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condition and a checkoff in exchange for a little more favorable package on the rest of the contract.
There again I am quoting from experience.
When I say I do not like to bring this out it is because in those situations the employees lose; they have traded union security for fringe benefits.
There is another place under present conditions where the employees lose, and that is where recognition is based on a card check. Even if the union does have a majority on cards, and an uncoerced majority, in that type of situation usually the card check comes at a time when the employees have never heard anything but one side of the argument; in other words, there has been no free speech as provided by section 8 of the law.
If the employee has heard both sides of the question I believe he is more informed and better able to cast his vote at an election.
Further, with respect to repeal of 14(b) we have heard proponents argue the old argument of 19 States versus 31 States. However, if this section is repealed Congress has taken away the right of 31 States ever to enact the so-called "right-to-work” law.
We are also told by Secretary Wirtz and by Mr. Biemiller yesterday, that 14(b) must be repealed in the interest of uniformity.
Well, we are not sure that there is always viture in uniformity.
I suppose in the interest of uniformity Congress could pass a law that once a union is certificated everyone has to join the union, but I am sure a lot of people would object to that.
On the other hand, we could have uniformity if we had a national "right-to-work" law, and I am sure that does not have universal approval.
Really what we are getting at here is that this argument which we have heard from the proponents that a union shop is merely the carrying out the principles of majority rule. Well, it is the very existence of nonmajority in some cases which makes union shop and compulsory membership most objectionable.
The so-called sweetheart contract where the unions obtain compulsory membership contracts for quick recognition without expending any time and effort for organization is still with us.
The employees obtain little or nothing in the way of increased benefits. The union employer may go through the motion of a card check to make everything appear legal and proper and thus prevent another union more acceptable to the employees from obtaining bargaining rights. Card checks become discredited because of sweetheart contracts, but the NLRB has now returned to card checks and orders bargaining in the absence of n election.
It seems to us that proponents who argue that these contracts merely carry out the principles of majority rule could hardly object to legislation that makes it conclusively clear that there is a majority in the first instance.
Without belaboring the point and repeating arguments of others on the principles involved in the repeal of 14(b) I want to say that the American Retail Federation feels strongly that it should not be repealed or modified.
I notice Senator Javits has now come in. I would like to point out that on June 14, I believe S. 2133 was introduced in the Senate.
Let me say that I believe your bill deserves the most earnest consideration by this committee because you have recognized what I am trying to say here, that we have to be absolutely sure that the union represents the employees in the first instance if we are going to have a union shop.
I believe your bill also eliminates the only possible argument that could be made against this election requirement, that an employer might destroy a real majority by unfair labor practices before an election was held.
There is only one thing, Senator, that I am not sure that your bill would reach.
I have been involved in so many elections when the unfair labor practice consisted of merely a simple inquiry by a foreman (but he binds the employer)—“Did you go to the union meeting?" or "How did you vote?”, or something like that. Under present NLRB cases that is enough to go through one of these card checks and order bargaining in the absence of an election.
I want to say one other thing with respect to the testimony that I have heard since I have been here yesterday and today, and that is that there has been some talk about the deauthorization election that is provided by section 9(e)1.
All that does is say that when there is a union shop then the employees may obtain an election to deauthorize the union from entering into a union shop or a successive union shop.
All I can say about that is it sounds good but as a practical matter it just does not work. The reason it does not work is that the employees, in the first place cannot have the assistance of the employer in getting the required 30 percent; so they cannot do it on company property; they can hardly do it at the union hall.
They have marshaled against them all the forces of the union which wants a continuation of union shop, so I am not surprised when I checked the annual reports of the Labor Board and find that section 9(e)1 is used from 6 to 10 times a year, in all of the United States.
So far as I am concerned that is a provision in the statute that might just as well not exist.
Senator Javits. May I ask a question there?
PROPOSAL TO PROVIDE ELECTIONS IN LIEU OF "CARD CHECKS" Senator Javits. I have to apologize for not being here all morning. I have had other committee meetings, and I am due on the Senate floor. I want to apologize to my own witness, Professor Sovern, for my being in that situation.
Would you feel that if we did amend the law to provide that there should be an election and that it should not just be left to the signed cards, would that in your judgment serve to equalize the situation more as between certification and deauthorization?
Mr. SHROYER. Yes. I am heartily in favor of any type of legislation which would permit an election in the first instance.
At the moment I am only answering what other people have said, there is an election possibly later. As a practical matter, Senator, I do not think there is.
You have that one, and also the other point that has been made, and it was made by Mr. Biemiller yesterday, that when we used to have in the law the old section 9(e), where you had to have an election before you could have a union shop, that unions won 59 percent of those elections.
I want to comment for just a moment on that one. I think in the first place that it can be made out that those cases were picked as ones that they could win, but above and beyond that you again have a situation where you are not really voting on the issue.
In other words, the union is in, they are bargaining, so a vote for a union shop becomes really a vote to give the bargaining committee more strength. It is almost like the situation in World War II, Senator, when we used to have the Smith-Connally strike vote elections and even during wartime there you had a vote to authorize a strike, but it was not the real issue.
I have conducted a lot of them, the vote was to give your bargaining committee more power. Therefore, I think the statistics on that type of election are rather meaningless.
Senator Javits. May I say this, what inspired me to raise the issue about card checks was the situation with respect to so-called racket unions. A racket union could be representing employees in a certain shop to the exclusion of a legitimate union.
We had that in New York in certain cases, where all of the employees wanted to go over to a well-established legitimate union, but were unable to get out of the trap they were already in being represented by a racket union.
Now the racket unions occupy a relatively small part of the field. But even if they occur in 3 percent of the cases it is still a desirable check and balance on racketeering in unionism to require an election which gives a moment of deliberation for the employer and the employee before their feet are on the flypaper—to wit, the union represents the workers just because it got them to sign cards. It is almost impossible to expect you to get evidence that quickly of coercion or the fact that muscle was used in getting the cards signed, and so on. You learn about those things later; but at least a little deliberation, a little opportunity for people to think it over may be helpful in keeping employees from getting into that kind of situation.
Mr. SHROYER. Well, Senator Javits, I agree entirely that your bill would accomplish that purpose. To me it accomplishes a little more.
Senator Javits. I am glad.
Mr. SHROYER. Because I think there are other situations where it is not a racket. I think these NLRB cases, and Mr. Browne is going to talk about them, I am about through, there are many cases where there is not a true majority.
Mr. Chairman, before I quit and turn it over to Mr. Browne, there is an article in the U.S. News & World Report, it runs two pages and is a résumé of all of these cases that we have in our brief and a lot of other ones. I have checked all the references, and I have read the cases. I would like to have it inserted in the record at this point.
Senator McNAMARA. Without objection, it shall be done. (The article referred to follows:)
[From the U.S. News & World Report, Mar. 15, 1965)
ANOTHER WORRY FOR EMPLOYERS Should a union's right to represent workers in union-management negotiations be determined only by a secret ballot among those workers?
What are management's rights if an election is disregarded, or not even held?
Can an employer be sure a union speaks for his workers if the Labor Relations Board says so?
In some cases, union "pledge cards”-not ballots—are used to determine whether a union is supported by a majority of a firm's employees.
But are "pledge cards” a reliable guide?
In the following, a New York lawyer who is an authority on labor law examines a Government practice that has become controversial. (By Woodrow J. Sandler, attorney, specializing in labor-management relations)
If Congress amends the Taft-Hartley law at this session, there is one subject that should be high on the agenda. That is the National Labor Relations Board's power to determine a union's majority by a count of "pledge cards.".
Under the law, every employer mu recognize and deal with a union that represents a majority of his employees. To find out whether & majority wants the union, the Board uses either of two methods:
1. An election by secret ballot, or
In 1947, many practitioners in the labor-relations field thought that Congress had abolished the second method when it enacted Taft-Hartley.
In 1948 the Board itself said:
The Taft-Hartley law "prescribed the election by secret ballot as the sole method of resolving a question concerning representation.” [Italic supplied.)
It didn't turn out that way, however. When a union demands recognition, the employer still has no absolute right to a secret-ballot election in all cases.
To obtain one, he must have an honest doubt—which he has the burden of proving—that the union has a majority. If he launches a campaign of coercion and intimidation, or otherwise fails to prove a "good faith” doubt, the Board will order him to recognize the union, based upon a majority of signed cards obtained by the union during the organizing campaign.
Union pledge cards are actually most unreliable as proof of the employees' true wishes.
Many employees are solicited to "sign up" under the scrutiny of union organizers or fellow employees.
Organizers and employee leaders sign up employees in the street, at meetings, in restaurants, in bars, in the company's lunch room or rest rooms, or at the employees' homes.
The fact that an employee signs often means very little. Many will sign out of ignorance, or even fear. The average employee wants to be one of the boys," and he also wants to stay out of trouble. He may follow the path of least resistance and sign just to get the organizer "off his back.”
The AFL-CIO itself doesn't think much of pledge cards as proof of anything. In its “Guidebook for Union Organizers" (1961) it says:
“NLRB pledge cards are at best a signifying of intention at a given moment. Sometimes they are signed to get the union off my back'. *** Whatever the reason. there is no guarantee of anything in a signed NLRB pledge card except that it will count toward an NLRB election.” [Italic supplied.)
The term “NLRB pledge cards" is obviously a misnomer.
What's more, some overly enthusiastic organizers are not averse to "pursuading” an employee to sign by making statements, such as:
"Everyone else has signed up—you'd better, too, or you'll be 'out'."
"This card is just so we can get 30 percent for an NLRB election. You can still vote any way you want to."
"Sign up, or when we get in, you'll be out."
“Bandwagon psychology is always an important factor in inducing hesitant employees to sign union authorization cards. (TMT Trailer Ferry, Inc.)
Statements like these aren't always necessary as "persuaders." 'In one case. two employees testified that they signed cards in the belief that by so doing they would be invited to a union party.
Unfortunately, the Board has held that it doesn't care what the employee thought he did —it's what he did that counts.
In one case (Peterson Bros., Inc.) the trial examiner held an employee named Matthews to have joined because:
"If Matthews did not read the card before he signed, this omission was his own choice and was not attributable to the union representatives.”
In another case, employee La Disa was gathered into the union fold as follows (Philamon Laboratories, Inc.):
La Disa: "In the beginning I didn't want to join, until they kept getting into me.
She (his aunt) was away and they told me not to tell her. *** If I would tell her, I would have no friends in the shop. * * * The last day they got at me, I said I would sign it. I said that maybe they won't bother me no more. When my aunt got back, I told her. We got together and I said I made a mistake, because she knows a lot about the unions."
The examiner, with Board approval, included this card, saying, "His designation of the union was his own voluntary act. ***"
Sometimes signed cards are undated. They may be relics of a prior unsuccessful campaign conducted a year or more before.
The Board attempts to screen out the old cards, and also those which have been signed because of the organizer's coercion or misrepresentation. But such testimony is not easy to come by, because of employees' fear.
Also, it is not unusual to find that some employees' names have been placed on cards without their knowledge or consent. Despite the protests of these employees, their "signatures” are counted by the Board in some instances (Peterson Bros., Inc.):
An employee denied that he had authorized anyone to sign his name for him. Two employees contradicted him. The Board believed the two employees and counted his card.
An illiterate employee's wife signed his name and mailed the card in, which made him “annoyed," as he had not authorized her to do this. The Board counted his card because he “had made no attempt to recover the card or rescind her action."
"AN EMPLOYER WHO VIOLATES NO LAW" STILL MAY BE IN TROUBLE
Is it realistic to expect any employee to ask the union to return his card to him? In the past, Board decisions have called union pledge cards “notoriously unreliable,” in situations where two unions are organizing simultaneously. They found that in many cases a majority of employees signed cards for both of the competing unions.
In a typical case, a previous Labor Board said:
“* ** This Board has also long recognized that authorization cards are a notoriously unreliable method of determining majority status of a union *** where competing unions are soliciting cards. * **" (Sunbeam Corp.)
They are no more reliable when a single union seeks to organize the employees.
ONCE “THE DIE IS CAST'
Union recognition is like a marriage. It's easy to tie the knot, but most difficult to untie it if dissatisfaction develops.
Actually, it's almost a "double wedding.” The employer and the employees “marry” the union. Once the ceremony is performed, the die is usually cast for many years to come.
In view of this fact, it is unfair to compel law-abiding employers to recognize a union based on a count of pledge cards. They should be entitled to an election by secret ballot.
Let's not forget the employees, either. They, too, are entitled to be able to vote in private before they say, "I do.”
True, many employees sign cards because they really want to join the union. But they rarely know anything about the costs or the obligations of unionism when they sign.
In most cases, when the employee signs a card he has heard only the union's side of the story. Is he aware of the costs of joining? Has he ever heard of assessments? Does he know what the union rules are? That he can be brought to trial for their violation and fined if found guilty? That he may be called on to do picket duty? That the union doesn't have to keep its campaign promises? Does he know anything about the reputation of this particular union? Usually not.