Announcer:
From Faneuil Hall in Boston, The
Advocates. Tonight's question, "Should Congress Provide More Protection For
Union Organizing?" Arguing in favor is Stephen Schlossberg, Director of
Government Affairs for the United Auto Workers Union. Appearing as witnesses
for Mr. Schlossberg are Thomas Donahue, Executive Assistant to the President
of the AFL-CIO, and Howard Lesnick, Professor of Law at the University of
Pennsylvania. Arguing against the proposal is Vincent Apruzzese, a Labor
Attorney and a member of the Labor Relations Committee of the National
Chamber of Commerce. Appearing as witnesses for Mr. Apruzzese are Peter
Nash, a Labor Attorney and former General Counsel to the National Labor
Relations Board, and Senator Orrin Hatch, a Republican from Utah.
Berger:
Good evening and welcome to The Advocates. Tonight we look
at what is shaping up to be the biggest legislative battle between American
labor and management in the last twenty years. Last July, the Labor Reform
Act was sent to Congress with the blessings of the Carter Administration.
Since then there has been the most extensive lobbying on Capitol Hill in the
history of this country. More than 3 million pieces of mail from the AFL-CIO
and major American unions on the one side, and from business organizations
led by the U.S. Chamber of Commerce and the National Association of
Manufacturers on the other. The House of Representatives passed its version
of the Bill last October. The legislation is expected to reach the floor of
the Senate within a few weeks where a filibuster and long hard debate are
promised. Both sides consider this a crucial moment in American Labor
relations. Should Congress pass the Labor Reform Act of 1978? Advocate
Stephen Schlossberg says "yes".
Schlossberg:
Federal labor law so magnificent in concept has become a
tool manipulated by unscrupulous employers to deny workers their right to
bargain for decent pay. With me tonight to show how equity and efficiency
can be restored to labor law are Thomas R. Donahue and Howard R.
Lesnick.
Berger:
Advocate Vincent Apruzzese says "no".
Apruzzese:
The reason why unions so desperately want this Bill enacted
into law is that they can't win elections at the ballot box. For several
years now, unions have been losing a majority of elections conducted by the
National Labor Relations Board and they are being tossed out of already
unionized plants in unprecedented numbers. Rather than attacking their real
problems, they want to use their muscle with Congress and the current
Administration to change the rules. With me tonight to present our case in
opposition to this Bill are Peter Nash and Senator Orrin Hatch.
Berger:
Thank you. Thank you, Gentlemen. There have been only a few
major pieces of Labor legislation in this country, in 1935 the Wagner Act
established the right of workers to organize into unions and created the
National Labor Relations Board to oversee the process. Since then there have
been only two significant additions to the nation's labor law - the
Taft-Hartley Act of 1947 and the Landrum-Griffin Act of 1959. This
essentially is the body of labor legislation in this country. It leaves the
National Labor Relations Board with the responsibility for preventing and
remedying unfair labor practices of both management and unions, and for
conducting secret ballot elections where workers choose to join a union or
to withdraw from one. Tonight The Advocates will examine six key provisions
of the Labor Reform Act of 1978. Three of them provide remedies for proven
unfair labor practices. There's a provision for backpay at time and a half
for a worker who is illegally fired for union activity. There's compensation
for workers if employers illegally refuse to bargain with a newly elected
union. There's debarment - this is a sanction that the Secretary of Labor
can use to bar employers from Federal contracts for up to three years if
they've violated a final order of the National Labor Relations Board. Three
other provisions affect the conduct of union elections and the composition
of the Labor Board. There are fixed time limits for secret ballot elections.
For example, if a majority of workers have petitioned for an election, that
election must take place within 21 to 30 days. And there's equal access -
during election drives, employers would be required to provide as much time
and space in the workplace for those advocating unions as the employer uses
to present his views. Finally, the National Labor Relations Board would be
expanded from five to seven members, and members terms would be extended
from five to seven years. The debate on this legislation, whether here
tonight or in the Senate, must consider how well the current law governing
union-management relations is working. To what extent does it permit abuse?
Do workers now have a fair chance to unionize? Or are they being denied that
chance? And so tonight's question, "Should Congress Provide More Protection
For Union Organizing?" Mr. Schlossberg, the floor is yours.
Schlossberg:
In 1935 Congress gave to workers the right to decide for
themselves free of coercion, if they wanted unions and collective
bargaining. Employers and their lawyers immediately began to devise ways to
deny workers those rights. That was easy because the Wagner Act had no
teeth. Employers learned to manipulate the system - sure, that hurts
workers, but the real victims are not unions but the workers who suffer
because the law's promises have been found to be empty. It is time to return
to the basic premise of the Wagner Act - the federal labor law. Time to end
unnecessary delays. Time to take the profit out of law-breaking. Labor law
reform restores the purpose of the Act and assures workers their, their full
rights. Disputes over unionism will still be settled by secret ballot
democratically in elections. But elections will be held promptly and fairly.
Some say this Bill will lead to more union wins in elections. If that proves
to be true, it will not be an indictment of this Bill, but it will be proof
that the present law discourages people from freely expressing their choice.
To explain why the current labor law needs stronger sanctions against
employers who violate workers' rights, I call to the stand Mr. Thomas R.
Donahue.
Berger:
Welcome to The Advocates, Mr. Donahue.
Schlossberg:
Mr. Donahue is the Executive Assistant to the President of
the AFL-CIO and a former Assistant Secretary of Labor. Mr. Donahue, why do
we need labor law reform?
Donahue:
For the reason you state - that the, that promise of the
law is a, has proven to be a hallow one indeed. The law doesn't deliver on
the promise to protect a worker and enable him to make a free fair choice
about whether or not he or she wants to be represented by a union. The law
needs to be changed because last year the National Labor Relations Board
found 7,220 workers had been fired or otherwise punished by their employer
because of their involvement in union activity, because they chose to try to
form a union and be represented. That kind of, of ah, offense to the, the
ah, worker body ought to be remedied.
Schlossberg:
Now I, I take it then that you think that the present laws
don't deter an employer from, from ah, illegally firing workers in an
organizing campaign.
Donahue:
Well, the fact is that the, the ah, discharge rate, the
punishment rate, the 7,220 people I cite to you is, ah, has been increased
from a rate of about, ah, 1400 workers in 1960. So it’s something in excess
of two and a half, almost three times what it was in 1960.
Schlossberg:
Do, do some employers use the discharge and discriminatory
action against workers as a tool in an election campaign?
Donahue:
As the most effective tool to chill an organizing effort
by the workers. Now let me just...
Schlossberg:
Now what is the current remedy, ah, aren't workers
entitled to, ah, reinstatement and backpay when...
Schlossberg:
...they're illegally fired?
Donahue:
Sure, that's what the law says. If they're illegally
discharged for joining a union, they're entitled to reinstatement and
backpay. In the current process of the law, that comes maybe a year, maybe
two years later. Ah, it gives to the worker reinstatement and some measure
of, ah, the lost wages for the time he's been out. But it gives it to him a
year or two later. The 7000 people I cite were, were ah, as to whom the
Board found a violation of the law in 1977, were probably fired in 1975 or
6.
Schlossberg:
Well, let me ask you something, ah, did um, does this
backpay really make the workers whole.
Donahue:
Well, surely not. I think neither you nor I nor anyone
else in your audience, ah, could afford to lose a week's pay and be given it
a year later and told that now you’re, ah...
Schlossberg:
Now, how will the law change that, Mr. Donahue?
Donahue:
Well, the law will provide simply that, ah, the employee
who is discharged and, when the Board finds he's been discharged, ah, for
union activity, he would be entitled to one and one half times his wages
less any money actually earned.
Schlossberg:
And would the employer be able to deduct that from his
taxes as a...
Donahue:
Surely, as he does now as a cost of doing business. It's a
very cheap cost for defeating an organizing campaign.
Schlossberg:
Now let's say that despite intimidation from the employer
the workers vote to have a union and the employer refuses to bargain. What
is the remedy for that?
Donahue:
The remedy's the same. You go to the Board and file a
complaint - ask the Board to consider that issue. Ah, perhaps in a year the
Board will say, yes, there's a refusal to bargain and then tell the employer
he must bargain and then he'll start anew. And there's no remedy to the
employees for that year or so of stalling.
Schlossberg:
The workers get nothing...
Donahue:
They get nothing at all for that period.
Schlossberg:
...for the lost opportunity to get better wages.
Donahue:
They get a conviction, rather, that the union can do
nothing for them and that the law conspires against them.
Schlossberg:
Now one final provision of the bill - the Secretary of
Labor has business, has, has the right under this, ah, Bill to refuse to do
business with repeated willful violators. Would you explain why we need
debarment?
Berger:
I'll have to ask for a very short answer to a complicated
question.
Donahue:
Sure, ah, ah the, debarment is provided in four, thirteen
statutes currently and it's a way of saying that the Government just
shouldn't do business with people who violate the Government, ah, laws. Ah,
I would not do business with a dry cleaner who insults me twice in a row and
I don't think the Government should do business with the firm which violates
its law at least twice.
Berger:
Alright, now we'll go to Mr. Apruzzese for some questions
for Mr. Donahue.
Apruzzese:
Mr. Donahue, ah, employees discharged for sex
discrimination or racial discrimination or other unlawful purposes receive
back pay for wages lost under all of our laws. Why should employees
discharged for union activity be treated any differently?
Donahue:
I guess I'd put the answer the other way, Mr. Apruzzese.
They should get at least one and a half or two times. The...
Apruzzese:
So therefore...
Donahue:
...House version of this Bill provided two times back pay
for people.
Apruzzese:
And therefore you are.
Donahue:
...illegally fired.
Apruzzese:
...you are in favor of those type of remedies against
unions if they participate in any such violations.
Donahue:
Yes sir, and all of the remedies proposed in the Bill
operate against unions equally with employers.
Apruzzese:
Now let's talk about the 7000 employees that you claim had
been fired for union activity. Ah, last year the National Labor Relations
Board settled 6000 of these cases voluntarily. In the remaining 1200 cases,
your Bill doesn't require or even allow a federal judge to decide whether
the employee was unlawfully discharged. Don't you think we should require a
final decision from the judge before the employer reinstates an
employee?
Donahue:
You mean after we've had an examination by an, an
administrative law judge and perhaps by the five or seven members of the
National Labor Relations Board, we should have a further decision on
it?
Apruzzese:
No, no, this Bill, this Bill, as you know, Mr. Donahue,
has a provision in it so that if the union feels a man has been unlawfully
discharged, they ask the Board to go to a Federal District Court and ask
that judge to return the man as promptly as possible to his employment.
Isn't that correct?
Apruzzese:
Alright, now. Ah...
Donahue:
The second part of the remedy which would be
provided.
Apruzzese:
Yes, but if employees are discharged for union activity
and are reinstated by a Federal District Court judge, under your proposed
remedy, then that would obviate the need for any kind of backpay.
Donahue:
Well, I, if you assure me that they'll be reinstated the
day after their discharge, Mr. Apruzzese, it might. I suspect
that...
Donahue:
...the way the courts work, it might be six to eight
weeks.
Apruzzese:
Well, Mr. Donahue, ah, if the employee is reinstated as
quickly as possible - and that's the primary thrust of what you want - ah,
so that this, ah, does not unduly influence the election atmosphere, don't
you think that a federal judge should decide that case finally, once and for
all, up or down, win or lose, rather than have it effect an
election?
Donahue:
If you can assure me that we would have those kind of
effective remedies, we'll take any improvement you can make in the law, Mr.
Apruzzese, but nobody's made any in thirty years. And people have been fired
and left out for a year or two and sought a remedy...
Apruzzese:
But, you, you would be in favor of the final adjudication
before a District court?
Donahue:
I would be in favor of the speediest return of that
employee to the job.
Donahue:
That can't be done if you provide for final adjudication
and you know it. Final adjudication would be dragged on by attorneys for the
employer for weeks and months and months.
Apruzzese:
Well...you've talked about remedies and profess a concern
for employee rights. Given that concern, how can you and the rest of
organized labor support a debarment remedy which could result in layoffs of
thousands of employees you pretend to be concerned about?
Donahue:
For the same reason that, that I support strong remedies,
ah, and strong penalties for people who violate any law - they act as an
effective deterrent to the commission of crime and to the violation of law.
And the strongest possible remedies here will act as that kind of a
deterrent.
Apruzzese:
And speaking of deterrents, what does this Bill do for
union abuses, such as violence, mass picketing or excesses, excessive fines
against union members.
Donahue:
Mr. Apruzzese, the law is already replete with, ah,
provisions for the handling of all of those matters and you're well
experienced in them yourself. There are adequate remedies in the law for any
sort of violence, whether it is union related, company related, or if it
happens in the street outside.
Apruzzese:
The Board is not required...the Board is not required to
seek any mandatory injunctions against mass violence or, or ah...
Donahue:
The Board doesn't have to - you go into court very
skillfully and get them very quickly when there's mass violence, Mr.
Apruzzese.
Apruzzese:
Would you oppose...
Donahue:
They're, they're readily available.
Apruzzese:
Would you oppose those type of mandatory
remedies...
Apruzzese:
...being given employers under the, under the current
law?
Donahue:
Those types of remedies are already available to you under
current law. The courts do not allow violence to occur in the streets and
they enjoin violence day after day.
Berger:
Alright, thank you. Mr. Schlossberg, another question for
Mr. Donahue.
Schlossberg:
Yes, Mr. Donahue, I did not get time to explore with you
more the debarment remedy. Would you tell me a little bit about a typical
company, company that violates and if other laws, uh, cover this kind of
procedure for the Government, or have we thought of something novel and new
here?
Donahue:
It's a great question. I'm delighted to answer it. The, I
say to you that there are 13 statutes and one Executive Order which already
provide debarment as a remedy, including violation of the Equal Employment
Opportunity statutes and, an Executive Orders. The, the case for that remedy
is spelled out very simply by the name J.P. Stevens which has, ah, 18 times
been found guilty of violating the law in the last 15 years, has been
ordered to pay, ah, something over three, to put back to work, something
over 300 workers, to pay damages of a million and a half dollars, and the
Government last year spent 18 million dollars of the taxpayers' money doing
business with J.P. Stevens. I think it's outrageous. I don't want them
spending my money with J.P. Stevens.
Berger:
Mr. Apruzzese, one final question for Mr.
Donahue.
Apruzzese:
Ah, Mr. Donahue, one of these remedies, ah, that you're
proposing is that if a union, if an employer commits an unfair labor
practice of a refusal to bargain, he should be forced to pay his workers, ah
whatever is determined by statistics of the Bureau of Labor, ah, Bureau of
Labor statistics for units of 5000 or less. Now, why isn't that same type of
remedy imposed against unions who do the same thing - refusal to bargain in,
ah, good faith and put workers out of work?
Donahue:
The remedy is that he would have to pay to employees the
same percentage increase, Mr. Apruzzese, not the same increase, but the same
percentage. In the unorganized employer, that's coming on a very low base
wage, and so there's an adequate compensation or adjustment of the fact that
that statistic uses the 5000 number...
Apruzzese:
But it doesn't apply.
Apruzzese:
... to union violations.
Berger:
Only one question, excuse me.
Berger:
...Mr. Apruzzese. Thank you, ah, Mr. Donahue. Thank you
for joining us on The Advocates. Mr. Schlossberg.
Schlossberg:
And now, and now to tell us how current Board procedures
stymie the rights of workers and how the Labor Law Reform Act will restore
those rights, I call to the stand Mr. Howard Lesnick.
Berger:
Professor Lesnick, welcome to The Advocates.
Schlossberg:
Mr. Lesnick, as a professor of law who has taught labor
law for 18 years, why do you support the Labor Law Reform Act?
Lesnick:
As you say, I've taught labor law for 18 years and during
that time I've found that a law which I, which I love teaching, because it
seems to me one of the most constructive pieces of legislation Congress has
enacted; which was designed to defuse an enduring and bitter social problem
by leaving matters up to individual employees to decide what they want
-whether unionization is good for them or not - has become weaker and
weaker, and has become more and more bogged down in protracted delay and
ineffective remedies.
Schlossberg:
Ah, now tell me, you talked about delay. How do employers
use delay to deny workers their right to decide in the secret vote election
whether they want collective bargaining?
Lesnick:
When employees, ah, want an election, they have to ask the
Board for it. The timing of that is, to a very large degree, within the
employer's control. Ah, the Board in some cases can hold an election, ah, in
45 days or more. Where an employer insists on a hearing, which he has an
absolute right to do, it means that the election is put off for another
month or even longer.
Schlossberg:
Well, now let me ask you in that connection about, ah, do
any of these employer counselors - we've heard about these people who put
out kits, how to break the union, how to keep the union out - that all the
small employers attend and buy - do they recommend delay in any
cases?
Lesnick:
They do, they often make as one of their, ah, main
psychological observations, which I think has great validity, ah, is that
the best thing an employer can do is to simply cool things out, slow things
down. Because when employees decide to organize, they're doing a very
significant and momentous and upsetting thing.
Schlossberg:
And how does delay hurt these employees?
Lesnick:
Well, they come to a situation in which they don't know if
they're going to be better off. Some employees want a union. A union comes
in and tells them it's going to help them. The employer, ah, is opposed or
they're afraid the employer is opposed. They're not used to, to
contradicting him and standing up against him.
Schlossberg:
Now tell us how the Labor Law Reform Act would cure
that.
Lesnick:
It, it will take away the, ah, advantage that comes from
simply sitting around and waiting and nothing will happen by setting
realistic and specific time limits. In the easy case, it'll be between 21
and 30 days. In the harder cases, it'll be up to 10 or 11 weeks.
Schlossberg:
Now let me ask you, do workers generally have a chance to
hear both sides, both the employer and the union side equally before they
vote in an union election?
Lesnick:
Mr. Schlossberg, I think on that point there's almost
unanimous agreement among impartial observers - the answer is a clear "no".
There's a very powerful imbalance favoring the employer, er, arising just
from the dynamics of the situation. I could...
Schlossberg:
Would, ah, how would this Bill attempt to bring a balance
of equal information so that voters would be informed before they cast such
a momentous vote?
Lesnick:
This Bill says that the most important place where
workers, ah, hear information, ah, about unionization is the workplace, and
if the employer chooses to use the workplace, ah, to oppose unionization,
that the employees are entitled - in a similarly effective forum and to a
similar extent to hear both sides.
Schlossberg:
Well, is, is an employer always in danger when the union's
not around if he makes, ah, some anti-union remarks or, ah, how does that
work? Does the Bill cover that?
Lesnick:
Yes, the Bill was very carefully drafted and very
carefully worked over through the legislative process, and I think that
claim which I've seen made is a complete red herring. The employer may
campaign as much as he wants, for as long as he wants. Ah, and until an
organizing campaign is begun, there's no obligation.
Schlossberg:
Alright, now, now one final question because we are
running short of time. What is the importance to the average worker in a
non-union shop - out in the field, out in the country - of increasing the
size of the Labor Board from five to seven and increasing their term to
seven years?
Berger:
Ah, that was a long question. We need a very brief
answer.
Lesnick:
The importance is that when you're fired - no matter how
unlawful it is nothing happens for two or three years, and this provision is
one of a number of provisions which try to shorten that period...
Lesnick:
...which has been going up steadily.
Berger:
Alright, now we'll go to Mr. Apruzzese for some questions
for Professor Lesnick.
Apruzzese:
You know, Professor Lesnick, since 1967 there has been a
200 percent increase in the amount of decertification petitions filed with
the Board, which means employees who have been experienced to union
representation want to vote to toss them out. And, and these employees are
winning those elections in 75% of the instances. How do you explain
that?
Lesnick:
I, I explain it in the way you explain it, that doesn't
bother me. I think that employees who want a union should have a chance to
have a union, free of coercion free of delay, and employees who don't want a
union should have a chance not to have a union.
Apruzzese:
How do you explain that tremendous increase? The unions'
already been there and now these employees are throwing them out in
unprecedented numbers.
Lesnick:
I don't know why you ask the question, Mr. Apruzzese.
What has it got to do with the issues in this case? This, this Bill says
that if employees want a union that the employer shall not use the natural
advantages which give him an unfair, ah, weapon over the employee to prevent
them from doing it. And you're telling me there are some employees who don't
want unions.
Apruzzese:
Professor Lesnick, um, your testimony, ah, leaves the
impression that
employers generally, ah, are unethical law-breakers.
Chairman Fanning,
who has served on the NLRB for over 20 years, recently
testified before
a Senate committee and I quote, "The management community
has an outstanding record of voluntary compliance with the Act", end quote.
On what do
you base any disagreement that you have with Chairman Fanning
whose judgment is based upon over 20 years of service
Lesnick:
I don't disagree...
Apruzzese:
...on the NLRB.
Lesnick:
...one, one bit with that statement. Ah, and when ever
anyone tries to criticize violations of law in any area, whether it's by
employers or unions or the police or anyone, the argument is made most
people don't violate the law. Of course they don't violate the law. But many
people do violate the law. J.P. Stevens has made about a thousand dollars
for every dollar it's had to pay back for its violations of the law and the
problem's becoming more and more serious, and that's the issue - not whether
most employers obey the law.
Apruzzese:
Now Professor Lesnick, ah, 85% of all elections conducted
in the National Labor Relations Board are in units of a hundred employees or
less, and fully 75% in units of 50 employees or less. Now don't you think
those small businessmen who do not have labor relations staffs deserve a
reasonable amount of time to inform their employees about this election
process?
Lesnick:
I do. That's a complicated question and I'll try quickly
to...first of all, small business is virtually exempt from this statute. 22%
of the non-agricultural business companies in this country are covered by
the Board's jurisdiction. 12% of the retail establishments are covered.
About 5% of the service establishments are covered. The, the image of mom
and pop's store as being pushed around by unions and the Board is, is simply
another red herring. Secondly, ah, a reasonable time, I think, and this Bill
says, is three to four weeks. It's not an indefinite period of time within
the employer's control - constantly to come at the employees one way after
another to convince them with all the advantages the employer has not to
support the union, while they're stymied by the inadequacy of the legal
remedies.
Apruzzese:
You know, Professor Lesnick...mom and pop's store, it
doesn't take mom and pop stores to earn in excess of 50,000 dollars a year
doing business in interstate commerce, and 25% of all elections in the Board
are in units of 10 employees or less. Is that small business or isn't
it?
Lesnick:
Well, I'm sure you wouldn't want your, ah, the people
listening to misunderstand when you say units of 10 or less, you don't mean
there are 10 employees or less, you mean that the bargaining unit is 10.
There may be...
Lesnick:
...other employees working for the company that are not
in the bargaining unit.
Apruzzese:
Maybe a couple of clerical people, and a very hard
working owner who works about 95 hours a week.
Lesnick:
And, and maybe a couple of hundred people who are not, as
to whom union representation is not being sought. But the basic point is
that 78% of pri, of non-agricultural business is not covered by this
law.
Apruzzese:
Ah, Professor, let's talk about this provision to
increase the size of the Board from five to seven members. I'm sure you're
familiar with the United States Supreme Court workload. Last
year...
Apruzzese:
... in it's October term.
Berger:
...to have a brief question and a brief answer. I'm
sorry.
Apruzzese:
...the U.S. Supreme Court handled 5,328 cases, including
176 oral arguments. Now do you think that each NLRB Board member needs 20
lawyers as compared to three assistants for a Supreme Court
justice?
Lesnick:
The Board has had five members for 30 years, when it
began that it had 115 cases a year; it now has almost 10 times that much.
Senator Taft 30 years ago wanted to increase the Board. The ABA Labor
Relations Section, including the management lawyers, wanted to increase it
to nine. It's beyond me to figure out why this galvanized opposition to a
minor improvement in procedure is, is being expressed.
Berger:
Thank you. Mr. Schlossberg, another question for
Professor Lesnick, please.
Schlossberg:
Professor Lesnick, please tell these people what the
meaning of the word "captive audience" is, and what its power is.
Berger:
It's going to have to be a brief answer,
Professor.
Lesnick:
I do it in class in a couple of hours. A captive audience
speech is a speech an employer makes to his employees on company time and
property. Ah, its widely believed to be the most powerful form of stating
the employer's point of view, surrounded as the employees are by the
indication of the employer's status as the employer. They're not working,
they're listening to his message on, on unionization. They're being told, in
effect, he cares more about their voting "no" than about their working and
what this Bill says is that the employer who chooses to do that must give a
union an opportunity to make an equivalent statement.
Berger:
Alright, thank you. One final question, Mr.
Apruzzese.
Apruzzese:
Professor Lesnick, ah, we pride ourselves on our
constitutional rights of free speech and, ah, personal property in this
country, and why should an employer's opportunity to speak to his employees
in his own premises on his own time and at his own expense be undermined by
invading his right of free speech, conditioning it on inviting union
organizers in?
Berger:
Again very brief. Professor.
Lesnick:
That's a critical question. If you don't like unions, you
would like to see employer's keep their natural advantages, but what we also
pride...
Berger:
For those of you who have joined us late, Mr. Schlossberg
and his two witnesses have presented the case in favor of tonight's
question, "Should Congress Provide More Protection For Union Organizing?"
And now for the case against. Mr. Apruzzese, the floor is yours.
Apruzzese:
You've heard the union position as to why they need this
Bill. Now let's get down to the real reasons. The fact that, the fact is
that unions are in deep trouble. They are losing more elections than at any
time in the 42-year history of the National Labor Relations Board and they
are being thrown out of already unionized plants in unprecedented numbers.
The unions' solution to their dilemma is to change the rules, to make it
easier for them to organize. They want to establish quickie elections, pack
the Board, and introduce new punitive measures designed to intimidate and
crush employer resistance against any union efforts. If enacted, this
proposed legislation will destroy the spirit of voluntary compliance that
has made our national labor laws work, and in large measure has helped the
National Labor Relations Board become one of the most efficient governmental
agencies. Finally, this Bill is not labor reform at all, because it makes no
attempt at true labor reform. It does nothing to curb serious union abuses
or deter their violations of the law. I call as my first witness, Peter
Nash.
Berger:
Mr. Nash, welcome to The Advocates.
Apruzzese:
Peter Nash is former General Counsel of the United States
Department of Labor and the, ah, the National Labor Relations Board. Mr.
Nash, in your experience in government service, ah, what is your feeling
about the union complaints about the election process by secret ballot? How
are they doing?
Nash:
Well, they're not doing very well and I think that's the
reason we're here tonight debating this Bill. 10 years ago in 1967, unions
were gaining support from workers in elections at a percentage of about 61
of all who vote. They were winning about 59% of all elections. Today they
are gaining worker support in about 45% of the elections which are being
held; they are losing more than they are winning. In addition to that, 10
years ago every geographic area in the country on which the Board reports
election results, the majority of elections were being won by unions even in
the deep South. Today in every single one of those geographic areas, unions
are losing a majority of the elections. And finally as you have indicated in
your opening remarks, decertification elections for unions are being thrown
out, have increased by 260% in that ten-year period and the employees are
winning and throwing those unions out in 75%. That's why this bill is on
the, is being proposed and that's why we're here tonight.
Apruzzese:
Now Mr. Nash, do the election rules, ah, proposed here
give fair consideration to the rights of employers and employees.
Nash:
I think not at all. I've listened with interest during
the last testimony, much of which I agree with but much of which is totally
irrelevant to what this, to this Bill that we're talking about. I think it's
interesting to take a look at the historic, ah, progression of this
particular piece of legislation. The first which was introduced provided for
no elections at all. It would have required employers to bargain with unions
merely because a majority of employees signed cards. That was politically
unacceptable and the unions had to drop back from that. Then this
legislation was' introduced. As originally introduced, 15-day quickie
elections were be to, were to be required only when it was in the union's
interest to have elections so fast that employees didn't know what they were
voting about. Under that proposal as originally introduced, the union had to
file the petition in order for it to be a 15-day quickie period. If anybody
else did, the union needed more time and obviously got the 45 days within
which to campaign. In addition, that union petition had to be supported by a
majority of employees' signatures. If the union didn't have a majority, they
obviously needed more time and thus got 45 days and finally, if anybody in
that unit petitioned for was represented by another union, then indeed that
other union was being raided and needed more time. Accordingly, 45 days
applied. Now you may call that expedited democracy in action, I think it
stinks.
Apruzzese:
Now Mr. Nash...it's contended that new remedies are
necessary to deter violations of the law. Is this true and are these new
remedies fairly applied?
Nash:
Well, I think these new remedies really have very little
to do with deterring violations of the law and are primarily proposed for
purposes of, ah, requiring employers to bow to union demands. For instance,
the debarment remedy which we've heard discussed here makes no sense at all
to me. Why in the world would you put employees out of work - those who most
need the protections of the Labor Act? Existing law has, ah, proceedings in
contempt which will result in fines of employers and indeed that will
produce more jobs rather than eliminate jobs. The so-called, ah, equal
access, er, excuse me, the, ah, make-whole remedy for refusal to bargain the
first collective bargaining agreement - that's no heinous violation of the
Labor Act, that is a procedural violation, the only means by which an
employer can have his day in court on Labor Board, ah, issues in a
representation case.
Berger:
Alright, thank you, Mr. Nash. We'll have to go to Mr.
Schlossberg for his questions.
Schlossberg:
Mr. Nash, ah, as always I admire your testimony. You're a
very forceful advocate for business and indeed I don't believe Mr. Apruzzese
mentioned you represent something called the Small Business Council, I
believe.
Nash:
I have testified on this Bill for the Small Business
Legislative Council.
Schlossberg:
Legislative Council...with 134 trade associations as
members, isn't that correct?
Nash:
Something in that neighborhood, yes.
Schlossberg:
Mr. Nash, don't you know of unfair labor practices where
it's really cheaper for an employer to litigate than to obey the
law?
Nash:
No, I don't think so.
Schlossberg:
You don't think so?
Nash:
Discharge cases, for instance, in those situations the
employee is saving no money by litigating those cases. He has to hire
somebody else to take the discharged individual's place. He must pay a
lawyer and if he ultimately loses that case, he has to payback pay plus 7%
compounded interest. No, that is in no way cheaper.
Schlossberg:
You don't think its cheaper?
Schlossberg:
I see, well let's take the situation of refusal to
bargain. An employer refuses to bargain for many, many years. The employees
are expecting it, counting on it, wanting to bargain - they've already voted
for a union. And finally after two years, what remedies does the Board now
have for the, for that refusal to bargain?
Nash:
The Board orders the employer to bargain. In the interim
period of time, however, the employer - if he has any sense at all - is
giving wage increases to those employees to keep them. In addition to that,
if the union could have gained any more, presumably it would have been
through the use of a strike weapon. If indeed they don't have an effective
strike weapon, they would have gained no more.
Schlossberg:
I see you, in other words, you're advocating strikes
rather than remedies to make those wronged whole instead of the
wrongdoers.
Nash:
I am advocating self-help - that is indeed what this
National Labor Relations Act has been about since 1935 - that there is an
economic tussle between the employer and the union, and that that is the
basis upon which employees' wages and terms and conditions of employment are
to be set, not by government fiat.
Schlossberg:
Ah, but the, ah, under this law, to compensate the
employees for the amount of money they lost for the failure of the employer
to bargain, unlawfully I might add - and it only comes in where he's found
to have done it unlawfully - this is not a prospective thing; it's like
liquidated damages, it only makes them whole for that period. Isn't that
true?
Nash:
It's prospective to the extent that you don't have any
idea what those employees may indeed have received had the employer
bargained with the union and, indeed if the union had that kind of power,
they don't need that kind of remedy. The economic weapon that I referred to
before -which has been the standard in this law for these 42 years - that
would have determined what those wages were.
Schlossberg:
Well, let's not waste too much time on that. We have very
different views on it. Let's talk about the back pay provision. How can you
say that one and a half times back pay is so unfair when you know as well as
I do that when an employee is waiting for reinstatement and doesn't get back
pay for a long time, he has unusual expenses? First of all, under the
present back pay law, he does not get his benefits, he doesn't get his sick
pay, his insurance kept up. He has to look for a job; he has to pay for
transportation; he has no work, so he might have to borrow from a small loan
company. How can simple back pay - penny for penny, without any of those
insurance contracts, without any of those unusual expenses he had due to an,
unlawful, ah, employer action - how can that possibly compensate him for the
loss he suffered?
Nash:
I don't think it can,, nor do I think twenty times back
pay can compensate the employee for that. I believe that the most effective
remedy would be to have, ah, court injunction procedures as proposed in this
Bill, where the court quickly, within a few weeks, determines whether or not
that employee was unlawfully discharged. And if so, he's returned to
work.
Berger:
Alright, thank you...
Nash:
If not, he is not returned to work. The back pay remedy
really is ridiculous and meaningless as far as the employee is concerned and
as far as the employer is concerned.
Berger:
Thank you. Mr. Apruzzese, another question for Mr.
Nash, please.
Apruzzese:
Now, Mr. Nash, this remedy that Mr. Schlossberg talks
about where, ah, they say a union refuses to bargain in good faith and
therefore should pay some money to his employees, is there a similar
provision/this Bill where a union can be found guilty of not bargaining in
good faith and if so, does this law do anything to compensate the employees
that are out of work because of these unfair labor practices?
Nash:
No, there's nothing in this Bill which provides any
remedies as far as the union's refusal to bargain is concerned, nor indeed
any effective remedy in any of the areas where there are now union
abuses.
Berger:
Thank you. Mr. Schlossberg, one final question for Mr.
Nash.
Schlossberg:
Mr. Nash, isn't labor law a whole body of history. First
there was the Wagner Act that gave employees the rights to organize unions.
Then there was the Taft-Hartley and the Landrum-Griffin amendments. True,
they gave some rights to employees, but weren't all the arsenal of weapons
in those acts, all the arsenal of weapons, against unions put in the hands
of employers? Wouldn't this balance that and give us balance in the
Act?
Nash:
Indeed not, I believe the Act to be balanced now.
Furthermore the Wagner Act was nothing but a union act - it had nothing to
do with employer rights. In addition this particular piece of legislation
we're considering now has absolutely nothing to do with employee rights. It
has everything to do with union rights as an institution.
Berger:
Thank you. No, only one question, please. Mr. Nash, thank
you for joining us on The Advocates. Mr. Apruzzese.
Apruzzese:
I call as my next witness, Senator Orrin Hatch.
Berger:
Senator Hatch, welcome to The Advocates.
Apruzzese:
Senator Hatch is, um, Republican Senator from Utah and
leading the opposition against this Bill. And he's been a member of the
AFL-CIO and worked in the construction trades for ten years, having gone
through a formal apprentice training program and worked as a journeyman.
Having been raised in this union movement, Senator Hatch, ah, why are you
opposed to this Bill?
Hatch:
First of all, the Bill isn't fair. This Bill doesn't take
care of union abuses. I might mention that what has happened here is they've
come to the Congress and asked for a push-button unionism bill that will
help them to organize all over America. The quickie election provision
provides, doesn't give enough time for the employer to explain his side of
the case, or the employee to understand enough about it to make an
intelligent informed choice. When you talk about equal access, maybe we talk
about that in a few minutes - it's unfair. You talk about, ah, about, ah,
the packing of the National Relations Labor Board to again weight that in
favor of big labor - that's unfair. When you talk about changing a statute
which has been in existence for 43 years and worked well to bring management
and labor together in a free and fair collective bargaining process and make
it into a punitive statute by having Federal contract debarment, double back
pay in the House bill, time and a half back pay in the Senate bill and, of
course, ah, make-whole remedies based upon the highest wages paid in society
against small businessmen - it's unfair to small businessmen, it's
inflationary and I think it's going to hit every wage-earner right in his
pocketbook and it really doesn't do much for the employee.
Apruzzese:
Senator, this Bill provides for increasing the size of
the Board from five to seven members. Do you support that
provision?
Hatch:
Well, of course I can't support that position because
what you're talking about here is expanding the Board or stacking the Board
so that, some say its four to one in favor of labor today, at the very least
its three to two, that means its going to be five to, uh, two, or six to one
in favor of labor. Why? So that everything that comes before that Board will
be construed to be an unfair labor practice and therefore can you invoke
these punitive remedies. Now I might add that the Board itself in being
packed - the Chairman of the National Labor Relations Board, John Fanning
said that they only spend, as Board members, four hours a day deciding
cases, the principle reason for the Board's existence to begin with.
Secondly, I might mention they have ten clerical and twenty attorneys
backing up each member of the National Labor Relations Board. Contrast that
with three backing up each, each justice of the United States Supreme Court
and it shows how really overwhelmingly, ah, pro-big labor this Bill
is.
Apruzzese:
Now Senator, what provisions are in this Bill curb union
abuses?
Hatch:
Well, of course there aren't any provisions that curb
union abuses. You can't, there's nothing that goes against mass picketing or
violence or what about labor racketeering? This week, this very week in
front of the Government Operations Committee of the Senate, they've shown
that there's all kinds of labor racketeering in, in labor. Not one thing
done about it. 300 plus local unions infiltrated by labor racketeers - not a
thing being done. Indiscriminate fines of union members, you can go on and
on. And not one thing done about it.
Hatch:
I might also add the pension rip-offs, because we've got
pension rip-offs of those employees' funds all over this country, their
retiring funds. And I think it's time something be done about that and you
know, they're not too interested in taking care of that problem.
Apruzzese:
Now Senator, what affect will this Bill have on small
businesses?
Hatch:
Well, it will be devastating to small businesses. Dr.
Renfray, a noted economist, wrote, did a complete economic impact analysis
and he found that it would be devastating to small business. We have reason
to know that the Small Business Administration Office of Advocacy has come
up with the same conclusion, and they are stonewalling that report - won't
release it even though I've asked for it all week long this week. And the
reason is it's devastating to the proponents of this Bill.
Berger:
Alright, now we'll go to Mr. Schlossberg for some
questions to Senator Hatch.
Schlossberg:
Senator Hatch, I've seen you quoted as saying you may
indeed lead a filibuster against this Bill. Is that true?
Hatch:
I think that's a reasonable expectation.
Schlossberg:
If you did...
Hatch:
If I might answer the question...
Schlossberg:
If I might ask...you answered the question, Senator, this
is not the Senate. We're not going to have a filibuster here....
Hatch:
Well, look can I answer the question?
Schlossberg:
We have one hour...
Berger:
I think, I think...gentlemen: The question was will you
lead a filibuster... the answer was yes. We have to go on to the next
question.
Hatch:
I said yes, but...
Schlossberg:
I'm going to give you a chance to talk some more,
Senator.
Hatch:
Alright, I hope so...I hope you'll give me a chance to
answer the question.
Schlossberg:
Senator, Senator...I...
Hatch:
This is typical of the way we’re handled down there by
big labor because they think they own the Senate and they don’t own the
Senate.
Schlossberg:
Nobody thinks they own the Senate. It is not the Senate
that is on trial here, it is those who would try to…
Hatch:
I think the big labor union leaders are on trial. They’re
the people that are causing these problems over America and they’re not
representing the men who they should.
Schlossberg:
Senator, we’re not going to have a filibuster here
tonight. Now Senator, Senator, you are a witness, you’re a
witness…
Hatch:
Then let me answer the questions, okay.
Schlossberg:
Please Senator, if you have, to get back to the business
at hand, if you have a filibuster, I assume that your stated purpose would
be not to delay the Senate’s right to vote, but to equally inform each
Senator of the issues involved. Is that correct?
Hatch:
The filibuster will be for the purpose of defeating this
Bill. Frankly because of labor support, we don’t believe we can get 51 votes
against this Bill, but in that situation…
Schlossberg:
Glad to hear that.
Hatch:
…in that situation, in that situation, the Senate
provides for what we call an expanded debate or extended debate which gives
us the right to show in the Bill that’s this controversial, that doesn’t do
anything for the workingman it’s intended to do – it makes them have to get
60…
Hatch:
...votes in order to substantiate this Bill...
Schlossberg:
I understand what...what a filibuster is..
Hatch:
...and if we have 41, we're going to beat you.
Schlossberg:
I wanted to get the purpose of the filibuster, but I
think you won't answer that question. You said...
Hatch:
I'd be happy to answer it.
Schlossberg:
Now let me ask you something.
Hatch:
Why don't you ask it?
Schlossberg:
We're talking now...I assume, I assume perhaps
incorrectly that one of the reasons you are going to talk at great length
and extended debate on this Bill was to try to inform senators equally. I
find that really you...
Schlossberg:
Is that your purpose?
Hatch:
Sure, that's one of them.
Schlossberg:
Then don't you think that union vote - that voters in an
union election - should be fully and equally informed, too.
Berger:
Please, let’s let, let's let the Senator answer the
question.
Hatch:
I think, I think they should but they're not going to be
informed in 21 days under the Senate bill and 25 under...
Hatch:
...the House bill and I might add, I might add, that
that's the problem with that particular provision that quickie election -
Bill Wimpsinger said that if we have quick elections we win, if we
don't...
Hatch:
That's the purpose of that.
Schlossberg:
...going to insist that you answer the questions. I'm
talking to you about equal access. Now surely you understand that. Now let
me ask you something. Does the employer have a right under present law to
pay his employees - the employer who has the right to hire and fire them,
who signs their paycheck, who holds economic life and death power over them
-does he have a right to call them in and pay them on company time and give
them an anti-union speech?
Hatch:
Well, I think that...question...
Schlossberg:
Does he have the right?
Hatch:
I think the question is misphrased. I think he has the
right to talk to his employees - his right of free speech on the premises -
but if this Bill is enacted, that means that he's got to open his premises,
at his time, at his expense, and allow union organizers to come in and
preach to his employees. In other words, he's got to subsidize the
unionization of his own plant and, I might add, that isn't
American.
Hatch:
That isn't what I've been led to believe.
Schlossberg:
He decides whether to do that. Let, let me go on. Let me
talk about some of the other things that are available...
Hatch:
Well, could I answer...
Schlossberg:
...to the employer.
Hatch:
...just a little bit more on that?
Schlossberg:
Does he have the use of...
Schlossberg:
... a bulletin board?
Hatch:
Well, let me just say this. I might add that this is
weighted, ah, access is weighted, it seems to me, in favor of the unions.
Because number one, they can make any promises that they want even though
they know they can't fulfill them. The businessmen can't. They get the names
and addresses of every employee and can go and call upon them in their
homes.
Schlossberg:
Yes, they can in the last days of the election.
Hatch:
The businessman can't...I can go on and on if you'd allow
me.
Schlossberg:
...you know that. Your lawyer has them all the time.
We're not going to waste anymore time on that. We have very limited
time.
Hatch:
I would think not. I would think not. That's what's wrong
with this Bill and that's what's wrong with the people who are sponsoring
this Bill. They want everything their way...
Hatch:
...and not fairness and freedom.
Schlossberg:
Senator, let's talk about corruption a little
bit.
Hatch:
I'll be glad to do that.
Schlossberg:
I have never heard you attack corporate corruption on the
floor of the Senate. Now let me ask you something...
Hatch:
Well, then you haven't been listening, have
you?
Schlossberg:
You do...yes, I've been listening.
Hatch:
Well, I don't think so.
Schlossberg:
Do you know that more than 400 United States corporations
have spent millions of dollars illegally trying to bribe foreign officials
and foreign governments?
Hatch:
Well, what does that have to do with this Bill?
Schlossberg:
Well what, what does this corruption have to do with what
you're talking about alleged corruption?
Hatch:
Do you know that the FCC...may I answer the
question?
Berger:
Ah, gentlemen, I'm not going either be able to permit the
question or the answer. We're going to go to Mr. Apruzzese for one more
question for Senator Hatch.
Hatch:
I'd like to answer that question, though.
Berger:
Well, then may...
Apruzzese:
Well Senator, be my guest and go right ahead.
Hatch:
I think the reason that question is asked is because of
the reports of corruption in unions down, down there this weekend - labor
racketeering which is not addressed by this Bill. Better than 300 local
unions. Let me tell you I don't make any answers or any explanations for big
corporations. I don't think that they deserve to control this country
anymore than big labor does and big labor controls the Congress right now.
And it has for 42 of the last 46 years and that's why we're in the
problems...
Schlossberg:
...I'm sorry, I know how you feel.
Berger:
Mr. Schlossberg, you get one more quick...excuse me, you
get one short question...
Schlossberg:
It will be a very short question.
Berger:
...for the Senator.
Hatch:
Glad to have them.
Schlossberg:
The allegation that 300 locals out of some 75.
Schlossberg:
Excuse me. Well, more...
Schlossberg:
...a few more than 300 is less than 1/2 of one percent of
the local unions in this country, and you...it is an allegation. I want to
join you in saying that I oppose as vigor, as vigorously as you do,
corruption in unions, corruption in corporations and corruption in
politics.
Berger:
Senator, I'm going to have to thank you. Senator, Senator
Hatch, I'm going to have to...
Hatch:
Well, let me answer this...
Berger:
Senator Hatch, I'm afraid I'm going to have
to..
Hatch:
No, I have to answer that.
Berger:
...since you're in agreement on this.
Hatch:
No, I'm not in agreement.
Berger:
Ah, you applauded...
Hatch:
If you really believe that then why don't we put it in
this Bill. See that's the thing that's wrong.
Hatch:
Big labor won't do that.
Berger:
Alright, thank you, thank you, Senator Hatch for joining
us on The Advocates. And now let's go to the closing arguments. Mr.
Schlossberg.
Schlossberg:
The employers who fight this Bill are the descendants of
those who fought minimum wage, social security and the original Wagner Act.
They have made workers' rights a sham. Workers wait for elections while
employers stall. Workers wait for reinstatement when they're illegally fired
for, for union activity. They wait and they suffer for years, and what
happens to the law-breaking employer? When the employer refuses to bargain,
a mere ritual order to do so by the NLRB. Law-breaking employers are given
fat union contracts. It is nonsense that reform will increase litigation.
Increasing penalties enhances respect for law and will make for more
settlements, not more litigation. Employers use litigation today to stall
and as a tool to oppress workers. Workers need to hear both sides. The law
needs teeth. It must not reward law-breakers. We ask you, vote for labor law
reform.
Berger:
Thank you. Mr. Apruzzese.
Apruzzese:
What we have witnessed here tonight is that unions have
lost the confidence of workers in every section of this country and that
employees in already unionized plants are tossing them out in unprecedented
numbers. What is it, what is really at stake here is the democratic process
and fair freedom of choice. No one should tamper with that freedom of
choice. Any even-handed approach to true labor reform cannot ignore the
rip-offs of pension funds and serious abuses of labor unions in this
country. In truth the real reason why unions are losing is that they are not
earning the right to win. I urge you to vote "no" against this Bill because
it is a naked union power grab.
Berger:
Thank you, gentlemen. Thank you. And now, and now
we...excuse me. Thank you, gentlemen and now we turn to you in our audience
and ask what you think about the questions raised in tonight's debate.
"Should Congress Provide More Protection For Union Organizing?" Send us your
vote "yes" or "no" on a postcard to The Advocates, Box 1978, Boston, MA
02134. Two weeks ago The Advocates debated the question "Should The United
States Reject Detente As Its Strategy In Dealing With The Soviet Union?" Our
audience responded this way - 1,671 in favor of rejecting detente and 874 in
favor of detente. If you would like a transcript of tonight's debate or
transcripts of our previous debates, please mail a check or money order for
$2.00 to The Advocates, Box 1978, Boston, MA. 02134. Next time on The
Advocates we will look at the heated issue of tuition tax credits. With the
rising cost of education, fewer parents can afford alternatives to public
schools. Should the Government get into the business of helping parents pay
tuition? We'll hope you join us in two weeks. That debate will cone from the
Dirksen Senate Office Building on Capitol Hill. Among the participants will
be Senator S. I. Hayakawa of California and Albert Shanker, President of the
United Federation of Teachers. And now with thanks to our advocates and to
their distinguished witnesses, we conclude tonight's debate.