today, and good morning. 

My name is Nancy Schiffer. I am associate general counsel at the 

AFL-CIO, but I’m also a union member. I’m a member of the National Writers Union, which is Local 1981 of the United Auto 

Workers. I’ve submitted written testimony. I will not recite that 

now. 

What I’d like to do is give some context to this discussion by describing for you what an NLRB election representation process is 

like for workers. And I’ve selected a particular case that I was very 

much involved with, and I’ve—and, coincidentally, it involves a 

case that Mr. Clyde Jacob cited in his written testimony. And so 

it will be illustrative in that regard, as well. 

This employer was a retail store called Hudsons. It was to Detroit what Macy’s has been to New York City. It was the store with 

everything, including the real Santa. But it was sold and things 

changed, and the workers contacted the UAW about forming a 

union. 

At the first meeting, which was advertised by word of mouth, 

there were over a hundred workers. An NLRB petition was filed, 

and the employer apparently, assuming that they would win handily, agreed to have an election. An election was held fairly promptly, and they were quite surprised when in May 1990 the workers 

chose to unionize by a vote margin of 95 votes out of 453. 

This is where I’d like you now to recall Mr. Charles Cohen’s statistics about how quickly elections are conducted and how unions 

are successful about 50 percent of the time, because, in fact, both 

are true in this scenario. There was a quick election and the union 

won, and, yet, this case, as you will see, remains a poster child for 

labor law reform. 

The employer challenged the election, and while that case was 

pending about a year after the election, the employer claimed that 

it had evidence from one of the union’s two initial supporters that 

the authorization cards used to support the NLRB petition had 

been forged. These cards had not been used to obtain recognition 

but only to initiate the NLRB representation process. 

The board denied the employer hearing on this issue, but the 6th 

Circuit Court of Appeals was more receptive. It remanded the issue 

of possible forged cards back to the Board for a hearing. After the 

hearing, the judge said, ‘‘The whole basis of the company’s motion 

to reopen the record, that is, that the union used forged authorization cards to portray a false picture of majority support is grounded 

on fabricated evidence.’’ 

There were no forged cards, and in the other two cases that Mr. 

Clyde Jacob cites in his written testimony, there were also no 

forged cards. The company appealed this decision to the board. 

They lost. They went back to the 6th Circuit Court of Appeals. 

They lost. They filed a petition for—with the Supreme Court of the 

United States. It was denied. 

Now, we’re in October 1996, and six and a half years after workers voted by an almost 100-vote margin to organize they finally get 

14

to the bargaining table. And what do you suppose happens to workers’ support for their union during six and a half years while the 

employer gains the NLRB process to deny them the benefits of why 

they voted for a union. They’re denied their right to bargain. They 

become disillusioned. They give up on their supposedly federally 

protected right to form a union and engage in collective bargaining. 

And in this particular case the woman who had been elected to 

serve as bargaining chair, died of a massive heart attack 2 weeks 

before we got to the bargaining table for the first meeting. 

Meanwhile back on the campaign, a union election held at a 

nearby mall store was set aside because of employer misconduct in 

the election campaign. The remedy; the employer had to post a notice to employees that listed these violations and contained a promise not to commit the violations again. That was the remedy; the 

posted piece of paper on the bulletin board. While that notice was 

posted during the 60-day notice period, the employer violated almost every single provision of the notice that it had agreed it 

wouldn’t violate again. 

So how effective is this as a remedy for workers? How does this 

protect the worker’s free choice? Do workers have a free choice 

when their employer has threatened to relocate the store if the 

union wins? This is what happened. The cook in the restaurant 

was told by her manager—called in to the office and said, ‘‘If the 

union gets in here, you could lose your job. People could be bumped 

off their jobs and the store can close.’’ 

Do workers have free choice when they see that the NLRB process just doesn’t work. A sales employee in the deli department was 

told by her manager that look at what happened at the Hudsons’ 

West Land store. They voted for a union years ago and nothing has 

happened there at all. 

Do workers have free choice when they see that union supporters 

are being followed, spied on, harassed, and videotaped, and that’s 

what happened in these stores. Employees’ supporters were followed into the bathrooms, in and out of the stores, in and out of 

the parking lot. They were videotaped, sometimes in the store, 

sometimes in front of the store in the mall. Not all the employers’ 

wrongdoing came to light. 

I talked to workers in that campaign that were afraid to testify. 

They were afraid that they would lose their health insurance benefit for their children. So does the election process—the so-called 

secret-ballot process provide these workers with a free choice? No, 

it does not. And does it keep the focus on the workers? No, it 

doesn’t. The only way it keeps the focus on workers is with video 

cameras and threats and promises and harassment, and this, to 

me, doesn’t seem like the kind of focus the Act intended. Thank 

you. 

[The prepared statement of Ms. Schiffer follows:]

Statement of Nancy Schiffer, Esq., Associate General Counsel, AFL–CIO, 

Washington, DC 

Thank you for inviting me to testify before the Subcommittee today, my name is 

Nancy Schiffer, I am the AFL–CIO Associate General Counsel. 

Although the notices of today’s hearing do not specify a pending legislative initiative, it gives me an opportunity to speak to pending labor law reform legislation introduced in the 108th Congress by Representative George Miller and Senator EdVerDate 0ct 09 2002 12:10 Oct 18, 2004 Jkt 000000 PO 00000 Frm 00018 Fmt 6633 Sfmt 6621 H:\DOCS\93255 EDUWK PsN: NNIXON
15

ward Kennedy, the Employee Free Choice Act H.R. 3619 and S. 1925, these members have been joined by over 200 of their colleagues as co-sponsors, 180 Representatives and 30 Senators. 

The National Labor Relations Act’s (NLRA) stated purpose and intent was not 

simply to permit, but explicitly to encourage worker self-organization for representation in collective bargaining with their employers. Even with the changes to the law 

that were effected by the Taft Hartley Amendment in 1947, this continued to be our 

nation’s official, primary goal of its labor-relations policy, as reflected in the preamble of the Act. Unfortunately, in recent times the Act has been too often hijacked 

by employers and their agents who espouse a ‘‘union-free environment’’, to the detriment of working families. 

Today U.S. workers have effectively lost their internationally recognized right to 

form a union for the purpose of self-organization to advance their common interests 

in the workplace. Yet, just as much as when the NLRA was passed, workers today 

need and try to form unions to gain an independent voice in the workplace, and to 

ensure they are rewarded and fairly compensated for their labor, that the gains of 

their productivity are shared equitably. Indeed, as U.S. workers today face wage depression, they need unions and collective bargaining more than every, as an everincreasing number of them are uninsured and must rely on publicly financed health 

care services because they lack employer provided health care. Similarly, fewer and 

fewer workers have guaranteed pensions. 

Meanwhile, union workers earn 27% more than non-union workers. Union workers are 53% more likely to have medical insurance through their job. Union workers 

are nearly four times as likely to have a guaranteed pension, according to the U.S. 

Department of Labor, Bureau of Labor Statistics. And recent surveys show that 

some 42 million non-union workers would like to have a union. 

The bitter reality, however, is that U.S. workers typically face insurmountable 

employer opposition today when they seek to form a union. According to NLRB statistics, in 1969, the number of workers who suffered retaliation for union activities 

was just over 6,000. By the 1990s, more than 20,000 workers each year were victims 

of discrimination when they tried to organize a union. Sadly, it has too often become 

an acceptable business practice to threaten, intimidate and discharge workers who 

seek to join with their fellow workers for self-representation. And as employers and 

their union busting consultants know full well, the discharge of one worker has a 

chilling effect on an entire organizing campaign, when workers have no job protection or recourse. 

Furthermore, even without firing workers who try to organize, the well-advised 

employer knows how to manipulate the NLRB election process in such a way as to 

turn the concept of democratic free choice on its head. To appreciate how easy this 

is to do, consider the differences between an NLRB election and an American civic 

election. First, imagine a regular civic election for political office where only the incumbent has the voter file, and with it, unfettered, unregulated access to the voters. 

The challenger, meanwhile, must rely on personal introductions outside the boundaries of the state or district involved, or must stand by the border to that district 

as voters drive by and try to flag them down. Imagine further the election being 

held the incumbent candidate’s party offices, with voters escorted to the polls by the 

incumbent’s staff. Imagine finally that during the entire course of the campaign, the 

incumbent has sole authority to electioneer among voters during at their place of 

employment and during their work time, and further has the right to have these 

voters deported (or fired) if they refuse to listen to this one-sided electioneering. 

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

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

The Employee Free Choice Act is intended to remove these obstacles and at the 

same time improve cooperation between employees and employers by eliminating 

the requirement of mandatory voting when the majority of workers has already expressed its decision to self-organize. Under current laws, it is perfectly legal for a 

majority of employees to choose union representation without the need for an election; however, as it now stands, their employee has the right to veto their decision, 

absent an NLRB election. In civil society we regularly encourage participation and 

membership in other organizations: book and sporting clubs, religious organizations, 

and advocacy groups which further our collective and individual interests. In keeping with one long-declared federal policy of encouraging workers to organize and 

16

bargain collectively, we should make it no more difficult for them to form labor 

unions. 

The Employee Free Choice Act would restore the original intent of our nation’s 

public policy under the National Labor Relations Act by doing three things. 

First, the legislation would provide for majority verification of a union when employees express their desire by signing authorizations. When the NLRB finds that 

a majority of employees have signed authorizations, their employer would be required to recognize and bargain with the employees’ union. This procedure, commonly known as ‘‘card check’’ has always been legal under the NLRA. However 

under current law, private sector employers can insist on an NLRB-supervised election process, even after a majority of workers have demonstrated their desire by 

signing authorizations. Majority verification through authorizations is more democratic than NLRB elections, because it requires a true majority of the eligible voters. 

In NLRB elections, like political elections, there is no guarantee that all who are 

eligible to vote will vote. Under majority verification the workers must show that 

a majority of workers have signed authorizations. 

In an NLRB election, which can often take several months or more, the employer 

is free to wage a campaign where employees are intimidated, threatened, spied 

upon, harassed, and—in a quarter of all cases—fired, in order to suppress the formation of a union. No less an authority than Human Rights Watch finds that the 

fundamental human right of America’s workers to form unions is seriously infringed 

upon as a result. The Employee Free Choice Act will enable workers to form unions 

without going through the meat-grinder of an NLRB election campaign, once a majority of workers sign authorizations demonstrating their desire to form a union. 

Second, the Employee Free Choice Act would provide for first contract mediation 

and arbitration conducted by the Federal Mediation and Conciliation Service 

(FMCS). Employers who never wanted a union in the first instance too often deny 

workers the benefits of collective bargaining by refusing to bargain a contract, and 

current law provides no meaningful remedy. The legislation will give both parties 

access to mediation and after that, binding arbitration, if a first contract has not 

been negotiated voluntarily within a reasonable period. 

Finally, the legislation would create meaningful penalties for violations of the Act. 

The bill would not restrict employer free speech, but would ensure the employer 

speech is not coercive or threatening, or intended to deter employee free choice. 

Under current law discipline or discharge of workers for union activity, threats to 

close or move the workplace, harassment and intimidation of workers at ‘‘captive audience’’ or one-on-one meetings with supervisors on work time, interrogation and 

surveillance of workers suspected of wanting to form a union are all technically illegal under the NLRA. However, there are no real penalties for these and other forms 

of illegal employer conduct to serve as a deterrent. 

For example, the number of instances of illegal discipline or discharge of workers 

for union activity documented by the NLRB skyrocketed from 1,000 per year in the 

early 1950s to 15,000–25,000 annually in recent years. In the case of an employer 

who has been found to have discharged a worker in violation of the Act, the only 

penalty is back pay—less mitigation for earnings received while the case was pending. On average, for the employer, this means merely a $3,000 penalty and a ceaseand-desist posting. Since employers know they face such an insignificant cost, if 

they are found to have violated workers rights, violations to thwart organizing campaigns have increasingly become seen as an acceptable cost of doing business. 

The Employee Free Choice Act would provide for triple back pay awards to workers found to have been illegally fired. The legislation changes the penalty for threats 

and other illegal employer conduct from posting a cease-and-desist order in the 

workplace to fines of up to $20,000 per infraction. The bill provides for the same 

kind of timely injunctive relief against egregious illegal employer conduct that employers have enjoyed since 1947 against illegal union conduct. 

The Employee Free Choice Act is needed to address a severe violation of human 

rights: the pervasive denial of America’s workers’ freedom to form unions and bargain collectively. The harm caused by this denial of fundamental rights is serious, 

not only for workers and their families but for the entire nation. It suppresses 

wages, health care and pension coverage, as well as justice and dignity on the job, 

for union and non-union workers alike. It widens race and gender pay gaps, worsens 

economic inequality, harms political participation, erodes the safety net, and coarsens our society. 

Individual U.S. workers, now more than ever, should have the freedom to join 

with their fellow workers for self-representation to achieve better wages, pensions 

and benefits. Employers interference in their employees’ decision whether to seek 

union representation should not be tolerated. In the past decade we have seen significant wage and earning erosion, job loss, and corporate scandals that have devVerDate 0ct 09 2002 12:10 Oct 18, 2004 Jkt 000000 PO 00000 Frm 00020 Fmt 6633 Sfmt 6621 H:\DOCS\93255 EDUWK PsN: NNIXON
17

astated worker pensions and job security. It is time to restore the rights of workers 

to choose to self-organize and join a union for the purposes of collective bargaining. 

The Employee Free Choice Act would reform the NLRA so that when a majority 

of workers demonstrate their choice to form a union their representative can be certified by the NLRB without the need for the NLRB election process. The legislation 

would also guarantee effective and efficient collective bargaining, and create real 

penalties as a determent to unlawful employer conduct. We urge your support of the 

Employee Free Choice Act, S. 1925/H.R. 3619. Thank you for this opportunity to address the committee. 

Chairman JOHNSON. Thank you, ma’am. I appreciate your testimony. 

Mr. Jacob, you may proceed. Thank you. 

STATEMENT OF CLYDE H. JACOB, III, PARTNER, JONES 

WALKER, NEW ORLEANS, LOUISIANA 

Mr. JACOB. Chairman Johnson and members of the Subcommittee, I am pleased and honored to be here today. Thank you 

for your kind invitation. 

As you’ve heard this morning, union authorization cards begin 

the legal process under section nine of the National Labor Relations Act for a labor union to represent an appropriate unit of employees at an employer. While cards are an integral part of the 

legal representation process, they should not be final arbiter of employee representation. The circumstances surrounding the solicitation of cards does not insure a creditable process, free of pressure 

and intimidation, as do government-conducted secret-ballot elections. 

Let me relate to you a case example that I believe shows why 

legislation to require secret-ballot elections is necessary to ensure 

a private, uncoerced, and creditable legal process for employees to 

choose whether or not they genuinely want to be represented by a 

particular labor union. 

In May of 2000, a new union federation was formed and 

headquartered in Houma, Louisiana, and it was called the Offshore 

Mariners United or OMU. The OMU planned to organize the vessel 

personnel who work on the boats, which service the offshore oil and 

gas industry in the Gulf of Mexico and beyond. 

The campaign lasted for over 3 years, ending this past summer 

when the OMU closed its offices. Union cards were solicited from 

the employees of various boat companies, and one company, Trico 

Marine Services, Inc., became the principle target of the organizing 

campaign. 

Let me share with you some of the voluntary reports, which employees made about their experiences in the card solicitation process. Some employees when solicited at their homes by union representatives said no to signing a card. Yet, they reported repeated, 

frequent home visits by union representatives continuing to try to 

secure their signatures. After eight visits, one vessel officer had an 

arrest warrant issued against a union organizer. 

Another employee reported that union representatives exited 

their vehicle, approached his home with a video camera, recorded 

him, which he believed made him a marked man. A vessel captain 

reported that while he was stationed in Brazil union representatives visited his home, knocked on his door, and when his wife, who 

18

was at home did not answer, proceeded to circle the home for an 

extended time, looking into and knocking on the windows. 

In an unfortunate incident, a fight broke out between a vessel officer and a union organizer at the officer’s home. In another unusual event, union organizers in a recreation boat trolled next to 

company vessels with a six-foot blonde female passenger in a bikini 

who beckoned the mariners like a siren to invite her boat over, at 

which point union cards were solicited. Employees volunteered that 

they signed cards just to stop the pressure and harassment. 

One has to ask whether cards solicited under such conditions 

can, with confidence, be considered reliable indicators of employees’ 

sentiment on which to base union representation. 

Misrepresentations were made by the union representatives to 

persuade Trico employees to sign cards. In an ironic twist, a representation was made to employees to go ahead and sign cards, and 

if they later changed their minds, they could vote differently in the 

election. Of course, the OMU had no intention of gaining representation through an election. Instead its plan was to gain representation through obtaining union cards from a majority of the employees and forcing the company with public pressure and harassment 

to recognize the OMU. 

This plan came to light when the OMU offered the company a 

neutrality agreement, an agreement under which the company 

would facilitate the union’s organizing effort and which insisted 

upon representation based solely on a card check. Trico Marine 

would not sign that agreement, and it faced all manner of attacks 

on the corporation, including disruption of its annual meeting, the 

meetings of its customers, veiled threats to customers and suppliers, attempts to hurt the company with the investment community, the disruption of trade shows and conventions at which the 

company attended or was featured, and threatened secondary boycotts of the company’s subsidiaries in other parts of the world, including Norway, Nigeria, Brazil, and Southeast Asia. 

If the National Labor Relations Act would have permitted Trico 

to file its own petition for a secret-ballot election to resolve the 

matter and end this protracted harassment, it would have. Unfortunately, the law provides very limited circumstances. 

There are also problems with forgery with cards, and I’ve also 

given some case examples of that. Another factor that contributes 

to the high risk to employer rights of relying exclusively upon 

union cards is the refusal of labor unions to return the cards when 

employees want their cards. This problem is further compounded 

by the law, which does not require a union to return a requested 

authorization. 

Attached as an exhibit to my testimony is a letter from the 

NLRB’s 15th regional office to an offshore vessel employee, whose 

name has been redacted, acknowledging that it has no authority to 

require the return of his signed union card, or to rectify the misrepresentations that were made to him. 

In my experience the risk of harassment, intimidation, and forgery in the card solicitation process is too substantial to permit 

union cards to be a method under the Act by which a union can 

establish legal representation. The quiet, sober, and private atmosVerDate 0ct 09 2002 12:10 Oct 18, 2004 Jkt 000000 PO 00000 Frm 00022 Fmt 6633 Sfmt 6602 H:\DOCS\93255 EDUWK PsN: NNIXON
19

phere of the voting booth should be the preferred method in all 

cases. 

Union authorization cards play an integral role in our nation’s 

labor laws on union organizing. They begin the representation 

process, but they should never be the end of that process. That 

should always belong to the democratic secret ballot. Legislation is 

definitely needed to insure this. 

Thank you for the opportunity to address the Subcommittee. 

[The prepared statement of Mr. Jacob follows:]

Statement of Clyde H. Jacob III, Esq., Partner (Labor & Employment) Jones 

Walker, New Orleans, LA 

Mr. Chairman, members of the Subcommittee on Employer–Employee Relations, 

I am pleased and honored to be here today. Thank you for your kind invitation. My 

name is Clyde Jacob, and I am a partner with the Jones Walker law firm in New 

Orleans, Louisiana. For almost 25 years, my practice has been devoted to labor and 

employment law. My clients have included Fortune 500 companies and small, local 

businesses, and my work in the labor law field has taken me around the country 

as well as overseas. 

Union authorization cards begin the legal process under section 9 of the National 

Labor Relations Act for a labor union to represent an appropriate unit of employees 

at an employer. Union representatives or employees of a company solicit employees 

to sign cards, and once 30% of the employees in an appropriate unit sign cards, a 

labor union has the right to invoke the legal machinery of the Act, petitioning for 

a secret ballot election conducted by the National Labor Relations Board (NLRB), 

usually within 50 days or less. While the cards are an integral part of the legal representation process, they should not be the final arbiter of employee representation. 

The circumstances surrounding the solicitation of cards does not ensure a credible 

process, free of pressure and intimidation, as do government conducted secret ballot 

elections. 

Let me relate to you a case example that I believe shows why legislation to require secret ballot elections is necessary to ensure a private, uncoerced, and credible 

legal process for employees to choose whether or not they genuinely want to be represented by a particular labor union. 

In May of 2000, a new union federation was formed and headquartered in Houma, 

Louisiana, and it was called Offshore Mariners United or OMU. With the help of 

the AFL–CIO’s Department of Corporate Affairs, Center for Strategic Research, the 

OMU planned to organize the vessel personnel who work on the boats which service 

the offshore oil and gas industry in the Gulf of Mexico and beyond. The campaign 

lasted for over three years, ending this past summer when OMU closed its offices. 

Union cards were solicited from the employees of the various boat companies, and 

one company, Trico Marine Services, Inc., became the principal target of the organizing campaign. Employees of Trico Marine reported to the company of abusive, coercive, and intimidating tactics in the card solicitation process. Let me share with 

you some of the voluntary reports which employees made about their experience in 

the card solicitation process which occurred throughout the Gulf South in small 

towns and rural communities. 

Some employees, when solicited at their homes by union representatives, said, 

‘‘No,’’ to signing a card; yet, they reported repeated, frequent home visits by union 

representatives continuing to try to secure their signatures, and they complained to 

the company of this harassment. After 8 visits, one vessel officer in southern Louisiana had an arrest warrant issued against a union organizer. One employee reported that the union representatives exited their vehicle and approached his home 

with a video camera recording him, which he believed made him a marked man. 

A vessel captain reported that while he was stationed in Brazil, union representatives visited his home, knocked on his door, and when his wife, who was home, did 

not answer, proceeded to circle the home for an extended time looking into and 

knocking on the windows. In an unfortunate incident, a fight broke out between a 

vessel officer and a union organizer at the officer’s home. In another unusual event, 

union organizers in a recreation boat trolled next to company vessels with a 6 foot 

blonde female passenger in a bikini, beckoning mariners like a siren to invite her 

boat over, at which point union authorization cards were solicited. Employees volunteered that they signed cards just to stop the pressure and harassment. One has 

to ask whether cards solicited under such conditions can, with confidence, be considVerDate 0ct 09 2002 12:10 Oct 18, 2004 Jkt 000000 PO 00000 Frm 00023 Fmt 6633 Sfmt 6621 H:\DOCS\93255 EDUWK PsN: NNIXON
20

ered reliable indicators of employee sentiment on which to base union representation. 

Untrue statements were made by union representatives to persuade Trico employees to sign authorization cards. In an ironic twist, a representation was made to employees to go ahead and sign cards, and if they later changed their minds, they 

could vote differently in the election. Of course, the OMU had no intention of gaining representation through a NLRB conducted secret ballot election. Instead, its 

plan was to gain representation through obtaining union cards from a majority of 

the employees and forcing the company through public pressure and harassment to 

recognize the OMU. This plan came to light when the OMU offered the company 

a neutrality agreement, an agreement under which the company would facilitate the 

union’s organizing effort. It was entitled, ‘‘Constructive Resolution Agreement,’’ and 

it insisted upon representation based solely on union authorization cards from a majority of the employees. 

Trico Marine would not sign the neutrality agreement, which relied only on authorization cards for legal recognition. As a consequence, it faced all manner of attacks on the corporation, including the disruption of its annual meetings and the 

meetings of its customers, veiled threats to customers and suppliers, attempts to 

hurt the company within the investment community, the disruption of trade shows 

and conventions at which the company attended or was featured, and threatened 

secondary boycotts of the company’s subsidiaries in other parts of the world, including Norway, Nigeria, Brazil, and Southeast Asia. If the NLRA would have permitted, Trico would have filed its own petition for a secret ballot election to resolve 

the matter and end the protracted harassment. Unfortunately, the law provides a 

very limited circumstance for this to occur. 

A serious problem with reliance upon union authorization cards as a method of 

gaining legal representation under the NLRA is the possibility of forged employee 

signatures on the cards. There was never any confirmation that this occurred during 

the OMU’s campaign in the Gulf South; however, this has been an issue in other 

cases, and I have referenced reported decisions on this. Dayton Hudson v. NLRB 

et al., 79 F.3d 546; Krispy Kreme Doughnut Corp. v. NLRB, et al., 732 F.2d 1288, 

1293 (6th Cir. 1984); Perdue Farms, Inc. v. NLRB, et al., 927 F. Supp. 897 (E.D. 

N.C. 1996), rev’d on other grounds, 108 F.3d 519 (4th cir. 1997). 

While I have discussed the pressure, intimidation, and distortions that can accompany the card signing process, there is another factor that contributes to the high 

risk to employee rights of relying upon union cards as a method for determining 

legal representation—it is the refusal of labor unions to return cards when employees have sought their return. This problem is further compounded by the law under 

the Act which does not require a union to return a requested authorization card. 

Attached as Exhibit No. 1 to my testimony is a letter from the NLRB’s 15th Regional Office to an offshore vessel employee, whose name has been redacted, acknowledging that it has no authority to require the return of his signed union card, 

nor to rectify misrepresentations. 

In my experience, the risk of harassment, intimidation, and forgery in the card 

solicitation process is too substantial to permit union cards to be a method under 

the Act by which a union can establish legal representation. The quiet, sober, and 

private atmosphere of the voting booth should be the preferred method in all cases. 

Union authorization cards play an integral role in our nation’s labor laws on 

union organizing. They begin the representation process—but they should never be 

the end of that process—that should always belong to the democratic secret ballot. 

Legislation is definitely needed to ensure this. 

Thank you for the opportunity to address the subcommittee. I would respectfully 

request that my written testimony be included in the record, and I would be glad 

to answer any questions. 

[An attachment to Mr. Jacob’s statement has been retained in the Committee’s 

official files.] 

Chairman JOHNSON. Thank you, sir. We appreciate you all’s testimony. It sounds like there’s some disagreement out there. My 

judge over here even shook his head. 

Mr. Cohen, I have a question about the treatment of card checks 

under the law. I understand that under current law an employer 

may agree to recognize a union based on a card check, but it may 

also refuse to do so and insist on an election. I understand further 

that the Board holds that recognition of a union pursuant to a 

21

card-check system is lawful, and that a union, which is recognized 

in such a way is a bona fide collective bargaining agent for the employees. 

My question is this is the validity of unions recognized by a card 

check system a function of the NLRA? That is does the Act compel 

such recognition, or is it subject to differing interpretation by case 

law? 

Mr. COHEN. Mr. Chairman, the Supreme Court called LyndonLumber established that voluntary recognition based on authorization cards is a permissible, lawful means for the employer in the 

union to establish that agreement. So I think we find the law in 

that posture as we speak, and one would not expect the prosecutor 

of the National Labor Relations Board, the general counsel, to be 

attacking a principle such as that. 

If there were to be a change, that would be the kind of change 

that one would expect would need to come from Congress; the 

change the law because of a disagreement with the Supreme Court 

law and as that law has been interpreted by the NLRB. 

There are areas, however, where coercion, of course, is not permissible on either side. Under the law, today, an employer cannot 

coerce, a union cannot coerce, and if there are facts of coercion, one 

would expect those cases to be prosecuted, as well. But the basic 

notion of card check recognition is one which is established and embedded in the law as we speak. 

Chairman JOHNSON. How would you suggest we change the law, 

if we change it? 

Mr. COHEN. If we were to change it, I believe it would be based 

on the changed circumstances, and that is it is one thing for an employer to deal with the union and say to the union if a majority 

of the work force desires representation that the employer will forego its right to have an election and do it based on authorization 

cards. And that’s where we were approximately 10 years ago. 

The problem as I see it is that over the last 10 years there has 

been a vast increase in this kind of activity, but it hasn’t just been 

that activity. It’s been that activity coupled with corporate campaigns, neutrality agreements, access, et cetera, so that there is in 

my opinion an element of the union not getting these kinds of 

agreements, because it’s something the employer wishes to do. But, 

rather, it’s because there’s been a corporate campaign. There’s been 

a leveraging of the union’s existing bargaining relationships, such 

that the employer knows it won’t get the next collective bargaining 

agreement, something of important value to it, unless it gives this 

for an unrelated group of employees. It comes from a variety of 

sources, and I think if the legislation were to be enacted by Congress, it would be as a result of these changed facts over the last 

decade. 

Chairman JOHNSON. Ms. Schiffer, you talked about a delay in 

getting an employer contract after the election or after the fact, 

and how do you think we can resolve that delay problem, because 

you know and I know that both sides are going to drag their feet 

if they can. 

Ms. SCHIFFER. I think there’s a good solution to that in the Employee Free Choice Act that’s been introduced in both Houses, 

which provides for first contract arbitration. And that that would 

22

be a way to ensure that workers really get the benefit of what 

they’ve—when they select employee—a union to represent them. 

I’d like to, if I could, go back to one thing that Mr. Cohen just 

said in his response. Is that— 

Chairman JOHNSON. Go ahead. 

Ms. SCHIFFER. There has been research done on what we call 

card check neutrality agreements by two professors, one from Rutgers, one from West Virginia University, which I can provide you 

with the research. But they—their research shows that corporate 

campaigns are ‘‘not a frequently used strategy to secure these 

agreements.’’ 

They say that they’re often secured the good old-fashioned way 

through a work stoppage, which, I think, is for the most part still 

lawful; parts of it. And that at least a third of such agreements are 

reached within the context of a broader labor management partnership, in which employers agree to an organizing process that will 

be less disruptive than the NLRA representation process. 

And when these are agreed to, they are sometime card checked. 

They are sometimes neutrality. Some of them don’t involve card 

checks. Some of them involve a privately conducted election. Some 

of them don’t involve neutrality. Some of them involve a code of 

conduct where both parties agree as to how they will be bound, and 

they agree to an arbitration process that will immediately resolve 

any disputes. So they don’t have to wait six and a half years to get 

to the bargaining table. 

Chairman JOHNSON. Mr. Jacob, did you want to comment? You 

looked fidgety down there. 

Mr. JACOB. Thank you for your observation. 

Chairman JOHNSON. Punch the button again. Turn the microphone on. 

Mr. JACOB. Thank you for your observation. I would say that 

when you find this delay after a union has been elected quite often 

there is a reason for it. It’s because the union has made very overthe-top type of promises to the employees to get them to vote. And 

so quite often you will have a longer period. 

And it’s hard to have a one size fits all for contract negotiations. 

Look at this past summer with the very tough negotiations that 

went on out in California with the supermarkets that were out 

there. I mean, if you try to squeeze negotiations into a tight little 

pen, you’re really going to upset the economic system that we have 

in play that is a very fair economic system. 

Mr. COHEN. Mr. Chairman, could I make one— 

Chairman JOHNSON. Go ahead, yes. 

Mr. COHEN. Thank you. It has to do to the notion that Ms. 

Schiffer raised concerning first contract arbitration. We’ve had a 

principle in this country and it’s been embedded in our labor laws 

since 1947. That doesn’t require the employer to agree to a particular substantive term. The notion is it’s the employer that has 

to meet payroll. It’s the employer that has to compete with the 

competition and must ultimately have the say as to what the contract term that it will agree to. 

To be sure, it can be as a result of economic warfare; the strike, 

the work stoppage. That’s fine. The notion of turning that over to 

an arbitrator to have the arbitrator either split the baby or decide 

23

in some fashion what the agreement would be. Just imagine if in 

the West Coast supermarket situation the arbitrator were to decide 

that these employees ought to be given full benefits for whatever. 

The employer, of course, has to compete with non-union competition up and down line. 

So while it may sound nice and equitable to have an arbitrator—

a neutral third person—decide a dispute, when you’re talking about 

the terms of a labor contract it is truly an unacceptable kind of resolution in my judgment. 

Chairman JOHNSON. Thank you. Mr. Andrews, do you care to 

question? 

Mr. ANDREWS. Thank you. Mr. Jacob, in your testimony regarding the Trico organizing campaign, your testimony is limited to 

that campaign, correct? 

Mr. JACOB. Yes, it is. 

Mr. ANDREWS. You didn’t study any other organizing campaigns 

or research any other ones in your testimony today? 

Mr. JACOB. I have been involved in many, many campaigns in 

my career, but that focus was the Trico, yes. 

Mr. ANDREWS. Your testimony is about Trico. On page—they’re 

not numbered—where you tell the incident about eight visits from 

a union organizer to a vessel officer in Southern Louisiana, do you 

know if that organizer had access to the work place to visit the vessel officer in the work place? 

Mr. JACOB. The work place for boats that are quite often out at 

sea, and so the union was able to get the home addresses and 

phone numbers. 

Mr. ANDREWS. So was the union organizer permitted to board the 

ship when it was in port if the officer was working on the ship 

there? 

Mr. JACOB. No, he was not. 

Mr. ANDREWS. So where was the union organizer supposed to 

visit the vessel officer to make his pitch? 

Mr. JACOB. At the vessel officers’ homes. At meetings that were 

held in the community— 

Mr. ANDREWS. So there were eight visits. And you indicate that 

an arrest warrant was issued against the organizer. What was the 

disposition of that case? Was the union organizer arrested? 

Mr. JACOB. It just went away. 

Mr. ANDREWS. Did it go away, because the complainant dropped 

charges? What happened? 

Mr. JACOB. The complainant just eventually dropped charges, 

and the whole issue just dissolved. 

Mr. ANDREWS. So there was a warrant issued but there was 

never a prosecution? 

Mr. JACOB. That’s correct. 

Mr. ANDREWS. The other stories that are reported here about 

people visiting homes of vessel officers when they’re in Brazil and 

so on and so forth were there any criminal charges filed as a result 

of any of those incidents? 

Mr. JACOB. No. 

Mr. ANDREWS. Were there any civil charges filed as a result of 

those incidents? 

Mr. JACOB. No. 

24

Mr. ANDREWS. Were there any charges filed with the National 

Labor Relations Board or any administrative agency as a result of 

these incidents? 

Mr. JACOB. No. 

Mr. ANDREWS. OK. Let me ask you a question about the exhibit 

that you’ve attached, the letter from Mr. Wells. And as I understand the facts, which I can imply from reading Mr. Wells’ letter, 

an individual who is a part of the group that they’re trying to organize signs a card and then decides that he doesn’t want—he wants 

to revoke his signature of the card. He wants his card back, correct? 

Mr. JACOB. He liked to get his card back. 

Mr. ANDREWS. Right. So did the employee advise the union that 

he wanted his card back, because he wanted to revoke his consent 

to the union? 

Mr. JACOB. Yes, that was my understanding. 

Mr. ANDREWS. Now, if this had gone to a count—if we’re going 

to count the number of cards, either for the purpose of certifying 

the election or under a voluntary agreement for certifying the 

union, would this individual’s card have counted? 

Mr. JACOB. I believe it would have. 

Mr. ANDREWS. You think it would have? 

Mr. JACOB. Yes. 

Mr. ANDREWS. I would disagree with that conclusion, and I 

would point—I would ask unanimous consent to enter into the 

record three cases. 

Chairman JOHNSON. Without objection. 

Mr. ANDREWS. One is involving Emerald Industries. It is case 

number 9-CA-37493, in which the general counsel of the NLRB 

found that the employer lawfully refused to recognize a union in 

a card check when it was shown that the union had lost its majority because of revocation letters signed by employees. So whether 

it was revocation by the employees, the card didn’t count, irrespective of who physically had the possession of the card. 

Second, there’s a case called King Supers, Inc., case 27CA12362, 

going back to 1993, where the general counsel found that six employee card rescissions negated the union’s majority status before 

the card check occurred. Again, irrespective of the physical custody 

of the card. 

And then, finally, a case from just last September under the 

heading of Le Marquis Hotel, 340 NLRB number 64, in which case 

there were two—as I understand it, two competing unions. Employees signed cards for both unions, and it was held that the card for 

the first union was invalid, because the act of signing the second 

one indicated revocation. 

Now, I guess, my point to you is that it seems to me that irrespective of who had physical custody of the card that the fact that 

the employee had made evidence of his desire to revoke his consent 

to the card means his vote doesn’t count or the card doesn’t count. 

Isn’t that right? 

Mr. JACOB. I guess my experience has been is that employees do 

seek to get their cards back. The unions don’t give it to them, and 

then election moves forward quite often when employees have 

cards that have not been given back. 

25

Mr. ANDREWS. But if the employer contests the certification of 

the election on grounds that the card was revoked, these cases say 

the card was revoked, right? That means you fall below the threshold the statute requires there’s no election or there’s no certification? 

Mr. JACOB. My experience is that elections have gone forward. 

That the Board regional offices will not accept an employer argument that we’ve got a number of employees who would like to get 

their cards back, and the Board tells us it’s a showing of— 

Mr. ANDREWS. Mr. Jacob, I would ask if you would supplement 

the record by giving us cases that cite that instance. 

Mr. JACOB. I would be happy to supplement the record. 

Mr. ANDREWS. Thank you, Mr. Chairman. 

Chairman JOHNSON. Thank you, Mr. Andrews. Mr. Kline, do you 

wish to comment? 

Mr. KLINE. Yes, thank you, Mr. Chairman, and thank you, lady 

and gentlemen, for being here today. It is clear, as the Chairman 

said, there is some disagreement. It seems to me that we are looking for a way to allow workers to decide to unionize in a fair way; 

fair to both employers and employees. And, clearly, there is disagreement as to what that would be. 

Mr. Cohen, data from the National Labor Relations Board indicates that during a period spanning 1999 to 2003 of the roughly 

14,000 elections held by the Board objections were only filed in 3 

percent of them. And half of those objections came from the employer. What does that indicate to you the fact that unions filed objections in less than 2 percent of the elections? 

Mr. COHEN. Mr. Kline, it would indicate to me that the system 

is working indeed. 

Mr. KLINE. It would seem so. Thank you. Mr. Jacob, a question 

for you, and, of course, I welcome, Mr. Cohen, any comments that 

you would have on this. 

In her testimony today Ms. Schiffer—and I thank her for her testimony. It was, in fact, quite enlightening -- Ms. Schiffer stated 

that 20,000 employees, I think is the number, allege that they were 

the victims of discrimination every year. And, Mr. Jacob, I’m curious in your experience how many of these allegations generally 

contain any real merit, and how many times are they filed simply 

to get back at an employer? 

Mr. JACOB. My experience is that many are filed. Many are dismissed. Many are withdrawn by charging parties, and some moved 

forward. So I don’t think that you can say that all 20,000 are valid, 

you know, legitimate charges. 

Mr. KLINE. And do you have some case study that you could submit to the record— 

Mr. JACOB. Really I’m basing it just on my experience. Of the 

number of charges that I handle, I see every type of result coming 

from it, including some that go to trial, some that get dismissed, 

some that are withdrawn. 

Mr. KLINE. I see. And, Mr. Cohen, do you have anything to add 

to that? 

Mr. COHEN. Yes. I would mention that historically—and I did 

start working for the NLRB myself back in 1971, so I’ve been there 

26

on two different stints; one time for 8 years, one time for two and 

a half years. 

There’s something known as the merit factor, which has remained relatively constant over the decades, and that is of all the 

unfair labor practice charges, which are filed, 2/3 of them are typically either dismissed or withdrawn, and the remaining 1/3 are 

deemed to have merit. And of that 1/3, significantly 90 percent of 

the so-called meritorious cases settle before an NLRB hearing on 

the matter. So they’re then resolved. 

To be sure, certain ones are litigated. To be sure, certain ones 

go through the court system. And, obviously, to go through the 

court system, takes time. But that would be the basic yardstick, 

which, again, hasn’t changed over the decades. 

Ms. SCHIFFER. Mr. Kline, if I could. 

Mr. KLINE. Yes, certainly. 

Ms. SCHIFFER. In my testimony I believe that these figures are 

not charges filed but adjudicated cases. So that this merit factor in 

terms of going forward with the charge or the merit factor in terms 

of whether the case is won or lost is not in play. And I would be 

happy to supplement the record to make that more clear. 

Mr. KLINE. Yes, I’d like to see that. It’s 20,000 adjudicated cases 

you’re talking about? 

Ms. SCHIFFER. Not cases. Workers. 

Mr. KLINE. Workers. I see. OK, thank you very much. 

Ms. SCHIFFER. And I would like to go back, if I could, to one issue 

you raised with Mr. Cohen. These numbers in terms of number of 

objections filed. I’d like to go back to one thing I mentioned but 

very briefly in my testimony, and it’s really illustrative and it’s 

something that I’ve had to do over and over and over again in my 

practice, representing workers and unions. And that is talking to 

workers who say I know what happened to me was wrong. I want 

to testify about it, because I know the employer gets away with it 

if I don’t but I can’t. 

And I will always have this memory vividly where I was standing in my house when I had this phone call with a woman who said 

I have a 10 year old son. He’s asthmatic. If I lose my job, I can’t 

afford his medications. I cannot testify. And this is a point the 

needs to be kept in mind when we say, oh, well, unions don’t file 

anything so it must be OK. We can’t file unless we have witnesses, 

and workers are out witnesses, and they have to be willing to put, 

not only their careers, but their families’ welfare on the line. 

Mr. KLINE. Thank you. And my guess—I have just one moment 

left. And my guess would be that there are some similar heartwrenching stories of union workers who were asked to sign a card 

and had no choice, and I’d be interested in any comment from Mr. 

Jacob or Mr. Cohen to that effect. 

Mr. JACOB. Well, I believe ultimately we all have—excuse me—

we all have choices, but I do know that often times people sign 

cards who do not wish to sign cards. And that’s why a secret ballot 

election is really the ultimate crown jewel, as Chuck Cohen has 

said, for resolving questions of representation. 

Mr. KLINE. Thank you. Mr. Chairman, I yield back. 

Chairman JOHNSON. The gentleman’s time has expired. Mr. Kildee, do you care to question? 

27

Mr. KILDEE. Yes, thank you, Mr. Chairman. First of all, according to such scholars as Kate Ruffenbrenner and John Logan, the 

National Labor Relations Board election process very often exposes 

workers to weeks and very often months of employer threats, surveillance, coercion, firings, and intimidation. As a matter of fact, 

when my dad sought to join the union back in 1935 in Flint, Michigan, the site of the sit-down strike, he had to face goon squads with 

blackjacks, and we’ve become more sophisticated in those years 

since then. 

Now, it’s lawyers and labor consultants with briefcases that generally stand in the way of organizing. And I certainly—I prefer 

that, the briefcases to the blackjack, but it can be very effectively 

also in blocking the right of workers to join a union. 

The situation is so bad that the human rights watch finds the 

United States to be in serious violation of international human 

rights with respect to the protection of workers’ freedom of association. And that should concern us, because the human rights watch 

is a very respected group. 

But I do think that from the time of 1936 to now human nature 

being what it is very often employers want to run their business 

without any input from the workers or even input as to the wages 

and hours, and that they’ve changed maybe tactics and become a 

little more sophisticated, but their just as effective as they were 

back in 1936. 

I can recall my good friend Walter Reuther being half beaten to 

death in the battle of the overpass with the goon squads and the 

blackjacks back in that time. So I think we have to be concerned 

to make sure that workers are not intimidated in seeking collective 

bargaining. Collective bargaining has changed. It’s certainly 

changed the quality of life in Flint, Michigan, and changed the 

quality of life in the Kildee household. 

Let me ask a question. I’ll ask Ms. Schiffer. Mr. Cohen has characterized card check agreements on page six, arising from corporate 

campaigns, including a number of elements. And that employers 

are essentially forced into signing these agreements. Would you 

care to comment on that? 

Ms. SCHIFFER. Yes. We use the term card check to cover a whole 

wide variety of agreements between—agreements about alternatives to the NLRB representation process. And they may include 

card check. They may not. They may include a private election. 

Some of them actually include an NLRB election but only that 

part. Some of them do include card check. 

Typically, there are bilateral restrictions on both the union and 

the employer on conduct and speech, and the point is that the parties have a code of conduct. They know that they can this way 

avoid the divisive and the really confrontational process that is inherent—that’s encouraged by the NLRB representation process. 

And so these alternatives accord a workforce an alternative to 

that kind of polarization that the NLRB process encourages. It 

also, as a matter of fact, saves employers millions of dollars in antiunion consultant fees; a whole cottage industry blown up to take 

advantage of the NLRB process. 

And with a much shortened process, the parties can get on to 

issues that they’re both interested in. Work place issues, quality 

28

issues, productivity issues, business success issues, instead of going 

through one of these years’ long fight. 

Mr. KILDEE. Let me ask you another part of this hearing today 

is corporate campaigns. How often are corporate campaigns used? 

Is this a frequent strategy to secure neutrality? 

Ms. SCHIFFER. Research has been done by professors Adrienne 

Eaton, who is at Rutgers University, and Jill Kriesky, who’s at 

West Virginia University. And they studied these types of agreements. And their research indicated that, in fact, corporate campaigns are not frequently used as a strategy to secure. That often 

it’s traditional worker leverage in the form of a strike; a work stoppage. And that for many such agreements the part of an overall 

labor/management partnership where the parties can agree on a 

code of conduct to regulate the organizing process. 

Mr. KILDEE. Thank you very much, Ms. Schiffer. 

Chairman JOHNSON. Thank you, Mr. Kildee. Mr. Tierney, do you 

care to question? 

Mr. TIERNEY. I do. Thank you, Mr. Chairman. 

Chairman JOHNSON. You’re recognized for five. 

Mr. TIERNEY. I thank you. Ms. Schiffer, maybe you can help clarify something for me. We’re all talking—at least all three of the 

witnesses have talked about their great concern for participation of 

the employee. On a card check process it’s a majority of employees 

that have to sign the cards in order for the union to be acknowledged; am I correct? 

Ms. SCHIFFER. That’s right. 

Mr. TIERNEY. But in an election it’s just a majority of those voting? 

Ms. SCHIFFER. That’s correct. It doesn’t have to be a majority of 

the workforce. 

Mr. TIERNEY. Do we have any statistics as to—on elections generally how many times an actual majority of the employees vote or 

participate in the election? 

Ms. SCHIFFER. I don’t have those statistics. 

Mr. TIERNEY. Let me go over some other statistics and ask you 

if you’re familiar with those in terms of the elections versus the 

card. Are you aware that 25 percent of employers are found to have 

illegally fired or disciplined at least one worker for union activity 

during organizing campaigns? 

Ms. SCHIFFER. Yeah, I’ve had a lot of experience with that, unfortunately. 

Mr. TIERNEY. Are you aware that 75 percent of employers hired 

consultants or union busters to help them fight union organizing 

drives? 

Ms. SCHIFFER. Employers spend millions of dollars on anti-union 

consultants. 

Mr. TIERNEY. Are you aware that 78 percent of employers force 

employees to attend one-on-one meetings with their own supervisors against the union? 

Ms. SCHIFFER. That’s one of the most common techniques, because the employer has literally full-time access to workers. 

Mr. TIERNEY. And are you aware that 92 percent of employers 

force employees to attend mandatory closed-door meetings against 

the union? 

29

Ms. SCHIFFER. Right. Another extremely frequently used tactics 

where employees have to be there. They can be told that they cannot speak, they cannot ask questions, and they can, in fact, be fired 

if the employer says that and they still try to ask a question just 

trying to get information. 

Mr. TIERNEY. Are you aware of the finding that 52 percent of employers threaten to call immigration officials during organizing 

drives that include undocumented employees? 

Ms. SCHIFFER. When we have workforces trying to organize, who 

include undocumented workers, it’s a threat over them that is just 

unequaled. 

Mr. TIERNEY. And are you aware that there’s findings that 51 

percent of the companies threaten to close the plant if the union 

wins the election? 

Ms. SCHIFFER. Yes. And, in fact, the percentage of plants that actually close when they’re organized is almost negligible, and, yet, 

this many employers threaten that they will. 

Mr. TIERNEY. In 1998, there were 24,000 cases won by workers 

who had illegally been discriminated against for engaging in legally 

protected union activities. Do you have anymore recent figures—

knowledge of more recent figures than those from 1998? 

Ms. SCHIFFER. I don’t believe that I do, but if I do, we’ll supplement the record. 

Mr. TIERNEY. Now, one of the concerns in my district at least and 

in Massachusetts generally is the concern that even after unions 

have won an election they have an awful difficult time getting to 

their first contract, and I think the statistics show that in 32 percent of the times elections by workers to have a union occur but 

2 years later they still don’t have any contract. 

Now, Mr. Cohen, you had discussed earlier the employee Free 

Choice Act. To get to the first contract, is what we’re talking about 

and that provision of the law that indicates that after 90 days if 

no agreement can be reached either party may petition for a mediation or conciliation. Am I right? All right. And if that doesn’t work 

or come to a resolve, then 30 days after that 90-day period it can 

go to arbitration for the first 2-year contract? 

Ms. SCHIFFER. Yes, for the first contract. 

Mr. TIERNEY. And then after that they’re back on track, but I 

think it addresses the issue that seems to be almost too prevalent 

here. A third of the contracts still aren’t done after 2 years when 

people elect to have a union. And I think that speaks volumes to 

the fact that, you know, this is a process that’s not working right 

now. That the NLRB is not living up to its requirements on elections, and that in a country that has freedom of association we 

should encourage people to work agreements, freedom to contract. 

But if an employer wants to reach an agreement, then certainly 

should be able to reach an agreement and come to a peaceful resolution of this to move forward. 

And, last, I think that what these companies are concerned 

about, you know, corporate activities or unions getting involved in 

their corporate board meetings and things of that nature. Most of 

these unions or many of them have investments in those companies, and they have a great interest that that company provide in 

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fully, that’s why they would get involved and try to make this thing 

work out under the law. And so I thank you for your testimony 

today and I yield back the balance of my time. 

Chairman JOHNSON. Thank you. Mr. Cohen, did you want to 

make a comment? You acted like it. 

Mr. COHEN. Just two brief things. 

Mr. TIERNEY. Am I yielding my time to the chair or are you just 

giving me more time, Mr. Chair? Exercising a prerogative. 

Chairman JOHNSON. I’ll usurp a little. Is that OK? 

Mr. TIERNEY. As long as it’s reciprocal. We’d love the same opportunity. 

Chairman JOHNSON. Thank you. 

Mr. TIERNEY. Thank you. 

Mr. COHEN. I believe the record ought to reflect that, again, one 

of the very strong points about the NLRB election process is that 

voter turnout is typically exceedingly high, and I am going to have 

to somewhat speculate here, but I believe it’s up in the 80-percent 

range. And, obviously, when we compare that to the statistics for 

the political situation, it’s a very healthy— 

Chairman JOHNSON. Yeah. Can you get us some statistics on 

that, because I think his question was a good one. 

Mr. COHEN. Would be happy to. And the NLRB in their annual 

reports would have those statistics I feel very confident. 

Chairman JOHNSON. Please forward them to the Committee and 

both sides. 

Mr. TIERNEY. Thank you. Then I’ll just follow up with one on 

that. Do you at all have any information that would call into the 

question the statistic that 32 percent of the elections in which voters—workers vote and a union still has no contract after 2 years? 

Mr. COHEN. I don’t have anything specific, but I would mention—

and I don’t have the study in front of me, but I believe one of the 

studies that you were referring to was the Bronfenbrenner study, 

and it’s my recollection that that study was done by interviewing 

union organizers alone. In other words, at the conclusion of an organizing campaign, the academic study goes and talks to union organizers to come up with these kinds of statistics. And I believe the 

unreliability of that type of a method speaks for itself. 

Mr. TIERNEY. Well, I’m not sure it does. So why don’t you tell me 

how—do you thing all those people are lying? 

Mr. COHEN. Not necessarily lying. But there are perceptions. I 

think— 

Mr. TIERNEY. A perception of whether or not you have a contract? That seems to be something you can determine without perception. 

Mr. COHEN. Perception about employees who have been discriminated against. 

Mr. TIERNEY. But my question here was whether or not a third 

of those contracts remain uncompleted after a 2-year period. That’s 

no perception. It’s either it has been done or it hasn’t been done. 

Mr. COHEN. I don’t have an answer to that, Mr. Tierney. 

Mr. TIERNEY. Thank you. 

Chairman JOHNSON. Can you find that out for us too? 

Mr. COHEN. I can attempt to, yes. 

Chairman JOHNSON. OK, thank you. Thank you. 

31

Ms. SCHIFFER. It may be helpful to Committee to have Dr. 

Bronfenbrenner testify here. 

Chairman JOHNSON. Ms. McCollum, do you care to question? 

Ms. MCCOLLUM. Thank you, Mr. Chair. Have any of the witnesses ever attempted to deliver union cards at the 30-percent 

level, which requests an election? Have any of you ever participated in doing that, or either not accepting the cards or taking the 

cards? 

Mr. COHEN. It’s my experience that unions don’t petition with 

just 30 percent. They have typically greater than 50 percent. Often 

60, 70 percent before they go to the NLRB to file. 

Mr. JACOB. Likewise it’s been my experience too. 

Ms. MCCOLLUM. Well, Mr. Chair, I’m going to—I’ve been in Congress just a short while, and I haven’t done this in a Committee 

before, but rather than ask a question now, I’m just going to—not 

state opinion—but state first-hand witnessing. 

I have been with unions when they have tried to deliver cards 

and management has been present to receive them and management has refused to come out and meet with the unions to receive 

the cards. Then I have been present over an hour when there is 

someone that says that they will meet with the union organizers. 

They are not management from the store. When I ask them where 

they’re from, they’ve been flown in from another area, and they use 

intimidation. They use intimidation so that the cards are not delivered, and as we heard the gentleman speak, well over 30 percent 

of the employees have asked. 

Now, about these cards. Employees know that the employer is 

going to know who signs a union card. It takes a tremendous 

amount of courage in many instances to put your name on a card. 

And then the meetings start. And I’m not speaking from anything 

by personal experience in management. Then the meetings start 

one on one. 

Well, do you know if we do this we’re going to have to lay people 

off or your hours are going to have be cut. Are you sure you want 

to do this? Is this in your best interest? You know, we were thinking of maybe having you go into a more supervisory position. 

Maybe you want to think about this, and you need to decide if it’s 

in your family’s best interest. 

Managers are brought in. Your expectation here is not to be neutral. Your expectation in management is to support the company 

and the company does not want a union. And that’s what you’re to 

do. You’re to speak against unions. 

Then there are the union organizers who come in. I sold film to 

them, thousand-speed film. Why do you need thousand-speed film, 

I said. Well, we’re going to photograph the workers while they’re 

working to find out who’s saying what to who. I was in meetings 

when people spoke very openly about filming people when they 

came out to the VFWs after the union meetings, because we want 

to find out who the agitators are. 

Then there’s election day. Yeah. Everybody shows up. Thank 

heavens it’s a secret ballot, because the employer knows whether 

or not you’ve shown up, as well as the union organizer. And the 

people do show up to vote. And that’s a good thing. First contract. 

Took the union quite a while. Cards were contested. Peoples’ job 

32

classifications were even changed so that they could throw out 

cards. 

Then first contract came and it was the last management meeting I attended, because, quite frankly, we had had enough of each 

other. The attorneys came in. Here is how it works. If we don’t get 

a first contract, the union loses confidence with its members and 

it’s all over. And other people won’t be tempted to look at organizing, so we’re going to make this difficult, and we have the resources, the time, and the energy and the money to do it. 

I just think we need to be straight here. There are some employers out here who follow the letter in the spirit of the law. And 

many times people choose not to organize. There are employers 

that follow the letter in the spirit of the law and they work with 

their unions, not always in harmony. Not always it’s a wonderful 

life, but they work together. And then there are employers that use 

fear and intimidation time and time and time again. 

And that’s why when employees show up to vote their vote 

counts, but that’s why also we have to use a secret ballot, because 

people are afraid at times to put their name on the line on a card, 

because the employer is going to be calling them into their office. 

Chairman JOHNSON. Thank you, Ms. McCollum. Mr. Ballenger, 

do you care to question? 

Mr. BALLENGER. Yes, sir. And I’d like to apologize to the panel. 

I happen to be Chairman of the Western Hemisphere, and I had 

to meet with the OAS for just a second. 

I am, as some people know, a manufacturer myself, and I’d like 

to ask Mr. Cohen if he’d like to comment on Ms. McCollum—what 

are the reasons an employer—and I understand most of them—

would not accept cards. Would you explain that. 

Mr. COHEN. Sure. I believe that as a general rule employers 

would be well advised to refuse to look at cards, and the reason for 

that is there is a process—the employer has a right that’s guaranteed under the law to have a secret-ballot election. But the employer can agree to look at the cards and then be bound by the determination if, in fact, there’s a majority. 

So if I were an employer, I would personally say I don’t want to 

see the cards. You’ve got a process. I don’t want to compromise 

anybody’s integrity. I want to protect their secrecy. Let it be. So, 

therefore, just file your petition, if that’s what you want. You will 

have a secret-ballot election, and I believe we’re in agreement on 

that if I might presume that. The importance of that secret-ballot 

election to the employee. I don’t think the employee is entitled to 

anything less than that. 

Mr. BALLENGER. Just following up on—Ms. Schiffer, if I may, 

what is the AFL-CIO’s position with respect to the decertification 

proceedings? Put another way when employees are trying to vote 

out the union does the AFL-CIO maintain that a secret ballot is 

and I quote, ‘‘not comparable to the privacy and independence of 

the voting booth and that the secret-ballot election system provides 

the surest means of avoiding decisions, which are the result of 

group pressures and not individual decisions.’’ And I’m quoting 

from a brief of the AFL-CIO filed in 1998. And I think Ms. McCollum kind of made a similar statement. Can I throw that at you. 

33

Ms. SCHIFFER. I’m familiar with the brief, even though it was 

filed a couple of years before I was associated with the AFL-CIO. 

In that particular case the AFL-CIO and other unions were trying 

to make the point that if as is now the law an employer can require 

the NLRB representation process in order for workers to become 

organized then it ought to be the same procedure when workers 

want to no longer be part of a union. 

And so what they AFL-CIO was urging in that case was that 

there be a similar process for the—if you will—for the marriage as 

for the divorce. And that was the point. 

I would like to go back to one thing that Mr. Cohen said in response to your question. And point out that the process as it is now 

when workers want to form a union is that the employer chooses 

whether to force the NLRB representation process. The employer 

has that right to refuse to recognize a union, even if 100 percent 

of the workforce—there’s not even a union there—a 100 percent of 

the workforce go into the office and say we want to have a union. 

The employer can say I don’t care. We have to go through this 

other process. 

Mr. BALLENGER. Well, then, obviously, the employer has no idea 

whether that’s 100 percent is there or not there. You can give me 

a stack of cards this high or this high and say, well, we need it 

and the first thing I would say—and I agree with Mr. Cohen—the 

first thing I would say is I don’t look at the cards. Why should I 

commit myself by law by accepting the cards when all of a sudden 

there is no contest after that. 

Ms. SCHIFFER. Even if all of the workers say that they want to 

be represented—and I would just like to make the point, and I 

think I did in my oral testimony. That the NLRB’s election process 

is a—it’s just that, a process. And in order to get to that secretballot election, the employees have to go through this—and very 

confrontational, very difficult process. 

And so the point of my testimony really was to suggest that is 

there really a free choice that’s exercised in that ballot box. Is it 

really inherently valid that after employees have been threatened, 

spied on, harassed, that their choice in the poling booth is going 

to be more legitimate than when they sign a card. 

Mr. BALLENGER. Let me just say having seen occurrences many 

times where the brutalization of management by unions in the 

news media it’s not a one-way street you’re speaking about. Unions 

are not milk toast in a situation like this. It’s not—I’d just like to 

say that you can get beat up pretty badly by dragging your feet a 

little bit on an election. 

Ms. SCHIFFER. But we’re talking here about workers and their 

employer holds that sort of life or death, you have a job or you 

don’t have a job. 

Mr. BALLENGER. No, I agree with you. Anybody that’s—people 

deserve a union if they—I mean, management deserves a union if 

they don’t treat their employees properly. 

Ms. SCHIFFER. What I’m saying is that they’re inherently, because of the employer’s power over its workers, a difference in the 

kind of coercion that can be exercised the employer to employee. 

Mr. BALLENGER. Well, is there something like a critical period involved in this timing of the cards being presented and so forth and 

34

so on? Is there not—I mean, there are—the law regulates—Mr. 

Cohen, you are leaning forward like you had an answer to what I 

was going to ask. 

Mr. COHEN. Well, if I’m anticipating it correctly. The NLRB once 

a petition is filed approximately 90 percent of the cases go to an 

election by agreement. 

Mr. BALLENGER. Right. 

Mr. COHEN. In other words, without legal—further legal proceedings. And in those cases I believe the median time is either 40 

or 42 days to the conduct of an election, which I submit is a quite 

short period of time, particularly, for the employees to have an opportunity to come to realize what the benefits might well be of 

unionization and what the downside of it might be, as well. 

As to those cases that go to hearing, I believe if one were to lump 

it all together, that the—90 percent of the cases still go to an election within 60 days from the filing of a petition. So I think it’s a 

situation where the NLRB very much holds employers’ feet to the 

fire and performs very admirably. 

Mr. BALLENGER. I think the NLRB—the appointment to the 

NLRB is a very vital thing to the strength of the unions in this 

country and they pretty well call the shots. I don’t know whether—

maybe I come from a conservative area of the United States that 

sees that. But your 42 days I think we’re debating on the floor the 

idea of if Congress were to lose 100 members in some disaster that 

to have 45 days to have a nationwide election. I think 42 days is 

pretty sharp. Excuse me, Sam. I didn’t mean to go so long. 

Ms. MCCOLLUM. Mr. Chair, my name has been mentioned twice, 

and people are deciding what I’ve said. So if I could clarify something, Mr. Chair. 

Chairman JOHNSON. What did you really say? 

Ms. MCCOLLUM. I really said what I meant. And that is when 

unions do try to deliver cards they are met with the first taste of 

what the intimidation is going to be like forward—in going forward 

with the union organizing campaign. And that by changing the 

rules to accept cards will give employees another option in which 

to have their voices heard and to have management know that they 

want to go forward with having a union. 

And that if the coercion and the intimidation continues, yes. 

Then let’s have a secret ballot. Thank you, Mr. Chairman. 

Chairman JOHNSON. Thank you, Ms. McCollum. Mr. Payne, do 

you care to question? 

Mr. PAYNE. Well, I’m sorry that I missed most of the testimony, 

but I just want to maybe ask Mr. Cohen a question. A lot of times 

when we hear about organizing of labor unions it tends to be characterized that the organizers are the ones that have the strongest 

hand, intimidation, the strong arming, the power over the employee. And I wonder if in your opinion is that what you also contend? That the union organizers have a stronger hand, because I’ve 

heard sort of just the reverse, and maybe Ms. Schiffer might want 

to just mention that it’s just the reverse. 

I usually hear these horror stories about how intimidating the organizers are and hear very little about the power of the employer 

who can tell you you got a job, don’t have a job, don’t want you to 

do the wrong thing, we might have to lay off if the union comes 

35

in. So what is the general perception that you have as to, say, a 

normal organizing campaign. 

Mr. COHEN. Mr. Payne, I would say that there can certainly and 

have been horror stories on both sides of this, but in my experience 

the decision as to whether employees choose to unionize or not does 

not turn on characterizations of power, intimidation, things of that. 

We are operating today in a global economy. What the employer is 

trying to do is produce its product, deal with the competition, make 

a profit to be sure, and that’s where job security in my experience 

comes from. 

I think there was a time when it would have been much more 

frequent to characterize the union organizers as intimidators, et 

cetera. It’s been my experience over the last couple of decades that 

that argument doesn’t resonant particularly well. 

Mr. PAYNE. Well, that’s good. Another reason I raise the question 

because there is still some of the, you know, policymakers like us 

that still have that Draconian 1920 image. And I wish more of 

them were here to hear you. But thank you very much. I have no 

other question. 

Chairman JOHNSON. Thank you, Mr. Payne. I appreciate that. 

Mr. Holt, do you care to question? 

Mr. HOLT. Yes, thank you, Mr. Chairman. Mr. Cohen, I believe 

you said that bargaining over a neutrality card check agreement 

has—I believe your words were—little or nothing to do with employees in the bargaining unit, and that it would detract from core 

issues like wages and working conditions. That strikes me as missing the point. It seems to me it has everything to do with the bargaining—with the employees in the bargaining unit. 

Wouldn’t—were you saying that it makes little or not difference 

to the employees in the bargaining unit whether they have the 

power to represent 10 percent of the workforce or 100 percent of 

the workforce? Doesn’t that have everything to do with whether 

they are in a position to bargain? 

Mr. COHEN. Mr. Holt, it can be an important piece of it, but our 

laws are structured on the basis of bargaining in a collective bargaining unit of the recognized or certified bargaining unit. The employer is under an obligation to recognize and bargain with the 

union as the representative as to all the wages, hours, and terms 

and conditions of employment of that precise group. 

If the union is trying to establish a separate collective bargaining 

unit and wants to use its leverage in unit ‘‘A’’ in order to get unit 

‘‘B’’ easier to it, I would submit—and the law is not perfectly clear 

in this area—that that ought to be a so-called non-mandatory subjective bargaining and something about which the union should not 

be permitted to bargain to impasse or to strike over. 

And, in fact, Ms. Schiffer I believe twice mentioned a study that 

unions go about getting these agreements by good old fashioned 

work stoppages. Frankly, that troubles me a good deal, because we 

are typically dealing with out-of-unit personnel. But in an aggregate sense, of course, if a union has a 100 percent representation 

it will have— 

Mr. HOLT. So you are really asking for a fundamental change in 

the NLRB. And so I guess that leads to the question what has 

changed? A couple of you have mentioned that we now live in a 

36

global economy. Does that mean the workers have the employer 

over a barrel as opposed to the other way around? I’m not sure that 

the fundamental relationship between employers and workers has 

changed since 1938. 

Yes, we have a world economy, but the reason for the NLRB was 

to protect those workers’ rights. Am I right that you’re looking for 

a fundamental change, and if so, why? And I suppose maybe the 

other witnesses have a comment on this. 

Mr. COHEN. I don’t believe that I am advocating a fundamental 

change. What we have right now is a system where the norm has 

historically been secret-ballot elections. I believe it is most imperative to preserve and to not overturn it to instead have card-check 

recognition be mandated as the Miller-Kennedy would do. I think 

that would be very bad public policy. 

In terms of the increased use of neutrality agreement card check 

recognition, I believe that there has been a change in the way voluntary—so-called voluntary recognition has been—had this increased use of it. And that’s where the legislative change might 

well be called for. 

I believe that the Miller-Kennedy Bill would be radical legislative 

change. 

Mr. HOLT. Ms. Schiffer or Mr. Jacob, in the few seconds remaining, would either of you care to comment? 

Ms. SCHIFFER. I think that the change has been that the NLRB 

representation process has become really a confrontational mechanism that forces workers through this sort of endurance process in 

order to be able to form union. And unless the employer chooses—

it’s the employer’s choice to enter into an alternative process. That 

this is the only way workers can form a union, and the process has 

become so gamed by employers as to create delay. It has such weak 

remedies that it does not anymore protect the right of workers to 

organize. And that’s what has changed. 

Mr. JACOB. The one observation I would make with respect to secret-ballot elections is that if you go to the numbers you will find 

that the labor unions in the U.S. win on average 50 percent or 

more per year going back many, many years. Batting .500 would 

be remarkable in the major leagues. 

Mr. HOLT. That’s in those situations where the union has chosen 

to try to organize? 

Mr. JACOB. That’s in those situations where the union has chosen 

to go to secret-ballot elections conducted by the National Labor Relations Board they prevailed—I think currently it’s over 50 percent 

of the time. 

Chairman JOHNSON. Thank you, Mr. Holt. 

Mr. HOLT. OK, thank you, Mr. Chairman. 

Chairman JOHNSON. Thank you. You know today is bring your 

children to work day across the country, and there are a few of 

them in the audience. Would all of the children who are here as 

part of their parents’ bring your children to work day please stand 

up. Mr. Andrews, do you care to comment? 

Mr. ANDREWS. I do. I want to welcome all of the participants and 

introduce two of my friends from Marlton, New Jersey, Ms. Nicole 

Gerbreen. Nicole, can you raise your hand. And her sister Amira 

Gerbreen and my daughter Jacqueline Andrews and my daughter 

37

Josie Andrews. And maybe this young man can introduce himself 

too. It’s nice to have you with us today. Thank you very much. 

Chairman JOHNSON. We’re glad to have you all here. I want to 

thank the witnesses for your time and testimony and for the members’ participation. And I want to tell you you’ve been a good panel 

and the discussion and cross talk has been good for all of us. If 

there’s no further business, the Subcommittee stands adjourned. 

[Whereupon, at 12:28 p.m., the Subcommittee was adjourned.] 

[Additional material submitted for the record follows:]

38

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Letter from Nancy Schiffer with Attachments, Submitted for the Record


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93255.100
138

Statement of Glenn M. Taubman, Staff Attorney, National Right to Work 

Legal Defense Foundation, Inc., Springfield, VA, Submitted for the Record


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Letter from Charles I. Cohen, Morgan, Lewis & Bockius, LLP, Washington, 

DC, Submitted for the Record


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Letter from Clyde H. Jacob III, Jones, Walker, Waechter, Poitevent, Carrere 

& Degnegre LLP, New Orleans, LA, Submitted for the Record


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194

Æ


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