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80–443 PDF 2003

S. HRG. 107–529

WORKERS’ FREEDOM OF ASSOCIATION:

OBSTACLES TO FORMING A UNION

HEARING

BEFORE THE

COMMITTEE ON HEALTH, EDUCATION, 

LABOR, AND PENSIONS 

UNITED STATES SENATE

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

WASHINGTON, DC

JUNE 20, 2002

Printed for the use of the Committee on Health, Education, Labor, and Pensions

(

(II)

COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS 

EDWARD M. KENNEDY, Massachusetts, Chairman 

CHRISTOPHER J. DODD, Connecticut 

TOM HARKIN, Iowa 

BARBARA A. MIKULSKI, Maryland 

JAMES M. JEFFORDS (I), Vermont 

JEFF BINGAMAN, New Mexico 

PAUL D. WELLSTONE, Minnesota 

PATTY MURRAY, Washington 

JACK REED, Rhode Island 

JOHN EDWARDS, North Carolina 

HILLARY RODHAM CLINTON, New York 

JUDD GREGG, New Hampshire 

BILL FRIST, Tennessee 

MICHAEL B. ENZI, Wyoming 

TIM HUTCHINSON, Arkansas 

JOHN W. WARNER, Virginia 

CHRISTOPHER S. BOND, Missouri 

PAT ROBERTS, Kansas 

SUSAN M. COLLINS, Maine 

JEFF SESSIONS, Alabama 

MIKE DeWINE, Ohio 

J. MICHAEL MYERS, Staff Director and Chief Counsel 

TOWNSEND LANGE MCNITT, Minority Staff Director 

(III)

C O N T E N T S 

STATEMENTS

JUNE 20, 2002

Page 

Kennedy, Hon. Edward M., Chairman, Committee on Health, Education, 

Labor, and Pension, opening statement ............................................................. 1

Hutchinson, Hon. Tim, a U.S. Senator from the State of Arkansas ................... 3

Wellstone, Hon. Paul D., a U.S. Senator from the State of Minnesota ............... 4

Clinton, Hon. Hillary Rodham, a U.S. Senator from the State of New York ..... 5

Dodd, Hon. Christopher J., a U.S. Senator from the State of Connecticut ......... 6

Edwards, John, a U.S. Senator from the State of North Carolina ...................... 7

Sweeney, John J., President, AFL–CIO, Washington, DC ................................... 8

Prepared statement .......................................................................................... 10

Roth, Ken, Executive Director, Human Rights Watch, New, NY ........................ 37

Prepared statement .......................................................................................... 39

Vizier, Eric, Mariner, Galliano, LA ........................................................................ 48

Prepared statement .......................................................................................... 50

Yager, Dan, Senior Vice President and General Counsel, Labor Policy 

Associatio, Washington, DC ................................................................................ 52

Prepared statement .......................................................................................... 54

Buffkin, Sherri, Former Supervisor, Smithfield Packing Company, Tar Heel, 

NC ......................................................................................................................... 108

Prepared statement .......................................................................................... 111

Schweikhard, Nancy, R.N., St. John’s Medical Center, Ventura, CA ................. 113

Prepared statement .......................................................................................... 116

Vidales, Mario, Former Food Server, Santa Fe Hotel and Casino, Las Vegas, 

NV ......................................................................................................................... 118

Prepared statement .......................................................................................... 119

MacDaniels, Robert, President, Oncore Construction, Bladensburg, MD ........... 120

Prepared statement .......................................................................................... 122

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD 

Enriquez, Felizardo, Residential Roofer, Metric Roofing, Arizona ...................... 146

Lail, Edith, Program Analyst, Federal Aviation Administration, Washington, 

DC .......................................................................................................................... 146

Mason, Michael, Forklift Driver, Nabors’ Alaska Drilling, Alaska ..................... 147

O’Sullivan, Terence M., General President, Laborers’ International Union 

of North America .................................................................................................. 148

Taylor, Andrea, Flight Attendant, Delta Air Lines, New York, NY .................... 149

Gulf Mariners, .......................................................................................................... 151

Smithfield Foods’ Systematic, Illegal Campaign to Suppress Workers .............. 154

Letter: 

Pearson, Michael, Nabors’ Alaska Drilling ..................................................... 153

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WORKERS’ FREEDOM OF ASSOCIATION: 

OBSTACLES TO FORMING A UNION 

THURSDAY, JUNE 20, 2002

U.S. SENATE, COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS, Washington, DC. 

The committee met, pursuant to notice, at 10:06 a.m., in room 

SD–430, Dirksen Senate Office Building, Hon. Edward M. Kennedy 

(Chairman of the Committee) presiding. 

Present: Senators Kennedy, Dodd, Harkin, Wellstone, Murray, 

Edwards, Clinton, and Hutchinson. 

OPENING STATEMENT OF SENATOR KENNEDY 

The CHAIRMAN. We will come to order. 

The fundamental right of workers to associate freely and join together to form a union is under attack in the United States today. 

Hard-won rights gained by American workers over two centuries 

have been undermined and distorted by law-breaking U.S. employers. Instead of respecting workers’ rights to freely choose to form 

a union, more and more employers are resorting to threats, intimidation, and firings to thwart the exercise of these fundamental 

human rights. 

American workers have sacrificed too much for too long to lose 

their right to form unions here in the 21st century. They have 

given their lives to improve the wages and working conditions of 

their fellow workers. In this time of Enron and corporate disregard 

for the well-being of workers, we should strengthen the ability of 

workers to protect themselves, not weaken it. That is what our 

hearing is all about today. 

Despite our great labor traditions, it is extraordinary how commonplace illegal employer tactics have become when workers attempt to form unions. A Cornell study of the NLRB elections found 

that one-quarter of employers fire workers for union activity during 

organizing campaigns. Each year, employers unlawfully discriminate against more than 20,000 workers just for exercising their 

basic rights in the workplace. A majority of employers threaten to 

close down their plants in response to union activity. During the 

1990s, the percent of employers engaging in full-scale anti-union 

campaigns to prevent a collective bargaining contract, even after 

the workers have prevailed in an NLRB election, jumped from less 

than 10 percent to more than a third. 

Employers use these unlawful tactics because they are cruelly 

successful in thwarting the formation of unions. Although more 

than two-thirds of the workers say that protecting the right to 

2

choose a union is essential or very important, far fewer workers are 

able to overcome the onslaught of illegal employer tactics designed 

to avoid unionization. 

When employers illegally threaten to close a plant, workers understandably fear for their jobs, and their chance of success in 

forming a union declines dramatically. 

Once workers successfully brave employer intimidation to vote to 

form a union, they face enormous obstacles in actually getting a 

first contract. Employers refuse to bargain. They fire workers who 

support the union. They threaten to close down the facility and 

continue mandatory meetings designed to intimidate workers. Even 

the lucky few who persevere in the face of such tactics still must 

spend years fighting to vindicate their democratic victory in the 

union election. 

Far too often, employers get away with it. They face minimal 

penalties for violating labor law. In this day and age, workers can 

be fired for their union activity, and all employers found in violation have to do is rehire the worker and offer back pay. That is a 

slap on the wrist for obstructing the freedom of choice of America’s 

workers and for denying them their dignity on the job. 

The situation is far worse for immigrant workers, many of whom 

don’t even have these minimal protections. After the Supreme 

Court’s recent decision in Hoffman Plastics, millions of immigrants 

are left without any real means to exercise these fundamental 

rights. 

We know that unions make a difference in the lives of average 

workers. Forming a union is the best way for workers to lift themselves out of poverty and improve their working conditions. Union 

workers earn 25 percent more than non-union workers. Joining a 

union is what lifts millions of janitors, farm workers, waitresses, 

and textile workers out of poverty-level wages. 

When it comes to retirement security, the smartest step is for 

workers to join a union. Union workers are almost twice as likely 

to be covered by a pension plan and more than four times as likely 

to have a secure defined benefit pension plan. 

Workers in the United States must have their fundamental 

rights protected in the workplace. At the core of our democracy is 

respect for the electoral process and the protection of basic human 

rights. 

The culture of impunity in which employers routinely violate the 

law with few consequences for squelching the democratic voice and 

right to free association of America’s workers is unacceptable. We 

should not stand for this. America’s workers deserve far better. Indeed, American democracy deserves far better. 

I want to especially commend my friend and colleague, Senator 

Paul Wellstone, who chairs the Labor Subcommittee, for his leadership on this issue. He has been a tireless advocate for workers’ 

rights over his distinguished career in the U.S. Senate and is our 

leader on this issue and many others. So I value his friendship and 

his leadership, and I look forward to this morning’s hearing. 

Just finally, I asked the staff to go back and look at the figures 

of those who get the restoration of the back pay. It is tens of thousands every year. These are people that are fired illegally and they 

have to get the back pay. It is just a way of doing business for 

3

many of these companies and corporations. But for those individuals who are out of pay and fired without the prospects for joy, it 

is their whole sense of livelihood and their whole sense of being 

and their families. It is just a way of doing business. These numbers haven’t shifted or changed over a period of time, and it is a 

scandal. 

Senator Hutchinson. 

OPENING STATEMENT OF SENATOR HUTCHINSON 

Senator HUTCHINSON. Thank you, Mr. Chairman. I look forward 

to the witnesses today, and I want to thank them for coming before 

the committee. I look forward to the exchange of ideas on how best 

to effectuate the Section 7 rights of workers to form, join, or assist 

labor organizations and, quote, ‘‘to refrain from any of these activities’’. 

At today’s hearing, we are going to hear of legitimate concerns 

from workers, unions, and companies about many shortcomings in 

the National Labor Relations Act. Many of the concerns expressed 

today and much of the testimony and the specifics of the testimony 

that we are going to hear are already illegal under current law, 

and it is likely that effective enforcement and education would alleviate the most serious problems. 

Other topics today have been hotly debated for more than 25 

years with no clear consensus reached. Still more issues such as coordinated corporate campaigns and card check certifications deal 

with newer tactics that operate outside the protections and procedures of the National Labor Relations Act. 

I would like to just make one comment as to something the 

Chairman said. We all are very concerned, I think, about workers’ 

rights. We should be. But we also realize that much of the antagonism that has historically existed between management and labor 

should be something in the past, that we should work toward a 

more cooperative arrangement between labor and management, 

and that while unions have played a very, very vital role in the history of our Nation, in the last 20 years the wages of non-union 

workers have risen faster than union workers, according to the Bureau of Labor Statistics. 

So I want to make clear from the outset of the hearing that no 

one here supports the firing of workers because they seek to join 

a union. As the law states, workers must be free from threats, coercion, or intimidation, and it is my hope that no one here supports 

tactics designed to force unionization onto workers who do not 

want it or to drive a company out of business that resists illegal 

demands. 

The National Labor Relations Act as amended is designed to be 

balanced and fair, and any proposed changes to the act must maintain that fundamental design or, as history has shown, there will 

be no changes. 

Today’s hearing may or may not be the opening event in a renewed campaign to overhaul the rules governing labor-management relations and union organizing. Like all of our workplace 

laws, changing times call for modernizing reforms, and with this in 

mind, Mr. Chairman, I look forward to the testimony of our witnesses. 

4

The CHAIRMAN. Senator Wellstone. 

OPENING STATEMENT OF SENATOR WELLSTONE 

Senator WELLSTONE. Thank you, Mr. Chairman. I am really 

pleased that we are holding these hearings, and I think it is long 

past time that we focus on the concerns that we are going to hear 

about today. I am particularly grateful to the workers who have 

come here along with President Sweeney. Thank you for stepping 

forward and having the courage to tell your stories. To Ms. Buffkin, 

a particular thanks to you for your candor and your honesty and 

your willingness to do the right thing no matter what it costs you 

personally. 

There are a lot of battles that many of us or many of our parents 

or many of our grandparents fought for, and I think we thought 

those battles were over—the integrity of Social Security, the 40-

hour week—but issues that were raging at the turn of the last century and that we thought were settled a long time ago are resurfacing at the turn of the new century. I think nowhere is this more 

evident than the subject before us, which is the workers’ freedom 

of association, the basic human right to join a union and bargain 

collectively. 

As one of our witnesses, Mr. Roth, says, if the rights of workers 

are not respected and protected, then the strength of American democracy and freedom is diminished. I agree. 

One organizer told me that all too many times you have to be 

a hero to organize at the workplace and, for that matter, the men 

and women who are willing to be a part of the efforts have to be 

heroes and heroines. I believe this is heroic work to organize the 

unorganized, but I do not believe that this was the promise of democracy and participation and of the freedom of association that 

really was in the National Labor Relations Act 70 years ago. You 

should not have to be a hero to exercise your basic rights in a democracy in the United States of America today. 

Mr. Chairman, very quickly, just to show what we are dealing 

with, let me just ask a few questions and answer them. 

What is the remedy under current law if an employer illegally 

fires workers during an organizing drive? Ten thousand working 

Americans lose their jobs illegally every year. The Dunlop Commission found that one in four employers illegally fired union activists 

during organizing campaigns. What is the remedy? 

The employer must reinstate the worker and give him or her 

back pay. This only happens if the National Labor Relations Board 

orders a remedy which, as we are going to hear today, can take 

years and years. As Human Rights Watch says in their report, 

‘‘Many employers have come to view remedies like back pay for 

workers fired because of union activities as a routine cost of business, well worth it to get rid of organizing leaders and derail workers’ organizing efforts.’’ In other words, it is profitable to break the 

law. 

If an employer oversteps the boundaries in captive-audience 

meetings or in one-to-one supervising meetings or threats to close 

the plant if workers vote for a union, do you know what the penalty is? The employer must post a blue and white notice saying 

5

they violated the law and they won’t do it again. That is today the 

law. That is the sanction. 

If the NLRB finds that there is no first contract because the employer has been engaged in bad-faith bargaining, do you know what 

the remedy is? The NLRB can order the employer back to the bargaining table for more delay and more bad-faith bargaining. 

Something must be done, and we are focused on labor law reform. There are going to be many bills. We will all work together. 

I introduced S. 1102, which is the Right to Organize Act, and what 

I am interested in remedying are the following severe problems: 

captive-audience meetings, insufficient remedies for workers who 

are discharged for organizing, extended delays in holding elections, 

even where a majority of the workers have indicated a desire to 

join the union, and, finally, bad-faith first contract negotiations. 

Mr. Chairman, I really appreciate this hearing, and as Chair of 

the Subcommittee on Employment, Safety and Training, which has 

jurisdiction over the National Labor Relations Act, I want to just 

assure everyone in here that this hearing is just the beginning of 

all of our legislative work together, could not be a more important 

issue, could not be a more important set of questions, and I am 

ready to go to work. 

The CHAIRMAN. Very good. 

I see our friends Senator Dodd and Senator Clinton are here. If 

they wanted to make a brief comment on this, we would be glad 

to hear from them. 

OPENING STATEMENT OF SENATOR CLINTON 

Senator CLINTON. Well, thank you, Mr. Chairman, because unfortunately I cannot stay, and I am very sorry about that. But we 

have, as the Chairman knows, a long-scheduled meeting with representatives of the Hispanic organizations, and I know that many 

of them are deeply concerned about these issues as well, because 

I know from my own experience in New York, we have many immigrants who are basically denied all of their rights under labor laws. 

That I hope will be a focus of our concern. 

I want to thank President Sweeney for being here and for once 

again articulating, as he does in his testimony so well, the need for 

an overhaul of our labor laws. We need labor laws for the 21st century. We have had very good success until relatively recently with 

the labor laws that we began to put into place at the beginning of 

the last century, culminating in the 1940s and 1950s and 1960s. 

But now we do need to take a look. Work has changed. The kind 

of problems that workers run into are different. We have to focus 

on using some new tools to try to better enforce the contract between employers and employees. 

So I am very grateful that the Chairman has held this hearing 

and that Senator Wellstone and others are committed to working 

with the witnesses who will appear. I particularly want to thank 

Ken Roth from New York and also from Human Rights Watch for 

focusing on this, because it is not just a labor issue; it is a human 

rights issue. 

Since I won’t be here for Mr. Roth’s testimony, I would hope people will focus on some of the concerns that he expresses about the 

way people are being treated, which violates not only labor laws 

6

but basic standards of human decency. I have been very disappointed that one of the new tools that we have, which is using 

the Internet and using the disclosure of information basically to 

create an environment in which employers would be motivated to 

do the right thing without legal sanctions, has seen a big step 

backwards. That is particularly true in the garment industry with 

sweatshops, because at the end of the last administration we began 

to, through the Department of Labor, post the names of factories 

that violated the law, that didn’t pay minimum wage, that didn’t 

follow basic health and safety regulations, that didn’t apply Fair 

Labor Standards Act provisions. I was very disheartened to learn 

that the Bush administration discontinued this practice shortly 

after taking office. 

This is a really good idea that should be reinstated, and I would 

call on the Department of Labor and the administration to do that, 

because while we are looking for ways to overhaul the laws to 

make them 21st century labor and employment laws that recognize 

the new realities in the workforce, let’s continue to use moral suasion, let’s continue to use full disclosure to bring into the light 

those employers that really are violating the standards of their industry as well as labor standards and human rights standards. 

So I would hope that the Secretary of Labor would reinstate this 

very simple program where labor inspectors who found wage violations, who found fake or incomplete records, since we know that 

trying to get any kind of legal remedy takes so long that basically 

it doesn’t really amount to a remedy—it is a violation and a process 

that doesn’t result in a realistic remedy—you know, let’s at least 

go back and use the tools that we have got that were beginning to 

work. 

So I thank all of our witnesses. I look forward to reviewing the 

testimony, and I thank the Chairman for, you know, really bringing attention on the need for us to do, as President Sweeney said, 

a very complete analysis of our existing laws and try to bring them 

up to date. 

Thank you, Mr. Chairman. 

The CHAIRMAN. The Senator from Connecticut. 

OPENING STATEMENT OF SENATOR DODD 

Senator DODD. Very briefly, Mr. Chairman. Thank you for doing 

this. This is the first hearing I think we have had on this subject 

matter since the late 1980s. Going back I think the late 1980s was 

the last time we talked about this very fundamental right that is 

guaranteed, of course, by Section 7 of the NLRB, and the National 

Labor Relations Act, the United Nation’s charters, the international concepts incorporated the right of people to organize and 

choose the people who represent them. 

The statistics that John Sweeney and others will share with the 

committee should alarm every Member. Whether you agree with 

every organizing campaign or not, when you end up with statistics 

that exceed 50 percent where there are acts of intimidation when 

it comes to people’s exercising their rights to organize and to 

choose the people who represent them, then it ought to concern

everyone. 

7

I note in Mr. Sweeney’s testimony that he cites some recent data 

collected by some national polling operations in the wake of Enron 

and related scandals that there is this growing sense—and it is not 

just an impression, but I think one that the realities are beginning 

to catch up with the impressions—that ordinary people are being 

disadvantaged all the time, whether it is in their pensions at Enron 

or their right to pick who will sit and negotiate their working conditions and their wages and salaries, that this is not an equal, level 

playing field. It never really has been, but it is getting less equal 

all the time. 

Hank Paulson of Goldman Sachs had the guts and the intestinal 

fortitude a week ago to pretty much call it as it is when he described the situation in the country as one that is really getting out 

of control. He said very much that the criticism is very much deserved when it comes to some of the actions being taken by corporate America. 

So I think it is important we not only have a hearing—and we 

certainly commend Senator Wellstone for his efforts legislatively, 

the suggestion that Senator Clinton has just made as well, Mr. 

Chairman, I think are worthy of pursuit. I think having a hearing 

like this is critically important to raise in the public profile of what 

is occurring. I certainly look forward to some ideas and suggestions 

on how we can strengthen this basic right. 

It is not just about strengthening the rights of workers. That in 

itself would be important. But it is strengthening the economic condition of our country, and that is why this works. The great engine 

of American success economically can be attributed to many things, 

not the least of which has been the right of American workers to 

organize and to play a critical role in the economic well-being of 

this country. Too often when people talk about how successful we 

are, they leave out that piece of the equation. This hearing today 

gives us a chance to talk about the critical role that labor has 

played in America’s success story, and we are delighted to have you 

here today. 

Thank you, Mr. Chairman. 

The CHAIRMAN. We are joined by Senator Edwards, and if you 

would like to make a comment, then we will proceed with the testimony. 

OPENING STATEMENT OF SENATOR EDWARDS 

Senator EDWARDS. Very briefly, Mr. Chairman. 

Mr. Chairman, first of all, thank you for having this hearing, and 

thank you to the witnesses for being here. This is a matter that 

is of actual personal concern to me. I have a brother who is in the 

IBEW, a mother who was a member of the Letter Carriers; my father worked in textile mills all his life, and I know how important 

it is for workers’ rights to be protected, for organized labor to give 

voice to people who have no voice, no chance without them being 

heard through their representatives. This hearing is long overdue, 

Mr. Chairman. I know it has been, I think, 14, 15 years since we 

have had a hearing on this subject, and the problem, of course—

and I have seen it firsthand with my own family’s experiences—is 

that the right to join a union, which every employee should have, 

exists on paper, but we know what the reality of the workplace is 

8

many times. A lot of the men and women I see in this room understand it, and understand it very well firsthand. Some of the practices that have been engaged in, some of which I think we will hear 

about today, are outrageous. 

We have got to get to the place where this right doesn’t just exist 

on paper. This is not about statutes and about laws and about regulations, although those things matter. It is about people’s lives 

and real people having a real chance to have decent working conditions and to have access to health care. That is what this is about. 

So I am very proud to be here, proud, Mr. Chairman, that you 

are calling this hearing and for all of your leadership on this issue 

for so long. I am particularly proud of the men and women who are 

here to testify today and who devoted their lives to making sure 

that people like my mother and my brother had half a chance. 

Thank you, Mr. Chairman. 

The CHAIRMAN. We will ask John Sweeney, Ken Roth, Eric Vizier, and Dan Yager if they would come forward. 

John Sweeney, as we all know, is the president of the AFL–CIO. 

He has been a valued friend of mine for many, many years. He is 

the spokesman for workers in this country, a tireless advocate for 

their rights and their families’ rights, and he is always at the barricades on every issue affecting working men and women. We welcome him to our hearing. 

Mr. Roth is the executive director of Human Rights Watch, the 

largest human rights organization based in the United States. The 

dedicated work of Human Rights Watch has kept a spotlight on 

human rights abuses around the world. Human Rights Watch 

issued a comprehensive report on workers’ freedom of association. 

Thank you, Mr. Roth, for joining us. 

Eric Vizier is a third-generation oil-field boat captain, an extremely accomplished mariner, worked for Guidry Brothers towing 

service, an offshore rig in the Gulf of Mexico. He was fired for his 

attempts to organize the mariners in the Offshore Mariners United 

Union. 

Dan Yager is the senior vice president and general counsel, 

Labor Policy Association, a public policy organization based in 

Washington, DC that represents corporate interests in the human 

rights policy. 

Mr. Sweeney. 

STATEMENT OF JOHN J. SWEENEY, PRESIDENT, AFL–CIO, 

WASHINGTON, DC 

Mr. SWEENEY. Thank you, Senator Kennedy, for your introductions. Thank you for your continued support for working families 

and for your leadership in holding this hearing. 

I also want to thank Senator Wellstone for his longstanding attention to the issues being discussed today, and I also am happy 

that Senator Hutchinson is here with us as well. 

I want to say to all of you that you obviously share our anger 

and our outrage over the secret and pervasive war against workers 

that is being carried on by American employers. Your presence and 

the testimony here today help us shine a light on the responsible 

parties from the highest pedestal of our Government and begin to 

expose that war and all its ugliness. 

9

This morning, as Senator Kennedy has told us, you will hear testimony from Ken Roth, the director of Human Rights Watch. He 

will tell you that the world’s most enduring democracy is greatly 

lacking in its respect for human rights, freedom of association, and 

other international standards of corporate conduct. 

You will also hear from workers who will translate this awful 

truth into stark terms of aggression and oppression. They will tell 

you that workers I our country are routinely denied the basic freedom to make their own decision to join with their coworkers to gain 

a voice on the job. They will tell you that when workers try to form 

unions to lift up their lives, employers use despicable tactics to 

interfere with their choice—and pay no price for it. 

What I want to tell you this morning is that the actions Mr. Roth 

and these workers will describe are an international disgrace and 

the shame of our Nation. 

Last week, Henry Paulson, CEO of Goldman Sachs, noted the 

scandals at Enron and Arthur Andersen, at Tyco and MicroStrategy, and dozens of other firms, and said, ‘‘In my lifetime, 

American business has never been under such scrutiny and, to be 

blunt, much of it is deserved.’’

In a national survey taken in May, findings by Pollster Stanley 

Greenberg echoes that observation. Eighty-six percent of likely voters found ‘‘some’’ or ‘‘a great deal of truth’’ in the following statement, and again I quote:

Enron was very bad on its own, but Enron represents a bigger problem in 

America. Too many people in powerful positions are acting irresponsibly, hurting ordinary people, and they are not being held accountable for their actions.

Those of us who talk to workers like those here today on a regular basis—and to other men and women who are struggling to join 

or form unions so they can improve life for their families—have 

known for some time about the growing and scandalous corporate 

abuse of power. 

For the past 25 years, businesses have been twisting, manipulating, and ignoring our country’s labor laws and getting away with 

it. Even when they get caught, the penalties are so weak and the 

process so unfair that few, if any, are ever held accountable for 

their actions. 

In 25 percent of union organizing campaigns, employers illegally 

fire workers for supporting a union, and they do it because they 

know they will be punished lightly, if at all. 

As with many of the revolting actions taken by Enron, many of 

the sordid deeds being carried out against workers who try to form 

or join unions are also perfectly legal. 

When faced with a union campaign, for instance, 92 percent of 

employers demand that workers attend mandatory anti-union 

meetings, and 78 percent force them into one-on-one meetings with 

their supervisors who have been charged with reversing their decision in favor of unionizing. 

It isn’t illegal, but it should be. 

Seventy percent of employers send an average of 6.5 anti-union 

letters to workers’ homes during union drives. It isn’t illegal, but, 

goddammit, it should be. 

Seventy-one percent of employers in manufacturing threaten to 

close or relocate plants if workers chose a union, and when they 

10

threaten, it scares the hell out of workers and cuts the organizing 

success rate nearly in half. 

Such threats are illegal, but they parse words and do it anyway 

and it is outrageous. 

When these kinds of tactics succeed, they destroy not just the 

chances of workers for a better life, they tear at the moral and economic fiber of our national community. 

Union workers make 25 to 30 percent higher wages, and greater 

percentages of union members have good health insurance and decent pensions. It means they can provide for their families’ needs, 

and they don’t have to work two and three jobs, so they can spend 

more time with their children and contributing to their communities. 

Whether legal or illegal, the tactics that oppress workers and 

block their free choice are disgusting, disgraceful, and damaging to 

our nation. 

I submit to you that the need for overhaul of our labor laws is 

overdue. 

At this hearing today, we will not attempt to outline comprehensive solutions, but to lay out the dimensions of the problem that 

workers in this country face. I want to remind you that the voices 

you will hear today are but a few of the hundreds of thousands who 

are affected. 

We must begin now working towards laws that give American 

workers a meaningful right to a voice in their workplace, laws that 

prohibit employers from thwarting a worker’s own decision to form 

or join a union and laws that guarantee a meaningful right to bargain a contract. 

When we make those laws, we must extend their protection to 

all workers in our new economy, and back them up just as seriously as we do our race, sex, and age discrimination laws, as diligently as we enforce our antitrust laws and our environmental 

laws. 

We must do so mindful that a strong majority of Americans believe it is wrong for employers to interfere with the freedom of 

workers to join unions. 

We do so secure in the knowledge that there are 30 million 

American workers who say they would join a union and lift themselves up if they had the opportunity. 

Reform will not be an easy task, and it may take years. In the 

meantime, we ask elected officials at every level and from all parties to join with us in exposing the failures of our current laws and 

to stand publicly with workers who are struggling to win a voice 

at work, despite the shortcomings of our laws and the employer 

greed they endorse. 

Thank you for undertaking this initiative. 

The CHAIRMAN. Thank you very much, Mr. Sweeney. 

[The prepared statement of Mr. Sweeney follows:]

PREPARED STATEMENT OF JOHN J. SWEENEY, PRESIDENT, AFL–CIO 

Thank you, Sen. Kennedy, for your remarks, for your continued support for working families, and for holding this hearing. 

I also want to thank Sen. Wellstone for your longstanding attention to the issues 

being discussed today. I appreciate the comments and concerns of other Senators, 

as well, who obviously share our anger and outrage over the secret and pervasive 

11

war against workers that is being carried out by American employers. Your presence and the testimony here today help us shine a light on the responsible parties 

from the highest pedestal of our government and begin to expose that war in all 

its ugliness. 

This morning, you will hear testimony from Ken Roth, the director of Human 

Rights Watch. He will tell you that the world’s most enduring democracy is greatly 

lacking in its respect for human rights, freedom of association and other international standards of corporate conduct. 

You will also hear from several workers who will translate this awful truth into 

stark terms of aggression and oppression. They will tell you that workers in our 

country are routinely denied the basic freedom to make their own decision to join 

with their co-workers to gain a voice on the job. They will tell you that when workers try to form unions to lift up their lives, employers use despicable tactics to interfere with their choice—and pay no price for it. 

What I want to tell you this morning is that the actions Mr. Roth and these workers will describe are an international disgrace, and the shame of our nation. 

Last week, Henry Paulson, CEO of Goldman Sachs, noted the scandals at Enron 

and Arthur Anderson, at Tyco and MicroStrategy and dozens of other firms, and 

said, ‘‘In my lifetime, American business has never been under such scrutiny and, 

to be blunt, much of it is deserved.’’

In a national survey taken in May, findings by pollster Stanley Greenberg echoed 

that observation: 86 percent of likely voters found ‘‘some truth’’ or a ‘‘great deal of 

truth’’ in the following statement:

Enron was very bad on its own, but Enron represents a bigger problem in 

America. Too many people in powerful positions are acting irresponsibly, hurting ordinary people, and they are not being held accountable for their actions.

Those of us who talk to workers like those here today on a regular basis—and 

to other men and women who are struggling to join or form unions so they can improve life for their families—have known for some time about the growing and scandalous corporate abuse of power. 

For the past 25 years, businesses have been twisting, manipulating and ignoring 

our country’s labor laws and getting away with it. Even when they get caught, the 

penalties are so weak and the process so unfair that few, if any, are ever held accountable for their actions. 

In 25 percent of union organizing campaigns, employers illegally fire workers for 

supporting a union and they do it because they know they will be punished lightly, 

if at all. 

As with many of the revolting actions taken by Enron, many of the sordid deeds 

being carried out against workers who try to form or join unions are also perfectly 

legal. 

When faced with a union campaign, for instance, 92 percent of employers demand 

that workers attend mandatory anti-union meetings and 78 percent force them into 

one-on-one meetings with their supervisors charged with reversing their decision in 

favor of unionizing. 

It isn’t illegal, but it should be. 

Seventy percent of employers send an average of 6.5 anti-union letters to workers’ 

homes during union drives. 

It isn’t illegal, but it should be. 

Seventy-one percent of employers in manufacturing threaten to close or relocate 

plants if workers choose a union, and when they threaten, it scares the hell out of 

workers and cuts the organizing success rate nearly in half. 

Such threats are illegal, but they parse words and do it anyway and it’s outrageous. 

When these kinds of tactics succeed, they destroy not just the chances of workers 

for a better life, they tear at the moral and economic fiber of our national community. 

Union workers make 30 percent higher wages and greater percentages of union 

members have good health insurance and decent pensions. It means they can provide for their families’ needs, and they don’t have to work two and three jobs, so 

they can spend more time with their children and contributing to their communities. 

Whether legal or illegal, the tactics that oppress workers and block their free 

choice are disgusting, disgraceful and damaging to our nation. 

I submit to you that the need for overhaul of our labor laws is overdue. 

At this hearing today, we will not attempt to outline comprehensive solutions, but 

to lay out the dimensions of the problem workers in this country face—and I want 

to remind you that the voices you will hear today are but a few of the hundreds 

of thousands who are affected. 

12

We must begin now working towards laws that give American workers a meaningful right to a voice in their workplace, laws that prohibit employers from thwarting 

a worker’s decision to form or join a union and laws that guarantee a meaningful 

right to bargain a contract. 

When we make those laws, we must extend their protection to all workers in our 

new economy, and back them up just as seriously as we do our race, sex and age 

discrimination laws, as diligently as we enforce our anti-trust laws and environmental laws. 

We must do so mindful that a strong majority of Americans believe it’s wrong for 

employers to interfere with the freedom of workers to join unions. 

We do so secure in the knowledge that there are 30 million American workers 

who say they would join a union and lift themselves up if they had the opportunity. 

Reform will not be an easy task and it may take years. In the meantime, we ask 

elected officials at every level and from all parties to join with us in exposing the 

failures of our current laws, and to stand publicly with workers who are struggling 

to win a voice at work, despite the shortcomings of our laws and the employer greed 

they endorse. 

Thank you very much for undertaking this initiative.

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The CHAIRMAN. Mr. Roth. 

STATEMENT OF KENNETH ROTH, EXECUTIVE DIRECTOR, 

HUMAN RIGHTS WATCH, NEW YORK, NY 

Mr. ROTH. Thank you very much, Chairman Kennedy, for holding this important hearing today, which represents much needed 

attention to a serious but neglected violation of human rights in 

this country. My thanks also as well to Senator Wellstone for your 

leadership on this matter, and to the other Members of the Senate 

who, in their presence today, recognize the importance of the matters we are discussing. 

Let me begin, if I could, with a word about Human Rights 

Watch. We are neither pro-union nor pro-management. Our work 

on labor rights stems exclusively from our commitment to the freedom of association and the freedom of individual choice for individual workers. This is a right that we champion around the world. 

Despite the many freedoms that Americans enjoy, it is a right that 

here at home is severely in jeopardy. 

Human Rights Watch has conducted the first comprehensive 

analysis of workers’ freedom of association in this country under 

international human rights norms. We published our findings in 

this 213-page report entitled ‘‘Unfair Advantage.’’ The methodology 

that we followed in investigating this report sought to paint a 

broad picture of the state of workers’ rights in this country. We examined the issue in different States and regions. We looked at different sectors of the economy: services, industry, transport, hightech. We looked at different types of workers: high-skill and lowskill, blue-collar and white-collar, resident and migrant, women 

and men, people of all races, ethnicities, and national origins. 

Our study included some of the most vulnerable American workers and also many workers who work for employers that are stable 

and profitable. We included factory workers, shipyard workers, 

food-processing workers, nursing home workers, computer programmers, and many more. 

Human Rights Watch found widespread violation of the right to 

form labor unions, to bargain collectively across every region, industry, and employment status that we looked at. 

We found deficiencies in both law and in practice. Our findings 

can be grouped roughly in six categories, which I will briefly review 

in my testimony now. 

First, U.S. law allows employers to intimidate and coerce workers when they try to organize. Although it is illegal, each year 

thousands of workers in the United States are fired from their jobs 

or suffer other reprisals when they try to organize unions. Indeed, 

we have gone from hundreds of dismissals on these grounds per 

year in the 1950s to 23,000 dismissals in 1998. The problem is getting worse, not better. 

Workers are spied on, harassed, pressured, threatened, suspended, fired, deported, and otherwise victimized by employers in 

reprisal for the simple fact that they attempt to exercise their right 

to freedom of association. 

The law allows them to be held in captive-audience meetings in 

which employers berate them about the dangers of joining a union 

while unions themselves are denied comparable access to workers. 

38

Though employers cannot formally threaten workers, they have 

become extraordinarily skilled at predicting terrible consequences 

should unions organize—should laborers organize, subtly, that is, 

threatening these consequences to occur. Undocumented workers 

are especially vulnerable because many employers threaten to turn 

them in to the INS. 

Second, we found that the remedies and penalties for violations 

of labor rights are woefully inadequate. For example, an employee 

fired for union activity usually receives a reinstatement order and 

back pay, less the money that he or she earned on other jobs in 

the interim. As has been noted by Chairman Kennedy and others, 

many employers today simply look at these modest penalties as a 

routine cost of doing business. Indeed, the problem is now much, 

much worse since the Supreme Court’s Hoffman Plastics decision, 

which denies any back pay to an undocumented worker. It represents a misguided decision by the Supreme Court to value legislation governing illegal immigration more highly than legislation 

protecting the rights of workers, a decision that Congress needs to 

reverse. 

Third, we found that the system allows major delays in enforcing 

rights. Employers can continue to appeal rulings for years and 

years before they are finally resolved. There is little added financial penalty because, as noted, most workers have to find another 

job and their new salary is then offset against any back pay award 

that they might later be granted. The substantial delays allow employers to sap the spirit of workers and to kill the drive to 

unionize. 

Fourth, we found a major problem that even if workers succeed 

in creating a union, bad-faith or so-called surface negotiations on 

the part of an employer lead to an almost useless remedy, an order 

simply to return to the bargaining table and continue the same 

practices. New solutions such as first contract arbitration are clearly needed. 

Fifth, we found that the right to strike is undermined when employers are allowed to permanently replace workers, as they are 

entitled to do under U.S. law for any strike that occurs for economic reasons. That power effectively nullifies the right to strike 

as defined by the International Labor Organization. Allowing permanent replacement workers crosses the line balancing the rights 

of employers and workers and tips the so-called balance of pain decidedly in favor of the employers. 

Finally, we found that too many workers are excluded altogether 

from the limited protections that U.S. labor laws currently afford. 

Farm workers, household domestic workers, low-level supervisors, 

contingent workers, and so-called independent contractors who are 

really dependent on a single employer—all of these categories of 

workers are denied basic rights under the NLRA. There is clearly 

a need to update the law to meet the new employment categories 

of the new economy, such as temporary workers and independent 

contractors. 

Taken together, these abuses we found constitute a huge obstacle 

to workers’ choices to try to form a labor union. They, of course, 

are not insurmountable. Unions sometimes succeed. Workers sometimes get their choice. But they have created an unfair playing 

39

1 Human Rights Watch interview, Chicago, Illinois, July 8, 1999. 

field tilted sharply against the free choice of workers. There is an 

urgent need for Congress to take action to restore fairness in our 

labor relations and to improve respect for this basic right of our 

Nation’s workers. 

Thank you very much. 

The CHAIRMAN. Thank you very much. 

[The prepared statement of Mr. Roth follows:]

PREPARED STATEMENT OF KENNETH ROTH, EXECUTIVE DIRECTOR, HUMAN RIGHTS WATCH

INTRODUCTION

Nico Valenzuela and his coworkers at a Chicago-area telecommunications castings 

company voted by a large majority in 1987 to form and join a union. Valenzuela 

is still working, but collective bargaining proved futile in the face of a management 

campaign to punish workers for their vote. Despite repeated findings by the National Labor Relations Board (NLRB) that the company acted unlawfully, legal remedies took years to obtain. The workers abandoned bargaining in 1999, 12 years 

after they formed a union, never having achieved a contract. The delays ‘‘took away 

our spirit,’’ said Valenzuela of the bargaining process. ‘‘I don’t know how the law 

in this country can allow these maneuvers.’’1

These midwestern telecommunications workers have much in common with workers across the country who are seeking to exercise their labor rights. In the first 

comprehensive analysis of workers’ freedom of association in this country under 

international norms, Human Rights Watch found widespread labor rights violations 

across regions, industries, and employment status. The cases revealed in our research and described in this testimony are not exceptional, but rather are indicative 

of a systemic failure to ensure the most basic right of workers: their freedom to 

choose to come together to negotiate the terms of their employment with their employers. The right to associate freely with others—to pursue common goals, to express ideas, to further a shared desire to work in safety and with dignity—is a fundamental freedom of democratic societies and a core American value. America owes 

it to its workers to respect this right. It also compromises its ability to champion 

this freedom around the world when it is imperiled at home. 

Human Rights Watch is neither pro-union nor pro-management. Our work on 

labor rights stems from our commitment to freedom of association and freedom of 

choice for individual workers. Our commitment is to enable workers to exercise their 

right to organize, bargain collectively, and strike, not to serve the institutional interests of either unions or employers. 

Many Americans think of workers’ efforts to organize, bargain collectively, and 

strike solely as union-versus-management disputes. They do not see these disputes 

as raising human rights concerns that implicate core freedoms. Simply put, if the 

rights of workers are not respected and protected, then the strength of American 

democracy and freedom is diminished. Both historical experience and a review of 

current conditions around the world indicate that freedom of association is a vital 

element of democratic societies. Human rights cannot flourish where workers’ ]ights 

are not enforced. 

SCOPE OF HRW’S RESEARCH

Our report, released in August of 2000, is entitled Unfair Advantage: Workers’ 

Freedom of Association in the United States Under International Human Rights 

Standards. The report was based on field research undertaken during 1999–2000 

in California, Colorado, Florida, Illinois, Louisiana, New York, North Carolina, 

Michigan, Washington, and other states. Our research includes case studies from a 

range of sectors—services, industry, transport, agriculture, high tech—in order to 

assess the State of workers’ freedom of association across the economy. We looked 

at cases that arose in cities, suburbs, and rural areas in different parts of the 

United States. We deliberately focused on a cross-section of workers—high skill and 

low skill, blue collar and white collar, resident and migrant, women and men, involving people of different races, ethnicities, and national origins. Many of the cases 

involved the most vulnerable parts of the labor force. These include migrant farmworkers, sweatshop workers, household domestic workers, undocumented immigrants, and welfare-to-work employees. The report, however, also examines the 

40

rights of U.S. workers with many years of employment at stable, profitable employers. These include packaging factory workers, steel workers, shipyard workers, food 

processing workers, nursing home workers, and computer programmers. 

Our research examines a cross-section of workers’ attempts to form and join 

unions, to bargain collectively, and to strike. Although this hearing focuses largely 

on obstacles to forming unions, it is important to emphasize that these three rights 

are inextricably linked. 

Freedom of association, of course, is the bedrock workers’ right under international law on which all other labor rights rest. In the workplace, freedom of association takes shape in the right of workers to organize, most often by forming and 

joining trade unions, to defend their interests in employment. Protection of workers’ 

right to organize is an affirmative responsibility of governments to ensure workers’ 

freedom of association. 

The right to organize, however, does not exist in a vacuum. Workers organize for 

a purpose: to give unified voice to their need for just and favorable terms and conditions of employment when they have freely decided that collective representation is 

preferable to individual bargaining or management’s unilateral power. The right to 

bargain collectively stems from the principle of freedom of association and the right 

to organize. Protecting the right to bargain collectively guarantees that workers can 

engage their employer in dialog, exchange relevant information, and debate proposals governing terms and conditions of employment. It is the means by which the 

right of association shapes the lives of workers and employers. 

The right to bargain collectively is compromised without the right to strike. This 

right also must be protected because without it there cannot be genuine collective 

bargaining. There can be only collective entreaty. As with collective bargaining, 

international norms contemplate a greater level of regulation of strikes because 

strikes can affect not only the parties to a dispute, but others as well. Congress 

nonetheless should keep these rights squarely within its sights as it focuses on obstacles to forming and joining unions. The right to organize, the right to bargain 

collectively, and the right to strike, all derive from the basic right to freedom of association. The case studies detailed in our report reflect violations and obstacles that 

workers encountered in the exercise of these three interrelated rights. 

SUMMARY OF FINDINGS

Human Rights Watch found that freedom of association is a right under severe, 

often buckling pressure when workers in the United States try to exercise it. Violations of this right occur across regions, industries, and employment status because 

U.S. labor law is feebly enforced and filled with loopholes. Some workers still succeed in organizing new unions, but only after surmounting major obstacles. 

According to statistics from the National Labor Relations Board (NLRB), the Federal agency created to enforce workers’ organizing and bargaining rights, the problem is getting worse. In the 1950’s, workers who suffered reprisals for exercising the 

right to freedom of association numbered in the hundreds each year. In 1969, the 

number was more than 6,000. By the 1990’s, more than 20,000 workers each year 

were victims of discrimination that was serious enough for the NLRB to issue a 

‘‘back-pay’’ or other remedial order. There were nearly 24,000 such workers in 1998, 

the last year for which official figures are available. Meanwhile, the NLRB’s budget 

and staff have not kept pace with this growing need. 

Freedom of association is a fundamental human right recognized under international law. The International Covenant on Civil and Political Rights (ICCPR), 

which the United States ratified in 1992, declares: ‘‘[E]veryone shall have the right 

to freedom of association with others, including the right to form and join trade 

unions for the protection of his interests.’’ The ICCPR requires ratifying states ‘‘to 

respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant’’ and ‘‘to adopt such legislative 

or other measures as may be necessary to give effect to the rights recognized in the 

present Covenant.’’ The ICCPR also constrains ratifying states ‘‘to ensure that any 

person whose rights or freedoms as herein recognized are violated shall have an effective remedy.’’ These principles have been further developed by the International 

Labor Organization (ILO), a U.N.-related body with tripartite representation by governments, workers, and employers and nearly universal governmental membership. 

The ILO’s Committee on Freedom of Association has elaborated authoritative guidelines for implementing the rights to organize, bargain collectively, and strike. 

The basic provisions of the NLRA comport with international human rights norms 

regarding workers’ freedom of association. The NLRA declares a national policy of 

‘‘full freedom of association’’ and protects workers ‘‘right to self-organization, to 

form, join, or assist labor organizations, to bargain collectively through representaVerDate Mar 21 2002 05:26 Mar 07, 2003 Jkt 010199 PO 00000 Frm 00044 Fmt 6633 Sfmt 6621 W:\DISC\80443 txed01 PsN: PFRM67
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2 29 U.S.C. §§ 151–169, Section 7. 

3 Under the NLRA, back-pay awards are ‘‘mitigated’’ by earnings from other employment. 

Employers who illegally fire workers for organizing need only pay the difference, if any, between 

what workers would have earned had they not been fired, and what they earned on other jobs 

during the period of unlawful discharge. Since workers cannot remain without income during 

years of litigation, they must seek other jobs and income, leaving the employers who violate 

their rights with an often negligible back-pay liability. 

tives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. . . .’’ 2 The NLRA 

makes it unlawful for employers to ‘‘interfere with, restrain, or coerce’’ workers in 

the exercise of these rights. It also creates the National Labor Relations Board 

(NLRB) to enforce the law by investigating and remedying violations. 

Despite the law’s facial compliance with international human rights principles, 

Human Rights Watch found in our research that the reality of NLRA enforcement 

falls far short of these standards. Private employers are the main agents of abuse, 

but international human rights law makes governments responsible for protecting 

vulnerable persons and groups from patterns of abuse by private actors. In the 

United States, efforts to enforce labor law often fail to deter unlawful conduct. When 

the law is applied, enervating delays and weak remedies invite continued violations. 

Violations of workers’ freedom of association in the United States fall into five 

broad categories: 

1. Reprisals for Trying to Organize Unions 

Each year thousands of workers in the United States are spied on, harassed, pressured, threatened, suspended, fired, deported, or otherwise victimized by employers 

in reprisal for their exercise of the right to freedom of association. Firing a worker 

for organizing is illegal but commonplace in the United States. Many of the cases 

examined by Human Rights Watch reflect the frequency and the devastating effect 

of discriminatory discharges on workers’ rights. An employer determined to get rid 

of a union activist knows that all that it risks, after years of litigation if the employer persists in appeals, is a reinstatement order that the worker is likely to decline and a modest back-pay award. For many employers, that is a small price to 

pay to destroy a workers’ organizing effort. 

Employers also often threaten to call the Immigration and Naturalization Service 

(INS) to have immigrant workers deported if they form and join a union. 

These abuses are facilitated by one-sided rules on communications in the course 

of a labor dispute. Employers can take advantage of the lack of level playing field 

regarding communications by waging aggressive campaigns against workers’ self-organization through written, oral, and filmed communications, and ‘‘captive-audience 

meetings’’ while workers are severely limited in their ability to communicate with 

union representatives at the workplace. 

2. Inadequate Remedies 

Labor law is so weak that companies often treat the minor penalties as a routine 

cost of doing business, not a deterrent against violations. Any employer intent on 

resisting workers’ self-organization can drag out legal proceedings for years, fearing 

little more than an order to post a written notice in the workplace promising not 

to repeat unlawful conduct and grant back pay to a worker fired for organizing. In 

one case, a worker fired for 5 years received $1,305 back pay and $493 interest.3

Many employers have come to view remedies such as back pay for workers fired because of union activity as a routine cost of doing business, well worth it to get rid 

of organizing leaders and derail workers’ organizing efforts. As a result, a culture 

of near-impunity has taken shape in much of U.S. labor law and practice. Moreover, 

the recent Supreme Court decision in Hoffman Plastic Compounds v. NLRB denying 

back pay to an undocumented worker because he was not legally authorized to work 

in the United States makes the problem even more severe for undocumented workers. The case, which was decided in March of this year, represents a decision by 

the Supreme Court to value legislation governing illegal immigration more highly 

than legislation protecting the rights of workers. 

3. Procedural Delays 

Employers can resist union organizing by dragging out legal proceedings for years. 

Workers fired for organizing and bargaining often wait years for their cases to be 

decided by labor boards and courts, while employers pay no price for deliberate 

delays and frivolous appeals. Debilitating delays occur in unfair labor practice cases. 

Most cases involve employers’ discrimination against union supporters or employers’ 

refusal to bargain in good faith. After the issuance of a complaint, several months 

usually pass before a case is heard by an administrative law judge. Then several 

42

4 At the same time, Human Rights Watch did find instances in various case studies of interference with workers’ rights by government authorities. They included biased intervention by 

police and local government authorities and government subsidization of workers’ rights violators. While these cases do not rise to a level of systemic abuse, they are no less troubling and, 

if they are not addressed and stopped, such abuses could spread. 

more months often go by while the judge ponders a decision. The judge’s decision 

can then be appealed to the NLRB, where 1, 2, or 3 years can go by before a decision is issued. The NLRB’s decision can then be appealed to the Federal courts, 

where again up to 3 years pass before a final decision is rendered. Many of the 

workers in cases we studied had been fired years earlier and had even won reinstatement orders from administrative judges and the NLRB, but they were still 

waiting for clogged courts to rule on employers’ appeals. 

In another example, U.S. law forbids permanent replacement of workers who 

strike over employers’ unfair labor practices, as distinct from ‘‘economic strikers’’ 

seeking better contract terms. The latter can be permanently replaced; unfair-laborpractice strikers are entitled to reinstatement when they end their strike. However, 

it often takes years of NLRB and Federal court proceedings before a final decision 

is made on whether replaced workers have a right to reinstatement. 

4. Undermining the Right to Strike 

Employers have the legal power to permanently replace workers who exercise the 

right to strike. This power in the hands of employers effectively nullifies the right 

to strike. While international norms limit the right to strike, for example exempting 

members of the military and the police, they do not authorize permanent replacements. Permanent replacement crosses the line balancing the rights of workers and 

employers and undercuts a fundamental right of workers. With the one-sided pain 

of a strike marked by permanent replacements, the employer maintains operations, 

workers who exercised the right to strike are left to languish, and after just 1 year 

permanent replacement workers can vote to extinguish the strikers’ right to representation and collective bargaining. In addition, harsh rules against ‘‘secondary 

boycotts’’ frustrate worker solidarity efforts. Mutual support among workers and 

unions recognized in most of the world as legitimate expressions of solidarity is 

harshly proscribed under U.S. law as an illegal secondary boycott. 

5. Exclusion of Workers From Coverage Under Labor Laws 

Millions of workers—including farm workers, household domestic workers, lowlevel supervisors, and ‘‘independent’’ contractors who are really dependent on a single employer—are excluded from labor laws meant to protect workers’ organizing 

and bargaining rights. They can be fired with impunity for trying to form a union, 

and their number is growing. The H2-A program, for example, grants migrant workers a temporary visa for agricultural work in the United States. They labor at the 

sufferance of growers who can fire them and have them deported if they try to form 

or join a union. 

Labor laws have failed to keep pace with changes in the economy and new forms 

of employment relationships, creating millions of part-time, temporary, subcontracted, and otherwise ‘‘atypical’’ or ‘‘contingent’’ workers whose exercise of the right 

to freedom of association is frustrated by the law’s inadequacy. Many workers find 

themselves caught up in a web of labor contracting and subcontracting, which effectively denies them the right to organize and bargain with employers who hold real 

power over their jobs and working conditions. 

Without diminishing the seriousness of the obstacles and violations confronted by 

workers in the United States, a balanced perspective must be maintained. U.S. 

workers generally do not confront gross human rights violations where death squads 

assassinate trade union organizers or collective bargaining and strikes are outlawed.4 However, the absence of systematic government repression does not mean 

that workers in the United States have effective exercise of the right to freedom of 

association. On the contrary, workers’ freedom of association is under sustained attack in the United States, and the government is often failing its responsibility 

under international human rights standards to deter such attacks and protect workers’ rights. 

43

5The cases detailed in this testimony are described in Human Rights Watch’s August 2000 

report. Human Rights Watch has not yet done a follow-up investigation to that report. Developments occurring since August 2000 thus are not described in this testimony. 

SELECTED CASE STUDIES FROM THE HUMAN RIGHTS WATCH REPORT 5

1. Service Sector Workers 

Nursing Home Workers In Southern Florida 

At the Palm Garden nursing home in North Miami, managers forged signatures 

on warning notices against Leonard Williams, a key union activist. They backdated 

the notices, then fired Williams shortly before a union election in April 1996. The 

union lost the election 35–32. Soon afterward, the company fired Marie Sylvain, another organizing leader. 

The NLRB has ordered Palm Garden to offer Williams and Sylvain reinstatement 

to their jobs with back pay. The agency also ordered a new election because of management’s unlawful conduct. The company had appealed both rulings, and they were 

tied up in courts. Meanwhile, Williams and Sylvain were obliged to wait. 

‘‘Why does it take so long?’’ asked Marie Sylvain. ‘‘I’ve been fired for more than 

3 years. Everything takes too long. Where is the justice? Everything is at the boss’s 

advantage with all these delays. The law gives you something with one hand then 

takes it away with the other hand.’’ Asked if she would accept reinstatement, 

Sylvain said, ‘‘I would like to come back for 1 week just to show them the union 

can win.’’ 

Workers at the King David Center in West Palm Beach voted 48–29 in favor of 

union representation in an NLRB election in August 1994. ‘‘I had a determination 

to get respect,’’ said Jean Aliza, the first of several workers fired for organizing activity at King David. ‘‘I am a citizen, and I deserve respect.’’ The NLRB ruled that 

the company proceeded systematically to fire the most active union supporters, including Jean Aliza and Ernest Duval. In 1999, however, the workers had still not 

been reinstated because of appeals to the courts. 

Jean Aliza was ‘‘set up’’ by managers and fired early in the organizing effort, after 

a year-long ‘‘satisfactory’’ record suddenly became ‘‘unsatisfactory’’ based on warning 

notices he never saw. The NLRB said that King David ‘‘was determined to rid itself 

of the most vocal union supporter from the beginning,’’ referring to Ernest Duval. 

Ernest Duval was still vocal about his union support when he spoke to Human 

Rights Watch in July 1999, but he was also frustrated. ‘‘I see the government protecting management,’’ he said. ‘‘It’s been 4 or 5 years now, and I’ve got bills to pay. 

Management has the time to do whatever they want.’’ 

2. Food Processing Workers 

Pork Processing Workers in North Carolina 

Smithfield Foods hog-processing plant in Tar Heel, North Carolina is the largest 

hog slaughtering facility in the country. According to NLRB complaints, ten workers 

were fired between 1993 and 1995 for union activity at the Smithfield plant, and 

five more organizing leaders were fired in 1997 and 1998. Besides firing key union 

activists, Smithfield management opposed workers’ organizing efforts with interference, intimidation, coercion, threats, and discrimination. These unfair labor practices came so fast and furious that a hearing originally set for 1995 on complaints 

from the 1994 campaign did not take place until 1998–99 as new complaints were 

consolidated with earlier ones. 

The NLRB complaints describe in detail Smithfield’s offensive against union supporters. In dozens of instances cited in the complaints, Smithfield managers and supervisors issued oral and written warnings and suspensions against union supporters; threatened to close the plant, deny pay raises and promotions, fire workers, 

and blacklist any striking workers from employment at other conlpanies; confiscated 

union flyers from workers; asked workers to spy on other workers’ union activity; 

grilled workers about other workers’ union activities; interrogated workers about 

their own union sentiments; spied on the activities of pro-union workers; indicated 

to workers that management was spying on their union activities; applied a gag rule 

against union supporters while giving union opponents free rein; applied work rules 

strictly against union supporters but not against union opponents; offered benefits 

to workers if they would drop support for the union; and assaulted and caused the 

arrest of an employee in retaliation for workers’ engaging in union activity. 

44

3. Manufacturing Workers 

Low-Wage Packaging Workers in Maryland 

In the mid-1990s, a new company called Precision Thermoforming and Packaging, 

Inc. (PTP) employed more than 500 workers in a Federal ‘‘empowerment zone’’ in 

a Baltimore, Maryland neighborhood called ‘‘Pigtown.’’ This company in an urban 

factory setting, with low-wage workers exercising their right to freedom of association, offers an example of even harsher anti-organizing tactics. 

The company received indirect State subsidies worth millions of dollars through 

a low-cost lease of manufacturing space in a converted warehouse bought by the 

State in 1994. PTP also received a Federal subsidy of $3,000 for each employee it 

hired who lived inside the empowerment zone. It hired more than 250 such workers. 

Thanks to subsidies, the Federal Government’s empowerment-zone designation is 

worth a lot of money to employers who set up operations in a zone. The government, 

however, does not use this financial leverage to condition empowerment-zone benefits on the fair treatment of workers. 

PTP ran a plastic packaging and shipping operation for flashlights, batteries, and 

computer diskettes. Major customers included Eveready Battery and America Online (AOL). AOL shipped millions of free diskettes to consumers from the PTP plant. 

In mid-1995, a group of PTP workers began an effort to form and join a union. 

A complaint issued by the NLRB finding merit in unfair labor practice charges filed 

by the union tells what happened next. PTP management fired nine workers active 

in the union-organizing effort. In addition, PTP managers and supervisors threatened to close the plant if a majority of workers voted in favor of union representation; threatened to move work to Mexico; threatened to move the AOL production 

line to another country; threatened that Eveready Battery would pull its business 

from PTP; threatened to fire workers who attended union meetings; threatened to 

fire anyone who joined the union; threatened to replace American workers with foreigners if the union came in; threatened to transfer workers to dirtier, lower-paying 

jobs if they supported the union; told workers not to take union flyers from union 

organizers; told workers that upper management was going to ‘‘get them’’ for supporting the union; asked employees to report to management on the activities of 

union supporters; stationed managers and security guards with walkie-talkies to spy 

on union handbilling and report on workers who accepted flyers; interrogated workers about their union sympathies and activities; and denied wage increases and promotions to workers who supported the union. 

Charges of massive unfair labor practices by PTP were upheld by the NLRB’s regional director, who issued a wide-ranging complaint on the management conduct 

described above. The NLRB found PTP’s conduct so egregious that the regional director announced he would seek a Gissel bargaining order, an unusual remedy in 

U.S. labor law based on a 1969 Supreme Court decision. Under the Gissel doctrine, 

a union that has obtained majority support from workers who sign cards joining the 

union and seeking bargaining can be certified as the bargaining agent even if it 

loses an election. The Supreme Court in Gissel said that the bargaining-order remedy is not limited to ‘‘exceptional’’ cases marked by ‘‘outrageous’’ and ‘‘pervasive’’ unfair labor practices. The court said that a bargaining order can also be applied ‘‘in 

less extraordinary cases marked by less pervasive practices which nonetheless still 

have the tendency to undermine majority strength and impede the election process.’’ 

However, in practice, the NLRB and the Federal courts have applied the Gissel remedy sparingly, effectively undermining the right of many workers to bargain collectively. 

The NLRB also sought reinstatement and back pay ranging from $6,000 to 

$21,000 for workers fired for union activity. In March 1997, however, PTP shut its 

Baltimore plant and declared bankruptcy, citing a legal dispute with AOL. With no 

employer to order to bargain with the union, the NLRB fashioned a settlement of 

the unfair labor practice case before it went to hearing. Under the settlement, PTP 

acknowledged the actions outlined in the complaint, promised not to repeat them, 

and promised back pay to the fired workers in the amounts sought by the NLRB. 

Thereafter, the fired PTP workers waited in vain to receive the first penny of back 

pay for their unlawful firings. The Gissel remedy is meaningless when there is no 

employer with whom to bargain. However, had the NLRB been empowered to act 

quickly to initiate bargaining, workers might have been able to negotiate over severance pay, continued medical insurance, and other conditions in a bankruptcy-related 

closing, or indeed to have offered steps to avoid closing. 

Steelworkers in Colorado 

Oregon Steel Co. permanently replaced more than 1,000 workers who exercised 

the right to strike at its Pueblo, Colorado steel mill in October 1997. Many of the 

45

6See U.S. General Accounting Office, ‘‘Prevalence of Sweatshops,’’ GAO/HEHS–95–29, November 2, 1994. 

replacements came from outside the Pueblo area, drawn by the company’s newspaper advertisements throughout Colorado. A company notice declared, ‘‘It is the intent of the Company for every replacement worker hired to mean one less job for 

the strikers at the conclusion of the strike.’’ 

On December 30, 1997, 3 months after their strike began, Oregon Steel workers 

ended the strike and offered unconditionally to return to work. The company refused 

to take them back except when vacancies occur after a replacement worker left. 

Some workers returned under this legal requirement, but most of the Oregon Steel 

workers were still out of work in 2000 because the company permanently replaced 

them with new hires. 

According to a judge who held an 8-month-long hearing on the case, the company 

was guilty of interference, coercion, discrimination, and bad-faith bargaining. In all, 

said the judge, Oregon Steel’s unfair labor practices ‘‘were substantial and antithetical to good faith bargaining.’’ 

Under this ruling, workers are entitled to reinstatement, because a company that 

violates the law loses the right to permanently replace strikers. However, the company appealed the decision and vowed to keep appealing for years before a final decision is obtained in the case. In the meantime, the workers remained replaced and 

without their chosen means to support themselves and their families. 

Joel Buchanan, a worker with twenty-nine years in the Oregon Steel plant, told 

Human Rights Watch, ‘‘Before the strike the company was pushing us for forced 

overtime. When we asked them to hire new people to give us some relief, they told 

us they couldn’t find qualified workers anywhere in Colorado. But when we went 

out, suddenly they came up with hundreds of replacements.’’ 

Apparel Workers in New York 

The resurgence of sweatshops in America reflects a ‘‘race to the bottom’’ on labor 

rights and labor standards more often attributed to export processing zones in Third 

World countries. For workers in the United States, as is often the case in Central 

American or East Asian sweatshops, freedom of association is the first casualty. 

Researching violations of workers’ freedom of association in U.S. sweatshops 

posed a sharp challenge. Workers trapped in the sweatshop system are so victimized 

in every aspect of their working lives that an open exercise of the right to organize 

and associate is an extraordinary event. Most sweatshop workers are so burdened 

by the need to make it through another day that forming a union is beyond their 

energies. Moreover, as Human Rights Watch found in other, non-sweatshop-sector 

cases, immigrant workers’ problems with authorization papers and fear of deportation also prevent efforts to organize in sweatshops. 

Sweatshop workers turn to collective action as a last resort, usually when they 

realize that their employer has no intention of paying them even their sub-minimum 

wages for weeks of work already performed. Minimum-wage violations, overtime-pay 

violations, health and safety violations, sexual harassment, and other problems in 

the garment industry are an accepted fact of working life, especially in the two largest urban regions in the country, New York and Los Angeles. 

A 1994 report by the Federal Government’s General Accounting Office found that 

sweatshops were widespread in the garment sector. The report noted declining resources for labor-law enforcement by Federal and State authorities and concluded 

that ‘‘In general, the description of today’s sweatshops differs little from that at the 

turn of the century.’’6

Apparel manufacturing is a multibillion-dollar industry employing more than 

700,000 workers in the United States. The garment sector is the biggest manufacturing industry in New York and Los Angeles, where in each region more than 

100,000 workers labor in some 5,000 contracting and subcontracting sewing shops. 

Women who have recently migrated to the United States from Asia and Latin America are a significant majority of the workforce. These small shops compete fiercely 

for business from the manufacturers. Violating wage and hour laws is the quickest 

and easiest way to gain a competitive advantage, particularly when workers are not 

likely to complain or organize for improvements. 

Under current law, retailers and manufacturers who profit from sweatshops’ race 

to the bottom on labor standards are not held responsible for labor-law violations 

committed by contractors or subcontractors, including violations of workers’ organizing rights. The large companies are insulated by the hierarchical structure of the 

industry and the reliance on onejob, quick-turnaround, unpredictable subcontracting 

arrangements that have largely displaced traditional longer-term, stable contracting 

relationships. 

46

One example illustrates the difficulties faced by workers in the apparel industry. 

According to UNITE representative Bertha Wilson, employees from a Manhattan 

sewing shop called YPS came to the union-sponsored workers’ center in 1997 because they were owed back wages, even though YPS subcontracted production for 

brand-name companies such as Lord & Taylor, Ann Taylor, and Express. One of the 

workers told Human Rights Watch that workers were not being paid on time, that 

managers mistreated workers, that drinking fountains did not work, and that workers received no rest or lunch breaks. ‘‘We were aware that we were illegal,’’ she said, 

‘‘so we were kind of like slaves.’’ She said that women workers were especially mistreated. ‘‘One of the managers would touch the women,’’ she said. ‘‘If they complained they were fired. A few women were actually fired, and others just took it. 

We didn’t know what our rights were, so we just accepted things.’’ With four to 5 

weeks’ back pay owing to workers, ‘‘the boss wanted to pay us with clothes. But how 

were we going to sell them for money?’’ 

In November 1997,YPS employees stopped work and demanded union recognition 

and 4 to 6 weeks of back pay. According to Bertha Wilson, the owner said he would 

recognize the union as long as the union did not contact Ann Taylor. In December, 

the owner signed an agreement calling for an end to sexual harassment, a fortyfive-minute lunch break, and incremental back-pay disbursements each week. 

The YPS agreement held up only for 2 weeks. The owner again halted back-pay 

disbursements, and employees stopped work. YPS shut its doors and went out of 

business. UNITE organized a workers’ demonstration at the headquarters of brandname companies that had contracted for work with YPS. Those companies agreed 

to make workers whole for lost wages, but by then workers had scattered to other 

locations. Many failed to collect their pay, fearing to come forward, said Wilson, because they were undocumented and afraid of INS action. 

4. Migrant Agricultural Workers 

Apple Workers in Washington 

Thousands of workers are employed in the warehouse sector of the Washington 

apple industry. Like apple pickers, many seasonal workers in the warehouses are 

migrants from Mexico. 

Apple-warehouse workers are not defined as agricultural workers. They are covered by the NLRA, which makes it an unfair labor practice to threaten, coerce, or 

discriminate against workers for union-organizing activity. But when workers at one 

of the largest apple-processing companies sought to form and join a union in 1997 

and 1998, management responded with dismissals of key union leaders and threats 

that the INS would deport workers if they formed a union. 

Here is how one worker described the company’s tactics:

At the meetings they talked the most about the INS. . . . [T]he company 

keeps talking about INS because they know a lot of workers on the night shift 

are undocumented—I would guess at least half. . . . It is only now that we have 

started organizing that they have started looking for problems with people’s papers. It is only now that they have started threatening us with INS raids. . . . 

They know that we are afraid to even talk about this because we don’t want 

to risk ourselves or anyone else losing their jobs or being deported, so it is a 

very powerful threat. . . .

The union lost the NLRB election even though a majority of workers had signed 

cards to join the union and authorize the union to bargain on their behalf. 

H–2A Farmworkers in North Carolina 

About 30,000 temporary agricultural workers enter the United States each year 

under a special program called H–2A giving them legal authorization to work in 

areas where employers claim a shortage of domestic workers. H–2A workers have 

a special status among migrant farmworkers. They come to the United States openly and legally. They are covered by wage laws, workers’ compensation, and other 

standards. 

But valid papers are no guarantee of protection for H–2A workers’ freedom of association. As agricultural workers, they are not covered by the NLRA’s anti-discrimination provision meant to protect the right to organize. 

H–2A workers are tied to the growers who contract for their labor. They have no 

opportunity to organize for improved conditions and no opportunity to change employers to obtain better conditions. If they try to form and join a union, the grower 

for whom they work can cancel their work contract and have them deported. 

More than 10,000 migrant workers with H–2A visas went to North Carolina in 

1999, making growers there the leading employers of H–2A workers in the United 

States. North Carolina’s H–2A workers are mostly Mexican, single young men, who 

47

harvest tobacco, sweet potatoes, cucumbers, bell peppers, apples, peaches, melons, 

and various other seasonal crops from April until November. 

At home ‘‘there’s no work,’’ workers told Human Rights Watch, explaining their 

main reason for emigrating. Many of the workers come from rural villages in Mexico. In most cases earnings in U.S. dollars from their H–2A employment were the 

only source of income for their families and for their communities. 

Human Rights Watch found evidence of a campaign of intimidation from the time 

H–2A workers first enter the United States to discourage any exercise of freedom 

of association. Legal services attorneys and union organizers are ‘‘the enemy,’’ they 

are told by growers’ officials. Most pointedly, officials lead workers through a ritual 

akin to book-burning by making them collectively trash ‘‘Know Your Rights’’ manuals from legal services attorneys and take instead employee handbooks issued by 

growers. 

On paper, H–2A workers can seek help from legal services and file legal claims 

for violations of H–2A program requirements (but not for violation of the right to 

form and join trade unions, since they are excluded from NLRA protection). However, in this atmosphere of grower hostility to legal services, farmworkers are reluctant to pursue legal claims that they may have against growers. ‘‘They don’t let us 

talk to legal services or the union,’’ one worker told Human Rights Watch. ‘‘They 

would fire us if we called them or talked to them.’’ 

5. Contingent Workers 

High-Tech ‘‘Perma-temps’’ in Seattle 

An example of temporary-agency workers’ dilemma is found among workers at the 

cutting edge of the new economy. At the time of our report, more than 20,000 workers were employed at Microsoft’s facilities in the Seattle area. Six thousand of them, 

however, were not employed by Microsoft. Instead, they were employed by temporary agencies supplying high-tech workers to Microsoft and other area companies. 

Many had worked for several years at Microsoft, and had come to be known as 

‘‘perma-temps.’’ 

Some Microsoft perma-temps formed the Washington Alliance of Technology 

Workers (WashTech) in early 1998. WashTech has a ‘‘Catch–22’’-type problem. By 

defining perma-temps as contractors employed by various temporary agencies, 

Microsoft avoided being their employer for purposes of the NLRA’s protection of the 

right to organize. Meanwhile, the agencies told temps that in order to form a union 

that agency management would deal with, they would have to organize other employees of the agency, not just those working at Microsoft. 

‘‘First we asked our Microsoft managers to bargain with us,’’ said perma-temp 

Barbara Judd, describing an effort by her and a group of coworkers to be recognized 

by Microsoft. Management refused. Responding to press inquiries, a spokesman for 

Microsoft said, ‘‘bargaining units are a matter between employers and employees 

and Microsoft is not the employer of the workers.’’ 

Attempts to be recognized by the temp agencies were equally unavailing. ‘‘ ‘ We 

don’t have to talk to you, and we won’t’ is what they told us,’’ said Judd. ‘‘They told 

us we had to get all the temps that worked at other companies besides Microsoft. 

We had no way to know who they were or how to reach them. Besides, they had 

nothing to do with our problems at Microsoft.’’ 

Barbara Judd’s perma-temp post at Microsoft ended in March 2000 when the company announced it was abandoning the tax-preparation software project that she 

and her coworkers developed. ‘‘We received 2 days notice’’ before being laid off, Judd 

told Human Rights Watch. Some workers moved to another tax-preparation software company, but Judd decided to look for full-time employment. ‘‘I don’t want to 

be a part of that system,’’ she said. ‘‘Workers who take temp jobs do not realize 

there is a larger impact than just the absence of benefits. You essentially lose the 

ability to organize. . . . [T]he legal system is just not set up to deal with these longterm temp issues.’’ 

UNDERMINING U.S. PROMOTION OF LABOR RIGHTS INTERNATIONALLY

The United States has long been a global leader in promoting human rights and 

fundamental freedoms. Freedom of association is a basic human right and a bedrock 

principle of democratic society. The United States, however, cannot champion this 

right effectively around the world unless it is protected here at home. 

Over the past few years, the U.S. Government has periodically endorsed calls for 

integrating human rights and labor rights into the global trade and investment system. Freedom of association is the first such right cited. To give effective leadership 

to this cause, the United States must confront and begin to solve its own failings 

when it comes to workers’ rights. Moving swiftly to strengthen labor-rights enforceVerDate Mar 21 2002 05:26 Mar 07, 2003 Jkt 010199 PO 00000 Frm 00051 Fmt 6633 Sfmt 6621 W:\DISC\80443 txed01 PsN: PFRM67
48

ment and deter labor-rights violations in the United States will advance U.S. concern for ensuring worldwide respect for core labor standards. 

CONCLUSION

Our report, Unfair Advantage, contains numerous specific recommendations for 

remedying violations of workers’ rights in the United States and promoting workers’ 

freedom of association. I urge the members of the Committee to review these recommendations and give them careful consideration as the Committee formulates its 

response to the problems detailed in today’s testimony. 

There is, however, a more overarching point that bears emphasis. Freedom of association occupies a fundamental place in the American legal system and among 

American values. Beyond the technicalities of administrative regulations, jurisprudence or statutory reforms, a larger reality looms over labor law and practice in the 

United States. So long as worker organizing, collective bargaining, and the right to 

strike are seen only as economic disputes involving the exercise of power in pursuit 

of higher wages for employees or higher profits for employers, change is unlikely. 

Human Rights Watch took on this issue because it is a human rights issue, and we 

believed that our involvement could provide an impetus for change by carefully documenting violations and obstacles confronting workers seeking to organize, and analyzing these issues as human rights concerns. 

The United States should look to international human rights standards to inform 

its analysis of the problem and of possible remedies. Such a perspective is critically 

important for the government, but employers, workers, and unions should also carry 

out their affairs with a clear recognition that workers’ self-organization is a fundamental human right and a core American value. In addition, the United States 

should ratify ILO Conventions 87 and 98 on worker organizing and protections 

against anti-union discrimination to demonstrate that it is serious about workers’ 

freedom of association. U.S. Government efforts to stand tall for freedom around the 

world will be strengthened by supporting freedom of association at home. 

In the end, what is most needed is a new spirit of commitment by the labor law 

community and the government to give effect to both international human rights 

norms and the still-vital affirmation in the United States’ own basic labor law for 

full freedom of association for workers. The specific findings and recommendations 

contained in our report should be seen in this broader context. We are hopeful that 

today’s hearing will shine a spotlight on the human rights implications of the obstacles to workers’ freedom of association in the United States, and that the Congress 

will lead an effort to protect and promote this fundamental freedom.

The CHAIRMAN. Mr. Vizier. 

STATEMENT OF ERIC J. VIZIER, MARINER, GALLIANO, LA 

Mr. VIZIER. Good morning, Chairman Kennedy, Senators, and 

staff. Thank you for providing me, on behalf of my fellow mariners 

from the Gulf of Mexico, the opportunity to tell you what we face 

in the oil industry. Joining me today are Captain Mark Cheramie, 

who worked for Guidry Brothers, and his wife Sherry, and Captain 

Michael Cheramie, who works at Trico Marine Services. 

My name is Eric J. Vizier. I am a licensed U.S. Coast Guard 

master of 1,600-ton merchant vessels. I am a third-generation mariner from South Louisiana. 

In 2000, Mark and I tried to organize a union at Guidry Brothers, an offshore towing company in the gulf, with about 120 mariners. Our union is Offshore Mariners United, OMU, a federation 

of four maritime unions: SIU, AMO, MEBA, and MM&P. We knew 

we needed a union because we are forced to break U.S. Coast 

Guard rules and forced to break environmental laws. The pay is 

poor, the benefits aren’t good, and there is no respect. The owners 

think of us mariners as ‘‘boat trash.’’

There was a lot of support among the Guidry mariners for a 

union, and a majority signed union pledge cards. But Guidry’s response was swift and vicious. 

49

Guidry Brothers fired four captains for their union support, including Mark and myself. The owners interrogated the mariners, 

spied on us, and harassed us. They threatened to blackball union 

supporters. They told us they would shut the company down if the 

union came in. Guidry owners tried to run me off the road, and 

they had me illegally arrested. A Guidry owner walked into a restaurant where he knew there would be folks from the union. He 

broke a bottle, held up the jagged edge, and said he would use it 

to cut the throats of union organizers. 

But that wasn’t enough. Guidry used all the resources of the boat 

owners and the oil and gas industry that have come together to 

fight unions in the gulf. 

The boat owners’ own association, Offshore Marine Service Association, OMSA, set up an anti-union fund getting contributions 

from every sector of the offshore oil and gas industry. OMSA runs 

training sessions for the boat companies on every manner of fighting pro-union mariners and the unions. 

One OMSA member, a boat company called Edison Chouest Offshore, formed a front group know as the Concerned Citizens for the 

Community, CCFC, to fright everyone from supporting the union. 

All the boat owners use CCFC’s anti-union procedures and materials. 

For instance, my wife, Nikki, who joins me today, was harassed 

with lewd sexual phone calls and jeers from CCFC supporters. We 

know this because the phone calls came from Chouest’s office. 

My mother’s boss, another CCFC supporter, told her she could 

lose her job at a restaurant if I did not stop supporting the union. 

She was also harassed. 

One of the fired pro-union Guidry captains was visited by CCFC. 

He was given a choice. If he stayed pro-union, his son at Chouest 

would lose his job. If he became anti-union, then he could go to 

work at Chouest, too. 

My house was broken into, and a dead fish was left on my doorstep. While investigating the break-in, the police received a phone 

call. They stopped investigating and just left without completing 

the report. 

Further, the dock owners and boat companies make access to the 

mariners’ workplace impossible. To prevent contact between mariners and union staff, the dock owners put up fences, guard shacks, 

and hired security officers. 

The boat companies also use the police to prevent mariners from 

organizing. For example, police arrested union staff for leafleting. 

Police in their squad cars followed union organizers. Police detained an international trade union delegation, forced them out of 

their vans, and told them to turn over their IDs. 

Port police told mariners and union staff that Federal laws protecting the right to organize do not apply at Port Fourchon. Boat 

companies hire police to do anti-union activities in their off-duty 

time, but under the law, the police can still wear their uniforms, 

carry their guns, and use their patrol cars. 

This anti-union campaign is not just limited to Guidry mariners. 

For 2 years, Trico’s mariners have sat through weekly anti-union 

meetings. Trico has fired two pro-union captains. Mike Cheramie, 

the captain from Trico who is here today, will probably be fired and 

50

blackballed by Trico for daring to come to Washington, DC, to tell 

you what is going on in the oil patch. 

To whom do we mariners turn for justice? The National Labor 

Relations has failed us. The NLRB found that Guidry had illegally 

fired four captains for union activity, and 40 other violations of the 

law. It was so bad, the Board recommended bargaining order was 

the remedy. But then the Board failed to seek a bargaining order 

either in trial or in settlement, and the Board seemed more interested in just getting rid of the case than in getting justice. For example, the Board attorney told me to take a cash settlement instead of proceeding with the case. A few months later, the Board 

told me a second time to take a cash settlement, and when I said 

I needed to talk to the union, the Board attorney told me not to 

talk to the union. 

A few months after that, the Board attorney called me a third 

time to pressure me to take the settlement, but told me she hadn’t 

read it. A few months ago, I asked the Board attorney what was 

happening on the case. She said the Board had to pick a side, and 

they were going with the company. Today, Mark and I are still not 

back at work at Guidry. 

It shouldn’t be this hard to form a union. Mariners shouldn’t 

have to fight their own company, the other boat companies, their 

customers, the big oil and drilling companies, the dock owners, and 

the police just to have the right to choose to be represented by a 

union. 

We ask this committee to investigate this situation in the oil 

fields. We will provide more detailed information for the record. 

Come to south Louisiana where the industry is based. Talk to all 

the parties involved. Together, let’s figure out a way that mariners 

in the oil and gas industry can win their rights, their rights to freedom of association and freedom of speech. 

Thank you all for your time, Senators. 

The CHAIRMAN. Thank you. I have difficulty in understanding 

how a person would break a bottle and come and threaten you, but 

we will talk about it. You look like you are able to handle yourself, 

quite frankly, no matter what they have in their hand. 

[The prepared statement of Mr. Vizier follows:]

PREPARED STATEMENT OF ERIC J. VIZIER, MARINER, GALLIANO, LA

Good morning, Chairman Kennedy, Senators and staff. 

Thank you for providing me—in behalf of my fellow mariners from the Gulf of 

Mexico—the opportunity to tell you what we face in the oil patch. Joining me today 

are Captains Mark Cheramie, who worked for Guidry Brothers Towing, and Michael 

Cheramie, who works at Trico Marine Services. 

My name is Eric J. Vizier. I am licensed by the U.S. Coast Guard to serve as a 

Master of 1600 GT vessels. I am a third generation mariner from South Louisiana. 

In 2000, Mark and I tried to organize a union at Guidry Brothers, a general offshore towing company in the Gulf of Mexico with about 120 mariners. Our union 

is the Offshore Mariners United (OMU), a federation of four maritime unions—SIU, 

AMO, MEBA and MM&P. 

We knew we needed a union because: 

• We are forced to break U.S. Coast Guard rules and forced to break environmental laws. 

• The pay is poor, the benefits aren’t good. 

• And there’s no respect—the owners think of us mariners as ‘‘boat trash.’’ 

There was a lot of support among the Guidry mariners for a union and a majority 

signed union pledge cards. But Guidry’s response was swift and vicious: 

51

• Guidry Brothers fired four captains for their union support, including Mark and 

myself. • The owners interrogated the mariners about their views on the union, they 

spied on us and they harassed us. • They threatened to blackball union supporters so they won’t work again. • They told us they’d shut the company down if the union came in. • Guidry owners tried to run me off the road and had me illegally arrested. • A Guidry owner walked into a restaurant where he knew there would be folks 

from the union. He broke a bottle, held up the jagged edge and said he would use 

it to cut the throats of union organizers. 

But that wasn’t enough. Guidry used all the resources of the boat owners and the 

oil and gas industry that have come together to fight unions in the Gulf. 

The boat owners own association—the Offshore Marine Service Association 

(OMSA)—set up a union-fighting fund getting contributions from every sector of the 

offshore oil and gas industry. OMSA runs training sessions for the boat companies 

on every manner of fighting pro-union mariners and the unions. 

One OMSA member, a boat company called Edison Chouest Offshore, formed a 

front group known as the Concerned Citizens for the Community (CCFC) to frighten 

everyone from supporting the union. 

All the boat owners use CCFC’s anti-union procedures and materials. 

For instance, my wife, Nikki, who joins me today, was harassed with lude sexual 

phone calls and jeers from CCFC-supporters. We know this because the phone calls 

came from Chouest’s office. 

My mother’s boss, another CCFC-supporter, told her she could lose her job at a 

restaurant if I did not stop supporting the union. She was also harassed. 

One of the fired pro-union Guidry captains was visited by the CCFC. He was 

given a choice. If he stayed pro-union, his son at Chouest would lose his job. If he 

became anti-union then he could go to work at Chouest too. 

My house was broken into and dead fish left on my doorstep. While investigating 

the break-in, the police received a phone call. They stopped investigating and just 

left without completing a report. 

Further, the dock owners and boat companies make access to the mariners’ workplace impossible. To prevent contact between mariners and union staff, the dock 

owners put up fences, guard shacks and install security officers. 

The boat companies also use the police to prevent mariners from organizing. For 

example: • Police arrest union staff for leafleting. • Police in their squad cars follow union organizers. • Police detained an international trade union delegation, forced them out of their 

vans and told to turn over their IDs. • Port police told mariners and union staff that Federal laws protecting the right 

to organize do not apply at Port Fourchon. 

• Boat companies hire police to do anti-union activities in their off-time. But 

under law, the police can still wear their uniforms, carry their guns and use their 

patrol cars. 

This anti-union campaign is not just limited to Guidry mariners. For 2 years Trico 

mariners have sat through weekly anti-union meetings. 

Trico’s fired two pro-union captains. Mike Cheramie, the captain from Trico who 

is here today, will probably be fired and blackballed by Trico for daring to come to 

Washington, D.C. to tell you what is going on in the oil patch. 

And to whom do we mariners turn for justice? 

The National Labor Relations Board has failed us. The NLRB found that Guidry 

had illegally fired four captains for union activity and 40 other violations of the law. 

It was so bad, the Board recommended a bargaining order as a remedy. 

But then, the Board failed to seek a bargaining order either in trial or in settlement. And the Board seemed more interested in just getting rid of the case than 

in getting justice. For example: 

• The Board attorney told me to take a cash settlement instead of proceeding 

with the case. 

• A few months later, the Board told me a second time to take a cash settlement 

and when I said I needed to talk to the union, the Board attorney told me not to 

talk to the union. 

• A few months after that, the Board attorney called me a third time to pressure 

me to take the settlement but told me she hadn’t read it. 

• A few months ago, a Board attorney contacted me about my back wages. I asked 

her what was happening on the case. She said the Board had to pick a side and 

that they were going with the company. 

• And, today, Mark and I are still not back at work at Guidry. 

52

The OMU also has an access charge against two companies—Trico and Seacor. 

That case has been before the NLRB for a year-and-a-half. The Board hasn’t even 

taken the first step and issued a complaint. 

It shouldn’t be this hard to form a union. Mariners shouldn’t have to fight their 

own company, the other boat companies, their customers the big oil and drilling 

companies, the dock owners and the police just to have the right to choose to be 

represented by a union. 

We ask this Committee to investigate this situation in the Gulf oil fields. 

We will provide more detailed information for the record. Come to South Louisiana where this industry is based. Talk to all the parties involved. Together, let’s 

figure out a way that mariners in the oil and gas industry can win their rights—

their rights to freedom of association and freedom of speech. 

Thank you.

The CHAIRMAN. Mr. Yager. 

STATEMENT OF DANIEL V. YAGER, SENIOR VICE PRESIDENT 

AND GENERAL COUNSEL, LABOR POLICY ASSOCIATION, 

WASHINGTON, DC 

Mr. YAGER. Thank you, Mr. Chairman. It is a pleasure to be here 

this morning. 

As I think was reflected by some of the statements by the Members of the committee, this is a long-running debate. I have been 

doing labor policy issues in Washington for about 20 years now, 

and I have seen a lot of other issues come and go, but it seems like 

this one we have been talking about for a long, long time. 

For that reason, I think the best statement our association has 

ever given on this issue was before the Dunlop Commission in 

1994. I have attached to this testimony our testimony from that. 

I took a look yesterday. I think some of the numbers have changed, 

but I did some spot checks on them, and they really haven’t 

changed a whole lot. Obviously, in the question and answer period, 

I would be happy to take any questions and any discussion on that. 

What I would really like to talk about in my limited time is an 

issue that is, I think, the most pressing concern to our Members 

in this area, and that is what they see as an erosion of employee 

choice in the issue of selection of a collective bargaining representative, and essentially a turning away from the secret ballot election 

process. Now, that is a process that has been widely endorsed. The 

Supreme Court, no less than Justice William Douglas, has said 

that that is the procedure that should be favored under the statute. 

The AFL–CIO, in an amicus brief on the issue of whether or not 

there should be a secret ballot election when the employees choose 

to get rid of an unpopular union, said that the secret ballot election 

system provides the surest means of avoiding decisions which are 

the result of group pressures and not individual decisions. 

I also noted even in the Human Rights Watch report, they indicated that secret ballot elections still have a moral primacy. I think 

that is a good phrase that I will probably embrace myself as I talk 

about this issue. 

The reality is, though, as organized labor’s market share has declined in recent years, it has embraced a new tactic which really 

goes at, instead of organizing employees, organizing employers. The 

process is getting employees to sign a card. Now, this card, unlike 

a secret ballot election, is signed in the presence of an interested 

party—a union organizer, a pro-union coworker. It does not—which 

in and of itself means at a minimum the employee who is being 

53

asked to sign this card is going to be subjected to peer pressure, 

but oftentimes it is a lot worse than that. We have attached to our 

testimony a number of cases, court cases over the years that have 

documented some of the tactics that have been used to get employees to sign these cards. 

Once a majority of the workers have signed these cards, the 

union then can go to the employer and ask them to recognize the 

union. At that point, on the basis of those cards, it is legal for an 

employer to basically say, OK, we will do it this way, we won’t 

have an election. 

The law has tolerated that over the years, I think because of an 

assumption that since an employer can ask for an election, they—

the only reason they would agree to something like this would be 

if they would believe that an election would be superfluous, because obviously the union does enjoy the support of their workers. 

So let’s forget the election, let’s, you know, start bargaining and get 

that going. 

Unfortunately, that assumption can no longer be made because 

today’s tactic of getting employers to agree to card check recognitions is through something called a corporate campaign. You are 

going to hear a taste of that from one of the witnesses in the next 

panel, so I won’t really walk through the tactics other than just to 

give a couple quotes on some descriptions. 

For example, the number two person at the AFL–CIO, Rich 

Trumka, has described a corporate campaign as ‘‘a death of a thousand cuts.’’ A UFCW official indicated—characterized it as ‘‘putting 

enough pressure on employers, costing them enough time, energy, 

and money to either eliminate them or get them to surrender to the 

union.’’ In this Law Review article, he described how, in fact, his 

local had eliminated a grocery concern that had refused to agree 

to a card check recognition. A variety of tactics are used, and I 

would refer you to my testimony to see what some of those are. 

I just want to talk about one instance where this happened, and 

this was a situation involving MGM Grand in Las Vegas, where 

there was about—after the hotel opened, there was a 3-year corporate campaign to get the company to agree to a card check recognition. Finally, the company capitulated, agreed to the card 

check, and at that point a lot of employees got very angry because 

they had not been given a chance to vote on this issue. In fact, 

there were stories about coercion tactics being used by the hotel 

workers union to get them to sign it. So, in fact, a majority of the 

workers—that is 3,000 workers. A majority of those workers on 

three different occasions took a petition to the National Labor Relations Board asking for a secret ballot election, and the Board refused that over the course of year, saying, no, the law is we give 

the employer and the union a reasonable period for bargaining before we will have an election on this issue. 

Ultimately, at the end of the year, a collective bargaining agreement was reached. At that point, because of the contract bar rule, 

the employees were forbidden from having an election for the life 

of that contract. 

Essentially what happened in that situation was, since the employees never got to, in a confidential, uncoerced manner, register 

their views, it was really a decision made by the employer. It was 

54

really a deal between the employer and the union that the union 

would represent that employer’s workers. So we would encourage 

the committee to consider—there is legislation pending in the 

House on this issue, H.R. 4636. We would encourage this committee to consider a ban on card check organizing, making it an unfair labor practice for the employer and the union to enter into 

these kinds of arrangements. We would urge you to take that 

under advisement. 

I appreciate the opportunity to appear, and I am happy to take 

any questions. 

[The prepared statement of Mr. Yager follows:]

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

COUNSEL LPA, LABOR POLICY ASSOCIATION

Mr, Chairman, and Members of the Committee: I am pleased to appear before you 

today to, present the views of LPA, the Labor Policy Association, regarding ‘‘Workers’ Freedom of Association: Obstacles to Forming a Union.’’ My name is Daniel V. 

Yager and I serve as Senior Vice President and General Counsel for LPA. As I will 

discuss in this statement, we believe the most serious problem in union organizing 

today is the erosion of employee choice through so-called card check/neutrality 

agreements. 

As you may know, LPA is a public policy advocacy organization representing senior human resource executives of over 200 leading employers doing business in the 

United States. LPA provides in-depth information, analysis, and opinion regarding 

current situations and emerging trends in labor and employment policy among its 

member companies; policymakers, and the general public. Collectively, LPA members employ over 19 million people worldwide and over 12 percent of the U.S. private sector workforce. LPA’s members are employers—with both represented and 

non-represented workforces—covered by the National Labor Relations Act. LPA has 

played an active role over the years in congressional consideration of statutory 

changes in the labor laws. We also seek to help shape the law through amicus curiae briefs filed with the National Labor Relations Board and the courts. In addition, we report extensively on labor law developments through our newsletter NLRB 

Watch and other publications. 

The issue of whether the current American labor laws impose unacceptable obstacles to union organizing is assuredly not a new one. Since organized labor began 

experiencing a decline in its market share of the workforce in the latter part of the 

previous century, there have been calls for dramatic changes in those, laws which 

have been consistently rejected or ignored by the U.S. Congress. Early in the 1990’s, 

this issue was fully aired before the Commission on the Future of Worker-Management Relations (the so-called Dunlop Commission). At a Dunlop Commission hearing in September 1994, Howard Knicely, Executive Vice President, Human Resources & Communications for TRW, Inc., and Chairman of LPA at the time, delivered a comprehensive statement addressing the various aspects of.this debate. I 

have attached a copy of Mr. Knicely’s statement to my testimony as it continues to 

represent our views on these issues [see Appendix A]. If anything, since Mr. Knicely 

delivered his testimony, the law has become more favorable toward union organizing 

as a result of 8 years of consistently pro-labor rulings by the National Labor Relations Board during the Clinton administration. 

I would like to direct my testimony to a practice that LPA believes, in recent 

years, has seriously undermined the basic protections of our labor laws. One of the 

cornerstones of American labor policy has been that unionization is a matter of employee choice. Yet, because in recent years fewer employees have chosen to elect 

unions in traditional secret ballot elections, organized labor has adopted a different 

approach called card check organizing.1 Using this approach, employers are pressured—typically through a strategy called a ‘‘corporate campaign’’—into recognizing 

unions on the basis of union authorization cards signed in the presence of a union 

organizer. These agreements are often accompanied by the employer’s agreement to 

remain neutral while the union seeks the employees’ signatures. Where a union is 

recognized on the basis of a card check, the result may be viewed as a deal between 

the employer and the union that the latter will represent employees who have never 

had an opportunity to declare their position in a confidential manner. LPA strongly 

supports legislation that has been introduced in the House—H.R. 4636, the ‘‘Workers’ Bill of Rights’’—which would ban card check recognition. 

55

HOW CARD CHECK ORGANIZING WORKS

Historically, under the National Labor Relations Act, the decision as to whether 

a union will serve as a collective bargaining representative of a group of employees 

is made through a secret ballot election. The election typically takes place after the 

union has made a required showing of sufficient interest among the employees—at 

least 30 percent of those it is seeking to represent—in having an election. This interest is usually demonstrated by signed union authorization cards that indicate a 

desire by the employee to be represented by the union or to have an election to determine that issue. When the election is held, it is supervised by the National Labor 

Relations Board, which ensures that employees cast their ballot in a confidential 

manner with no coercion by either management or the union. 

However, the law has allowed an exception in situations where an election may 

be superfluous because it is clear to the employer that the union enjoys the support 

of a majority of the employees. Thus, under current law, when presented with union 

authorization cards signed by more than 50 percent of the employees, the employer 

may voluntarily recognize the union. This has been tolerated under the law despite 

the absence of numerous safeguards in the so-called card check process compared 

to those that exist in an NLRB representation election [see Chart I]. 

HOW UNIONS GET EMPLOYEES TO SIGN CARDS

Unlike a secret ballot election, union authorization cards are signed in the presence of an interested party—a pro-union co-worker or an outside union organizer—

with no governmental supervision. There is no question that this absence of supervision has resulted in deceptions, coercion, and other abuses over the years. Even 

in the best of circumstances, an employee is likely to be subject to peer pressure 

from other pro-union employees to sign the card. At worst, the employee may be 

subjected to deception and threats by organizers to get them to sign the cards. The 

card-signing process is loosely regulated and almost always escapes the attention of 

authorities. However, on occasion, a courageous employee has brought to the attention of the NLRB or the courts coercive activity, which has been documented in numerous decisions over the years [see Appendix B]. 

For example, in HCF, Inc. d/b/a Shawnee Manor,2 an employee testified that a 

co-employee soliciting signatures on union authorization cards threatened that, if 

she refused to sign, ‘‘the union would come and get her children and it would also 

slash her tires.’’ Incredibly, the Clinton Board refused to find the union responsible 

for the misconduct of the employee card solicitor. While acknowledging that workers 

assisting a union in card solicitations are typically acting as union agents, the Board 

concluded that ‘‘alleged threats of violence, even when made in the course of card 

solicitation, cannot be construed by any reasonable person as representing ‘purported union policies.’ ’’ 

CHART 1: PROCEDURAL SAFEGUARDS: ELECTION V. CARD CHECK

The following side-by-side comparison explains some of the procedural safeguards 

found in the NLRB election process along with any counterpart card check protections:

Election: An NLRB-approved notice that explains the workers’ rights must be 

posted by the employer at least 3 days prior to the election. 

Card Check: Workers are informed of their rights only to the extent articulated 

by the union organizer. 

Election: ‘‘Captive audience’’ speeches within 24 hours of the election are prohibited. 

Card Check: Employees are subject to unrebutted, pro-union speeches up until the 

time they sign an authorization card. 

Election: The election is conducted by an agent of the NLRB in conjunction with 

an equal number of observers selected by the union and employer. 

Card Check: Union authorization cards are solicited in the presence of union organizers. 

Election: The election ballot box is physically inspected and sealed by the NLRB 

agent immediately prior to voting. 

Card Check: The union maintains control over signed authorization cards. 

Election: The names of prospective voters are compared against a previously established eligibility list before they may cast their ballots. 

Card Check: Anyone may sign union authorization cards. Although forgery of authorization cards is prohibited, there is no safeguard that prevents forgeries before 

the fact. 

Election: The NLRB agent retains positive control over the ballots at all times. 

56

Card Check: The union retains control over authorization cards at all times. 

Election: The ballots are secret: no name or other identifying information appears 

on the ballot to indicate how an employee voted. 

Card Check: Both the employer and the union know which employees signed authorization cards. 

Election: Employees may not be assisted in casting their votes by agents of the 

union or employer. 

Card Check: Union organizers may fill out and, sign authorization cards on behalf 

of the workers with their express or implied permission, regardless of whether they 

have read the cards. 

Election: Electioneering near the polls is prohibited. 

Card Check: Solicitation of authorization cards may be accompanied by any prounion propaganda that does not rise to a material misrepresentation regarding the 

consequences of signing the card. 

Election: Neither the employer nor the union may engage in coercive or threatening conduct prior to the election: 

Card Check: The union may not use threats or coercion in order to obtain signed 

cards nor may the employer use threats or coercion to prevent cards from being 

signed. 

Election: Neither the employer nor the union may grant or promise benefits prior 

to the election. 

Card Check: The union may not promise or grant benefits in order to obtain 

signed cards nor may the employer make promises or grant benefits to prevent 

cards from being signed. 

Election: The ballot box is opened, and the votes are counted by the NLRB agent 

in the presence of the employer and union observers. 

Card Check: The employer may, but is not required to, request that a neutral 

party compare the names on authorization cards to the employer’s payroll list.

Yet, even where abuses such as those in Shawnee Manor do not occur, union authorization cards are an inadequate method for determining employee choice, as the 

U.S. Supreme Court has acknowledged:

The unreliability of the cards is not dependent upon the possible use of 

threats. . . . It is inherent, as we have noted; in the absence of secrecy and the 

natural inclination of most people to avoid stands which appear to be nonconformist and antagonistic to friends and fellow employees.3

Thus, the Court, in an opinion authored by Justice William O. Douglas, concluded 

that ‘‘in terms of getting on with the problems of inaugurating regimes of industrial 

peace, the policy of encouraging secret elections under the Act is favored.’’ 4

Indeed, even organized labor has sung the virtues of secret ballot elections when 

the issue has been whether or not a union should continue to represent a group of 

employees who apparently no longer support it. In recent brief, the AFL–CIO, 

quoting the U.S. Supreme Court, asserted to the NLRB:

A representation election ‘‘is a solemn . . . occasion, conducted under safeguards to voluntary choice,’’ . . . other means of decisionmaking are ‘‘not comparable to the privacy and independence of the voting booth,’’ and [the secret 

ballot] election system provides the surest means of avoiding decisions which 

are ‘‘the result of group pressures and not individual decision[s].’’ 5

USE OF CORPORATE CAMPAIGNS TO GET EMPLOYERS TO AGREE TO CARD CHECKS

Historically, card check recognition has been tolerated because of an assumption 

that, with a legal right to refuse card check recognition, an employer would only 

agree to forego an election if it was clear to the employer that such an election 

would be superfluous because of the strong employee support for the union. This assumption may have been valid in previous years but, in recent years, employers are 

more likely to be forced into recognition by a strategy called a ‘‘corporate campaign.’’ 6

Although there is no simple definition for the term ‘‘corporate campaign;’’ the substance of the strategy is now well documented by academics, the courts, and the 

unions themselves.7 The U.S. Court of Appeals for the District of Columbia Circuit 

summed up the term well when it stated that a corporate campaign:

‘‘encompasses a wide and indefinite range of legal and potentially illegal tactics 

used by unions to exert pressure on an employer. These tactics may include, but 

are not limited to, litigation, political appeals, requests that regulatory agencies 

investigate and pursue employer violations of State or Federal law, and negative publicity campaigns aimed at reducing the employer’s good will with employees, investors, or the general public:’’ 8

57

The AFL–CIO likewise explains the process as follows:

A coordinated corporate campaign applies pressure to many points of vulnerability to convince the company to deal fairly and equitably with the union. In 

such a campaign, the strategy includes workplace actions, but also extends beyond the workplace to other areas where pressure can be brought to bear on 

the company. It means seeking vulnerabilities in all of the company’s political 

and economic relationships—with other unions, shareholders, customers, creditors and government agencies—to achieve union goals.9

A more graphic description of a corporate campaign has been provided by AFL–

CIO Secretary-Treasurer Richard Trumka:

Corporate campaigns swarm the target employer from every angle, great and 

small, with an eye toward inflicting upon the employer the death of a thousand 

cuts rather than a single blow.10

Corporate campaigns can involve a seemingly unlimited number of individual 

pressure tactics. For example, one common tactic is the use of legal and regulatory 

harassment, as described in A Troublemaker’s Handbook—a veritable how-to manual for corporate campaigns:

Private companies are subject to all sorts of laws and regulations, from the 

Securities and Exchange Commission to the Occupational Safety and Health 

Act, from the Civil Rights Act to the local fire codes. Every law or regulation 

is a potential net in which management can be snared and entangled. A complaint to a regulatory agency can cause the company managerial time, public 

embarrassment, potential fines, and the cost of compliance. One well-placed 

phone call can do a lot of damage.11

One UFCW official; in an article about how his union drove a grocery concern out 

of business, explained this strategy as ‘‘putting enough pressure on employers, costing them enough time, energy and money—to either eliminate them or get them to 

surrender to the union.’’12

Yet, when an employer seeks to defend itself against corporate campaign tactics, 

it often finds that its hands are tied. For example, despite the availability to the 

union of harassment through litigation and regulatory complaints, employers that 

take legal action to defend themselves against the union will often be found by the 

NLRB to have retaliated against protected activity and will be ordered to reimburse 

the union for its legal expenses.13

MGM GRAND AND NEW OTANI EXAMPLES

There are numerous examples in recent years of unions using, corporate campaigns to try to coerce employers into granting card check recognition. Two in particular—MGM Grand and the New Otani Hotel & Garden—are noteworthy because 

they highlight how the law is currently tilted against employee choice in this area. 

In the case of the MGM Grand Hotel, the hotel had opened for business in December 1993 and, for nearly 3 years, operated nonunion while the Hotel Employees & 

Restaurant Employees International Union (HERE) waged an extensive corporate 

campaign against the company demanding that it agree to a card check recognition. 

The tactics HERE used to pressure MGM Grand included negative reports issued 

to investment analysts, opposition to MGM’s planned expansion into other locations, 

a sit in of 500 people in the hotel’s lobby, and numerous public demonstrations.14

Ultimately, on November 15, 1996, the company voluntarily recognized HERE as 

the exclusive collective bargaining representative of its employees on the basis of 

a card check. At that time, there were approximately 2,900 employees. This number 

increased to approximately 3,100 employees by October 1997. 

The hotel’s recognition of the union was not well received by the employees. Many 

believed that their co-employees had been coerced into signing the cards, including 

threats of being fired or deported. One employee was reportedly even told that if 

management learned she was gay, she would be fired by the company if she didn’t 

sign a card so that the union could protect her.15 Events soon made it clear that 

a majority of the employees did not support the union. Petitions for an election—

signed by over 60 percent of the employees—were filed by the employees with the 

NLRB regional office on April 17, 1997, September 16, 1997, and November 6 1997. 

These were dismissed on the basis that a ‘‘reasonable time to bargain’’ had not 

elapsed. 

Finally, on November 8, 1997, 2 days after the employees filed the third petition, 

the company announced to its employees that it had reached a tentative collectivebargaining agreement with HERE and on November 13, 1997, 2 days before the 1-

year anniversary of the company’s recognition of HERE, the union held a ratification vote at its headquarters. Although the voting was open to all employees, fewer 

58

than, one-third of the bargaining unit employees participated in the ratification 

vote, and the collective bargaining agreement was approved by a vote of 740 to 103. 

Eventually, a divided National Labor Relations Board upheld the decisions by the 

regional office to deny the employees a secret ballot election.16 Under the law, the 

employees could not appeal the Board’s decision, because Federal courts are barred 

from considering appeals from employees in cases involving NLRB election processes. Furthermore, once the hotel and the union signed a collective-bargaining 

agreement, the employees were barred by the so-called contract bar doctrine from 

seeking an election for the life of the contract. 

The case of the New Otani Hotel and Garden in Los Angeles provides an example 

of an employer who stood its ground on insisting that unionization be a matter of 

employee choice but was unable to secure a secret ballot election to resolve the matter. Unfortunately, this insistence was not cost-free to either the employer or the 

public. HERE Local 11 brought the full force of the L.A. political community to bear 

in seeking card recognition of the union by the hotel.17 The union, which was rejected by 88 percent of the New Otani workers in an election in 1982, had no interest in reprising its defeat. With the ultimate goal of ensuring there were no nonunion hotels in downtown L.A., another large election loss would be devastating. 

Thus, the union’s strategy was to apply sufficient pressure on the company until it 

capitulated and agreed to a card check. 

For 4 years, the union focused its efforts on pressuring the hotel itself. It enlisted 

the support of the AFL–CIO at, the highest levels, with personal participation by 

President Sweeney, who led a demonstration of 2,000 supporters in downtown Los 

Angeles, characterizing the effort as ‘‘a fight between a valid international labor 

movement and a multinational law breaker.’’18 After a continuing lack of success, 

the union tried a new approach in 1997. In addition to pressuring the hotel, the 

union also began attacking the hotel’s parent company, Kajima Corp., a construction 

company that performs a substantial amount of work in Los Angeles. The vulnerability of construction companies with regard to government agencies is well known, 

particularly in a highly regulated market like Los Angeles. 

Thus, when the L.A. City Council was considering bidding procedures for a $1 billion section of a high speed railway, many of the city council members expressed 

concerns about the possibility of Kajima being awarded the contract. Councilman 

Mike Hernandez stated: ‘‘Companies like Kajima that we have other issues with will 

be bidding on these contracts. . . . What do we do if we have a company that, for 

example, we don’t want to work with?’’ The ‘‘other issues’’ were an apparent reference to the fact that 10 of the 15 council members had endorsed a boycott of New 

Otani. After the discussion, it was decided that the council would play a stronger 

role in fashioning the bidding standards. As it turned out, Kajima decided not to 

submit a bid. 

In another instance, HERE was able to demonstrate its ability to punish those 

politicians who failed to join its crusade against New Otani/Kajima. L.A. School 

Board Member Victoria Castro voted to award Kajima a large contract for development of a learning center in a largely immigrant community in her district. In response, the local unions poured money into the campaign of her opponent in the primary for a State assembly seat. That contributed to an upset victory for her opponent, former county employees’ union official Gil Cedillo. 

The union’s efforts also influenced nongovernmental entities. When the union 

learned that the Japanese-American National Museum was considering using 

Kajima for an expansion project, a letter-writing campaign was organized within the 

civil rights community, including one activist who had been honored by the museum. The letters called into question the propriety of associating the museum with 

a company accused of using Chinese slave laborers during World War II. In response, the museum opened the process to bidding and Kajima did not submit a bid. 

Throughout this brutal assault on the hotel and its parent company, what was 

the employer’s response to the union’s demand that it agree to a card check? Rather 

than making the decision for its employees, the hotel insisted that the matter be 

resolved by a secret ballot election conducted by the NLRB, and filed an employer 

petition with the Board’s regional office seeking an election. Once again, a divided 

NLRB trumped employee choice when it ruled that such elections are only available 

to an employer where the union demands recognition. The Board held that, in this 

situation, the union had simply demanded that the employer agree to a process that 

could ultimately lead to recognition.19 Yet using the secret ballot election to resolve 

this matter would not only have spared the employer and its employees from the 

turmoil being created by the union’s continuing pressure tactics, it, also would have 

spared the Los Angeles taxpayers from having critical political decisions made on 

the basis of a labor-management battle that few of them cared about. 

59

WHY ORGANIZED LABOR PREFERS CARD CHECKS

Organized labor has made no secret about its pursuit of card check organizing. 

Recently, in his maiden speech as the new President of the UAW, Ron Gettelfinger 

reportedly pledged that the union ‘‘would use its leverage whenever possible to pressure employers to remain neutral during union recruiting drives and [agree to] socalled ‘card checks’. . . .’’ 20 Meanwhile, HERE claims that 80 percent of the 9,000 

workers the union organized last year never cast a ballot.21

A 1999 study undertaken for the AFL–CIO’s George Meany Center for Labor 

Studies, entitled ‘‘Organizing Experiences Under Union-Management Neutrality and 

Card Check Agreements,’’ shows why card checks are so important to organized 

labor. Using a traditional NLRB secret ballot election, unions only win about half 

the time (53.6 percent in 2001). The study, which examined union organizing experiences under 114 card check/neutrality agreements, found that unions scored victories in 78 percent of the campaigns where card checks were used and 86 percent 

where this was coupled with employer neutrality. 

SECRET BALLOT SUREST MEANS FOR ENSURING EMPLOYEE CHOICE

The decision by a unit of employees regarding representation by a union is a decision that should be made by those individual employees after hearing views on as 

many sides of the issue as possible. The American industrial relations system is 

founded on this principle. While not without flaws, the best way for resolving the 

question of representation continues to be by employees expressing their opinion in 

a secret ballot election conducted by the National Labor Relations Board. The secret 

ballot election process, which in the vast majority of situations occurs within 60 

days after it commences, guarantees confidentiality and protection against coercion, 

threats, peer pressure, and improper solicitations and inducements by either the 

employer or the union. 

Unfortunately, this system is being threatened by an alternative procedure, 

known as card check recognition, which lacks these same protections. On the critical 

issue of union representation, employers should not be allowed to substitute their 

own judgment for that of their employees. There is simply no acceptable alternative 

to secret ballot election for assessing those employees’ views. If the employer and 

the union ignore those procedures, union representation becomes nothing more than 

a deal between the employer and the union that the latter will represent the 

former’s employees. Ideally, the law should prohibit such agreements, and we would 

encourage this committee to consider legislation, to provide this prohibition. 

Thank you for giving me the opportunity to express our organization’s position on 

these issues and I will be happy to answer any questions. 

ENDNOTES

1. For a more thorough discussion of card check organizing and its implications, 

see Daniel V. Yager, Timothy J. Bard, Joseph L. LoBue, Employee Free, Choice. It’s 

Not in the Cards (1998). 

2. 321 N.L.R.B. 1320 (1996) 

3. NLRB v. Logan Packing Co., 386 F.2d 562, 566 (4th Cir. 1967), cited in NLRB

v. Gissel, 395 U.S. 575, 602 n.20 (1969). 

4. Linden Lumber v. NLRB, 419 U.S. 301, 307 (1974). 

5. Joint brief of the AFL–CIO et al. in Chelsea Industries & Levitz Furniture Co. 

of the Pacific, Inc., Nos. 7–CA–36846, et al. at 13 (May 18, 1998), quoting NLRB

v. Gissel Packing Co., 395 U.S. 575,602 (1969) and Brooks v. NLRB, 348 U.S. 96, 

99, 100 (1954). 

6. For a comprehensive study of corporate campaigns, see Jarol B. Manheim, The 

Death of a Thousand Cuts. (2001). 

7. See, e.g., Diamond Walnut Growers v. NLRB, 113 F.2d 1259 (D.C. Cir, 1997), 

cert. denied, 118 S. Ct. 1299 1998) (generally discussing union corporate campaign 

tactics); Food Lion v. United Food & Commercial Workers Int’l Union, 103 F.3d 

1007, 1014 n.9 (D.C. Cir. 1997) (defining the term ‘‘corporate campaign’’). See also

Industrial Union Department, AFL–CIO, Developing New Tactics: Winning With 

Coordinated Corporate Campaigns (1985); Dan La Boltz, A Troublemakers Handbook (1991); Service Employees International Union, Contract Campaign Manual 

(1988); Herbert R. Northrup, Union Corporate Campaigns and Inside Games as a 

Strike Form, 19 Empl. Rel. L.J. 507 (1994); Herbert R. Northrup, Corporate Campaigns: The Perversion of the Regulatory Process, 17 J. Lab. Research 345 (1996). 

8. Food Lion, 103 F.3d at 1014 n9. 

9. Industrial Union Department, AFL–CIO, supra note 7, at 1. 

60

1 Hereinafter referred to as the Report

10. ‘‘Union Officials Stress International Scope of Organizing, Bargaining Campaigns,’’ Daily Lab. Rep. (BNA), A–5 (Nov. 16, 1992). 

11. La Botz, supra note 7, at 127 (emphasis in original). 

12. Joe Crump, The Pressure is On: Organizing Without the NLRB, 18 Lab. Relations Rev. 33, 35–36 (1991) (emphasis added). 

13. See BE & K Const. Co., 329 NLRB No. 68 (1999), aff ’d, 246 F.3d 619 (6th 

Cir. 2001)., The Supreme Court has granted certiorari in BE & K (No. 01–518) and 

is considering the issue of whether liability may be imposed simply because the employer filed a losing suit—as is the Board’s current rule—or whether it should also 

find the lawsuit to be ‘‘objectively baseless.’’ LPA has filed an amicus curiae brief 

with the Supreme Court on behalf of the employer. 

14. Michelle Amber, ‘‘First Pact Between HERE, MGM Grand Calls for On-site 

Child Care Facility,’’ Daily Lab. Rep. (BNA), No. 225, A–1 (Nov. 21, 1997); Aaron 

Bernstein, ‘‘Sweeney’s Blitz,’’ Business Week, Feb. 17, 1997, at 56; Steven Greenhouse, ‘‘Unions, Bruised in Direct Battles With Companies, Try a Roundabout Tactic,’’ N.Y. Times, Mar. 10, 1997, at B–7. 

15. Lisa Kim Bach, ‘‘MGM Workers Seek to Oust Culinary,’’ Las Vegas Review 

Journal, Apr. 23, 1997, at D–1. 

16. MGM Grand Hotel, Inc., 329 NLRB No. 50 (Sept. 30, 1999). 

17. See Ron Kipling, The New Otani Hotel & Garden: A Corporate Campaign Case 

Study (1998); Ted Rohrlich, ‘‘Union’s Eight with Hotel Reverberates Across L.A.,’’ 

Los Angeles Times, Dec. 5, 1997, at A1. 

18. Patrick J. McDonnell & Stuart Silverstein, ‘‘AFL–CIO Chief to Press L.A. Case 

in Japan,’’ Los Angeles Times, Feb. 20, 1997, at D1. 

19. New Otanl Hotel & Garden, 331 NLRB No. 159 (2000). 

20. ‘‘Auto Union Chief Vows to Bolster Ranks,’’ Reuters, June 8, 2002. 

21. David Wessel, ‘‘Aggressive Tactics by Unions Target Lower-Paid Workers,’’ 

Wall Street Journal, Jan. 31, 2002, at A–1. 

APPENDIX A 

PREPARED STATEMENT OF HOWARD V. KNICELY, CHAIRMAN, BOARD OF DIRECTORS, LABOR POLICY ASSOCIATION

My name is Howard Knicely. I am Executive Vice President of TRW, and I am 

appearing before the Commission this morning as the Chairman of the Board of Directors of the Labor-Policy Association. Appearing with me is Rex Adams, Vice 

President of Administration for Mobil and a member of the Association’s Executive 

Committee. As Stephen Darien testified at the August 10 hearing, the comments 

LPA is presenting during this final set of hearings are the product of considerable 

discussion of the Fact Finding Report1 by the members of the Association in a series 

of meetings specifically called for this purpose. 

At the outset, we would like to express our appreciation to Secretary of Labor 

Robert Reich and Secretary of Commerce Ronald Brown for assembling this Commission to begin not only improving our nation’s employment policies, but also the 

process by which those policies are formulated. Work systems, work design and 

work relationships are in a constant State of evolution with each century bringing 

new attitudes, expectations, and forms of association. The present one is no exception. Before the industrial revolution, the concepts of union representation and collective bargaining as we know them today were not even being discussed in a theoretical sense. As the workplace changed in the late 19th century with the introduction of systems of mass production, however, collective bargaining and third party 

representation of rank-and-file employees became the dominant system of labormanagement relations in large enterprises. That system reached a peak during the 

middle part of this century, but since then, the workplace and work practices continued to evolve, and with it worker-management relationships. Traditional forms of 

collective bargaining now cover only 10 percent of the employed private sector workforce. The system of industrial relations that guided employment policy in the 

1940’s, 1950’s, and 1960’s is now exemplified by millionaire baseball owners and 

millionaire baseball players having shut down a sector of the U.S. economy by a 

strike that may not be resolved for several months to come. The baseball strike is 

instructive because it involves one of the few remaining American industries that 

is still shielded from competition, thus giving the two sets of millionaires the luxury 

of pursuing what many non participants view as ethereal demands. The vast majority of American companies, however, no longer operate in sheltered markets. RathVerDate Mar 21 2002 05:26 Mar 07, 2003 Jkt 010199 PO 00000 Frm 00064 Fmt 6633 Sfmt 6621 W:\DISC\80443 txed01 PsN: PFRM67
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2 Report, 48. 

er, we are constantly pressured by a host of highly competitive forces which have 

led front-line employees, managers, and unions to seek more cooperative ways of 

working with one another to ensure the long term viability of our organizations. 

It is for these reasons that the members of the Labor Policy Association, the NAM 

and hundreds of other business organizations were pleased that the Commission in 

its Report recognized the existence of these new forms of work relationships, generically described as employee participation or employee involvement. While, as expressed in our testimony on August 10th, LPA members are still not certain whether the Commission understands the full significance of employee involvement in today’s workplace, you have made an invaluable contribution to the continued 

progress of employment policy by ensuring that any future discussion of changes in 

those policies will deal with this new reality. In our August 10th statement, we detailed our concerns with the conclusions reached and the suggestions made in Chapter II, but on the whole we believe that its findings provide the necessary factual 

basis on which substantive discussions of policy changes can proceed. 

We would additionally point out that Chapter II asks whether these new forms 

of employee involvement are little more than ‘‘temporary fads that will ebb and 

flow.’’ 2 No one has yet discovered the perfect workplace, and we fully expect that 

the progressive organizational designs that have been described to you will eventually be replaced by even better ones. In the year 2094 when the Department of 

Labor (or whatever it is called by then) convenes a commission similar to this one, 

we are certain that its findings of fact will include descriptions of late 21st century 

work systems that are fundamentally different than the ones that were commonly 

prevailing in the mid-20th century. 

We were also pleased with Chapter IV of the Report because it acknowledges perhaps the most important employment policy development since the 1960’s—the shift 

in employee power in worker management relations from unions to plaintiff attorneys. The chapter breaks new ground in dealing with the legal gridlock that this 

shift has generated by again providing the necessary factual basis for substantive 

discussions. Regarding Chapter I of the Report, LPA has not offered a detailed economic analysis of its portrait of gloom nor do we intend to do so. Granted, the U.S. 

has significant economic and social problems that cry out for improvement. We 

would only say that, accepting your picture as correct, it is surprising that: 

1. Our borders are being overrun by so many people desperately seeking entry 

into the good life of the United States, 

2. Our rate of joblessness is so much lower than in Canada, Europe and other 

countries that have what the Commission may believe to be far more progressive 

employment policies, and 

3. American business is competing so well with countries whose workers don’t 

earn in a day what U.S. employees earn in an hour. 

That brings us to Chapter III of the Report, the subject of today’s hearing. In our 

opinion, it can be described most charitably as a disappointment. Not only does it 

present a decidedly one-sided view of the issues of union representation and collective bargaining, it perpetuates a number of myths about labor-management relations. As long as policymakers continue believing in these myths, which are only reinforced by Chapter III’s findings, any serious attempt at improving worker-management relations in this particular arena will be frustrated. Unlike Chapters II and 

IV of the Report, we do not feel a good faith attempt has been made in Chapter 

III to establish a set of facts that could bring the parties together to begin serious 

policy discussions, nor do we accept several of your findings as facts. 

The findings the Commission has either explicitly made or strongly implied in 

Chapter III can be summarized as follows: 

I. American workers have a strong preference for traditional union representation 

and collective bargaining that is being frustrated by employer hostility to unions. 

2. This hostility is the primary, if not the sole, reason for the decline in union 

representation in America. 

3. The principal manifestation of this hostility is employees seeking union representation who are intimidated into voting against the union by employers who 

routinely fire anyone sympathetic to such representation. 

4. If a majority of employees in a bargaining unit has the courage to overcome 

this hostility and vote in favor of union representation, one-third of the workplaces 

desiring such representation will never be able to negotiate their first contract because employers will do everything in their power both inside and outside the law 

to frustrate agreement. 

5. There is a ‘‘dismal side’’ to labor relations in that some employers break the 

law to resist unionization. 

62

3 75 percent—‘‘The Lifeline for Unions: Recruiting,’’ Washington Post, Sept. 13, 1987, H1; 65 

percent—Louis Harris and Associates, Inc., A Study on the Outlook for Trade Union Organizing

63 (Nov. 1984) (survey conducted for the AFL–CIO); 67 percent—Institute for Social Research, 

Quality of Employment Survey (University of Michigan, 1977), cited in James L. Medoff, The 

Public’s Image of Labor and Labor’s Response (National Bureau of Economic Research, Harvard 

University, 1984), 10. 4Leo Troy, ‘‘Will An Interventionist NLRA Revive Organized Labor?,’’ 13 Harvard Journal of 

Law & Public Policy 583, 599 (1990). 5Department of Organization and Field Services, AFL–CIO Organizing Survey: 1986–1987 

NLRB Elections, (AFL–CIO, Washington, DC:, February, 1989), 46 [hereinafter, AFL–CIO Survey].

6 AFL–CIO Survey, 52.

We would like to deal with each one of these ‘‘findings’’ in turn. 

EMPLOYEE PREFERENCES

Regarding the question of employee preference for union representation, the Report attaches great significance to surveys which show that 30 percent of the nonunion workforce wishes to be represented by a union. We attach greater significance 

to the fact that 70 percent do not wish to be represented. A number of recent surveys reinforce this finding. Three surveys conducted in the mid-1980’s, including one 

specifically for the AFL–CIO, found that 65–75 of all non-union workers would reject union representation in a secret ballot election.3 These percentages are matched 

by the percentage (64,9 percent) of votes cast against union representation in all 

NLRB elections.4 Attitudes have not changed since, as was shown in a 1991 Penn 

+ Schoen poll conducted for the Employment Policy Foundation which found that 

73 percent of all employees do not favor having a union in the workplace. 

We would bring to the attention of the Commission a survey conducted by the 

AFL–CIO’s Department of Organization and Field Services that was released in 

February 1989, a copy of which is attached to our statement. In a cover letter to 

AFL–CIO affiliates, Ms. Vicki Saporta, then Director of Organizing for the Teamsters, said the survey summarized interviews with union organizers involved in 189 

NLRB elections in units over 50 held, between 1986 and 1987. The survey itself 

states:

In order to obtain this data, lengthy interviews were conducted with the lead 

organizers in these campaigns, during which questions were. asked concerning 

the union’s tactics, the company’s tactics, and characteristics of the workforce.5

This survey, we would submit, may help the Commission determine the accuracy 

of the facts contained in its Report that it now desires to become the basis for discussions of policy changes. 

Interestingly, the survey found that the northeast, particularly New England, is 

the most inhospitable for union organizing with the win rate there only 32 percent. 

We would point out that states like Connecticut, Massachusetts and Rhode Island 

constitute an area with a large percentage of workforces represented by unions. At 

the same time, the survey found that the greatest percentage of organizing success 

was in the west/southwest, a region in which union representation is much less 

prevalent. There the organizers enjoyed a 51 percent rate of victory. One would assume that if unionized working relationships were as successful as Chapter III 

makes them out to be, then the.areas of the country with the heaviest unionization 

rates would be those with the highest union win rates, yet that is not the case. An 

inference that may reasonably be drawn from these statistics is that the more employees know about the actual operation of unions in the workplace, the less likely 

they may be to vote in favor of union representation. This same inference can also 

be drawn from another statistic in the AFL–CIO survey in the section entitled, 

‘‘Prior Union Exposure’’ which came to the following conclusions:

Familiarity and prior experience with unions has an ambiguous effect on the 

ability of unions to win NLRB elections. If former union members make up a 

small portion of the workforce, the win rate rises slightly. However, if former 

members made up more than half the workforce, the win rate is only 29 percent.6

As the Commission undertakes an examination of government policies to determine how they might be altered to increase unionization of the workforce, we would 

suggest that this particular, statistic be given very careful consideration. 

We would also direct the Commission’s attention to Part A of Chapter III which 

gives the Commission’s perspective on ‘‘Experience Under the National Labor Relations Act.’’ In Section 1, the NLRB certification election process is described in great 

detail. Part A, however, contains no description of the NLRB decertification election 

63

7Letter to the Editor, The Peabody Times, June 9, 1994. 8 Andrew D. Russell, ‘‘Jordan Marsh Employees Reject Union,’’ The Salem Evening News, June 

13, 1994, (quoting employee Mary O’Leary). 9 Rosemary Pye and the National Labor Relations Board v. Jordan Marsh Stores Corporation, 

No. 94–11509EFH (D. Mass. July 29, 1994). 10Report, 76. 

process—the process by which employees represented by a particular union disaffiliate themselves from that union—nor is there mention of that process anywhere 

else in the Report, even though about 15 percent of all elections conducted by the 

NLRB are decertification elections. In addition to the 100,000 or so employees who 

annually vote against becoming unionized in a certification election, almost 15,000 

vote to get rid of a union that is already in place. Moreover, while employees choose 

not to be represented in about one out of every two elections, in decertification elections, they choose to no longer be represented in seven out of ten. 

The lack of discussion of the decertification process raises another significant 

issue. We are surprised that despite the Commission’s own data that 70 percent of 

the workforce has a preference against union representation, not one of the 354 witnesses brought before you was a rank-and-file employee who testified why they had 

voted against the union either in a certification or a decertification election. We find 

it inexplicable that a Federal commission with the mandate this one has would 

choose to ignore completely the views of the majority of the American workforce. In 

contrast, the Commission did hear from a number of employees who were brought 

forth by organized labor to portray the so-called ‘‘Human Face of the 

Confrontational Representation Process.’’ In doing so, the Commission apparently 

accepted at face value everything it was told by these witnesses without seeking testimony from employees in the same workplace that might have had a different point 

a view. 

A close look at the story of one of these witnesses—Judy Ray of Peabody, Massachusetts—is telling. Ms. Ray testified that she had been fired by Jordan Marsh 

Stores on the day after Thanksgiving solely because she was a union organizer. She 

labelled the ‘‘harassment’’ she had suffered from the company a ‘‘disgrace.’’ The Report reprints Ms. Ray’s account as one of the ‘‘facts’’ the Commission had found. The 

day before the June 10th election, however, the local paper published a letter from 

29 Jordan Marsh employees characterizing Ray’s actions against the company as a 

‘‘personal vendetta’’ and specifically refuting Judy Ray’s statement that ‘‘she speaks 

for us:’’ Her attempt to divide a staff that works well as a team, despite her recent 

public statements and condemnations, are offensive and ineffective.7

Apparently, a solid majority of the employees agreed more with the sentiments 

expressed in the letter than with Ms. Ray. The union was rejected by a 4 to 1 margin (155 to 39) on June 10. Employees who voted against the union claimed to be 

‘‘absolutely thrilled. . . . We did not want the union in our store, and everyone 

stuck together on that.’’ 8

Later this month, an NLRB administrative law judge will conduct a hearing to 

determine whether Ms. Ray, a commission-paid sales person, was fired for union activity or, as the store claims, because she stole a sale of a television set from a fellow employee. We would point out that an attempt by the NLRB on July 29, 1994, 

to obtain an injunction ordering her reinstatement was thrown out by a Federal district court.9

If the Commission is truly interested in establishing a set of facts on which substantive policy discussions can proceed regarding the direction of unions and the 

workplace, it will need to do far. more digging into organizing campaigns such as 

the one at Jordan Marsh in order that all the facts, and not just a select few, are 

on the table. Business groups would have been pleased to provide ‘‘real people—

American employees’’,10 as the Commission describes them, who would have represented the 70 percent of the workforce that public opinion polls show prefer to 

represent themselves in the workplace. Had we done so, however, our strong suspicion is that the business community’s production of such witnesses would have 

been viewed as self-serving by the Commission. Indeed, the surprisingly hostile reception the Commission accorded Chester McCammon, a non-union welder from 

Universal Dynamics who addressed the Commission on August 10th as part of the 

management panel, is illustrative. 

DISCHARGE OF UNION ACTIVISTS

With regard to the Commission’s conclusions on illegal discharges, the Report as 

well as studies published by certain Commissioners have painstakingly attempted 

to demonstrate that illegal discharges occurring in an organizing campaign have increased considerably in recent years and that those discharges are a primary cause 

64

11 John P. Morris, Letter to the Editor, The Philadelphia Inquirer, July 28, 1994. 12 ALF–CIO Survey, 53. 13Report, 70, footnote 5. 

of union decline in America. We do not intend to continue splitting hairs over the 

proper measurement of this activity using the available data. Rather, we challenge 

the underlying premise of the Commission’s use of the data; i.e., that the alleged 

increase has been a major cause of organized labor’s decline. The notion that employers can stifle organizing drives by firing union supporters has been pounded 

into the American consciousness so thoroughly and for so long that no one, including 

this Commission, has apparently thought it necessary to challenge it. 

Testimony was presented to the Commission by former Solicitor of Labor, William 

Kilberg, that management attorneys invariably advise their clients not to terminate 

any employees during an organizing drive who have any identification with the 

union because, more often than not, such discharges can have a galvanizing effect 

on the employees. We couldn’t help but notice the skepticism with which this testimony was received, by the Commission during the February 24, 1994 hearing, and 

because of that we were not surprised that there was no acknowledgement of it in 

the Report. However, Mr. Kilberg’s testimony was recently echoed in a July 28, 

1994, letter to the editor of the Philadelphia Inquirer by John Morris, President of 

the Pennsylvania Conference of Teamsters:

Employers actually make a mistake when they fire employees during a Teamsters organizing. drive. In effect, they create martyrs that strengthen the solidarity of the employees when they see the support the Teamsters give to the 

discharged workers.11

The AFL–CIO survey described above bears this out. In the section headed, ‘‘Discharges,’’ the union organizers polled came to the following conclusion: ‘‘Interestingly, unions seem to have a higher success rate (46 percent) where there is a firing 

than where there is not a firing (41 percent).’’ 12

This statistic may explain why, notwithstanding any alleged increase in discharges, unions file objections in only 6 percent of all elections, with 2 percent of 

all election results being overturned, percentages that have remained relatively constant over the years. This point was made to the Commission by another witness, 

former NLRB Chairman Edward Miller, but the Commission chose to relegate this 

important piece of information to a footnote.13

These facts clearly demonstrate that unions are losing elections because of employee choice, not employer illegalities. Therefore, despite the hyperbole to the contrary that we have heard repeatedly throughout these proceedings, it should come 

as no surprise that very few employees list fear of employer reprisals as a factor 

in their decision to remain non-union. According to a 1991 Penn+Schoen poll conducted for the Employment Policy Foundation that was submitted to the Commission, only 1 percent of all non-union employees who opposed having a union did so 

out of fear of employer reprisal. 

EMPLOYER HOSTILITY AS SOLE CAUSE OF UNION DECLINE

Turning to the implied finding that employer hostility is the sole cause of union 

decline in America, while the Commission does not speak directly to the causes of 

this decline, it does detail the statistics regarding that decline and then devotes the 

bulk of Chapter III to a lengthy discussion of employer violations of the National 

Labor Relations Act, creating the strong implication that those violations are the 

sole cause of diminished representation. We believe that it would have been more 

conducive to serious discussion of possible changes in the NLRA if the Commission 

had tried to look behind these statistics to develop a more complete picture of the 

causes of union decline. For example, changes in human resource practices, union 

organizing deficiencies, expansion of statutory employment protections, market 

forces, employee attitudes and labor’s confrontational style are all factors deserving 

exploration, as discussed briefly below. 

Changes in Human Resources Practices. As several employer witnesses like myself 

have testified to the Commission, if thirty years ago my peers and I had espoused 

to our managements the kinds of workplace practices that we routinely do today, 

we would have been summarily dismissed. Hierarchial work systems are being 

abandoned as employers recognize that employees are an intellectual resource that 

must be tapped if the organization is going to survive in the new economic environment. We believe that the best way to attract a competitive workforce is to offer 

an attractive workplace, not just in terms of wages and benefits, but also in the extent to which employees become integrally involved in the operation of the worksite, 

problem solving and dispute resolution. If, in the process, employees are gaining a 

65

14 Bronfenbrenner, Successful Union Strategies for Winning Certification Elections and First 

Contracts: Report to Union Participants, Part 1: Organizing Survey Results, (1991). 15Leo Troy, ‘‘Will a More Interventionist NLRA Revive Organized Labor?,’’ 13 Harvard Journal of Law & Public Policy (1990), 583, 615. 16 Ibid., 616. 17 Ibid., 615. 18Report, 78. 

‘‘voice’’ in that workplace, it should not make any difference to the Commission that 

it may lead to a decline in the union win rate. 

Expansion of Statutory Employment Protections. As Chapter IV of the Report describes so eloquently, the declining trend in union density has been matched by an 

ascending trend in new workplace laws at the Federal, State and local level, not to 

mention the liberal trend in common law developments. Indeed, during the past 

year Congress has been debating whether to legislate one of the most basic components of any collective bargaining agreement-a health care plan. As more and more 

components of collective bargaining are superseded by employment legislation, the 

less meaningful a collective bargaining agreement becomes, and the less attractive 

a union is to employees. 

Union Organizing Deficiencies. On this point, the unions, when talking amongst 

themselves, have been their own harshest critics. A 1991 survey conducted in cooperation with the AFL–CIO Organizing Department concluded: ‘‘[T]he results from 

this study clearly show that union tactics, taken as a group, play a greater role in 

explaining the election outcome than any other group of variables in the model, including employer tactics, organizer background, and unit demographics.14

Market Forces. Finally, there are a panoply of market forces-both domestic and 

international-that have had a dramatic impact on American unionism. For example, 

much of the decline can simply be attributed to extensive downsizing by unionized 

companies, particularly during the 1980’s. The growth in international competition—boosted by appreciation of the dollar during the 1980s—has been a major contributor. Imports into the United States grew to 13 percent of the GNP in 1990, almost three times the percentage in 1960. This outside competition has made it more 

and more difficult for organized labor to capture an entire industry and remove 

labor cost competitioft through pattern bargaining. The inability of a number of 

companies in traditionally unionized industries to match the competition resulted in 

a decline in union membership in the manufacturing sector by about 2.3 million 

during the 1980s.15

The impact of deregulation on four of our major industries—communications, airlines, public utilities and trucking—has had a similar impact. Previously, these sectors were wellinsulated against cost competition by a regulatory structure that set 

prices and limited participation by newcomers. With the entry of new cost-competitive players into these industries; high labor costs can no longer be easily passed 

on to the customer, and new nonunion competitors have captured a good share of 

these markets. The result was a decline of about 625,000 in union membership in 

the 1980s in these sectors alone.16

Further, the significant areas of job growth in the United States, going back to 

the 1950s, have occurred in the service sector, which has traditionally been less organized than the manufacturing sector. Beginning in the 1950s—at the same time 

union membership was peaking—the United States shifted from a predominantly 

manufacturing to a predominantly service economy. This shift has occurred with 

growth in advertising, computer software, data processing, temporary personnel, 

management; business consulting, legal, accounting, engineering and architectural 

services. Even within manufacturing, there has been a substantial growth in ‘‘inhouse’’ services, which has contributed to the decline in manufacturing union density from 32 percent at the beginning of the 1980s to 22 percent at the end.17

Of course, none of these new market realities touched the American public sector 

to any significant degree, where union representation has increased in recent years. 

That sector’s insulation from cost competition is a much more relevant explanation 

for union growth than the absence of employer opposition cited in the Report.18

We would also point out that the decline in unionization is far from a uniquely 

American phenomenon. Had this panel been able to hear from Professor Leo Troy 

of Rutgers University, he could have explained how the deunionization of America 

is being mirrored in Canada and the countries of Western Europe as they also shift 

to a service-based economy, even though the labor laws of those countries are far 

66

19Leo Troy, ‘‘Is the U.S. Unique in the Decline of Private Sector Unionism?,’’ 11 Journal of 

Labor Research, (Spring 1990), 111, 127. 20William Gould, Agenda for Reform (Cambridge: MIT Press, 1993), 42.

more favorable to union organization. The shift in Canada, for example, produced 

a 20 percent decline in private sector union density from 1975 to 1985.19

FIRST CONTRACTS

On the subject of the Commission’s findings regarding first contracts, the Report

points to data addressing the difficulty the parties have reaching agreement in first 

contract situations. The Commission implies that this is a result of employers flouting their duty to bargain under the law by either engaging in surface bargaining 

or refusing to bargain altogether. The Commission then suggests that stronger remedies would correct this. 

Although the Commission has reached an unequivocal conclusion regarding this 

trend, the fact of the matter is that there is no universal time-series data available 

to test whether first contract failures are any more widespread today than they ever 

were. As is noted by the Commission, it has only been since 1986 that the FMCS 

has received notice and copies of new certifications. Studies conducted before 1986 

were limited to sample populations with no tracking of those populations over any 

significant period of time. The 1966 study by Ross cited in the Report was based 

on a sample drawn from only six of thirty NLRB regional offices. 

Because no one knows with any degree of certainty whether first contract failures 

have increased, let us assume for purposes of discussion that they have. As Prof. 

William Gould IV, a former member of this Commission and current Chairman of 

the NLRB, has written in Agenda for Reform: The Future of Employment Relationships and the Law:

The fact is that employers have been able to convince workers not to join 

unions by providing them with benefits comparable in most respects (and sometimes superior to them) to those contained in collective bargaining agreements 

negotiated by unions. Thus . . . a kind of benevolent paternalism has helped 

to succeed in making workers disinterested in unions.20

We would hardly describe competitive pay and benefits in modern companies as 

‘‘benevolent paternalism,’’ but Chairman Gould is correct in saying that companies 

spend a considerable amount of time ensuring both internal and external equity in 

their compensation programs. They do so, however, for reasons that have nothing 

to do with warding off organizing drives and much to do with ensuring fairness and 

minimizing turnover. One byproduct of this attention to equity is that in order to 

win an election a union may find it necessary to promise the employees an economic 

package that the employer is not capable of delivering. We would remind the Commission that there has never been a ‘‘duty to agree’’ under the National Labor Relations Act, only a duty to bargain in good faith. Thus, neither the employer who can 

only go so far in stretching labor costs to remain competitive—nor the union—which 

has to bring back an attractive wage/benefit package to justify its election victory—

is breaking the law by engaging in hard bargaining. 

We would also point out that it has been the experience of many LPA members 

that once union organizers successfully complete a campaign, they often move on 

to the next site. No experienced negotiator may be left behind to coach the employees on a day-to-day basis through their first negotiation. As a result, a first contract 

situation often involves a group of employees with very high expectations, but with 

little experience working with one another to achieve a contract. Under these circumstances, the fact that two out of every three first contract negotiations may result in an agreement (assuming that figure is correct) should be viewed in a positive 

light. Further, should the employer break the law and fail to bargain in good faith, 

the union has more at its disposal than simply going to the Board to get a bargaining order. It can call a strike. This particular strike will have even greater potency because, being an unfair labor practice strike, the employer is barred from hiring permanent replacements. 

THE ‘‘DISMAL SIDE’’

In Exhibit III–8, the Commission devotes four full pages to depicting ‘‘The Human 

Face of the Confrontational Representation Process,’’ describing it as the ‘‘dismal 

side’’ of labor relations. We would suggest that it should come as no surprise to the 

Commission that most things in the human experience have a dismal side and that 

the field of labor relations is no exception. We do not deny that there are some employers who, no matter how tough the labor laws are written, will make every atVerDate Mar 21 2002 05:26 Mar 07, 2003 Jkt 010199 PO 00000 Frm 00070 Fmt 6633 Sfmt 6621 W:\DISC\80443 txed01 PsN: PFRM67
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21The procedural history of this case demonstrates the NLRB’s lack of concern with union violence. The union won the elections at the two worksites by votes of 11–5 and 6–3. Despite all 

this evidence of misconduct, the Regional Director, after an investigation, recommended that the 

employer’s objections be overruled and the union certified, The Board agreed, but the employer, 

refused to bargain. The Board ordered the employer to bargain with the union, but the D.C. 

Circuit refused to enforce the Board’s order and remanded the case in order for a hearing to 

be held. Finally, almost 4 years after the election, the AU is now ordering that the election be 

set aside. The company, meanwhile, has gone out of business. 22Daniel LaBotz, A Troublemakers Handbook: How to Fight Back Where You Work and Win!

(Detroit: Labor Notes Handbook, 1991). 23 Ibid., 119. 24BE&K Construction Co. v. NLRB, 23 F.3d 1459, (8th Cir. 1994). 

tempt to undermine them using illegal behavior. The same is true, however, on the 

union side. For that reason, we do not see how the Commission expects there to be 

a serious debate regarding how worker-management relations are to be improved 

by turning a blind eye to union misconduct. 

It was union corruption and violence that led to enactment of the Labor Management Reporting and Disclosure Act of 1959, yet a cursory review of recent NLRB 

decisions indicates such conduct is still very much a part of worker-management relations. For example: • In Swing Staging, Inc. (29-CA–15756, August 5, 1994), an election was set aside 

by an NLRB administrative law judge because of union misconduct. During the 

course of a 1990 organizing drive by Teamsters Local 282 of Brooklyn, the Judge 

found that a hangman’s noose was placed on the president’s car and a nail driven 

through the radiator; the brakes of a company truck were damaged; the line io the 

company’s.oil tank was cut; an employee was told he would lose his pension from 

another union if he voted against the Teamsters; employees were told that the 

‘‘union boys’’ would beat up whoever didn’t vote for the union and break the windows of an employee’s car if he made waves with the union; and, employees were 

told that the union was connected to John Gotti who would ‘‘take care of the president if he gave the union a hard time. The reference to Mr. Gotti apparently was 

not a hollow threat. The ALJ pointed out that Mr. Gotti had been named as an 

unindicted co-conspirator with various officials of Local 282 for allegedly participating in a scheme to extort payoffs and kickbacks from various construction industry employers21

• In Cedar Grove Manor Convalescent Center, 314 NLRB No. 106 (July 29, 1994), 

the employer refused to negotiate with District 1115, (H. E. R. E.), which had ousted 

the incumbent union in an election. The employer raised as an affirmative defense 

the union’s conduct, claiming that it rendered the election meaningless. The record 

indicated that District 1115 originally offered $1,500,000 in cash under the table to 

the incumbent union to buy the unit. Later, the director of District 1115 threatened 

the incumbent union’s business agent with bodily harm in order to dissuade the 

business agent from continuing to give testimony before the Board. The director and 

the business agent had the following conversation over the phone: ‘‘Why don’t you 

stop this nonsense with the Labor Board or else.’’ ‘‘Or else what?’’ ‘‘You will get your 

legs broken . . . Listen, people like you wind up in wooden boxes.’’ Although the 

case revealed that this was not the first time Local 1115 agents had engaged in 

such conduct, a three-member panel of the Board (Gould, Devaney and Stephens) 

voted unanimously to require the employer to bargain with District 1115. 

Often, union violence is not easily detected. In A Troublemaker’s Handbook: How 

to Fight Back Where You Work and Win!22, a publication by the Labor Education 

and Research Project, the authors describe a so-called ‘‘in-plant strategy’’ that uses 

illegal on-the-job practices to apply pressure to an unnamed employer without having to engage in a strike. We would call the Conunission’s attention to one passage 

that describes the kinds of activities engaged in: 

One of the key departments [the ‘‘solidarity committee’’] identified was the foundry, the heart of the entire production operation. At the center of the foundry was 

a large forging machine that turned bar stock into coil springs. If a piece of bar 

stock got.caught sideways in the machine, it would melt and immobilize the machine. For one reason or another, that began to happen more and more frequently.23

Often, violence occurs when a particular company is on labor’s ‘‘hit list’’ as is the 

case . with BE&K, a non-union construction company. The Eighth Circuit Court of 

Appeals ruled in BE&K Construction v. NLRB against a Michigan Ironworkers local 

in which was implicated in a 1989 riot protesting the use of BE&K for a paper mill 

expansion in International Falls, Minnesota.24 The riot involved 450 people who 

burned the BE&K workers’ campsite and injured a number of people while causing 

$2 million in damages. Fear of a similar outbreak was the cause of BE&K losing 

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25 Congressional Record 103d Cong., 1st sess., 1993. Vol. 139, H 10066–617 (statement by Rep. 

Stenholm). 26 Armand J. Thieblot, Jr. and Thomas R. Haggard, Union Violence: The Record and the Response by Courts, Legislatures, and the NLRB (Philadelphia: Industrial Research Unit, University of Pennsylvania, 1984). 27 Congressional Record, 103d Cong., 1st sess. . 1993. Vol. 139, H10065 (statement by Rep. 

Stenholm). 28Teamsters Local 901 (Lock Joint Pipe & Co.), 202 NLRB 399 (1973). 

sas, following an illegal boycott by the United Brotherhood of Carpenters and the 

United Paperworkers. This boycott wound up costing the unions $20 million as a 

result of a Federal jury award. 

In the last few years alone, the national electronic and print media have reported 

in detail the violent strikes that occurred in the Greyhound, New York Daily News, 

Pittsburgh Press and similar bitter controversies. The United Mine Workers was 

fined $52 million by a Virginia State court for the violence that swept through the 

coal fields during the Pittston strike. The ‘‘human face’’ of labor relations in certain 

worksites is exemplified by Eddie York who was shot to death in November, 1993, 

for crossing a picket line. Mr. York was a backhoe operator, an independent contractor who was cleaning a reclamation pond in Logan County, West Virginia. This 

was work that was not performed by the union, but after he had been escorted off 

the property by two security vehicles and was driving along a public road, strikers 

began hurling rocks and then shots were fired from a wooded area. Mr. York’s truck 

was hit at least three times, the third shot being fatal.25

In the 163 pages of the Commission’s Report, there is no mention of union violence nor its impact on collective bargaining and worker-management relations. Accordingly, we are submitting to the Commission a copy of a comprehensive study 

of workplace violence, entitled Union Violence: The Record and The Response by 

Courts, Legislatures and the NLRB26, by Professors Armand J. Thieblot and Thomas 

R. Haggard, published by the University of Pennsylvania in 1984. 

By refusing to acknowledge the on-going presence of violence in collective bargaining and labor relations in a review of the current State of workplace relations, 

it can be said that the Commission is impliedly condoning its continued use to 

achieve collective bargaining objectives. In our opinion, it is incumbent upon the 

Commission to use its ‘‘bully pulpit’’ to repudiate the belief that a certain amount 

of violence is acceptable in labor disputes. Acceptance of violence is seldom found 

in public discussions of any other ideological conflicts. For example, while there are 

far more beatings and murders on picket lines in labor disputes than those surrounding abortion clinics, Congress recently enacted the Freedom of Access to Clinic 

Entrances Act (Public Law 103–259) that makes violence, intimidation or obstruction which interferes with persons entering abortion clinics a Federal crime. During 

consideration of that law, attempts were made in both the House and Senate to 

broaden the proscription to cover labor violence. Rep. Stenholm (D-TX), for example, 

argued:

[I]f it is not appropriate for an abortion protester to intimidate a woman seeking her legal choice to reproductive health services, then I believe it should also 

be inappropriate for a striking worker to intimidate another worker attempting 

to cross the picket line to exercise his or her right to work.27

The leadership in the House and Senate, however, prevented a vote on these 

amendments. 

In addition to proposing’enactment of a measure similar to Public Law 103–259 

applicable to labor dispute violence, the Commission should consider other worker 

protections as well. Currently, violence per se is not an unfair labor practice under 

the National Labor Relations Act. We urge the Commission to propose making the 

use or threat of violence by either a union or an employer to accomplish collective 

bargaining goals an unfair labor practice with injunctive relief similar to that available against secondary boycott activities. In addition, individuals engaged in violence aimed at furthering either the employer’s or the union’s goals could be 

rebuttably presumed to be acting as their agents, thus eliminating the problems inherent in establishing the necessary ‘‘chain of command’’ to obtain relief. At a minimum, individual employees who are victims of union violence should be able to obtain ‘‘make whole’’ relief from the union in the form of back pay for any wage losses 

caused by the violence. Surprisingly, the Board has refused to provide even this 

remedy.28

69

29 Charles R. Perry, Union Corporate Campaigns (Philadelphia: Industrial Research Unit, University of Pennsylvania, 1987), 1. 30 Ibid., 6. 31Service Employees International Union, Contract Campaign Manual, (1988), 3–21, footnote 

38. 

CORPORATE CAMPAIGNS

In addition to ignoring the dismal side of labor relations caused by union violence, 

the Commission’s Report made no mention of the growth of the ‘‘corporate campaign’’ and the negative impact it has had on collective bargaining. Because certain 

aspects pf corporate campaigns raise serious public policy questions, no thorough 

study of collective bargaining in America today would fail to examine this new phenomenon in labor relations. Given the Commission’s deep concern about the tensions 

involved in and the level of resources devoted to organizing campaigns, it is surprising that the Commission chose not to focus on this area. 

A definition of the corporate campaign can be found in the AFL–CIO guidebook 

entitled Developing New Tactics: Winning With Coordinated Campaigns which describes how a coordinated. campaign applies pressure to a target company:

It means seeking vulnerabilities in all of the company’s political and economic 

relationships—with other unions, shareholders, customers, creditors and government agencies—to achieve union goals.29

Unlike traditional labor-management disputes, corporate campaigns go outside 

the company to generate public hostility and antagonisms toward the target corporation. In addition, they seek to manipulate Federal regulatory agencies such that 

the target becomes enmeshed in enforcement actions. According to the AFL–CIO 

guidebook:

Businesses are regulated by a virtual alphabet soup of Federal, State and 

local agencies, which monitor nearly every aspect of corporate behavior. . . . 

Regulatory agencies exist to protect citizens, and unions can use the regulators 

to their advantage. An intransigent employer may find that in addition to labor 

troubles, there are suddenly government problems as well.30

A Service Employees International Union Manual provides similar guidance. 

Moreover, even if the violations are completely unrelated to bargaining issues, 

your [union’s] investigations may give management added incentive to improve its 

relationship with you. Management officials may find that . . . the employer now 

is facing . . . 

• Extra expense to meet regulatory requirement or qualify for necessary permits 

and licenses. 

• Cost delays in operations while those requirements are met. 

• Fines or other penalties for violating legal obligations. 

• Damage to the employer’s public image, which could jeopardize political or community support, which in turn could mean less business or public funding.31

It is not an uncommon experience for unionized companies about to enter collective bargaining negotiations to have a slew of charges filed against them at OSHA, 

wage-hour, EEOC and other Federal. agencies. There are more dramatic examples, 

however. In a July 26, 1994, decision by the Ninth Circuit Court of Appeals, USSFosco Industries v. Contra Costa County Building and Construction Trades Council, 

No. 92–15497, the court found very troublesome the activities undertaken by a 

group of California construction unions to wipe out non-union construction in northern California. Again, the unions’ target was the aforementioned BE&K, which had 

entered into a contract involving 800 jobs to update a steel facility. The company 

was subjected to numerous lawsuits, protests against permits, lobbying at the local 

level for new environmental ordinances requiring more permits, and encouragement 

of subcontractors to protest nonexistent safety violations. Despite its concerns over 

the legitimacy of the union’s activities, the court found that the union was protected 

against an antitrust action by an exemption for those petitioning the government 

for redress of grievances. Whale the exemption does not apply to so-called ‘‘sham 

petitioning,’’ the court noted that fifteen of the twenty-nine filings of complaints 

with the government had proven successful. The fact that those complaints never 

would have been filed but for the. unions’ desire to harass the company was irrelevant. 

We are also submitting to the Commission a copy of a book published in 1987 by 

the University of Pennsylvania entitled Union Corporate Campaigns by Prof. 

Charles R. Perry that provides several case studies of corporate campaigns and their 

impact on labor-management relations. 

70

32Report, 64. 33Report, 71, footnote 7. 

To summarize our concerns with the findings in Chapter 111, the Commission 

states on page 78 of the Report that:

The Commission has not sought to determine the role of particular campaign 

tactics, legal or illegal, on the outcome of NLRB elections nor the reasons for 

the decline in the proportion of workers covered by collective bargaining in the 

United States.

That statement notwithstanding, the Commission did in fact reach certain conclusions, either explicitly or impliedly, about the role of particular tactics and the reasons for the decline. The problem that we have with the Report is that only one 

side of the story is presented, the story written by organized labor. Unlike Chapters 

II and IV, Chapter III makes no serious attempt at giving the American public a 

complete picture of the facts involved in contemporary worker representation and 

collective bargaining. 

ANOTHER VIEW OF THE FINDINGS

While Chapter III provides mostly a one-dimensional view of collective bargaining 

in the United States, a reader willing to pick carefully through its paragraphs and 

footnotes will eventually be able to cobble together a much different set of facts than 

the ones adopted by the Commission, ones that lead to very different conclusions 

regarding where reforms in the National Labor Relations Act are needed. These alternative findings are as follows: 

1. Collective bargaining, where it exists, is working very well. The Report states: 

‘‘In most workplaces with collective bargaining, the system of labor-management negotiations works well.’’ 32 We agree with this statement, but it is troubling that it 

was buried in the text of the Report and not adopted as one of the principal findings. 

We recognize that commissions tend to (and should) focus on problems that need 

to be corrected, but in view of the apocalyptic statements elsewhere in the Report

about the State of collective bargaining in America, today, we believe this. conclusion should have been elevated to the status of a major finding. 

2. The National Tabor Relations Act is being administered in a timely effective 

manner by the National Labor Relations Board. Despite the inclusion in the Report

of considerable statistical data to prove this point, the Report bends over backwards 

to avoid drawing this conclusion, including relegating to a footnote its own assessment that the Board’s regional offices settle charges and issue complaints within 45 

days, ‘‘a track record that just about any other labor or employment agency would 

be proud to have. ‘‘ 33 (See Chart I). 

Because approximately 80–85 percent of all meritorious cases are settled, this 

‘‘track record’’ merits more than a footnote. (See Chart II).

71


80443.040 80443.064
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34Report, 68. 

The Report’s data regarding the Board’s conduct of representation elections are no 

less impressive. A constant refrain by organized labor for the past two decades has 

been that employers have successfully manipulated NLRB procedures to ensure that 

the representation election occurs long after the certification petition is filed—sometimes years later. The Report attempts to bolster this complaint by asserting that 

20 percent of elections take more than 60 days.34 Of course, this also means that 

80 percent take less than 60 days, compared to 68.9 percent in 1975. (See Chart 

III). Moreover, Exhibit III–2 at page 82 of the Report shows that, in 1993, 94.7 were 

conducted within 90 days as contrasted with 89 percent in 1975, and that only 1.2 

percent went beyond 6 months while 2.9 percent did so in 1975. In other words, the 

processing of elections by the Board has improved during the past 20 years. 

More significantly, as the Commission, observes (once again in a footnote), the 

data demonstrate that the NLRB is able to conduct those elections in a fair manner 

with 97–98 percent of all elections being free of any sustainable objections from either party. (See Chart IV). 


80443.041 80443.042
73

35Senate Subcommittee on Separation of Powers of the Committee on Judiciary, Congressional Oversight of Administrative Agencies (National Labor Relations Board), 90th Cong., 2d 

sess. 1968, 321 (statement of Thomas E, Harris, Associate General Counsel, AFL–CIO).

In addition, the credibility of the Board with the Federal courts has soared in recent years, with its success rate climbing from 70–80 percent in the 1960s to 80–

90 percent in the 1970s, 1980s and 1990s. The only notable exception was during 

the Carter Administration when, in 1979 and 1980, the rate slipped to 77 percent 

and 76 percent respectively. (See Chart V). We note that in 1968, the AFL–CIO testified to Congress that appellate court affirmance of NLRB decisions is the ‘‘only 

measurable and objective test’’ of the Board’s interpretation of the statute.35 Using 

that yardstick, the Board’s interpretations have steadily improved since the Carter 

Administration. 

We would, however, point out one area regarding the administration of the NLRB 

that does deserve the Commission’s attention. While there has been considerable 

discussion of NLRB delays during the past two decades, the fact is that these delays 

involve about 2 percent of the cases. The case backlog has improved in recent 

years—declining from 1,400 in, 1983 to just over 300. However, the median time for 

a Board decision—17 months—would indicate a problem lies at the Board member 

level. One of the reasons for this delay is the constant turnover in board members 

and difficulties the White. House has in clearing new Board member appointments 

through the Senate confirmation process. In fact, since 1978 the NLRB has been at 

its full, five-member strength only 58 percent of the time. One of the principal reasons for this occurrence has been organized labor’s opposition to certain candidates 

proposed by Presidents Reagan and Bush, and the business community’s opposition 

to particular persons nominated by Presidents Carter and Clinton. When labor or 

management become concerned with the balance on the Board, their only remedy 

is to block the confirmation until such time as an accommodation can be worked 

out between the parties. The Commission could perform a valuable service in suggesting a better method for the selection and confirmation of Board members than 

the system currently in place. 

Rep. Major Owens (D-NY) has offered a proposal worth considering H.R. 1466—

which would alternate Board memberships by allowing organized labor and business 

to each select a Board member in succession. While the Owens bill may not be the 

perfect solution, it suggests a direction that would expedite the process considerably 

while ensuring balance at the Board. We strongly recommend that you take a close 

took at the Owens bill or any similar proposal that would achieve the same improvements over the current system.


80443.065
74

36Report, 68. The source for this finding is not provided in the Report. Curiously, immediately 

after citing this statistic, the Report states: ‘‘There are no accurate statistics on consultant activity.’’ Id.

3. The efficient administration of the National Labor Relations Act would be jeopardized by major changes in enforcement, including the remedics available. The Report clearly implies that the remedies available under the National Labor Relations 

Act are too weak, comparing them to the compensatory and punitive remedies available under other employment statutes. However, the likely result of expanding 

those remedies can be seen in Chapter IV, which demonstrates the effect of tort 

remedies on the judicial system. Clearly, the efficiency of any enforcement scheme 

is closely tied to its remedies. The success of the current NLRA process which we 

have just, outlined could only be jeopardized by a move toward more punitive remedies. As the stakes are raised, the willingness of the parties to enter into settlement decreases. That is the principal reason disputes at the NLRB where back pay 

is the remedy are settled so much more quickly than disputes before the EEOC 

where up to $300,000 in punitive and compensatory damages, over and above any 

backpay that might be awarded, for each claim of discrimination is available. Further, if. punitive or compensatory damages were to be authorized under the NLRA, 

it would entail a right to a jury trial, thus eliminating the current system of adjudicating matters before an administrative law judge. 

4. ‘‘Outsiders’’ frequently play an active role in union representation elections. The 

Report attaches great significance to the ‘‘fact’’ (unsubstantiated) that management 

hires a consultant in 70 percent of all elections.36 These outsiders (who often are 

labor law attorneys hired to make sure that the employer complies with the highly 

technical provisions of the NLRA) seem to be viewed by the Commission as somehow ‘‘tainting’’ the election process. We would point out that ‘‘outsiders’’ in the form 

of union organizers are present in nearly 100 percent of all campaigns and are usually on the scene long before the management consultants are brought in. 

RESPONSE TO QUESTIONS POSED BY THE COMMISSION

On pages 79 and 80 of Chapter III the Commission poses a series of questions 

for further discussion. Our response to these is as follows: 

1. ‘‘How might cooperation in mature bargaining relationships be increased?’’

Given the Report’s conclusion that ‘‘the system of labor-management negotiations 

works well’’ where collective bargaining is already in place—a conclusion with which 

we wholeheartedly agree—we are not sure how a mature relationship can be made 

more mature. If the question is directed at how a cooperative relationship can be 

instituted in an environment which has historically been characterized by an adversarial relationship of traditional collective bargaining, the experience of LPA members indicates that change in such circumstances may be possible only where, both 

labor and management come to the realization that it is in their worst interest to 

continue dealing with one another on a confrontational basis. There are numerous 

examples in which the catalyst, for positive change to a cooperative relationship was 

the parties being pushed to the brink, such as by a dire economic threat to the organization’s business, or a bitter strike over an issue that could have been easily resolved had the parties been willing to deal with one another on a basis of trust at 

the outset. 


80443.043
75

37 Chapter 5 of A Troublemaker’s Handbook: How to Fight Back Where You Work, Inside the 

Circle: A Union Guide to Quality of Work Life, and Choosing Sides: Unions and the Team Concept. 38 366 U.S. 731, 738–9 (1961). 39Study Committee (composed of Department of Labor Secretary George P. Shultz, Department of Defense Secretary Melvin R. Laird, Civil Service Commission Chairman Robert E. 

Hampton, and Bureau of the Budget Director Robert P. Mayo), Report and Recommendations 

on Labor-Management Relations in the Federal Service, (August 1969), 13. 40 Ibid.

It will be very difficult to increase cooperation, however, so long as the leadership 

and policy departments of international unions actively encourage their members in 

the field to resist cooperative workplace ventures. There are, dozens of examples 

within the LPA membership of union locals desiring to adopt more collaborative 

work systems, but the international is strongly opposed. The Teamsters, for example, teach courses to their field personnel on how to prevent the growth of employee 

involvement programs in the workplace. There are a number of union publications 

laying out strategies and tactics for dismembering employee involvement.37 As long 

as cooperative programs like employee involvement and employee participation are 

seen as a threat instead of a protection, it will be difficult to increase cooperation 

in traditional union work settings. 

2. ‘‘Should the labor law seek to provide workers who want representation but who 

are a minority at a workplacc a greater option for non-exclusive representation?’’ We 

can think of few recommendations that could be made by this Commission that 

would be more counterproductive to improving worker-management relations. The 

experience of our companies in other countries where minority representation is 

standard practice has shown that it can become very disruptive, with the potential 

for considerable confusion as to who speaks for whom. 

As was noted by the Warren Court in Ladies’ Garment Workers v. NLRB (Bernhard-Altmann Texas Corp.),38 freedom of choice and majority rule are the very 

‘‘premise of the Act’’ as it is now written. An employer only has a duty to bargain 

with a union which has been certified by the National Labor Relations Board after 

being elected by a majority of the employees in the unit. An employer may also voluntarily recognize and bargain with a union, but only if the employer has objective 

evidence that a majority of the employees support that union. Proposals to expand 

employer obligations to include unions which represent less than a majority contradict this premise. 

In his August 10 testimony, AFL–CIO Labor Law Task Force Director David Silberman contended that there was adequate precedent for the concept of minority 

representation, citing Executive Order 10988 signed by President Kennedy in January 1962. This Executive Order provided for ‘‘formal recognition’’ where a union in 

the Federal employee workplace represented at least 10 percent of the, employees 

and ‘‘informal recognition’’ if it represented less. Unfortunately, Mr. Silberman 

failed to mention that those provisions of the Executive Order were abandoned in 

1969 following a report submitted by Labor Secretary George Shultz, among others, 

which came to the following conclusions:

[Formal recognition] has produced problems which hinder the development of 

stable and orderly labor relations. It has contributed to excessive fragmentation 

of units, confusing and overlapping relationships, and difficulties in maintaining 

an appropriate difference in the rights and obligations under this form of recognition compared with those prescribed for exclusive. For these reasons, the 

majority of agencies have indicated that formal recognition should be discontinued.39

The report did observe that labor unions favored retention of ‘‘formal recognition’’ 

because they regarded it ‘‘as a significant form of assistance in further organizing 

the work force, particularly because it makes possible obtaining dues withholding 

privileges.40

If the majority of the employees in a bargaining unit has voted against third party 

representation, it would seem important to honor the will of the majority. Honoring 

that will has certainly been the doctrine organized labor adamantly pursued when 

private sector representation percentages were far higher earlier this century, and 

it should still be the case. We would note that while expressing support for a new 

form of minority ‘‘rights’’ in the area of union representation, labor still continues 

to oppose the right of the minority to decline to pay dues to a union which has been 

elected by the majority, but which the minority does not support. 

From the standpoint of human resource practitioners, there are a number of practical problems with minority. representation as well. First, it is much simpler to administer human resource policies when all employees can be treated similarly. We 

76

41 AFL–CIO Survey, 49. 42 AFL–CIO Survey, 50. 

are not certain precisely what the AFL–CIO is proposing, but it appears to be a sliding scale of third party representation obligations depending on the level of interest 

in a particular workplace in such representation. Questions then arise as to how the 

employer is to know which group of employees fit into which category. For example, 

a union may claim to be representing 100 employees for purposes of informal consultation, but the employer may not know for sure without polling each of those employees—an action that may be considered an illegal coercive tactic under the labor 

laws. Further, without some clear determination regarding employee preference, 

some employees may vacillate between being represented by the union 1 month and 

not the other, depending on how they feel about its actions at the time. 

The situation would be further complicated where more than one union was 

present. What if the employer is receiving conflicting signals regarding such important issues as work schedules, discipline, methods of payment, transfers, and the 

like from two or more minority unions in what would otherwise be a single bargaining unit. For example, one union may represent the more senior employees and 

be pushing for stronger seniority rights while another may be pushing for meritbased policies. The workplace may start looking more like the parliament of a Third 

World country than the cooperative environment which should be our objective. 

3. ‘‘Should unions be given greater access to employees on the job during organizational campaign percent, and if so how?’’ With respect to union organizers being 

given greater statutory rights to enter a workplace for the purpose of persuading 

employees to join a union; we believe that current law is already weighted in favor 

of unions by their legal right to contact employees in their homes, a right not accorded management. Indeed, the AFL–CIO survey cited above found this to be 

among the most effective organizing techniques available to unions. According to the 

survey:

In cases where the organizer house called between 60 and 75 percent of the 

unit, the win rate was 78 percent. If the organizer made no home visits, the 

win rate was 41 percent.41

In contrast, where the use of mass meetings was the primary campaign tactic, the 

win rate was only 25 percent.42

Thus, there appears to be little justification to warrant the disruption of a company’s operations that would be created by requiring companies to open their doors 

to organizing rallies at the worksite. Moreover, if there is a genuine desire for 

unionization on the part of the workforce, what should be the most effective organizers—i.e., the pro-union members of the unit—are already working on the site and 

have all the access that is needed. 

4. ‘‘How can the level of conflict and the amount of resources devoted to union recognition campaigns be de-escalated?’’ The solution to this will be difficult to achieve 

in a system which is premised on the belief that labor and management have fundamentally different interests that can only be reconciled through the adversarial 

process of collective bargaining. It will also be difficult to achieve as long as labor’s 

approach to an unorganized workplace is to identify the areas of disagreement between management and labor and then seek to exacerbate those disagreements. 

Commissioner Kreps may have phrased the issue best in her question to the head 

of the AFL–CIO Organizing Institute on August 10th when she said, ‘‘We’re being 

asked to conclude, then, that most employers are bad guys because of the low percentage of unions, right?’’ 

The Report suggests that one way of resolving these tensions is for management 

and international labor unions to agree between themselves that the employees will 

be represented by the international and that the employees covered by that agreement should be denied a voice in that decision. While some companies have entered 

into such agreements, as an Association we cannot support the elimination of the 

necessary element of democratic choice that forms the critical foundation for healthy 

labor-management relations in this country. Indeed, notwithstanding our complaints 

regarding Electromation, if there is anything in section 8(a)(2) that should be retained, it should be the prohibition against a company choosing a labor union for 

its employees. 

5. ‘‘What new techniques might produce more effective compliance with prohibitions against discriminatory discharges, bad faith bargaining, and other illegal actions?’’ Since most organizing activity is now focused on smaller companies who 

often do not have the resources to obtain quality legal advice, and since most of the 

violations are now occurring in those companies; we believe there is a greater need 

today for education, training and counseling of employers of their rights and obligaVerDate Mar 21 2002 05:26 Mar 07, 2003 Jkt 010199 PO 00000 Frm 00080 Fmt 6633 Sfmt 6601 W:\DISC\80443 txed01 PsN: PFRM67
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43J.P. Stevens & Co., 244 NLRB No. 407 (1979). 44William B. Gould, ‘‘Changes in Labor Law: Here and Now and the Future,’’ Spokane, August 22, 1994 (speech reprinted in the Daily Labor Report, August 25, 1994). 

tions under the law. A small employer who cannot afford to be counseled by a labor 

lawyer regarding the intricacies of the National Labor Relations Act is at a disadvantage with the union, which has the legal resources of the union’s lawyers as 

well as the NLRB General Counsel operating at public expense. We do not question 

this system. Indeed, we believe NLRB enforcement data and timetables have proven. it to be effective. However, we think it is time to eliminate the ‘‘surprise’’ factor 

from this process for the small employer and provide early intervention to prevent 

violations, rather than punish them after they have already occurred. 

One solution may be to for the NLRA to be amended to provide an ‘‘Office of Employer Counsel’’ at the NLRB that could conduct training programs and offer advice 

to employers regarding their rights, liabilities and obligations under the Act. We do 

not believe that adding expensive penalties to the NLRA is the solution because the 

problems of excessive litigation discussed in Chapter IV can be attributed in large 

part to the availability of these remedies. The potential for significant monetary 

damages simply makes litigation more attractive to the parties, ultimately triggering more delays in the system overall. We note the absence of any discussion in 

Chapter IV of NLRB remedies being inadequate. 

Clearly, the Board has at its disposal severe remedies that may be used against 

a recalcitrant employer. In the classic case of J.P. Stevens, the Board was not limited to back pay and bargaining orders. The company was also ordered to reimburse 

the union for its bargaining expenses, including clerical costs and salary and mileage expenses incurred during the violation period. Further, the company was ordered to reimburse the union and the Board for litigation costs and, in the case of 

the union, even its organizing expenses. In addition, the Board issued company-wide 

orders that applied to all locations where the union was present and not just those 

involved in the immediate litigation.43

Finally, where swift measures are necessary, the Board has the power to seek an 

injunction. Although the Report states that NLRB section 100) injunctions are ‘‘pursued infrequently each year,’’ the Board has significantly increased the use of these 

injunctions in recent months. According to Chairman Gould, the Board has sought 

50 injunctions in the past 5 months, compared to 42 for all of last year. Moreover, 

he claims a success rate of 87 percent.44

6. ‘‘What, if anything, should be done to increase the probability that workers who 

vote for representation and their employers achieve a first contract and on-going bargaining relationship?’’ Both labor and management have long proclaimed the virtues 

of ‘‘free collective bargaining’’—i.e., bargaining without governmental involvement—

and we consider any efforts to abandon this approach unwise. Our system of collective bargaining was never set up in a way that would guarantee that bargaining 

would always produce an agreement nor should it be amended to do so. If it were, 

it would no longer be free collective bargaining. Sometimes, ‘‘hard bargaining’’ by 

both sides results in no agreement as seen in recent years in a number of highly 

visible strikes (e.g., Caterpillar, Massey, Phelps Dodge) that have been triggered by 

the union’s unyielding demand that the employer sign the same agreement as all 

other employers in the industry. When the union refuses to discuss any variations 

from the pattern, one could reasonably argue that, in these cases, it is the union’s 

insistence that leads to the impasse. Is this ‘‘hard bargaining’’ or is it ‘‘surface bargaining?’’

CONCLUSION

The Commission on the Future of Worker/Management Relations provides a 

unique opportunity for the development of a balanced set of recommendations regarding improving Federal policies governing relationships among employees, employers and unions. In Chapters II and IV of its Fact Finding Report the Commission has prepared the necessary factual foundation on which substantive discussions 

of policy changes can be built. Both Chapter lI dealing with employee involvement 

and Chapter IV addressing the need for improved dispute resolution systems represent a good faith effort to describe the present situation in such a manner that 

all persons with a stake in the outcome of the Commission’s deliberations can be 

assured that its final recommendations are likely to address their concerns fairly. 

Unfortunately, the same cannot be said of Chapter III. The Commission’s treatment of union representation and collective bargaining lays out a biased set of facts 

that only represents organized labor’s point of view. Unless the Commission is willing to look at both sides of the worker-management equation on these critically imVerDate Mar 21 2002 05:26 Mar 07, 2003 Jkt 010199 PO 00000 Frm 00081 Fmt 6633 Sfmt 6601 W:\DISC\80443 txed01 PsN: PFRM67
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portant issues, its forthcoming recommendations in this area almost certainly will 

not provide the basis for a meaningful dialog on proposed policy changes.

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The CHAIRMAN. Could I just ask, with regard to the card checks, 

the employers have to agree to that, don’t they? 

Mr. YAGER. Yes. 

The CHAIRMAN. Well, I don’t know what your problem is then. 

Mr. YAGER. It is a corporate campaign——

The CHAIRMAN. But, I mean, all of these kinds of—we will move 

on. 

Mr. Sweeney, can you sort of give us some sense about what you 

hear from the state of workers in terms of these, or what is your 

own sense about the growth of these companies that go on out and 

are available to companies about how to really destroy a union or 

how to block the organizing process? That is a relatively new phenomenon that has grown over the period of the last 25 years, at 

least that is my impression. I don’t remember that being a factor 

or force. But it certainly is now. We hear a lot about, well, the 

threats from workers and all the rest when we have, on the other 

hand, these companies that are going out there, they wear with 

pride the number of instances that they blocked workers from 

being able to be successful. 

I would be interested if you would comment about it. What this 

hearing is about is trying to see if workers in America through 

their own kinds of efforts can form, by following the laws, a union 

and see if they can have free choice in making those judgments and 

decisions. Now we have these companies that are absolutely committed to destroying that process. Your comment? 

Mr. SWEENEY. Sure. Before that, if I might just respond to Mr. 

Yager, I am really surprised at the example that he cites, MGM 

Grand, which is an organized hotel with a collective bargaining 

agreement in place. There was an attempt at one point to decertify 

the union, and those who supported decertification couldn’t meet 

the threshold of 30 percent who were interested in doing that. I am 

not aware of the petitions that he cited, but it is a company that 

is highly organized and it is a company that presently has a good 

collective bargaining agreement. 

In response to your question, Senator, the growth of union-busting consultants is probably one of the fastest-growing industries in 

the country. While it started mostly in the health care industry in 

its earliest stages, it has now spread to just about every industry. 

The examples and the tactics and some of what you have heard 

and will hear on the second panel are just indications of what these 

consultants are advising employers to do in an anti-union or in an 

attempt to defeat a union-organizing campaign with all the harassment and all the intimidation and all the violations of law as well 

as extending some of the law in directions that it was never intended to apply to. 

I am sure after the second panel you will really have a more 

comprehensive view from different industries, from workers from 

different industries who have had these experiences, and it is just 

disgraceful what is happening in this day and age with workers 

trying to have a voice at work. 

When we look at the hearings on the Enron situation and so on, 

these workers whom we have supported since they were all terminated from their employment—we have provided them with legal 

help and other assistance—didn’t have the benefit of any kind of 

97

association or any kind of organization to represent them and realize today how important it would have been for them to have a 

voice even in the discussions of their options on pension coverage 

and have a seat at the table representing the voice of workers. 

The CHAIRMAN. The administration spends a good deal of time 

talking about those fire fighters in New York, and all Americans 

will never look at a fire fighter or rescue worker the same—never—

after their courage and bravery. Have they ever explained why 

they are so strongly opposed to those fire fighters being able to bargain collectively? Could you tell us what you have heard about the 

administration’s position about firing the air traffic controllers that 

ensure the safety of America’s skies on that tragic day? It seems 

that we not only have companies that are committed to try to deny 

the workers their free rights, but what is behind that? What is 

your sense about—what do they tell you, or don’t they tell you? 

Mr. SWEENEY. Well, we saw on September 11th and following everybody recognizing the heroism of workers who were involved at 

the World Trade Center, here at the Pentagon, and all of us were 

singing the praises of workers and their contribution. These are the 

same heroes who are doing that work every day of the year, who 

did it long before September 11th, and for them to be denied collective bargaining with the fire fighters in the Federal sector is a classic example of efforts to prevent workers from organizing, from 

having a voice in their job and on their living conditions. 

Firing of the air traffic controllers was the most despicable situation I guess that we saw in the 1980s. It was really a blatant attempt to break the union and to break the lives of those workers. 

We recognize that the workers made some decisions that they probably shouldn’t have, but firing them and what it caused them and 

their families and their lives is the most horrible situation in terms 

of how it affected those workers. 

There are folks, as you well know who do not want to see workers represented by unions, who do not want to see a level playing 

field when it comes to labor-management relations and the ability 

of workers to have a say on the job and to have the basic rights 

that we—we support ILO declarations and we support ILO basic 

freedoms and rights, but we don’t carry it out in our own country. 

The CHAIRMAN. Senator Hutchinson. 

Senator HUTCHINSON. Thank you, Mr. Chairman. 

Mr. Yager, assuming that the alleged abuses the other witnesses 

have related are accurate—and I assume they are—do you believe 

these represent typical cases that are handled by the NLRB? 

Mr. YAGER. Absolutely not. I think actually the NLRB and the 

procedures for protecting employee rights are about as employeefriendly as can be in terms of enforcement. Typically, most people 

who have a claim under almost any other law have to go out and 

hire a lawyer and get that lawyer to bring their case. As we have 

heard on some of the cases of the NLRB, those cases drag out in 

the courts and it takes several years for those individuals to get 

their remedies. 

Under the NLRB, an employee simply has to go down to the regional office, file a charge, and at that point basically the general 

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yer, becomes the union’s lawyer, prosecutes that case on their behalf. 

The employer, on the other hand, or the union if the union is 

being accused, has to retain their own attorney. In fact, according 

to data provided by the former general counsel at the National 

Labor Relations Board, Fred Feinstein, in fact, about 90 percent—

or, I am sorry, most charges are resolved within 45 days. Typically, 

when the general counsel goes to the employer and says we think 

that you have probably committed a violation here, more often than 

not that employer settles that case. It is really only a very small 

percentage of cases that work their way up through the processes. 

Yes, in fact, those cases do take a long time to get resolved, and 

it is unfortunate. I would be the first one to say if we could think 

of a way to make those quicker in a judicious, fair manner, let’s 

do it. 

But in that respect, they really are no different than most other 

claims in our legal system. 

Senator HUTCHINSON. Now, I notice that union membership in 

recent years has been static in our country. In fact, as a percentage 

of the overall workforce, union membership has declined. We heard 

Mr. Sweeney’s take on why that is the case. What other reasons 

might there be that union membership is not as desirable as it 

once may have been? 

Mr. YAGER. A lot of people will give you a lot of reasons. I think 

the two that I think are probably the strongest are: one, just the 

plethora of laws that have been passed since the 1940s, a lot of situations where an employee in the 1940s would have gone to a 

union shop steward or an organizer saying I need protection, now 

they will go to a plaintiff’s lawyer or a government agency and get 

the protection that is already there under the laws. 

I think the other, though, is I think employers’ human resources 

practices are very competitive right now. The number one problem 

for our members is recruitment and retention of good employees. 

So they offer them good benefit packages; they offer them good 

compensation packages. They listen to what they have to say. They 

give them more of a voice in the workplace on how the business 

is being run. I think that has taken a lot of the arguments away 

from organized labor. 

Senator HUTCHINSON. Thank you. 

Mr. Sweeney, I strongly support the right of people to organize 

and to form a union, and I find the cases of intimidation, violence, 

threats, those kinds of things outrageous. But I think, some of the 

so-called organizing tactics that are used today are also outrageous. 

In our second panel, we are going to have a witness who will testify, Bob MacDaniels, president of the ONCORE Corporation, 

which has been the victim of a law-breaking union-organizing campaign. The NLRB found this month in this case, that there is reasonable cause to believe that the respondent has trespassed, improperly demonstrated, assaulted persons, blocked ingress and 

egress, physically disrupted work, threatened neutral employers 

contracting with ONCORE who have no dispute with the union, all 

in violation of secondary boycott prohibitions. 

Then they get specific about a string of incidents in April 2002 

at a number of construction sites where ONCORE was the subconVerDate Mar 21 2002 05:26 Mar 07, 2003 Jkt 010199 PO 00000 Frm 00102 Fmt 6633 Sfmt 6601 W:\DISC\80443 txed01 PsN: PFRM67
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tractor. In one incident on April 9th on property owned by Lincoln 

where ONCORE was the subcontractor, 50 to 60 hostile and angry 

union members allegedly came on the construction site. The facts 

of the incident were, in fact, admitted by the union, trespassed 

without permission, refused to leave. ONCORE’s foreman attempted to retreat up a ladder to the second floor of the building 

under construction but was told he wasn’t going anywhere, was restrained by individuals holding his arms, shoulders, and back while 

another individual wrapped tape around his throat and attempted 

to choke him. Until police arrived, the union members disrupted 

work for approximately 20 minutes, and as they left they changed, 

‘‘We will be back.’’

Over the next few days, similar incidents of trespass and threats 

by the union occurred at construction sites owned by the companies 

where ONCORE was the subcontractor. That from the NLRB. 

Do you find that outrageous? 

Mr. SWEENEY. With all due respect to the case that you are referring to—and I guess we will hear more in the second panel—I understand that there is a legal—that there is some dispute with the 

facts, and there is a legal process where there has been an injunction and a temporary restraining order, I believe. But I would like 

to get more familiar with the facts. 

Senator HUTCHINSON. Well, I can read you that there is a concession to the facts, but apart from whether the facts are accurate or 

not, do you find, if that were the case, that kind of behavior outrageous? 

Mr. SWEENEY. Well, I have been known to trespass myself once 

in a while. 

[Laughter/applause.] 

The CHAIRMAN. Order, please. 

Senator HUTCHINSON. Thank you, Mr. Chairman——

Mr. SWEENEY. But I do not support any illegal activities. I do not 

support——

Senator HUTCHINSON. Trespassing is illegal. 

Mr. SWEENEY [continuing]. Any violence, no matter what the situation what might, and the labor movement as a whole has never 

supported any violent activities. 

Senator HUTCHINSON. I have a letter here from the International 

Brotherhood of Electrical Workers. ‘‘Dear Brothers and Sisters: I’d 

like to thank all of you that responded to my last letter. Now, for 

what you can do to assist your local union, we’re in desperate need 

for Members to volunteer for the following tasks’’—and most of 

these tasks I understand, hand billing, picketing, surveillance, volunteer organizing, and then it says ‘‘overt salts and covert salts.’’ 

Could you define for me what a ‘‘covert salt’’ is? 

Mr. SWEENEY. I think you will have to ask the IBEW what they 

describe, but that is a part of their organizing activities. It has 

been part of organizing in the building/construction trades. 

The CHAIRMAN. Mr. Yager, can you define what a ‘‘covert salt’’ 

is? 

Mr. YAGER. A covert salt is—I am not sure, but I would guess 

an overt salt is a salt who applies for a job and says, ‘‘I am a union 

organizer, and if you refuse to hire me, I am going to say you discriminated against union activity.’’ A covert would probably be one 

100

who applies for a job, does not indicate that to the employer, and 

then once on the job begins filing complaints and creating harassment in the workplace. That is my guess based on those terms, but 

I don’t know for sure. 

Senator HUTCHINSON. Thank you. My time has expired. 

Thank you, Mr. Chairman. 

Mr. SWEENEY. What is your problem with that? 

Senator HUTCHINSON. Well, it is deceptive and the goal is not to 

organize but to destroy the company, and I think that that is a 

very, very egregious practice. 

Thank you, Mr. Chairman. 

Mr. SWEENEY. I disagree. 

The CHAIRMAN. The whole issue on salting, we have had hearings, the right in terms of salting has been upheld by the Supreme 

Court by 9 to nothing. 

Senator HUTCHINSON. Overt or covert? 

The CHAIRMAN. Well, the Supreme Court. You read the opinion. 

You read the opinion on it. But that is a way of organizing, and 

it has been recognized. 

So I think I would like, I think all of us want to see, if people 

are going to violate the law, whether it is—they understand the 

consequences. They should understand the consequences. I wish we 

were as much concerned about Mr. Vizier, what has happened to 

him, as we are with regards to other circumstances. 

Senator Wellstone. 

Senator WELLSTONE. Thank you, Mr. Chairman. That is a good 

bridge to some of the questions I have which deal with, first of all, 

the National Labor Relations Act. I will first start with Mr. President, and I will move right along because I would like to get to all 

of you. 

The NLRA says, ‘‘Employees shall have the right to self-organization, to form, to join, or assist labor organizations,’’ and it sounds 

good. Then I heard you, President Sweeney, talk about a variety 

of different campaign tactics: captive-audience meetings, one-onone meetings, hiring outside consultants, threatening to close facilities, bribes or special favors, illegally firing workers, surveillance, 

refusals to bargain for first contracts. How prevalent are these 

practices? 

Mr. SWEENEY. I would say that probably somewhere around 75 

to 80 percent of all campaigns have seen employers exercising 

those tactics. 

Senator WELLSTONE. Seventy-five to eighty percent of the organizing campaigns. So thinking about the NLRA and, again, the 

right of organizers, the right to self-organization, in general terms 

what do you think needs to be changed, your own priorities? What 

are some of the things that you are thinking about as president 

that would assure that workers have this basic, I would argue, 

democratic right, with a small ‘‘d’’? 

Mr. SWEENEY. Well, our hope is that coming out of this hearing 

there would be a higher focus on addressing the labor law issues. 

It is a rather extensive and comprehensive agenda, but if we look 

at some of the labor laws in countries like Canada and see how 

they deal with workers’ expression of choice in terms of joining or 

forming a union and the expeditious process that they have, I disVerDate Mar 21 2002 05:26 Mar 07, 2003 Jkt 010199 PO 00000 Frm 00104 Fmt 6633 Sfmt 6601 W:\DISC\80443 txed01 PsN: PFRM67
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agree with Mr. Yager on the pending cases at the NLRB. The numbers are horrendous and have been for the past several years. 

But we should certainly be able to enforce a labor law that gives 

workers a level playing field for expressing themselves in terms of 

whether or not they want to join a union or to form a union. 

Senator WELLSTONE. So the whole question——

Mr. SWEENEY. We should have an expeditious process for discriminatory discharges and other such penalties. But the list is 

long in terms of what provisions of the labor law must be addressed. 

Senator WELLSTONE. But the general principle is the right to organize, the right to bargain collectively. 

Mr. SWEENEY. Yes. 

Senator WELLSTONE. Mr. Roth, the NLRA on its face complies 

with international human rights principles-you say that in your 

testimony—but it falls short in reality. I wanted to ask: Do you 

think the problem is that the law is not being adequately enforced 

or that the enforcement itself is not effective or both? 

Mr. ROTH. It is a little bit of each. A lot of the tactics that are 

now standard procedure because of these union-busting consultants 

that are so prevalent are actually permitted under the NLRA. On 

things such as captive-audience meetings, on forced one-on-one 

meetings with supervisor, barring union access, predictions that 

are very close to threats but not quite threats, interrogations of 

workers—all of that is legal; it is permitted under the NLRA. That 

creates a legalized unlevel playing field which needs to be changed. 

There are other problems which are illegal, such as firing workers or dismissing workers because of their union activities, and 

there the problem is more the token sanctions rather than the 

state of the law. But, again, that is an area that needs to be fixed. 

Then, of course, there are broad categories of workers who are 

simply excluded from NLRA rights altogether, and a lot of this is 

because the NLRA was drafted, what, 80 years ago and the economy has changed. 

If I could, maybe, while I have the floor, just say one word in response to Mr. Yager’s——

Senator WELLSTONE. That would be fine. I do want to get to both 

of them, but, please, if you——

Mr. ROTH. It will just be a moment. In challenging the use of 

card checks over secret ballot elections, Mr. Yager is attacking the 

remedy rather than the problem. Clearly, in an ideal world, secret 

ballot elections would be superior. But in an environment in which 

coercion is the norm, in which workers do not really have a free 

choice, it is quite natural for unions to look to card check methods 

as a way of quickly identifying worker preferences before the employer can rev up with various coercive mechanisms. 

I think if we want to move toward the ideal world of secret ballot 

elections really being preferable, we need to attack the coercion, 

not the response to the coercion that unions have, of necessity, 

adopted. 

Senator WELLSTONE. Thank you. That might be a bridge to the 

question for Mr. Vizier. Mr. Yager—and I want to try to get a question to you or give you a chance to respond—has challenged, you 

know, the union, ‘‘corporate campaigns card check recognition’’. 

102

But, Mr. Vizier, what you describe in your testimony seems like a 

campaign by the boat owners that you were dealing with to stop 

workers from forming a union no matter what. Am I correct? Is 

that what you were facing? 

Mr. VIZIER. Yes, sir, Senator Wellstone. It was a compilation of 

all the companies and the oil and gas industry to stop this campaign that was going on in the Gulf of Mexico. Like I said before, 

I am a third-generation marine from the gulf. I was brought up 

into the industry. I was raised into the industry. I was once a boat 

owner myself. I know the industry inside and out. These companies 

tried everything. They threatened me with murder. They threatened me with every—they chased me off the road, like I said before. The mariners at Guidry started organizing themselves. In 3 

months we had 68 percent of the employees that signed the cards. 

In that third month, the company caught on to what was going on, 

and they started an anti-union campaign that was so hellacious it 

was unreal. 

They sent employees how to bust a union, and one of these employees was—he refused to take a Federal drug test and alcohol 

test, so they bribed him. Against Federal regulations, you have to 

fire this employee, and they did not fire him. They sent him to 

union bust-up school, showed him how to bust the union, made him 

go around to the whole fleet with a petition and said, Sign this petition that you don’t want the union, and we are going to give it 

to the NLRB. The mariners who did not want to sign, the owners 

came around and said, You are either with us or you are not. The 

next thing you know, they would be terminated if they wouldn’t 

sign, or they were harassed or they would quit their job. 

Something needs to be done. The labor laws aren’t being enforced. We need new labor law reform. Like Mr. Yager says, we do 

have labor laws, but the labor laws are not being enforced and 

something needs to be done about it. 

Senator WELLSTONE. Thank you. 

Mr. Yager, I apologize. I have run out of time. I will have some 

questions for you that I would love to get your response, and I 

know you want to go on the record. 

Thank you, Mr. Chairman. I just want us to stay within our time 

frame because there are other panelists as well. 

The CHAIRMAN. Senator Harkin. 

Senator HARKIN. Thank you, Mr. Chairman. I apologize for being 

late. I would just ask that my opening statement be made a part 

of the record. 

The CHAIRMAN. It will be a part of the record. 

[The prepared statement of Senator Harkin follows:]

*******PLEASE SUPPLY STATEMENT******

Senator HARKIN. Listening to all this stuff, those of us who have 

had family members—I understand Mr. Edwards talked earlier 

about some of his family members. I can remember when my brother worked for this company for 23 years. It was owned by an individual, Mr. Delevin, a manufacturing company, small manufacturing company in Iowa. He worked there for 23 years, a member 

of the UAW. They never had one strike. They never had one walkout. They never had any labor problems. When the contract was 

103

up, Mr. Delevin would sit down, negotiate, they would have a contract, and they would move ahead. They had good employee benefits. They had a good workplace, safe workplaces. Mr. Delevin 

made quite a bit of money, as a matter of fact. 

Then he decided that he was going to sell his company. He got 

to the age he wanted to sell it and get out of the business. They 

employed about 250 people in manufacturing. The new people came 

in. In fact, one of the new owners openly bragged how—he said, ‘‘If 

you want to see how to bust a union, come to Delevin’s’’. 

So for the first time, now it was 24 years, they wouldn’t negotiate 

with the bargaining unit. Then they forced them out on strike. 

Then, of course, when they couldn’t get a contract, they went, the 

first time ever, on strike. The first time my brother ever walked 

a picket line. Then they brought in the replacement workers. Once 

they brought in the replacement workers, that was the end of it. 

Then they got the union decertified, and that was the end of it. 

It is just as you said, Mr. Roth. You said in your statement, 

which I read, you said that if you don’t have the right to strike, 

then you really don’t have the right to organize and bargain collectively. It is just ephemeral without that right. Workers don’t like 

to strike, but it is the only last back tool that they have to do that. 

Well, ever since I saw that happen to my brother—and the whole 

thing has changed over the years, and more and more of these people are bringing in these replacement workers, and so really they 

don’t really have a right to bargain collectively, do they? 

Mr. ROTH. That is exactly right, Senator Harkin. In fact, if you 

mention to members of other democracies around the world that in 

the United States an employer is entitled to permanently replace 

a striking worker, they look at you like you must be crazy, that 

that is inconceivable to them to be compatible with the right to 

strike. We are an anomaly in this country, and this is a major defect in our law which must be changed. 

Senator HARKIN. It has to be changed, and we have been trying 

to do it, but we have not been successful in doing it. But ever since 

I saw that happen to my brother, I said this is not right what they 

are doing. It seems to me that whole issue of striker replacement 

has to be addressed in this country. I don’t know, Mr. Yager, if you 

have got any views on striker replacements or not. 

Mr. YAGER. Well, I would be less than honest if I told you that 

I didn’t think that striker replacement situations create a lot of 

pain and anguish, such as you saw in your situation. But I think 

the other thing that I can tell you from my own experience, sort 

of watching what has been happening with my members over the 

last 10 years, it has really become a very rare occurrence because 

it is a crapshoot for an employer to do that. You have only to look 

at the Kaiser Aluminum situation where they are looking at a potential back-pay liability of $180 million. 

Granted, an employer can hire permanent replacements if it is 

an economic strike. But the reality is you never know whether or 

not it might become an unfair labor practice strike. Because it 

takes so long to resolve that issue, sometimes they may be looking 

at 5, 6 years of a back-pay liability, which essentially means they 

have to pay twice what they paid for that workforce during that period. 

104

We teach courses on collective bargaining. We tell our companies 

more often than not this is not a smart thing to do, you need to 

think twice about doing it. But there are situations where it is really the only available alternative to the employer. 

Senator HARKIN. It happens all the time in my State of Iowa. It 

happens all the time where they bring in these replacement workers. 

You know, it is examples like what happened at Mercy Hospital 

in Iowa City. December 13, 2001, just last year—and I was somewhat involved in this, watching it happen. Mercy Hospital wanted 

everyone who had ever written a medical or treatment order to be 

classified as management and, therefore, not eligible to be in the 

union. Well, of course, every nurse at one time or another has written a treatment order. 

They had to go in front of the NLRB. That caused a long delay. 

Mercy held captive-audience meetings to speak against the union, 

transfers out of regular jobs to different shifts. What got me is they 

hired this firm out of Kansas City to run an anti-union campaign. 

What has happened is that, quite frankly, when the SEIU tried to 

organize, they lost. 

Now, interestingly enough, at the University of Iowa Hospital—

and this is the one that galled me—Government money was used 

to hire a consultant to break the organizing efforts at another hospital there. 

The machinists’ union in Sioux City, Iowa, organized the Omaha 

Line Hydraulics. The election was held July 13, 2000. The NLRB 

certified the election July 20, 2000. Well, Omaha Line Hydraulics 

has refused to negotiate a contract. They refused to talk economics. 

The biggest sticking point, I understand, is that Omaha Line Hydraulics wants the right to assign work, transfer employees, et 

cetera, et cetera. So the local went on strike a year later, May 3, 

2001; they have been out ever since. 

What happens—I think there may be an agreement here that we 

need to really beef up the NLRB. We need to give them the resources in which to cut down the length of time. 

I have another example of a young man, a friend of mine from 

Mason City, Iowa, who was discriminated against, and he filed an 

NLRB action. It took him I think about 3 years before it finally 

wound through. But he was a young man, he was single, he didn’t 

have a family, and, by gosh, he was determined he was going to 

win. 

What usually happens in these cases is people are married, they 

have kids to take care of, they have families, they have mortgages 

to meet. They can’t hang in there. So they go off and they find another job, and they move on with their lives. Sometimes they move 

on out of town. That just discourages anyone else from ever doing 

that. 

This young man is the only one I know who ever really won one, 

and he has hung in there. Like he said, ‘‘I don’t have any mortgages, I don’t have any—so I’m going to hang in there.’’ He won. 

He got quite a bit of back pay and stuff, but as he said, most people 

can’t do this. 

So, hopefully, maybe that is the one thing that—we may disagree 

on a lot of things, but the one thing that we have got to be able 

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to agree on is that the NLRB needs more funds. It needs more personnel. It needs to shorten its time period, and the appeals process 

ought not to drag on year after year after year after year because 

it is do discouraging. So maybe we can get the business community, 

Mr. Sweeney, to agree with us to ask for more money and more resources from this administration to put into the NLRB. I happen 

to chair the Appropriations Committee that funds it. Now we are 

finding that the administration downtown wants to cut the funds. 

As long as it takes now, they want to cut the money for it. It seems 

to me we need the business community to step up and say we need 

more funds for the NLRB. 

Mr. YAGER. I don’t think it is a funding issue. I think it is a 

structural issue, Senator, and we, in fact, recommended a few 

years ago in testimony before this committee, one way you can 

really speed things up is to take, really take the interpretation of 

the law function away from the five-member NLRB and take it 

right to the courts, because that is where the delays occur. The 

vast majority of the cases happen within about a 45-day period. It 

is when you start to get the appeals up through the NLRB. Then 

it takes them a year or a year-and-a-half to decide your case. Then 

it goes to the Federal courts. Then it takes them 2 or 3 years to 

decide a case. 

That is only about 1 percent of all cases. But I think you have 

got to figure out a way of expediting that process, and part of the 

problem is just the fluctuation we have seen at the Board over the 

years, just, as you all know, grappling with the nominations and 

having a Board that is a fully confirmed Board and not, you know, 

two or three recess appointments or whatever. I mean, those are 

the problems, and I don’t think more funding is going to fix them. 

Senator HARKIN. Mr. Roth. 

Mr. ROTH. I completely disagree. Back in the 1950s, ancient history, the NLRB had 3,000 full-time employees. Since then, the 

number of cases filed has tripled. The number of employees at the 

NLRB has been cut to 2,000 from 3,000. We clearly need more resources if we are going to have effective enforcement of our laws. 

Senator HARKIN. Thank you, Mr. Chairman. 

The CHAIRMAN. Senator Murray. 

Senator MURRAY. Mr. Chairman, thank you very much for having this hearing today. I really appreciate your efforts in this direction, and I appreciate all of our witnesses who are here today. 

There is a lot going on in Congress, but certainly this is an important subject that impacts the lives of many, many workers. 

Mr. Sweeney, I am especially delighted to see you here today. I 

know you are going to be in my home State this summer. The 

members of our AFL–CIO are very excited about your participation 

in there convention and are really looking forward to it. So I appreciate your coming out there. 

I especially want to extend a welcome to the individual workers 

who have risked their personal economic security and that of their 

families’ for the sake of organizing workers for a safer workplace 

and a better tomorrow. Many of the benefits that American workers across our country enjoy today came because of individuals like 

you who stood up and fought for other families, and I just really 

106

appreciate your being here today and having the courage to come 

and talk to this committee. 

Mr. Chairman, I apologize. I won’t be able to hear the second 

panel. We have a number of hearings going on today, but I wanted 

all of you to know how important your testimony is and how important it is for you to be here, not just for yourselves but for so many 

people who can’t be here today. 

Mr. Sweeney, let me start with you. There was a recent survey 

at Cornell University by a scholar by the name of Kate 

Bronfenbrenner, who found that in workplaces with undocumented 

workers employers threatened to call Immigration and Naturalization Service in more than half of all the union-organizing drives. 

I wonder if you could comment on that issue and the difficulties 

confronting legal and illegal immigrants who seek to organize a 

union. 

Mr. SWEENEY. It is a very common occurrence for employers in 

non-union industries to call in the INS when they hear that their 

workers are attempting to organize. I think that it is a clear example of how our laws have to be enforceable for immigrant workers 

as well as all workers in our country. I think that we have to address this issue not just with our labor laws but also with immigration reform. These immigrant workers are being exploited in so 

many different ways, and it is all across the board in all the industries, whether it is manufacturing or textiles or service or health 

care and hotels and restaurants. 

I have been working on organizing campaigns myself in different 

cities where I have gone to meet the workers and meet them as 

they get off their shift at work, and the employers call the INS, the 

INS shows up while we are there sometimes in some of these cases. 

The workers, of course, scatter off as fast as they can to avoid any 

confrontation. 

Senator MURRAY. It is a problem we need to address, Mr. Chairman, for sure. 

Mr. Roth, many of the people on this committee have supported 

Senate action on the Convention to Eliminate All Forms of Discrimination Against Women, the CEDAW treaty. Could you take a 

moment and comment on CEDAW’s relationship to the topic we are 

discussing today? I would just say it is my belief that passing the 

CEDAW treaty would really send a strong message abroad that 

women in the workplace are important, and if you could just comment on where you see that in this debate. 

Mr. ROTH. I think there is very little excuse for why this country 

has not ratified the women’s rights treaty already. This is a treaty 

that is widely recognized around the world as being essential for 

guaranteeing the rights of women. At a moment when we have 

overthrown the Taliban regime, one that is notorious for its repression of women, the fact that we are not willing to stand up and recognize that women deserve equal rights in the workplace and every 

place else is something that most of the rest of the world just 

doesn’t understand. This is being portrayed as some kind of radical 

attack on the family, but if you just sit down and read the treaty, 

it enshrines the basic rights about equality of women that all of us 

believe in, that has been a basic part of this society for a long, long 

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time. It is shameful that America cannot stand up and join virtually the rest of the world in embracing this treaty. 

If I could say also, just with respect to your question about immigrants, I think that there are a number of things that could be 

done to improve the ability of immigrants to exercise the right to 

freedom of association. The INS already has a discretionary policy 

of not conducting raids during elections themselves. That could be 

helpfully extended to the entire period in which unionization is at 

issue, including a reasonable period afterwards where there would 

be forbearance on the part of the INS. 

I think it would also be helpful in the case of unfair labor practices against undocumented migrants if a new visa category were 

established comparable to the S category for witnesses of crime or 

the T category for trafficking victims, so that workers would be 

able to enforce their rights. 

Similarly, the NLRB should adopt a policy of never questioning 

a worker about his or her immigration status since that is a very 

important way of discouraging undocumented workers from exercising their rights. 

It would also be helpful if the ban on Legal Services representation of undocumented migrants were lifted so that, again, they 

could have the basic representation that they needed. 

Senator MURRAY. Thank you very much for those comments. 

Mr. Chairman, I am out of time, and I know you have got a number of witnesses. I just wanted to comment. Mr. Yager mentioned 

Kaiser Aluminum, which is in my home State. It was egregious actions on that company’s part, and this was a company that had a 

wonderful relationship with the community. It was a great unionorganized company, a great reputation. Those employees stood up 

to a lot of pressure, and now Kaiser is having to pay a fine. I think, 

you know, we will continue to work with the union and with everybody there, but I think that is an example of some pretty great employees who stood up for the rights of workers across the country. 

It is a wonderful example we should all follow, although it has really torn apart our communities. 

Thank you, Mr. Chairman. 

The CHAIRMAN. I want to thank all of you very much for your 

very helpful testimony. We are very grateful. You have given us a 

lot of good information and a lot to think about. 

Thank you all very much. 

Senator WELLSTONE [presiding]. We are now going to turn to the 

next panel with Sherri Buffkin, Nancy Schweikhard, Mr. Vidales, 

and Mr. MacDaniels. 

Thank you. We want to make sure that we are not interrupted 

by votes so we will move forward. 

Sherri Buffkin is from Bradenboro, NC. In 1992 she began working at Smithfield Foods in Tar Heel, NC. Smithfield Foods is the 

largest, as Senator Harkin knows, hog slaughter and processing 

plant in the world. Ms. Buffkin began as an hourly employee in the 

plant’s box room and received numerous commendations and 

awards for her hard work. Within 2 years Ms. Buffkin became supervisor and was then promoted to division manager in charge of 

Smithfield Foods, and it is a very, very compelling story. I think 

I’ll introduce each one of you individually. 

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Ms. Buffkin. 

STATEMENT OF SHERRI BUFFKIN, FORMER SUPERVISOR, 

SMITHFIELD PACKING COMPANY, TAR HEEL, NC 

Ms. BUFFKIN. Thank you. I would like to say that it is a pleasure 

to be here. I am saddened at the moment that Senator Hutchinson 

cannot be here, because I would really appreciate that for him to 

see from a supervisor management viewpoint what actually happens, but that is a personal feeling. 

You already went through my background, so I do not need to 

go over that again. I have an 11-year-old daughter who is with me 

today, and the fact that I have an 11-year-old daughter——

Senator WELLSTONE. Why do you not introduce your daughter? 

Ms. BUFFKIN. She just stepped out. I am sorry. 

Senator WELLSTONE. She might have got a little bored for a 

while. No offense to anybody. [Laughter.] 

Ms. BUFFKIN. But I have an 11-year-old daughter, and I committed some egregious acts against hourly employees during my 

tenure as a management personnel at Smithfield. On several occasions I would come home. My daughter was 6, 7 at the time. I 

would come home crying. The first thing my daughter would ask 

me when I walked into the house. She would notice I was upset. 

The first thing she asked me was, ‘‘Mom, who did you have to fire 

today?’’

I am not affiliated with any union. I am here today to stand up 

for workers’ rights and for what they believe in, and for the fact 

that they can have a better work environment, but they cannot do 

it by themselves. They need a voice. They do not need to leave their 

self respect and their dignity at the door when they walk into the 

plant, which is what happens to them each and every day. 

Smithfield Foods asked me to lie on a affidavit, and I had to 

make a choice between my job and telling the truth. At that point, 

I am sorry to say—but I am human—I chose my job and supporting 

my family, and I did so at that time. Smithfield Foods sought out 

and had management, such as myself—I was in the top echelon of 

the hierarchy at the plant; I was fourth in charge—and we would 

seek out employees that were pro-union. 

As you stated, I received numerous recommendations. I got the 

highest raise in the plant for 3 consecutive years. I had a very good 

working relationship with my employees. I understand that family, 

in my view, comes first. As long as you do not abuse that, then if 

you allow a little bit of leeway for your employees, because if they 

have a family problem or a child is sick or something of that nature, they are going to work that much harder for you the next day, 

the next week, the next month. 

In 1997 the UFCW started handing out pamphlets and standing 

by the roadside outside the plant talking to workers. The company 

brought in attorneys and we had mandatory meetings in which we 

would sit down in closed-door sessions and meet with the attorneys, who told us that their only reason for being there was to 

make sure that the UFCW did not get into the Smithfield Packing 

Tar Heel plant, and they were true to their word. They ensured 

that this did not happen. 

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The way they accomplished that was the fact that other members 

of management, we would stress we would have daily meetings 

with our employees. We had mandatory meetings in which we 

would tell them, ‘‘If the union comes in, you can no longer come to 

me. You have to talk to a union rep. I cannot help you any more.’’ 

We were told—I personally was told; I cannot speak for other members of management except for the meetings that I was there, so 

I will speak for myself and leave the other management out of it. 

I was told that to threaten them with strikes. ‘‘The UFCW is 

known for strikes. What is going to happen? You do not have a 

paycheck. You will lose your job. What are you going to do? How 

are you going to feed your family?’’

We also threatened them—and that is the only word you can 

use—we coerced, we manipulated employees to come in to the company line. The company employees would take and feed us information to tell our employees. ‘‘This is what you do.’’ I had two employees that worked for me that during the last several weeks of the 

election did not do a lick of work for me, nothing. The company 

paid them to go into the closed-door meetings and spy, and find out 

who were pro-union employees, who were pro-company employees. 

These pro-union employees were then picked out, singled out, and 

found a reason to be terminated. 

For example, I had a lady that worked for me in laundry. She 

was from New York. She was a very hard worker, or else I would 

never have put her in a position of crew leader. 

Senator WELLSTONE. Is that Margot? 

Ms. BUFFKIN. Margot. I made her a crew leader. She voiced her 

opinion. Laundry is a very populated place. Most of the employees, 

over 3,000, I would say 3,800 of the employees have to go through 

laundry at least 4 times a day, in and out. Margot voiced her opinions. I was called downstairs by a company attorney and asked if 

Margot was one of mine. By that I assumed he meant my employee. At which point I responded, ‘‘Yes, she is.’’ He then told me 

that he had come out of a meeting in which Margot’s name had 

come up repeatedly, and that Margot was pro-union. This company 

attorney looked me dead in the face and told me, ‘‘Fire the bitch. 

I’ll beat anything she or they throw at me in court.’’

At this point my response was, ‘‘I cannot do that. She has never 

been disciplined. There is no disciplinary action in her files. She 

has never been written up.’’ He said he did not care, ‘‘Fire the 

bitch.’’

She was called downstairs with another member of management, 

the plant manager. She was told that she was causing problems 

among the other employees, other employees did not get along with 

her. That was the line they gave her. So she goes back upstairs and 

she gets a petition. In less than an hour she has several hundred 

names on this petition, telling that she is a good employee, that nobody has problems with her. This was presented the next afternoon 

when she came back to work. I had offered her a job, trying my 

best to help this lady. I had offered her a job in a label cage. She 

told me she would think about it over the night. Well, she comes 

back the next day, and this plant manager, he tells her, he said, 

‘‘I am sorry. The job is no longer available.’’ She starts crying. She 

becomes hysterical. She said, ‘‘You know, you told me to think 

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about it. I went home and I thought about it.’’ She excuses herself 

to go to the bathroom. 

At this point the plant superintendent that was in the room with 

me got a jovial manner and started laughing. He thought this was 

hilarious. ‘‘We got another one. We got another one. Do not have 

to worry about her.’’ The woman was crying hysterically. She has 

3 kids. He sits there and looks me in the face and laughs, and tells 

me, ‘‘Well, I could have gotten a blow job out of her if I had wanted 

to, she wanted her job so bad.’’ Pardon my expression, that is exactly what was said. At that point I left work, and he dealt with 

it, and I went home. 

The union filed charges with the National Labor Relations Board 

about these terminations that I was involved in, and that is just 

one of their many. I do not have the time to go into it. 

The attorney write affidavits which were filed. He would misconstrue what I said to fit what the company wanted. Yes, I had 

a family to feed. I support my family. I tell them it was wrong. 

When the plant manager, vice president and an attorney tells you 

this is what you do, I am so sorry, I have to live with myself, but 

I also need to support my family. I signed the affidavits knowing 

they were false. 

During the meetings the attorney showed us how to undermine 

pro-union sentiment. We were to keep names of all the employees 

that were pro-union. We were told that if an employee was prounion, that we were to ride them. Overtime was only given to procompany employees with the exception of pro-union employees that 

did not want the overtime. At this point I was to make them work 

over. When they tell me no, they were fired for insubordination. 

The general manger, vice president and myself pushed the fight 

that Smithfield Packing Tar Heel Division would never get into a 

union. If a union come in, they would close the plant, and they 

would move, they would relocate. We pushed this and we were very 

good at it. 

We told employees that if a union got in, it would be years before 

they would ever negotiate a contract if then. While the union was 

organizing, the two ladies I told you about earlier that worked for 

me, they were paid to spy on other employees. Their names were 

turned in and they were terminated. 

Smithfield would take and set black workers against Hispanic 

workers because the black workers were pro-union, the majority; 

the Hispanics are easier to manipulate, easier to coerce, easier to 

talk into your way of thinking. ‘‘You want to leave? We will make 

you leave fast.’’ They even hired an attorney from California in 

order to help them speak Spanish and the company line. 

In 1998 right before, less than a month before the National 

Labor Relations Board trial, the attorneys asked me to testify. At 

this point I told them that I had lied for them for the last time, 

and I would not under any circumstances put my hand on the Bible 

and lie. At this point I was fired. 

I do not justify. I am not sitting here to justify anything that I 

have done. Since then my house has been foreclosed on. I have had 

to file bankruptcy. I have not found another job. But I want to personally encourage the Members here to please go to Smithfield 

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Packing yourself, go unannounced, walk in. See for yourselves—do 

not take my word for it—what goes on. 

My time is up. I was not through, but my time is up. [Applause.] 

[The prepared statement of Ms. Buffkin follows:]

PREPARED STATEMENT OF SHERRI BUFFKIN

Mr. Chairman and Members of the Committee: I am Sherri Buffkin. I live in 

Bladenboro, North Carolina. I’m here to testify today because I want to be able to 

look my ten-year-old daughter in the eye with a clear conscience. I worked as a division manager in charge of purchasing for Smithfield Foods in Tar Heel, North Carolina. Too many days I’d come home from work crying, and my daughter would ask, 

‘‘Mommy, who did you have to fire today.’’ I’m here to tell this committee how I terminated employees who didn’t deserve to be terminated. I’m here to tell you that 

Smithfield Foods ordered me to fire employees who supported the union and that 

the company told me it was either my job or theirs. I’m here because Smithfield 

Foods asked me to lie on an affidavit and made me choose between my job and telling the truth. I’m here today to tell you how Smithfield Foods sought out and punished employees because they were union supporters, and that the company remained true to its word that it would stop at nothing to keep the union out. 

I began working at Smithfield Foods, which is the biggest hog slaughter and processing plant in the world, on September 12, 1992, as an hourly employee in the 

plant’s box room. Within two years, I became a supervisor and in less than six 

months after that, I was promoted to division manager. I was in charge of all plant 

purchasing, except for maintenance items and buying the hogs for slaughter and 

processing. I made several million dollars in purchases on behalf of the plant every 

month. At the same time, I also oversaw employees in the plant’s warehouse and 

receiving, laundry, sanitation, buildings and grounds, and purchasing departments. 

The company recognized my hard work and efficiency with letters of commendation and awards. My last three years at Smithfield Foods, from 1995 to 1998 when 

I was terminated I received the highest raises of anyone in plant. 

I had a very good working relationship with my employees. I always gave them 

the benefit of the doubt and tried to work with them whenever a problem arose in 

their lives. I encouraged people to further their education and helped them make 

arrangements for leaving a bit early or coming in a bit late when their children 

were sick. By the same token, it was not uncommon for my employees to come in 

for weekend shifts when others were off. 

In 1997, when the union started handing out pamphlets and standing on the road 

outside the plant talking to workers, the company brought in attorneys to tell us 

what to do and how to react. 

The first thing the company told us was that the attorneys were there to make 

sure that the union did not get in. We had mandatory meetings where we were told 

that the main priority was to keep workers from forming a union—to stop the 

United Food and Commercial Workers Union (UFCW) from having an election at 

the plant, no matter what. Every day we were required to report the level of union 

activity in our departments, and the lawyers told us what to say to workers to keep 

the union out. In these meetings, the attorneys told us they would do whatever was 

necessary to keep UFCW out. They did. 

A lady—her name was Margot, who worked for me in laundry as the second shift 

crew leader—was pro-union. She wasn’t afraid to voice her opinions to her co-workers. I was called downstairs and told that the company attorney wanted to speak 

with me. A plant manager was with him. The lawyer said that he had just come 

out of an anti-union meeting where her name came up and asked me if she was 

one of mine. I told him she was, and the attorney said, and I quote, ‘‘fire the bitch, 

I’ll beat anything she or they throw at me in court.’’

I gave the lady the opportunity to take another job in the plant where she’d have 

less contact with other employees. She said she’d like to think about it. But when 

she came back the next day, the manager told her that another job in the plant was 

no longer an option. The excuse he gave her was that other employees found her 

difficult to work with. That night she began to circulate a petition throughout the 

plant and got about a hundred signatures saying she was someone who got along 

well with other employees. When she showed the petition to the plant manager the 

next day, he told her it was irrelevant and fired her. She was very upset and stared 

crying, practically begging for her job. The manager came out of the meeting with 

her, laughing. He told me, while she was leaving, that she was so desperate for her 

job that he could have gotten sex from her if he’d wanted. That made me sick. 

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Another employee, a lady know as granny, who worked in laundry, had made a 

statement in the local newspaper that the union was going to win. I was called to 

the superintendent’s office. The paper was on his desk, and he was visibly upset by 

it. The employee was called downstairs and terminated. I was told that the laundry 

was a hotbed of union activity and that other people would also have to be fired. 

They were. 

The union filed charges with the National Labor Relations Board about these terminations. The attorney wrote false affidavits for me to sign and gave those affidavits to the Labor Board. The attorney wrote things that came out of his own mouth, 

and I told him they weren’t true. I felt I had no choice but to sign the affidavits, 

because I had a family to feed. 

The attorneys showed us how to undermine pro-union sentiment and undermine 

pro-union employees. We were told to keep a record of the names of anti-union employees in our departments and the shifts they worked. We were given anti-union 

materials and papers and told to speak to each of our employees and ask if they 

supported the union. 

If an employee was pro-union, we were to tell them how bad it would be if the 

union got in. We were told to push the idea that the union would mean a threat 

of strikes, that strikes would mean loss of their job, and that without a job they 

wouldn’t be able to support their families. We were to remind employees that if they 

were out of work because of a strike they would lose their homes and their cars because they wouldn’t be able to make their loan payments. We were also instructed 

to push the idea of violence, that the UFCW was known for violence. 

I was instructed to tell employees that they couldn’t come to me any more with 

their problems, because if a union came in then they’d have to talk to the union 

about any problems they might have. But I was told that I should also warn employees that if the union got in it would take years for employees to get a union contract, if they got one at all. 

One of the attorneys told us to give overtime to anti-union employees who wanted 

it and to force overtime on any pro-union employees who didn’t want more hours. 

If any pro-union employee refused the overtime, we were to fire them for insubordination. I fired Wayne, who worked in the warehouse, because he wouldn’t take 

overtime. 

While the union was trying to organize the plant, I had two employees in sanitation who, for the weeks just before the election, were relieved of their regular work. 

The company was paying them to go to all the union meetings and inform on what 

was taking place and who was pro-union. They were to talk with people in the cafeteria and bathrooms to find out if they were anti- or pro-union. I had to pull people 

off their shifts or have others come in early to cover for these two individuals. 

Smithfield keeps Black and Latino employees virtually separated in the plant 

with the Black workers on the kill floor and the Latinos in the cut and conversion 

departments. Management hired a special outside consultant from California to run 

the anti-union campaign in Spanish for the Latinos who were seen as easy targets 

of manipulation because they could be threatened with immigration issues. The 

word was that black workers were going to be replaced with Latino workers because 

blacks were more favorable toward unions. 

On the day of the union election, all salaried personnel were ordered to be in the 

election room when the votes were being counted. It looked like there was going to 

be a riot or something on that day. Deputy sheriffs were all over the place. As the 

votes were being counted, the crowd got really rowdy and started to chant, and I 

quote, ‘‘Niggers get out’’ and ‘‘union scum go home.’’ The plant manager was giving 

the directions. I became frightened and jumped up on table to get out of the way. 

Danny Priest, the chief of security, who was also a sheriff, and the deputies ended 

up arresting one of the union representatives and a worker who everyone knew supported the union. 

In 1998, right before the National Labor Relations Board trial started, the attorneys told me I would have to testify. I told them I wasn’t going to lie. I was fired 

shortly after that. 

I’m not justifying anything I’ve done. Since I lost my job, I had to declare bankruptcy, and avoided foreclosure on my house by just one day. I haven’t been able 

to find another decent job. I couldn’t even get a job as a shipping clerk, even though 

I’d supervised shipping clerks. I don’t regret standing up for the truth because now 

I can look my daughter square in the eye.

Senator WELLSTONE. It turns out Ms. Buffkin’s daughter is indeed here, and I know you must have heard that applause for your 

mom. I will tell you, everybody in this room is very proud of your 

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mother and what she has had to say, and Senator Harkin is, and 

I am, and Senator Kennedy thank you very, very much for it. I 

would say one other thing to you and Tom—I know you have to 

leave. You may want to say something before you leave, but I want 

to go forward. We have got other powerful testimony. I think that 

you have just showed tremendous courage in what you have done, 

and I think you are going to light—this testimony and what you 

have done, I think you will light a candle for a lot of other people, 

I really do, and I would like to thank you. 

Your mother is special, no question about it. Us Jewish people 

would say ‘‘mensch.’’

Ms. BUFFKIN. May I say one more thing? For the anti-union people that are here, I just want to say if it was your mother, your 

father, your brother, your sister, your child that had to live every 

day going to work in those inhumane conditions, they would 

change your point of view. Thank you. [Applause.] 

Senator WELLSTONE. That is true. 

Senator HARKIN. I have to leave, Ms. Buffkin, but thank you very 

much. That is a real profile in courage. 

Ms. BUFFKIN. Thank you, sir. 

Senator HARKIN. God knows we need more of you out there. 

Senator WELLSTONE. We need more Harkins out there too. 

[Laughter.] 

Senator WELLSTONE. Nancy Schweikhard is from Ventura, CA 

and for the past 8 years she has been a registered nurse interested 

Neonatal Intensive Care Unit at St. John’s Regional Medical Center in Oxnard, CA; a member of SEIU, which I think is one of the 

great, great unions in the country, and I want you to know, Ms. 

Schweikhard, we think here that your president, Andy Stern, is 

just absolutely a true justice labor leader, the best. 

Ms. SCHWEIKHARD. We think so too, thank you. 

Senator WELLSTONE. The best. 

Ms. Schweikhard. 

STATEMENT OF NANCY SCHWEIKHARD, R.N., ST. JOHN’S 

MEDICAL CENTER, VENTURA, CA 

Ms. SCHWEIKHARD. By the way, there was a comment made procompany, pro-union. I kind of see them as the same. I am prounion because I am pro-company. 

Thank you for having me. It is an honor to be here and to say 

what I have to say. 

Like you said, I have been an R.N. for the last 8 years in the 

Neonatal ICU at St. John’s in Oxnard, CA. I would also like to 

mention that I also was fired from a nursing position in the early 

1980s. We did not have an organizing effort. I was merely asking 

questions. After 3 years at a hospital where I was well liked and 

well respected, within a week I was charged with flagrant insubordination. I was fired. I was devastated. I take great pride in my 

position there. Went to the NLRB and they could not help me. 

Consequently with this effort that we had, we also filed a fair 

labor practice. It took almost a year for a ruling to be made on it, 

so not 45 days. 

I love being a nurse, and together with the truly great and wonderful staff, the nursing staff, the neonatologists at my hospital, we 

114

take great professional and personal satisfaction in taking care of 

sick babies. It was in that spirit of caring and commitment to patients that in 1999 the nurses at St. John’s and I decided to organize together with the Service Employees International Union. In 

order to raise the standard of nursing, nurses know what is going 

on in the hospitals and you all need to be very concerned. You all 

need to just support your nurses and their efforts to unionize. 

We went on to negotiate a contract that has raised standards for 

nurses and patients at our hospital. The decision to form a union 

should be based on facts not fear. I have been through 3 separate 

elections at St. John’s, one for the RNs and two for the service and 

technical employees who we felt needed it far worse than we did. 

When nurses first formed our union at St. John’s 2 years ago we 

faced a great deal of opposition from the hospital. We were introduced to union busting. We were subjected to one-on-one meetings 

with our supervisors, in which they pressured us to oppose the 

union. Imagine how powerful such a negative message is for nurses 

when it is coming from the person who sets your schedule, gives 

you your assignments, approves your time off, has the power to impose disciplinary action and whether or not you get a raise. We 

were pulled away from patient care in order to attend mandatory 

one-on-one meetings. The hospital spent patient care dollars on expensive consultants who specialize in carefully working around the 

law to pressure and intimidate employees. In 1999 St. John’s Hospital spent $2.7 million in union busting to the Burke Group. We 

were fed lies and half truths. We had managers around the clock 

watching us. We were told that we would not accomplish anything 

without a union and that the union would keep us from talking directly with our own supervisors. Managers even led us to believe 

that having a union would endanger our patients because union 

rules would prevent our supervisors from intervening or assisting 

in emergency care situation. This is powerful stuff for nurses, very 

powerful stuff. 

Management distributed literature that said that they would not 

negotiate with us, and that the union could not improve staffing or 

other conditions at the hospital. We were told that we would have 

to pay high dues and initiation fees, and that we could lose our 

wages and our benefits. We were even told that a union might force 

the hospital out of business. That is powerful. We want to help our 

hospital. We have great ideas. We want to work with our hospital. 

We do not want to close it. The atmosphere in the hospital was 

purposely kept very, very tense, and the implication was that the 

negative atmosphere would continue indefinitely after we formed 

our union, so what is the point? 

I was called into my manager’s office on 3 separate occasions. I 

was questioned one-on-one and again two-on-one, two supervisors 

against me. I was well prepared by my union. I knew what the law 

was. I was specifically asked not to talk with nurses or other employees outside my unit about the union, and I was questioned 

about my whereabouts throughout my shift. I work in a neonatal 

ICU. It is all self enclosed. The only reason that I should have to 

leave is to go to high-risk deliveries, when a mother or a baby are 

in trouble, or to the restroom. They were installing cameras for infant security purposes, but also—funny how a lot of cameras 

115

showed up during our union drive. They are positioned right outside of my unit. They knew when I was leaving my unit. They told 

me, security told me they were watching me. I was advised to take 

the stairway instead of the elevators when I did organizing on my 

break time and not in patient care areas. Every time I went to use 

the restroom, I waved to the camera, and then I would make sure 

that I waved back so that they knew that it only took me 3 minutes, and that I was not outside entering other units, talking to 

other nurses. 

We did file a ULP. My evaluation was downgraded. I was specifically told by my supervisor it was because of my union activity. It 

was on dignity, the core value of dignity. It was not true. It took 

the NLRB a year to find a ruling on it, and they did again make 

me whole. I got one of those blue and white things that you described. 

Despite all this, nurses at St. John’s hung together because our 

goal was to make our hospital a better place to give and receive 

good patient care. Our goal was to improve patient care and work 

with our hospital collaboratively in decisions that affect our patients. With perseverance we managed to form our union, and now 

we have a real voice in the hospital on key staffing and patient 

care issues. None of the horrible things management told us would 

happen have occurred. They did stall for 9 months before they 

would bargain on anything except just cause. But on the contrary, 

things have turned out very much very well. 

My second experience with a union election at St. John’s was 

helping our service and tech workers. This includes radiology, respiratory, dietary and housekeeping. The same thing, the atmosphere was very hostile, even more so. Our workers whose first language is not English were told if they signed a union card they 

would be deported. Whether or not they could do it is one matter, 

but these were people who were very, very afraid to get involved 

because they were not sure that they could or could not do this. 

There was an overwhelming sense of fear and hostility. Ultimately 

management’s tactics worked and my co-workers lost their election. 

Since then they have won, but a little over a year ago there was 

a dramatic change. On April 4, 2001 our hospital system, Catholic 

Healthcare West, signed an agreement with SEIU that among 

other important issues, sets reasonable ground rules for union elections. It said employees at CHW hospitals would be allowed to 

make up our own minds about forming a union in an atmosphere 

of mutual respect, and that communication with employees would 

be factual and free of personal attacks. It said that CHW and SEIU 

would work to find position solutions to problems and would not 

engage in derogatory comments concerning the basic mission of either organization. It prohibited hospital management from holding 

one-on-one meetings to intimidate employees, and banned mandatory anti-union meetings called by hospital management on work 

time. 

Finally, it prohibited the hospital from hiring outside consultants, saving us millions of dollars. 

I believe that instead of being the exception these rules should 

be standard operating procedure in all union elections to ensure 

that employees can freely choose whether to join a union. After the 

116

agreement was signed between SEIU and CHW, union staff were 

able to enter our hospital and talk with workers without the threat 

of being escorted out or having the police called. We were able to 

hang literature in designated areas without having it torn down. 

The new contract and organizing agreement have brought us new 

far more cooperative relationship with our hospital and the CHW 

system. Things are better at the hospital for our patients, for our 

workers. The patients benefit by the new staffing language in our 

contract which allows us to work with our managers in resolving 

patient care issues. I do not believe that workers should have to 

climb mountains to choose a union. We should not have to fear for 

our jobs and our families. We should not be systemically intimidated, threatened or frightened for exercising our democratic right 

to have our own organization at work. 

Thank you for inviting me to speak today. 

[The prepared statement of Ms. Schweikhard follows:]

PREPARED STATEMENT OF NANCY SCHWEIKHARD, R.N., ST. JOHN’S MEDICAL CENTER, 

OXNARD, CA 

Chairman Kennedy, Members of the committee, thank you for inviting me to today’s hearing. It’s an honor for me to be here. 

My name is Nancy Schweikhard and for the past 8 years I’ve been an RN in the 

Neonatal Intensive Care Unit at St. John’s Regional Medical Center in Oxnard, CA. 

I love being a nurse, and I take great professional and personal satisfaction helping sick and premature babies get well and have a chance for a full and normal life. 

It was in that spirit of caring and commitment to patients that in 1999 my colleagues and I decided to organize with the Service Employees International Union, 

and went on to negotiate a contract that has raised standards for nurses and patient care for patients at St. John’s. 

The decision to form a union should be based on facts not fear. I’ve been through 

three separate elections at St. John’s—one for the Registered Nurses and two for 

the service and technical employees. 

When nurses first formed our union at St. John’s about 2 years ago, we faced 

steep opposition from the hospital. 

We were subjected to one-on-one meetings with our supervisors in which they 

pressured us to oppose the union. Imagine how powerful such a negative message 

is for nurses when it is coming from the person who sets your schedule and assignments, approves your time off, has the power to impose disciplinary action, and has 

a say in whether you get a raise. 

We were pulled away from our patient care duties to attend mandatory anti-union 

meetings with hospital administrators. 

The hospital spent precious patient-care dollars on expensive consultants who specialize in carefully working around the law to pressure and intimidate employees 

into not forming a union. In 1999, CHW spent 2.7 million to a union-busting firm. 

We were fed lies and half-truths. We were told that we wouldn’t accomplish anything with a union and that the union would keep us from talking directly with our 

own supervisors. Managers even led us to believe that having a union would endanger patients because ‘‘union rules’’ would prevent our supervisors from intervening 

or assisting in an emergency care situation. 

Management distributed literature that said they would not negotiate with us and 

that the union couldn’t improve staffing or other conditions at the hospital. We were 

told that we would have to pay high dues and initiation fees and that we could lose 

wages and benefits. We were even told that a union might force the hospital out 

of business. 

The atmosphere in the hospital was purposely kept tense, and the implication was 

that the negative atmosphere would continue indefinitely after we formed our union. 

I was called into my manager’s office three separate times and questioned 1:1 and 

2:1 by my nursing manager. I was specifically asked not to talk with nurses or other 

employees outside my unit about the union, and I was questioned about my whereabouts throughout the shift—even on break time. Each time I left my unit, I was 

aware the surveillance cameras were watching me. In addition, I was told that my 

performance evaluation had been downgraded because of my support for the union. 

In response, we filed a ULP and St. John’s corrected the evaluation. 

117

Despite all of this, nurses at St. John’s hung together because our goal was to 

make our hospital a better place to give and receive good patient care. 

With perserverance we managed to form our union, and now we have a real voice 

in the hospital on key staffing and patient care issues. None of the horrible things 

management told us would happen have occurred. On the contrary, things have 

turned out very much the way the union said they would. 

My second experience with a union election at St. John’s was helping the service 

and technical workers form their union. This included everyone from radiology and 

respiratory technicians to dietary and housekeeping employees. 

During that election, the atmosphere in the hospital was very hostile—between 

supervisors and workers, but even between co-workers. Management would pull employees off the floors during patient care hours for one-on-one meetings about the 

union. 

There was an overwhelming sense of fear and hostility in the hospital that even 

the patients could sense. Ultimately, management’s tactics worked and my co-workers lost their election. 

But a little over a year ago there was a dramatic change. On April 4, 2001, our 

hospital system, CHW, signed an agreement with SEIU that among other important 

issues sets reasonable ground rules for union elections. 

It said employees at CHW hospitals would be allowed to make up our own minds 

about forming a union in an atmosphere of respect, and that communication with 

employees would be factual and free of personal attacks. 

It said that CHW and SEIU would work to find positive solutions to problems, 

and would not engage in derogatory comments concerning the basic mission of either organization. 

It prohibited hospital management from holding one-on-one meetings to intimidate employees, and banned mandatory anti-union meetings called by hospital management on work time. 

Finally, it prohibited the hospital from hiring outside consultants. 

I believe that instead of being the exception, these rules should be standard operating procedure in all union elections to ensure that employees can freely choose 

whether to join a union. 

After the agreement was signed between SEIU and CHW, union staff were able 

to enter the hospital and meet with employees in public areas as long as patient 

care was not disruptive. Employees were able to post literature and other materials 

in specific locations in the hospital. 

This time, whenever an employee had a question, they could get it answered 

quickly and make a decision based on the facts. 

The new contract and organizing agreement have brought us a new, far more cooperative relationship with our hospital and the entire CHW system. It is improving 

our hospitals and making things better for patients, who benefit in a number of 

ways from the new relationship and our collective bargaining agreement. 

Patients benefit because there is less conflict in the hospital and employees are 

happier. They benefit by the new staffing language, which in our contract allows 

us to work with our managers in resolving staffing issues. 

I do not believe that workers should have to climb mountains to choose a union. 

We should not have to fear for our jobs or our families. We should not be systematically intimidated, threatened, or frightened for exercising our democratic right to 

have our own organization at work. 

Thank you again for inviting me to speak at today’s hearing.

Senator WELLSTONE. Thank you very much. Much appreciated. 

I was saying to Marge Baker, who works with me, I want to go 

forward with the testimony, and I am trying not to limit people to 

5 minutes because you have so much to say. There may be fewer 

questions because I think it is probably more important just to get 

your testimony out, and I would like to thank you very much for 

very powerful testimony. I thought, in case I do not get a chance 

to ask many questions, I thought, Ms. Schweikhard, your initial 

statement about you do not view it as union versus company but 

you think it should be both together, was extremely important and 

particularly in affecting the quality of care for people in the health 

care field. I think it is a wonderful connection that you make. 

118

Mr. Vidales from Zacatecas, Mexico, immigrated in the early 

1980s, eventually went to work as a cook in the Santa Fe Casino’s 

coffee shop. Thank you for being here, Mr. Vidales. 

Mr. VIDALES. Food server. 

Senator WELLSTONE. Pardon? 

Mr. VIDALES. I was a food server, waiter. 

Senator WELLSTONE. Oh, sorry. 

STATEMENT OF MARIO VIDALES, FORMER FOOD SERVER, 

SANTA FE HOTEL AND CASINO, LAS VEGAS, NV 

Mr. VIDALES. My name is Mario Vidales. I used to work as a 

waiter at the Santa Fe Hotel in——

Senator WELLSTONE. The record will be corrected. I apologize for 

that. 

Mr. VIDALES. OK. Many of us felt that we are not getting respect 

at work. When we start working the company promised us good 

benefits and wage increases after 6 months and a year later. So we 

did not get none of those promises delivered, so we decide to organize the union. So we contact the Culinary Union to help us out. 

Pretty soon, you know, we signed up more than 70 percent of the 

workers in the union cards, so we asked the company to recognize 

the union and start bargaining with us. But of course they refused. 

The casino owner was the State Senator’s husband, and they refused to bargain with us. They said the best way is to have another 

re-election. So we knew we were the majority and we can win that, 

so we agree. 

So a year later we have an election which we win also even 

though there was a lot of management around it, you know, the 

election was held at the company. So there were supervisors looking at us, you know, step-by-step, when you go and vote, which was 

very scary. A lot of people was nervous. So we still win. But everybody was so happy and excited. I was one of them jumping. I says, 

‘‘Great.’’ You know, ‘‘Wonderful. We have union representation so 

we are going to have the same benefits as the other people on the 

strip,’’ but I was wrong, because the company appealed the decision. It took a long time. It took them like 7 years went by, and 

the company appealed in every court including the U.S. District 

Court, just to delay the process of the negotiation. 

Finally the Labor Board forced them to sit down and negotiate 

with us. So they start to negotiate with us, but we have, through 

like 20 sessions of negotiations and nothing was happening, so you 

can tell the company was not serious about it. It was just like killing time. So any way it was 7 years of harassment and threats and 

intimidations. Years later the company sold the property to another 

corporation that is called Station Casinos. Immediately when they 

took over, they said they were not keeping the employees. They 

have to reapply again, so there was only a few employees from the 

Santa Fe left, so they end up without having the union, and all the 

employees lost their jobs. One of the occasions when I was working 

there the company was so upset because we were so organized. 

Since I was first server, I was going earlier to work so I can see 

the workers before my shift, and I used to stay over so I can talk 

to all three shifts. Company was so furious because we were so organized there and they could not do nothing about it. So what they 

119

did is they split us up. They changed everybody’s shift so nobody 

will see each other again and destroy the organization. 

I was conducting meetings at that time, trying to figure out how 

we are going to get our shifts back so we still can be organized, and 

one night when I was leaving from work, I came out. You know, 

I was going to get in my car, and as I was leaving there was two 

cars right outside. They were full of people. I was a little suspicious 

when I saw them, but you know, I thought no big deal. There was 

no reason for me to be afraid. So I kept on walking, going to my 

car. Then these two cars—that I was a little suspicious of—they 

pulled ahead of me and they came out of the cars with tire irons 

and baseball bats. So then I took on two of them, you know, I push 

them and throw them on the floor, but the others, they are going 

after me with the baseball bats and they start beating me and left 

me for dead. They thought I was dead because I was not screaming. I was on the floor bleeding, and so they said, ‘‘We killed him. 

He is gone.’’ They were surprised. I am here. I am still fighting and 

I am not going to give up for our rights. 

[The prepared statement of Mr. Vidales follows:]

PREPARED STATEMENT OF MARIO VIDALES, FORMER FOOD SERVER, SANTA FE HOTEL

AND CASINO LAS VEGAS, NV 

My name is Mario Vidales and I used to work as a waiter at the Santa Fe Hotel 

and Casino in Las Vegas. At the hotel, many of us felt like we were not getting any 

respect as employees or as human beings: we worked for minimum wages and had 

no paid health or pension benefits. In May 1992, we talked to the Culinary Union 

because we knew that union workers received fair pay and benefits. We were tired 

of the lies of the hotel owners, the Lowden family, who kept promising improvements but never came through. 

More than seventy percent of us signed for the union and we asked the Lowden 

family to recognize our union and negotiate. They refused, saying that the only fair 

way to determine what people wanted was through an election supervised by the 

NLRB. We knew we could win, so we agreed. 

In October 1993, more thaw a year after we had signed for the union, we finally 

had the election. We had to vote at work and people were nervous because our 

bosses kept an eye on us the whole time, but we won anyway. At the time I thought: 

‘‘Great! We did it! Now we have some rights.’’ 

But I was wrong. One week after the election, the company protested and filed 

an appeal. Eighteen months later, the NLRB finally dismissed Santa Fe’s case. But 

the company appealed again on June 5, 1995. Again, the NLRB turned them down 

and certified the union. 

Still, the company refused to accept our decision to unionize and refused to bargain. The NLRB ordered Santa Fe to sit down and negotiate on November 30, 1995. 

But, the company filed one more appeal, this time with the U.S. Court of Appeals 

for the District of Columbia. 

Ten more months passed. In October 1996, the Federal Court affirmed the bargaining order. Three years after winning the election the company finally stopped 

playing legal games and moved on to bargaining. But between March 1997 and 

April 2000, after more than 20 negotiating sessions, it was clear the company was 

not serious about reaching an agreement. 

During all this legal process, a lot more was going on. From way back in the beginning, the summer of 1992, Santa Fe managers carried out a harassment and intimidation campaign against people who were for the union. I used to get out of 

work at 10 p.m. and would stay until midnight to talk to the people who were coming in for the next shift. Then, management began splitting and switching people’s 

shifts to make it more difficult to talk to them, so we decided to set up a meeting 

late one night so everyone could be there. When I got off from work that night, I 

saw two cars full of people parked by the exit. It seemed suspicious to me but I saw 

no reason to be afraid. As I walked through the parking lot, the two cars suddenly 

drove up and 10 men came out wielding baseball bats. I took on two of them and 

tried running back to the hotel, but the others came up from behind and hit me 

in my legs. I fell to the ground. I could hear the security guard yelling for help on 

120

his radio, but he did not come to my help. I was beaten and left for dead. They split 

my head open and inflicted serious injuries on my entire body and the swelling 

lasted for weeks. I couldn’t work for 2 months. 

Of course, we filed scores of unfair labor practice charges, hoping to deter the 

company from this brutality. Just like the endless election appeals, we found the 

prosecution of ULPs to be endless. It wasn’t until September 1998 that the National 

Labor Relations Board approved a settlement of the ULPs. In all, there were fortytwo separate incidents included in the NLRB’s complaint: illegal terminations, illegal suspensions, illegal threats to fire, illegal refusals to promote, illegal surveillance, illegal changes in benefits, and on and on and on. 

In June 2000, the Santa Fe sold its property to Station Casinos. The new company quickly announced that they would not be retaining us. We could re-apply but 

would not be given any kind of preference in hiring and the applications would be 

accepted only after the hiring process was opened to the general public. In the end, 

only a few former Santa Fe workers were hired to work there. So hundreds of Santa 

Fe workers lost our jobs and our union. 

The Santa Fe’s last day of operation (and the workers final day of employment) 

was October 1, 2000—exactly 7 years after we had voted for Union representation. 

At the same time we were going through all of this, thousands of Las Vegas casino 

workers peacefully were unionizing through the card check and neutrality process 

at places like the Mirage, MGM, Paris and Mandalay Bay. There were no costly 

legal shenanigans, no firings, no beatings; just a process that respects people’s right 

to choose. 

It is very sad that we tried to exercise our rights at work and met with threats 

and harassment. We followed the legal process but the law is a joke. Many times 

the NLRB said we were right and then one remedy would be to make the company 

put up a piece of paper that said: ‘‘We will never do it again.’’ 

If I cross a red light and get a ticket, it costs me a lot of money so I know that, 

if I break the law, I have to pay. Here the company simply apologizes and keeps 

playing games. When the NLRB finally began issuing settlement checks for all the 

unfair labor practices to former Santa Fe workers in the summer of 2001, 8 years

after the election, many people were long gone and unable to be contacted. In the 

end, there was no justice. The employer essentially laughed at the Federal Government and the Federal Government was powerless to enforce our rights. Our rights 

as workers counted for nothing.

Senator WELLSTONE. I tell you, I have to say I have been in the 

Senate for almost 12 years. I do not think I have ever heard more 

powerful testimony. I certainly believe you when you say you will 

continue to fight. 

I also think people, if everybody in the United States of America 

was able to see this, I think they would have a hard time believing 

that in the year 2002 this actually happens to people. I think it 

would shock a lot of people in our country, because I think this 

goes so much against the grain of what the vast majority of the 

people consider to be fairness in the way you should treat people. 

Thank you so much. 

Mr. MacDaniels founded ONCORE in March 1997. It is a concrete contractor with over 340 employees and a $35 million in annual revenues. We thank you for being here, Mr. MacDaniels. 

Thank you. 

Mr. MACDANIELS. Thank you, Senator. Good morning, or I should 

say at this point, good afternoon. 

Senator WELLSTONE. Good afternoon. 

STATEMENT OF ROBERT MACDANIELS, PRESIDENT, ONCORE 

CONSTRUCTION, BLADENSBURG, MD 

Mr. MACDANIELS. Mr. Chairman, Ranking Member Craig, Senator Wellstone and other Members of the committee, for the record, 

my name is Bob MacDaniels. I am the president and co-founder of 

ONCORE Construction from Bladensburg, MD, a company we 

started some 5 years ago, as you said, after hocking everything 

121

that we owned, including our homes, to create our American 

dream. Today we have over 340 employees and do approximately 

35 million a year in concrete construction in the metropolitan area 

as you mentioned. 

We enjoy a reputation for providing a safe work place and quality workmanship. We offer competitive salaries, benefits and employee training. We are very proud of our excellent minority hiring 

record and compensation. In fact, we have been honored by a national organization by receiving the Accredited Quality Contractor 

Recognition, a national award that only 470 companies have received since 1993. This recognition demonstrates our commitment 

to employee safety, employee benefits, employee training and community service. We are pleased to have received this award in only 

5 years. 

However, Senator, in a very short period of time, our American 

dream has become the American nightmare, and it is not just 

ONCORE. We are facing some challenges that many companies in 

your State are facing. For the past 6 months the Laborers International Union has perpetrated some of the most outrageous acts 

against my employees, my customers and our reputation, all in the 

name of a labor dispute with ONCORE. The only dispute is that 

neither my employees nor I want to be in the union. Some 4 

months ago, two representatives from the Laborers International 

Union came to my office. During our conversation, they admitted, 

through ‘‘salting efforts’’ that they have learned that my employees 

do not want to be in the union, but that did not matter to the 

union. Senator, they gave me an ultimatum. Either I was to sign 

a collective bargaining agreement, regardless of my employees’ 

wishes, or they would work to put me out of business. 

Since that meeting the union’s efforts to deny ONCORE work 

really stepped up. Led by a group of paid agents from New York 

and New England, the union has engaged in mass trespassing of 

our job sites. They abused and assaulted my employees. They prevented deliveries to my job sites and overall disruption to my jobs. 

Last week some of my construction equipment caught fire and exploded under mysterious circumstances. 

The union has created and passed out countless handbills that 

are false and defamatory of my company. In one union falsely 

quoted an employee saying something negative about salaries. Senator, you should know that that employee later denied, in a sworn 

statement, that he ever said anything negative about ONCORE. 

They also have quoted individuals on handbills who claim to have 

worked for ONCORE, but do not show up on my employee records, 

apparently dissatisfied that our employees and most of our customers remain loyal despite the union’s vicious attacks on our company. They have risen to a new level of lawlessness through a campaign of systematically threatening my neutral customers. Their 

unions have repeatedly threatened economic terrorism against my 

general contractors, developers and property owners in the Metropolitan Washington area if they even considered giving business to 

my company. Union agents even went to the homes of some of my 

customers and threatened their projects with economic harm if I 

was not removed from the job. 

122

Finally, enough is enough. We filed charges against the union 

with the National Labor Relations Board in April of this year. We 

supported those charges with videotapes of the union’s illegal invasion of our job sites, and from employees’ affidavits and customers 

who came forward to present evidence against the union’s unlawful 

and misconduct. On May 24th of this year, the NLRB issued a 15-

count indictment against the unions for unlawful secondary boycott 

activity. The complaint will be heard on July 15th of this year. Just 

last week at the request of the NLRB a Federal Judge has issued 

a temporary restraining order and set a hearing for further injunctive relief against the Laborers Union. I am providing the Committee with a copy of the Judge’s opinion and order, which confirms 

everything that I have testified today. Naturally, I am grateful that 

the NLRB and the Courts have taken steps to stop the Laborers’ 

Union from continuing its illegal activities. But I am told that the 

NLRB action is unlikely to cover the money that we have spent on 

added security, legal fees, disruption to my job, not to mention the 

injury to our reputation from union lies and threats to our customers and the general public. 

It continues to amaze me that through all that has taken place 

in our company, not once has any of my employees ever come to 

me and said, ‘‘We want to be in the union.’’

Senator starting my own business has made me appreciate what 

great a country we live in. America is truly the land of opportunity. 

But writing laws that allow certain groups to basically extort unwanted agreements, that seems un–American to me. 

Finally, I think in a democratic society, we should hold both businesses and unions accountable and to the same standards, and I 

am here today to ask you to do just that. I thank you for allowing 

me to testify before you this afternoon, and I would welcome the 

opportunity to answer any of your questions. 

[The prepared statement of Mr. MacDaniels follows:]

PREPARED STATEMENT OF BOB MACDANIELS, ONCORE CONSTRUCTION, 

BLADENSBURG, MD 

Good morning Chairman Kennedy, Ranking Member Gregg, and Members of the 

committee. My name is Bob MacDaniels and I am the President and Co-Founder 

of ONCORE Construction, Bladensburg, Maryland. ONCORE was founded 5 years 

ago after hocking everything we owned, including our homes, to start our American 

Dream. Today we have over 300 employees and do approximately $35 million per 

year in concrete construction work in the Washington Metro area. 

We enjoy a reputation for providing a safe workplace and quality workmanship. 

We offer competitive salaries, benefits and employee training. We are very proud 

of our excellent record of minority hiring and compensation. In fact, we have been 

honored by a national organization by receiving the Accredited Quality Contractor 

recognition, an award that only 470 companies have received, since 1993. This recognition demonstrates our commitment to employee safety, employee benefits, training and community involvement. We are pleased to have received this recognition 

in only 5 years. 

However, in a very short period of time, our American Dream has turned into an 

American Nightmare. And it’s not just ONCORE. We are facing the same challenges 

that many companies in your States are. For the past 6 months, the Laborers’ International Union has perpetrated some of the most outrageous acts against my employees and customers in the name of a so-called ‘‘Labor Dispute’’ with ONCORE. 

The only dispute is that my employees clearly have demonstrated they do not want 

to be a part of a Union. 

Some 4 months ago, two representatives from the Laborers’ Union came to my office. During our conversation, they admitted through their ‘‘Salting Efforts’’ they 

have learned that my employees don’t want to be in the Union. But that did not 

123

matter. They gave me a choice—either sign a Collective Bargaining Agreement, regardless of my employees wishes, or the Union would do everything it could to put 

me out of business. 

Since that meeting, the Union’s efforts to deny work to ONCORE really stepped 

up. Led by a group of paid agents sent here from New York and New England, the 

Union engaged in mass trespass on my jobsites, abused and assaulted my employees, disrupted jobsite work and prevented deliveries. Last week, some of our jobsite 

equipment was set on fire and exploded. The Union has created and passed out 

countless handbills about ONCORE that are false and defamatory. In one case the 

Union falsely quoted a former employee saying something negative about salaries. 

The employee later denied, in a sworn statement, that he made any negative comments about ONCORE at all. They have also quoted individuals in handbills who 

claim to have worked for ONCORE, but do not show up on our employee records. 

Apparently dissatisfied that our employees and most of our customers remained 

loyal to us despite all of the Union’s vicious attacks, the Union escalated their campaign to a new level of illegality by systematically threatening our neutral customers. The Union repeatedly threatened economic terrorism against neutral general contractors, developers and owners throughout the Washington Metropolitan 

area if they even considered using ONCORE for their concrete construction work. 

Union agents even went to the homes of some of our customers to threaten their 

projects with economic harm if we are not replaced on their projects. 

Finally, enough is enough. We filed charges against the Union with the National 

Labor Relations Board in April of this year. We supported our charges with videotapes of the Union’s illegal invasion of our jobsites and with affidavits from our employees and customers who came forward to provide evidence of the Union’s unlawful threats and other misconduct. On May 24, 2002 the NRLB issued a 15-count indictment against the Union for engaging in unlawful secondary boycott activity. The 

complaint will be heard on July 15, 2002. And just last week, at the NLRB’s request, a Federal Judge issued a TRO and set a hearing for further injunctive relief 

against the Laborers Union. I am providing the Committee with a copy of the 

Judge’s Opinion and Order, which confirms everything I have just testified to about 

this Union’s campaign of lawlessness. 

Naturally, I am grateful that the NLRB and the Court have taken steps to stop 

the Laborers Union from continuing its illegal activities. But I am told that the 

NLRB action is unlikely to recover for us the money we have spent on increased 

security, lawyers and jobsite delays, not to mention’ the injury to our reputation 

from all the Union’s lies and threats to our customers and the general public. And 

it continues to amaze me that all of this has taken place without any of my employees saying to me that they want anything to do with this Union. 

Starting my own business has really made me appreciate how great a county we 

live in. America is truly the land of opportunity, but existing laws that allow certain 

groups to basically ‘‘extort’’ unwanted agreements seem very un-American! In a 

democratic society, businesses and unions alike should be held to the same standard. It is my hope that Congress will enact laws that prevent such abuses while 

at the same time protecting the rights of workers. 

Thank you for allowing me to testify before you today. I would like to take this 

opportunity to answer any questions you may have.

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Senator WELLSTONE. I thank you for your very important testimony. I think that holding all to the same standards is—I do not 

think you will get any quarrel and I do not think anybody will 

write any legislation. I will be the one that will probably be taking 

the lead on this legislation, and certainly there will be no legislation that would tell employees that they have to join a union. The 

question is people should have the fair elections and people should 

be able to decide, and people should be able to make the decision 

and have the right of association and to decide themselves. Probably we hopefully would not disagree on that. 

Mr. MACDANIELS. We do not, except at the point when it is decided that either you are or are not going to be in the union, or 

either your employees want to be or do not want to be, it should 

be over. 

Senator WELLSTONE. Well, let me make an observation and go to 

some questions, and this is not to take away from your testimony, 

but it is interesting to have you follow Mr. Vidales because all together, and as you said you are thankful for this, your company, 

you were able to get some action in 6 months as I think about it, 

and Mr. Vidales and his co-workers worked on this for 7 years and 

got nothing. So in some ways you should have a considerable 

amount of sympathy for Mr. Vidales as well. It worked for you, and 

I am glad for you, without knowing all the merits, but for Mr. 

Vidales, the worker, it did not work at all for him. 

Let me ask Ms. Buffkin, one thing—and I am going to do this, 

I am going to apologize to everyone; we will just do 5 minutes of 

questions; I want to try and get to everybody. An observation first 

that I think is real interesting. I do not think people generally 

speak and focus on how hard that sometimes it can be managers—

and this is in the case not of a good company, but what you were 

dealing with, it can actually be the managers or the supervisors 

who are put under the pressure and can be victimized and put in 

a horrible position. Where it is your family, supporting your family, 

or doing something you do not think is right, and boy, I do not 

know that anybody has spoken to that more clearly than you have. 

Now, in February 2002 several of the workers at Smithfield won 

their civil rights lawsuit against company. Do you think this means 

that the workers at Smithfield will have attained justice? Does this 

mean now that we can count on fair elections? My second question 

for you is, what makes you think the workers at Smithfield really 

want a union? 

Ms. BUFFKIN. Let me start with the first question. That was one 

employee who won, and he has been gone since 1998. In 2002 he 

was rewarded for the injustice that happened to him. What about 

the 5,000 people, the employees that are left there, that do not 

know where to turn, that do not know who to call, that do not 

know their rights. This is one individual. You have 5,000 left. No, 

sir, it has no changed. 

No, there are no fair labor practices going on as if this moment. 

My husband still works there. He goes through it every day. I have 

friends and family members that work through it, that work there 

that go through it every day. In the past month and a half, 276 

cards have been signed out of 310 maintenance employees that 

want a union in. No, sir, this is not even close. 

141

Senator WELLSTONE. Your comments speak for themselves. 

Ms. Schweikhard, why do you think the hospital initially had 

such resistance to your organizing efforts? 

Ms. SCHWEIKHARD. Hospitals have a vested interest in maintaining the nursing shortage. This is a conflict of interest. RNs comprise, if I am not mistaken, 25 percent of their payroll. We are 

their largest single working force in the hospital. When they keep 

conditions on the floor as bad as they are, when they assign 10 patients to one nurse, when they make it so that you cannot get your 

breaks and your meal breaks and you have to work it out to go to 

the restroom, when you do not get the right supplies that you know 

that you need, they are saving money. So we are losing nurses on 

a daily basis because they are leaving the workforce and they are 

not coming back. The hospitals can say, ‘‘Oh, dear, cannot do anything about it. You know, there is no nurses. Where do you want 

us to get them from, the woodwork?’’ If the hospitals would improve the situation, the nurses would come back. 

Through a union we are able to accomplish this. I think it is our 

obligation as health care providers that all hospitals and nurses 

should unionize and try to turn this around. This is the only vehicle that we have that we can actually legally be recognized and repair the harm that has been done to the nursing profession. 

Senator WELLSTONE. A quick observation on the acute shortage. 

I remember in Minnesota at St. Scholastica College up in Duluth, 

that a nurse testified—we were talking about the shortage—and 

she said, ‘‘If the choice is between my livelihood and my life, I am 

going the choose my life.’’ Her point was I have now worked 23 

straight days and I have got small children and I cannot keep 

doing this. So, obviously the more civilized the working conditions, 

the better the working conditions, the more likely we are to not 

only attract but also retain nurses. So it goes together, and again, 

in terms of quality of care for all of us. 

Mr. Vidales, I think a real quick question I have for you is, I 

mean this is just unbelievable, 6 years trying to organize and negotiate a contract. After 6 years you did not have a contract. The employer sells out and then most of you lose your job. Three of those 

six years you were in first contract negotiations. The NLRB and 

the courts kept ruling in your favor, but you still were not able to 

get the employer to negotiate a contract. You were assaulted, brutally assaulted. I mean it is fair to say the system did not work for 

you. 

What do we need to do that you think could make a difference? 

Mr. VIDALES. Well, first of all, I believe that the law needs the 

take a real close look at it, because in my cases we did not see no 

justice at all, either at the local or State law or the NLRB. One of 

the assaultants was one of the supervisor’s son, who I recognized. 

After the first Labor Board trial, him and his whole family, their 

mother, their father, two sons, two daughters and a daughter-inlaw, the whole family was testifying in favor of the company. So 

that is how I recognized one of assaultants. We filed Labor Board 

charges, of course, but nothing was done. We filed charges with the 

local police and they claimed that they could not find him, that he 

was a fugitive, and until the next year when I myself—I went to 

the park and I spotted the guy with other 6 fellows. So I called the 

142

police and they arrested him and they put him in jail. But it was 

me who did it. 

So I think the law has to be more efficient and the labor law, 

and instead of delaying and giving the opportunity to make this 

long, long, long trials, it should be closer. Just like his case, this 

case is going to be here in 6 months, but ours, 7 years later we still 

have not got anything. So I think just stop the delay. 

Senator WELLSTONE. Obviously, if there had been a point in the 

process where you now have won the election and you are trying 

to negotiate, and then they would not sign a contract, if there had 

been a point where they would have to go to mediation and arbitration, that would help in terms of just stalling forever on the contract too, because that became a big issue for you all, correct? 

Mr. VIDALES. Correct. 

Senator WELLSTONE. I think what I want to—I do not really, because I think I understand Mr. MacDaniels, and I want to try to 

ask a very fair question. You are here and you have spoken with 

great feeling. I want to say one thing that is rhetorical and I do 

not think it is aimed at you at all, at least in terms of the measure 

I take of you. When you said after the election is over, it should 

be over. I wanted to point out that for Mr. Vidales’s, it is not over, 

and for the Smithfield workers, it is not over. So it is also the companies that do not necessarily stop, especially if we are talking 

about the intimidation. 

But here is what I want to get on the record, because you have 

made the case, and you have said—and I think it is important—

that we ought to hold everybody accountable to the same standards. There should not be—without knowing the merits of the specific case you discuss, there should not be intimidation on any side. 

Let me try to—it is not a trick question. It is I want to see where 

you come down on the record. In your testimony you have expressed great concern of violations of labor law by the workers or 

members of the unions. I mean that is what you have talked about. 

Mr. MACDANIELS. Yes, sir. 

Senator WELLSTONE. At the same time today we have heard 

some pretty powerful stories of management unlawful action to 

prevent workers from forming the unions. We have heard about—

and you have heard all of that because you have been here. So the 

question is: do you believe that employees have the right to form 

unions in the work places free from any illegal interference and 

pressure from management? Do you believe that they do have that 

right? It is not meant to be a trick question. 

Mr. MACDANIELS. It sounds like it. Let me say this. I believe 

that—the stories that I have heard today are heartwarming and 

despicable, to use President Sweeney’s words. But I just cannot believe that in today’s economy businesses can run like that and survive, at least not my style and certainly not many of my competitors in my industry. I believe that employers should have the right 

to hire, pay and promote, based on merit. I believe that employers 

should be allowed to run their businesses in a free enterprise. I do 

not believe that there should be an artificial set of rules that stifle 

competition, stifle productivity. 

Should we have had unions 30 years ago? Perhaps. Today I think 

that the demands of staying competitive in this economy we have 

143

mandate that an employer treat their employees well like we do. 

I mean our success in our company is because of our employees, 

and we recognized that from the day we went into business. 

Senator WELLSTONE. Mr. MacDaniels, listen, I am not going to 

take advantage of my position up here and badger you. It is my nature to like people, but I just want to point out that—I mean you 

are expected to be the next chair-elect of the Metro DC–ABC, correct? 

Mr. MACDANIELS. I am very proud of——

Senator WELLSTONE. Well, you should be. I have no right to tell 

you not to be proud. I was just hoping, given this position, you 

would go on record saying employees have the right to form union 

in the work place, free from illegal interference and pressure from 

management. You do not want to go on record saying yes. 

Mr. MACDANIELS. Being president——

Senator WELLSTONE. I mean it is like—do you want us to go back 

70 years? I mean, come——

[Applause.] 

You know what, I am saying to you friend to friend, I think you 

should say yes because that is consistent with who you are, I believe. 

Mr. MACDANIELS. Senator, let me say this, I now know what it 

feels like to walk into a lion’s den with a hamburger overcoat on. 

Senator WELLSTONE. No, you do not, because I am being really 

nice. [Laughter.] 

Mr. MACDANIELS. I appreciate that. Senator, I stand on my answer. 

Senator WELLSTONE. Okay, that is fine. That is fine. 

Well, I want to thank all of you, all of you for being here today. 

This hearing is concluded. 

[Whereupon, at 12:30 p.m., the committee was adjourned.] 

(145)

APPENDIX

146

PREPARED STATEMENT OF FELIZARDO ENRIQUEZ, RESIDENTIAL ROOFER, METRIC ROOFING, ARIZONA

Buenos dias. Mi nombre es Felizardo Enriquez y tengo tres anos trabajando por 

Metric Roofing. Estoy casado y tengo una hija, Cristal, que tiene un ano. 

Durante el verano, cuando el calor sube hasta 109 grados y mas, trabajamos 

poniendo techos por developers como Pulte Homes y otros. Trabajamos todo el dia 

duro, sin agua muchas veces porque la compania no nos da agua. No tengo plan 

medico. ?Que pasara si mi hija esta enferma? Creo que si yo voy a ganar miliones 

de dolares para la compania Metric, que yo tengo derecho a tener la misma 

proteccion de un plan medico que yo se que el dueno de la compania tiene. 

Hemos tenido muchos problemas con el robo de esquadras. Metric nos paga por 

el tamano del techo y muchas veces el techo es mas grande de to que ellos dicen. 

Eso es un robo de dinero que necesitamos para ayudar nuestras familias. Y si 

reclamamos, nos castigan, reduciendo nuestro trabajo. 

De todo eso, abusos diariamente. Tengo orgullo para decir que soy parte de un 

grupo de trabajadores en nuestra compania que estamos organizando para formar 

nuestra union para mejorar la vida de nosotros y de nuestras familias. Pero Metric 

esta luchando muy fuerte contra nosotros. 

Algunos trabajadores fueron despididos por ser parte del grupo que esta tratando 

de ganar una voz en nuestro trabajo. Algunos de los trabajadores que han vocalizado 

contra las injusticias de la compania fueron castigados. Metric ha amenazado 

algunos trabajadores con demandas por no mas hablar de las condiciones a la 

prensa . 

!No se cuando vamos a ganar, pero no vamos a parar hasta que ganemos la 

justicia! 

ENGLISH TRANSLATION

Good day. My name is Felizardo Enriquez and I have been working at Metric 

Roofing for three years. I am married and have a one-year-old daughter named 

Cristal. 

During the summer when the heat reaches 109 degrees and more, we work constructing roofs for developers such as Pulte Homes and others. We work hard all 

day long, without water a lot of the times because the company does not provide 

any water to us. I don’t have a medical plan. What would happen if my daughter 

became ill? I feel that if I am going to make millions of dollars for this company, 

that I have a right to the same protection of a medical plan that I know the owner 

has. 

We have had many problems with them underpaying us. Metric pays us for the 

size of the roof and many times the roof is bigger than what they say it is. They 

are taking money away from our families. If we complain they punish us by reducing our work. 

With all that, daily abuses. I am proud to say that I am part of a group of workers 

in our company that are trying to organize to form a union to improve our lives and 

the lives of our families. But Metric is fighting very hard against us. 

Some workers have been dismissed for supporting the union that is trying to give 

them a voice at work. Some of the workers who have spoken up against the abuses 

in the company have been punished. Metric has threatened to sue some of the workers for talking about the conditions to the media. 

I don’t know when we will win, but we are not going to stop until we get justice! 

PREPARED STATEMENT OF EDITH (TEDDY) LAIL, PROGRAM ANALYST, FEDERAL

AVIATION ADMINISTRATION, WASHINGTON, DC 

Hi, my name is Teddy Lail. I have worked for 13 years as a Program Analyst at 

the Federal Aviation Administration’s Office of the Chief Counsel. Our experience 

shows that even under the best of conditions—when you’ve chosen a union, won collective bargaining rights, negotiated and ratified a contract, and the employer is the 

Federal Government—workers can still be treated unfairly. 

In 1999 and 2000, in four separate elections, FAA Headquarters employees voted 

for AFSCME as our union representative. The FAA had tried to get Congress to prohibit us from organizing back in 1996, but we managed to win that battle. 

But our struggle was far from over. On February 5, 2001, we finally reached 

agreement on a first contract and the Chief Negotiators for FAA and AFSCME 

signed off their approval. Union members overwhelmingly ratified the contract 2 

weeks later. We expected the FAA to start to implement the contract immediately 

but the FAA refused to implement the contract. And they still refuse to implement 

147

the contract a year and half later. The agency claims that the Office of Management 

and Budget had ordered them to renege on the contract even though OMB does not 

have that authority. 

AFSCME continued to fight the FAA on our behalf. The union filed an unfair 

labor practice charge, and, at a December 5 Federal Labor Relations Authority hearing last year, internal management documents and testimony clearly showed that 

OMB had not, in fact, ordered the FAA not to implement the contract. 

Congress passed legislation last year directing FAA Administrator Jane Garvey 

to immediately implement the ratified contract. They didn’t implement. Instead, 

FAA has thumbed its nose at Congress. 

We have lobbied, litigated, picketed and done everything we could to get what we 

bargained for but a year and a half later, the FAA still won’t implement the contract 

in clear violation of labor law and the direction from Congress. 

Meanwhile, employee morale has plummeted, just as the FAA is coming under intense pressure to help insure the safety and security of our air travel system. Many 

employees are upset about the agency’s refusal to sign the agreement and attempts 

to destroy the union. 

As a Federal agency, the FAA should set a good example for companies but, sadly, 

in our case they have set the wrong example. 

To make it worse, our company tries to cover up injuries—I know a worker who 

lost three forgers and the company reported it as finger lacerations. A friend and 

co-worker spent 3 weeks in the Seattle hospital burn center and my company said 

he had a bad case of sunburn. I know of injuries never reported at all. 

Seven years ago, we thought if we joined together, we could improve pay and 

working conditions and have a voice that makes Nabors a better company. 

We want Nabors to thrive; we just want a fair shake too. 

But instead of respecting our choice, the company held one-on-one meetings to try 

and freeze us with fear. They sent anti-union propaganda to our homes. They forced 

us to watch anti-union movies. 

They tried to humiliate union supporters. And they fired some of us, and then 

blacklisted them from getting other jobs, bankrupting families. 

A majority of Nabors workers have voted to join together in a union to make 

things better. But 7 years after we started, the company refuses to take us seriously 

and negotiate a contract that would ensure things are better. In fact, they say point 

blank they’ll do anything but negotiate seriously with us. 

A lot of people may have heard that Nabors just this month decided to create a 

paper headquarters in Bermuda to avoid paying American taxes. 

So now my company doesn’t just break laws that are supposed to protect workers—or distort the law to get away with unsafe conditions—they’re evading taxes 

too. Yet the CEO of Nabors will make $128 million in the next 2 years, and Nabors 

itself is a $2 billion a year company. 

This is not right. America can do better. I have friends who have been killed—

who didn’t come home to their families. I won’t let Nabors take me away from my 

children. 

I came from the oil fields of Alaska to ask Congress—and President Bush too—

to enforce laws that are supposed to protect our freedom to work together to make 

life better for our families—and to make new laws if the old ones don’t work. 

PREPARED STATEMENT OF MICHAEL MASON, FORKLIFT DRIVER, NABORS’ ALASKA

DRILLING, ALASKA

I’m Mike Mason and for 23 years I’ve worked in the Alaska oilfields. 

It’s not the most common way to raise a family in America, but it’s crucial work—

we wouldn’t have oil products without the thousands of workers who do this type 

of work. 

Since 1988 I’ve worked for Nabors Industries, the biggest drilling company in the 

world. 

The northern slope of Alaska is a place where coffee freezes before it hits the 

ground; where exposed skin will freeze in 30 seconds flat. Fifty to sixty degrees 

below zero is common. 

We work in remote areas, often 12 hours away from civilization—a half a day 

away from hospitals, doctors or something so simple as a grocery store. 

But that’s not why I’ve traveled from Alaska to Washington, D.C. Under the best 

of conditions it’s harsh work in the oilfields and I knew that before working there. 

I’m here because 7 years ago, me and my co-workers at Nabors decided to make 

things better by joining together with the Laborers’ Union. 

There hadn’t been a pay-raise in two decades; in fact pay has been cut. 

148

Living conditions in the camps are horrible. You awake with your hair and scalp 

frozen to your wall and when the spring melt comes, there’s mold everywhere. 

Our insurance simply doesn’t work—Nabors is self-insured. I myself came down 

with pneumonia on the northern slope last December—and Nabors still hasn’t paid 

the medical bills. 

The kind of work we do—high on rigs, or with heavy equipment on the ground, 

or on ships at sea—is dangerous. 

I’ve seen co-workers crushed. Many people I know have had severe frostbite. My 

friends have cleaned up the blood after co-workers have been killed. I’ve seen workers covered with chemical burns. 

And all this occurs 12 hours away from help, away from the public eye. 

PREPARED STATEMENT OF TERENCE M. O’SULLIVAN, GENERAL PRESIDENT,

LABOERS’ INTERNATIONAL UNION OF NORTH AMERICA

As General President of the Laborers’ International Union of North America, I 

wish to thank the Committee for this opportunity to comment on the many difficulties facing tens of thousands of American workers today who routinely experience 

inordinate delays, employer interference, intimidation, threats of job loss, harassment and coercion to prevent their exercising their free choice to join unions and 

to bargain collectively. 

Our Union has over 800,000 members from many occupations covered by the National Labor Relations Act such as construction, health care, industrial and many 

others. On June 20th the Committee heard from a broad cross section of workers 

and the difficulties they face in gaining a union and a voice at work. Like them and 

so many others our members at Nabors drilling in Alaska have been thwarted in 

their attempt to gain the fruits of collective bargaining. 

Those members began organizing for our Union to represent them back in 1995, 

when the Company began a prolonged anti-union campaign. Nonetheless, these employees voted for Union representation in 2000 but even today have still been unable to win a fair first contract from the Company. 

These employees work in dangerous conditions on rigs in the Alaskan oil fields. 

Their concerns include fair wages, competitive benefits, and safety on the job. The 

Company’s response has been to drag out negotiations as long as possible while 

moving its corporate headquarters to Bermuda to avoid U.S. taxes while paying 

their Chief Executive a multi-million dollar salary. Unfortunately, what has happened to these workers is all too typical of what goes on every day in workplaces 

throughout America where workers’ legal right to organize and to bargain collectively is routinely frustrated by unfair employer tactics and ineffective legal remedies. 

Unfortunately, after the early federal legislation that first recognized the right of 

employees to organize and to bargain collectively in the Wagner Act that was passed 

in 1935, there has been little new legislation to make sure that these fundamental 

rights of workers are being honored and enforced in this country. The American 

workplace and the problems our employees face have changed dramatically in the 

past 67 years. Many companies have grown bigger and more powerful than we could 

ever have imagined and very often operate across national borders. Workplace technology has advanced far more quickly than at any other time in history and has 

posed a constant challenge to American workers, who have responded by becoming 

the most productive and efficient in the world. And yet, our labor laws have left 

these same workers with few effective remedies when, as often happens, their employers bring in high-paid outside consultants to run sophisticated anti-union campaigns when these same employees try to organize for collective bargaining. By the 

time the Labor Relations Board acts, several years go by where the Union supporters have been fired or forced out of their jobs. Even when the Board finally acts, 

it is often impossible for the Union to regain the support it lost as a result of the 

intervening unfair labor practices. 

Even if the Union does somehow win the election notwithstanding employer interference, under the current rules the Company can stall and drag out negotiations 

for years with no assurance that the workers will ever get a fair contract. And, since 

the Company can permanently replace strikers, who may never get their jobs back, 

the so-called right to strike has become almost meaningless. 

Good, loyal productive American workers like our members at Nabors Drilling in 

Alaska deserve better. I urge this Committee to propose meaningful reforms in our 

labor laws in order to make the right to organize and the right to bargain collectively a reality. 

149

PREPARED STATEMENT OF ANDREA TAYLOR, FLIGHT ATTENDANT, DELTA AIR LINES, NEW YORK, NY 

Good Morning. My name is Andrea Taylor and I am a flight attendant for Delta 

Air Lines. 

Last August the Delta flight attendants filed a petition with the National Mediation Board requesting an election to join the Association of Flight Attendants. 

Our 20,000 flight attendants are the last non-union flight attendant workforce at 

a major U.S. airline, and our election was the largest ever in the airline industry, 

and the single largest private-sector organizing effort since the 1960’s. In response, 

Delta Air Lines ran one of the most expensive and illegal anti-union campaigns in 

history. 

I am here today as a representative of the hundreds of Delta flight attendants 

who filed reports of Delta’s illegal interference in our union election and on behalf 

of the hundreds of others who were too frightened to come forward and stand up 

for their rights. 

Our struggle to get union representation proves that it does not take a barbaric 

act of violence or mass firings to create a climate of fear and intimidation that paralyzes workers and prevents them from exercising their right to have a voice in their 

workplace. 

Delta Management has conducted massive captive audience meetings, pressured 

and intimidated union activists, and engaged in polling and surveillance. Management has formed and assisted in-house committees designed by their anti-union consultants to serve as a voice for the company’s anti-union campaign. 

In October, the National Mediation Board found that flight attendants’ sworn 

statements presented a prima facie case of illegal conduct by Delta. But rather than 

take action to charge Delta with illegal conduct and provide the flight attendants 

with an atmosphere free from intimidation when voting, the NMB held off further 

investigation of the charges until after the election. 

Little did we know, the worst was yet to come. 

Flight attendants were devastated after the terrorist attacks on September 11. 

Our confidence in our safety and in our industry was shaken to the core. Delta 

played on our uncertainty and fear and exploited the tragedy by linking Delta’s survival to the defeat of the union. 

The company sent letters and videos from senior management to the homes of 

flight attendants implicitly threatening flight attendants with job loss if they unionized; supervisors harassed AFA supporters asking, ‘‘How can you support a union 

at a time like this?’’ They told us that union support was anti-Delta and falsely promoted Delta’s lay-off plans as better than those at unionized carriers. 

Management even went so far as to tell the more than 3,000 flight attendants laid 

off after September 11 that they were not eligible to vote in the election, to keep 

them from returning their ballots. In fact, all laid off flight attendants were eligible 

to vote and an unreturned ballot counts as a ‘‘no’’ vote. 

Employers like Delta that intimidate, scare, harass, and threaten workers who 

have the legal right to organize must be stopped. Employers that are found guilty 

of labor law violations must be penalized. A slap on the wrist after the fact, does 

not serve as an effective deterrent to this abhorrent behavior. 

There is an assault on workers rights in this country and we’d like to thank Senator Kennedy for holding these important hearings to investigate the hurdles workers must clear to gain the dignity, respect and security that comes with having a 

voice at work. 

Thank you. 

FLIGHT ATTENDANTS FIGHT AGAINST DELTA AIR LINES’ ILLEGAL INTERFERENCE IN

ORGANIZING ELECTION

Delta Air Lines flight attendants officially began their historic union election campaign on August 29, 2001 when they filed a petition with the National Mediation 

Board requesting that a vote be held to join the Association of Flight Attendants, 

AFL–CIO. 

This election was the largest ever in the airline industry, and the single largest 

private-sector organizing effort since the 1960’s. The 20,000 Delta flight attendants 

are the last non-union flight attendant workforce at a major U.S. airline. 

Delta management has run one of the most expensive and illegal anti-union campaigns in history, designed to discourage flight attendants from supporting the 

union. This campaign has proven that it does not take an overt act such as violence 

or multiple firings to create a climate of fear and intimidation that prevents workers 

from unionizing. 

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Management has conducted massive captive audience meetings, pressured and intimidated union activists, and engaged in polling and surveillance. Management has 

formed and assisted in-house committees designed by their anti-union consultants 

to address bargaining subjects through company-dominated committees, and to 

serve as a voice for the company’s anti-union campaign. 

In September 2001, the Association of Flight Attendants, AFL–CIO, filed sworn 

declarations with the National Mediation Board, on behalf of hundreds of Delta 

flight attendants, charging management with severe violations of the Railway Labor 

Act, the law that governs the airline industry. 

A partial list of the illegal tactics Delta is charged with includes: 

• One-on-one interrogation of union supporters behind closed doors in company 

offices; 

• Confrontations with flight attendants exercising their right to conduct union activity in non-work areas; 

• Phone calls from supervisors to the flight attendants’ homes challenging their 

pro-union sympathies; 

• Questioning flight attendants about the union during annual performance reviews; 

• Publicly labeling pro-union flight attendants as ‘anti-Delta’ in front of their fellow flight attendants; 

• Harassment of flight attendants that had the effect of discouraging them from 

exercising their right to organize in non-work areas, and which clearly intimidated 

other flight attendants from seeking out information about the union in those areas; 

• Questioning flight attendants under oath about the union in unrelated civil litigation; 

• Disciplining flight attendants for matters arising from their union activity; 

• Distributing a series of inflammatory videos and an overwhelming stream of 

antiunion literature to the flight attendants’ homes and to their flight attendant 

mail boxes; 

• In-person surveillance by management staff or consultants of union organizing 

activity, both in non-work areas on company property and at outside events; 

• Use of the police to harass and intimidate union activists in the conduct of legally permissible union organizing activity; 

• Conducting paid, system-wide, mandatory captive audience meetings. 

In October 2001, the NMB found that the flight attendant claims presented a 

prima facie case of illegal conduct by Delta. But rather than take action to charge 

Delta with illegal conduct and provide the flight attendants with an atmosphere free 

from intimidation when voting, the NMB held off further investigation of the 

charges until after the election. 

Even after the NMB found significant evidence of an illegal anti-union campaign, 

Delta Air Lines management continued to interfere with the flight attendants’ right 

to organize by exploiting the September 11 tragedy to create a climate of fear and 

intimidation. 

On Sept. 12, Delta began conducting weekly conference calls that were censored 

so that pro-union flight attendants were not permitted to ask questions. Other departments at Delta do not have these conference calls, only flight attendants. 

Delta communications with flight attendants during the election period inextricably linked Delta’s survival to defeating the union effort. These communications 

included: 

• Letters and videos from senior management to the homes of flight attendants 

implicitly threatening flight attendants with job loss if they unionized; 

• Supervisors illegally questioning AFA supporters asking, ‘‘How can you support 

a union at a time like this?’’ 

• Management constantly referring to the job losses in the industry in the wake 

of 9–11 and falsely promoting Delta’s lay-off plans as better than those at unionized 

carriers; 

• One-on-one meetings where supervisors would take aside flight attendants they 

identified as AFA supporters and grill them on their support for the union, in many 

cases saying that support was anti-Delta. 

Management even went so far as to tell the more than 3,000 flight attendants laid 

off after September 11 that they were not eligible to vote in the election, to keep 

them from returning their ballots. In fact, all laid off flight attendants were eligible 

to vote. 

The NMB is conducting its investigation into Delta management’s illegal interference and AFA is asking for a new election with a balloting procedure that limits 

the effects of further illegal conduct by Delta management. 

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PREPARED STATEMENT OF THE GULF MARINERS

The right to choose to be represented by a union is not a right in the Gulf of Mexico offshore oil and gas industry primarily based in South Louisiana. Mariners who 

work on the boats that service and support the rigs and other petroleum and natural gas-related operations in the Gulf are trying to organize a union. Thousands 

of seafarers working on U.S.-flag boats and ships already enjoy the benefits of union 

representation. Those unionized shipping companies enjoy the benefits of a collaborative industry/labor partnership that advances the interests of U.S.-flag shipping. 

But in the Gulf, the boat companies and every other power structure in the community have declared war on the right of mariners to choose a union. 

Here is the bare outline of the Gulf mariners’ story. To exercise their rights of 

freedom of association and freedom of speech, mariners must take on almost insurmountable opposition. For instance, Captains Eric J. Vizier and Mark A. Cheramie 

worked for Guidry Brothers, a boat company based in Lafourche Parish, in South 

Louisiana. Three days after Christmas in 2000, Captain Cheramie was fired for supporting the union, the Offshore Mariners United (OMU), a federation of four maritime unions—the Seafarers International Union (SIU), the International Organization of Masters, Mates & Pilots (MM&P), the Marine Engineers’ Beneficial Association (MEBA) and the American Maritime Officers (AMO). Two days after New 

Years’ 2001, Captain Vizier was fired for his efforts to secure OMU representation 

for Guidry mariners. 

The following are some of the obstacles that Captains Vizier and Cheramie and 

the Guidry mariners, along with the OMU organizers, have had to confront. These 

impediments to organizing are not solely related to Guidry. No matter the boat company’s size, its management has harshly punished union supporters. For instance, 

at Trico Marine Services, a large vessel operating company conducting business in 

the North Sea, Brazil and West Africa, management with its anti-union law firm, 

Jones Walker of New Orleans, managers have fired pro-union captains, forced prounion mates and able-bodied seamen to quit through assigning them unsafe work, 

kept mariners locked behind gates when their vessels dock near the corporate office, 

subject mariners to captive audience meetings on almost a weekly basis for more 

than 18 months, among other punitive tactics. Ironically, Trico operates its North 

Sea, Brazilian and West African boats with union crews while swiftly punishing any 

hint of support for a union among its Gulf mariners. Joining Captains Vizier and 

Cheramie is a Trico mariner who by coming forward publicly on Thursday at the 

press conference and hearing risks being fired and blackballed by the company. 

Thus, the record shows that mariners at every boat company operating in the offshore oil and gas industry in the Gulf of Mexico face the same vicious anti-union 

collaborative industry-wide campaign. For purposes of this presentation to the U.S. 

Senate, Guidry only serves as an example. 

ANTI-UNION CAMPAIGN OF THE COMPANY

Firing pro-union mariners, isolating other pro-union mariners with anti-union 

mariners (usually ones who are related to owners). 

Threatening to shut down the company if majority of employees choose union representation. 

Threatening loss of benefits, loss of work and loss of jobs if employees choose 

union representation. 

Engaging in surveillance of union activity among mariners. 

Interrogating mariners about their support for the union. 

Calling the police to break up peaceful conversations between mariners and union 

organizers on non-work time at the docks. 

Tailing union supporters and driving menacingly behind the union supporters. 

Breaking a bottle in a restaurant frequented by union representatives and holding 

up the jagged edge claiming that it will be used to cut the throats of union organizers. 

Posting ‘‘no solicitation’’ signs but only enforcing this in regard to union activity. 

Distributing venomous anti-union material filled with misrepresentations and 

lies. 

Identifying union supporters to other boat companies and blackballing them from 

future employment opportunities. 

Refusing to hire qualified pro-union mariners because they are pro-union. 

Locking down boats and having them leave docks when union organizers are 

present. 

Telling mariners they work for the company 24-hours a day (mariners are paid 

a day rate) and that they are not allowed to talk to union organizers on company 

time. 

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Making new deckhand recruits sit through an anti-union indoctrination of more 

than six hours during their training to obtain their Standards of Training, Certification and Watchkeeping (STCW 95) certification required by the U.S. Coast Guard. 

And more. 

ANTI-UNION COLLABORATIVE EFFORTS OF ALL BOAT OWNERS THROUGH THE CCFC

Forming a front group known as the Concerned Citizens for the Community 

(CCFC) that conducts a vigorous anti-union campaign for all boat owners. 

So-called CCFC representatives visit pro-union mariner with brother working at 

another company and offer pro-union mariner the choice: Be pro-union and brother 

will be fired, become anti-union and brother can continue to work and job will be 

found for him as well. 

Post bright yellow anti-union CCFC signs within 20–30 yards of each other all 

the way down Route 1 and Route 308, the highway that all mariners use (and their 

company transport vans) to go to Port Fourchon, the largest port of offshore supply 

vessels in the U.S. 

Post bright yellow anti-union CCFC signs in every business used by mariners and 

their families—from insurance companies to massage therapists. 

Post bright yellow anti-union CCFC signs at the gates of the big customers—oil 

and drilling companies. 

Put up security shacks and security fences to keep union organizers away from 

mariners at their worksites—the vessels. 

Have security guards refuse to allow union organizers access to mariners. 

Have security guards wear yellow CCFC anti-union buttons. 

Use CCFC anti-union columns run in local newspapers as clips purporting to be 

‘‘news’’ and giving these to mariners to read. 

Regular meetings of boat owners through the CCFC, the Chamber of Commerce 

and their federation, the Offshore Marine Service Association (OMSA) to share information on union supporters, union activity and anti-union tactics. 

Spy for each other—communicating when union organizers are on the docks or reporting to each other when a mariner is seen talking with pro-union sympathizers, 

organizers or ‘‘strangers.’’

Organizing harassing phone calls and visits to union supporters wives and mothers at their places of work and at their homes, including sexually lude and inappropriate remarks. 

Blackballing union supporters. 

ANTI-UNION COLLABORATIVE EFFORTS OF ALL BOAT COMPANIES THROUGH OMSA

In 1999, the maritime unions helped Gulf mariners form the Gulf Coast Mariners 

Association (GCMA), an organization to bring together mariners to give the men 

and women who go to sea in the Gulf for a living with a voice in the many legislative and political forums that impact their lives. In 2000, the maritime unions 

formed the OMU, a union structure for offshore mariners. Around these events, the 

federation of boat companies that also includes the oil companies and drilling companies and others in the industry as associate members, went on the warpath 

against unions coming into the Gulf. This federation (or union of boat companies), 

known as Offshore Marine Service Association (OMSA) has—in the most vitriolic 

and rabid way—organized and mobilized the offshore energy industry to suppress 

mariners’ union aspirations at every turn. OMSA has been: 

Raising funds from the companies for an industry-wide anti-union effort. 

Holding seminars for all boat companies on how to keep unions out. 

Whipping up a level of anti-union hysteria. 

Insuring that every player in the offshore oil and gas industry understands that 

unions must be kept out. 

Networking boat companies, their customers—the oil and drilling corporations, 

the other businesses that provide offshore services, in an anti-union campaign. 

Promoting certain law firms (anti-union law firms) to assist with anti-union activities. 

Allowing boat companies to use OMSA material to counter union initiatives. 

Bringing together the personnel directors of boat companies to teach them how 

to avoid unions. 

Telling boat companies to unilaterally make captains ‘‘supervisors’’ so they do not 

have the (few) protections of the NLRA. 

Ensuring that mariners who identify themselves as pro-union are punished (their 

businesses boycotted by boat owners, losing their jobs if representing a pro-union 

organization in a public forum, etc.) 

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ANTI-UNION EFFORTS OF THE POLICE

Arresting union organizers for leafleting at the docks (charges have been 

dropped). 

Arresting union organizers for holding ‘‘Gore/Leiberman’’ signs on Election Day 

November 2000 (charges have been dropped). 

Arresting union organizers (mariners themselves with upper level U.S. Coast 

Guard licenses) for operating a small boat in a no-wake zone (charges have been 

dropped). 

Arresting union organizer for leafleting at the port, claiming he needed a parade 

permit for this (charges have been dropped). 

Illegally seizing a video tape union organizers took of police harassment at the 

ports. 

Tailing union organizers at the docks and in small dock communities. 

Pulling union organizers out of a restaurant to tell them that they are not allowed 

at docks. 

Ensuring that mariners on the boats see that where there is a union organizer 

there will be a law enforcement official. 

Detaining a group of trade unionists who came from the countries of Australia, 

the UK and Norway, forcing them to get out of their vans and produce their identification and taking down detailed information from their IDs. 

When Captain Vizier reported that his house had been broken into and dead fish 

left on his doorstep, doing a cursory (laughing while doing it) investigation and 

never following up. 

INEFFECTIVENESS OF THE NATIONAL LABOR RELATIONS BOARD (NLRB)

Failing in the Guidry case, after investigating the charges of the union and mariners and finding facts which resulted in the issuing of a complaint that required 

a bargaining order remedy, to seek such a bargaining order remedy in either settlement discussions or before a court as is the NLRB’s right. 

Attempting to force the fired captains to take a cash settlement without first discussing this with the union attorney handling the case. 

Attempting to force the fired captains to take a cash settlement without first discussing this with the union attorney handling the case—a second time and a third 

time! 

Taking one year and three months to finally issue a settlement document approved by the regional director and the NLRB. 

Failing to conform any of the remedies outlined in the settlement document to the 

maritime industry. 

To exercise their freedom of association and freedom of speech rights, the mariners working in the oil and gas industry offshore in the Gulf of Mexico must go up 

against the entire power structure of their industry and put their livelihoods on the 

line. They must put the privacy of their family life on the line. They must open up 

their wives, husbands, mothers, fathers, children to harassment and other tactics 

of intimidation. They face blackballing and threats to their physical safety. They 

know as they drive around South Louisiana that every boat owner is against them. 

They know that the powerful customers that drive the Gulf oilfields—the oil companies and the drilling companies—are against them. They know the police are 

against them. All of these powerful forces are lined up against the mariners’ right, 

under U.S. law and recognized in the fundamental principles of the International 

Labor Organization, to choose for themselves whether they want to belong to a 

union. 

That mariners’ ‘‘crime’’ is that they believe they can make their lives, the lives 

of their families, the lives of their fellow mariners and their companies and the industry better if the men and women on the boats have a voice in the process with 

a union. 

This is what we bring to the attention of the U.S. Senate. 

MAY 23, 2002

Re: Nabors Alaska Drilling—A Brief History of Organizing Events

In 1994, Jim Taylor retired as President of Nabors Alaska Drilling and Jim 

Denny took over as President of Nabors in Alaska. During the winter of 1994–1995, 

Jim Denny arrived on the North Slope and started to conduct meetings with the 

Rig Hands. The first topic of discussion at each meeting was, ‘‘You people in Alaska 

don’t deserve any more money than Roughnecks in West Texas.’’ After those statements, we all looked at each other and could not believe what we were hearing. Up 

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until that point in time, it had been almost 8 years since we had any raise in pay. 

In 1986 we took pay cuts of over $3.00 an hour to help Nabors during the oil crunch, 

and our insurance had dropped to almost nothing. We now had no co-pay, traveltime, holiday pay, etc., were gone. Now this guy, that nobody had ever met, wanted 

to out us again!! We could not believe our ears; he was comparing the North Slope 

of Alaska with Texas. Most of us in the Alaska Oil Industry have been here since 

we first started working and have made this our career. We would like to keep it 

that way. Eventhough it is some of the harshest weather on the planet, working 

with each other year after year has been like having an extended family for most 

of us. After a few meetings with the management about our new President, we were 

told, that is the way it is, take it or leave it. 

In another meeting at Milne Point, Jeff Couture informed Mr. Denny that we had 

not had a raise in 10 years. Mr. Denny’s response was that there would be no raises; 

it would interfere with his bonuses! That really started the guys talking! We had 

a couple of meetings and found that the only way we could keep what we had was 

to approach the Unions. We contacted the Laborers’ Unions Local 341 and Local 

942. The education started when Tim Sharp, the Organizer for Local 942, began our 

long journey to a contract. 

From the start of the Nabors Organizing Campaign, management was spying on 

employees; we were denied access at airport meeting rooms, or any common meeting 

areas on the North Slope. All personnel were kept isolated from Union people. Our 

first attempt to unionize failed due to lack of contact with employees, threats by 

management, management spying, and intimidation. The Union was able to file 

many Unfair Labor Practices with the National Labor Relation Board. After over 

2 years, and having appealed all the way to the 9th District Court of Appeals (case 

#325 N.L.R.B. #104 & #105), the N.L.R.B. sided with the Union on every Unfair 

Labor Practice that was filed against Nabors Alaska Drilling. Access to Nabors 

camps was made available, and employees that were fired were re-instated with 

back pay. We were then granted a second election in October 2000, which we won. 

After a month or so, negotiations started with Nabors Drilling and the Laborers 

Union. As of this date, Nabors refuses to agree on a contract beyond what is already 

in place for its Employees. They will still meet for negotiations, but we will not 

move from their last offer with us, which is unacceptable to their Employees. 

Thank you for your consideration.

MICHAEL PEARSON. 

SMITHFIELD FOODS’ SYSTEMATIC, ILLEGAL CAMPAIGN TO SUPPRESS WORKERS

Smithfield Foods, based in Smithfield, Virginia, is the world’s largest hog producer and pork processor. It’s plant in Bladen County, North Carolina is the largest 

pork processing plant in the world. Nearly 5,000 men and women work at the plant, 

located in Tar Heel, North Carolina. By the company’s own estimates, turnover is 

100% annually; this means that every year, 5,000 people are hired at the plant and 

5,000 leave. An estimated 60 percent of the workforce is Latino, and most of the 

rest are African American. The plant was featured as part of the award-winning 

New York Times series ‘‘How Race is Lived in America,’’ where the reporter documented divisions of labor according to race. 

Twice, workers at the Smithfield plant have stood up for a voice on the job. Both 

times, Smithfield Foods broke the law to silence their voices. The first campaign in 

1994 resulted in numerous charges filed against Smithfield for illegal surveillance, 

intimidation, threats, coercion and harassment of workers. In 1997, workers again 

tried to join the United Food and Commercial Workers (UFCW) Local 204, and the 

company’s campaign violated federal labor and civil rights laws. 

During the union drive, the company held forced meetings to intimidate and 

threaten workers for supporting the union. Smithfield held separate meetings for 

black and Latino workers to pit worker against worker based on race. Managers like 

Sherri Bufkin, were instructed to seek out and fire union supporters. 

On the day of the election, deputy sheriffs, dressed in battle gear, lined the long 

driveway leading to the Bladen County plant. The sheriff’s menacing presence created a violent mood for the workers who were merely trying to exercise their right 

to vote for a voice on the job. As workers passed the lines of police in riot gear, they 

saw company management standing with the head of the Bladen County Sheriff’s 

department near the entrance to the plant. Deputies—in riot gear and heavily 

armed—stationed themselves at the entrance to the plant on days that civil rights 

leader Reverend Jesse Jackson and other religious leaders handed out literature 

with workers. 

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Following the vote count on the final day of balloting, company personnel stormed 

the counting area and, in the resulting confrontation, the two union supporters were 

subject to physical violence and arrest. Rayshawn Ward, a Smithfield meatpacking 

worker whose only crime was that he supported the union was handcuffed, maced 

and jailed. John Rene Rodriguez, a union organizer, tried to help Mr. Ward as the 

Company’s Chief of Security was assaulting him. For that, he found himself in 

handcuffs, jailed and facing criminal charges. Both men were cleared of any wrongdoing. 

Through the use of force, Smithfield’s message was clear to workers: if you vote 

for a union, the law and law enforcement will not be on your side. Under federal 

law, workers have an absolute right to support and vote for a union in a secret ballot election without fear, intimidation or coercion. 

Two independent courts of law have ruled against Smithfield for it’s illegal antiworker campaign. In December, 2000, an Administrative Law Judge of the National 

Labor Relations Board issued a monumental 400-plus page ruling against Smithfield for massive violations of federal law. The NLRB judge found that Smithfield 

conspired with law enforcement to instigate the violence at the vote count. 

The NLRB Judge’s decision contains some of the strongest language in recent 

labor history against a company’s flagrant disregard for the law. The Judge found 

that Smithfield attorneys suborned perjury during the NLRB trial. The Judge also 

ruled that company witnesses ‘‘lied under oath’’ throughout the decision and that 

Smithfield managers conspired with the local Sheriff Department to physically intimidate and assault union supporters. 

The NLRB Judge found Smithfield guilty of illegally firing seven workers during 

the 1994 campaign and four more in 1997. 

The Judge overturned the results from the 1997 union election at Smithfield and 

ordered the company to provide free access to the workers in the plant in the cafeteria, parking lot, and break rooms. The UFCW will also have the right to be 

present at any time Smithfield addresses its employees about unions and respond 

to any statements made by the company. The eleven illegally fired workers have 

been granted reinstatement or back wages as compensation for their unfair discharge. 

In April 2002, a jury in federal district court in Raleigh, North Carolina found 

Smithfield Packing in violation of the federal civil rights law originally known as 

the Ku Klux Klan Act of 1871. The jury verdict directed Smithfield and the company’s former security chief, Danny Priest, to pay $755,000 in compensation and punitive damages as the result of the beating and arrests of two union supporters at 

the 1997 union election.

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