Nancy Kassebaum

Mrs. KASSEBAUM

Mrs. KASSEBAUM. I wonder if the Senator will yield for a question?

Mrs. KASSEBAUM

Mrs. KASSEBAUM. Mr. President, let me suggest to the Senator from Iowa, that there were those who questioned the legality of the prehire Executive order, but never challenged it in the courts. While it was a bit questionable in my mind, I did not challenge it. But I think in this case we have a situation where Congress has addressed striker replacements the past two Congresses, and labor law matters generally for over 60 years. We can argue whether President Bush's prehire contract Executive order should have been challenged. That is debatable. As the Senator says, he did not challenge it because he agreed with it. I would suggest President Bush's prehire contract Mr. President, I probably did not think about it much at the time. But I suggest that this Executive order goes even further. That is my concern.

Mrs. KASSEBAUM. Mr. President, did the Senator from Iowa speak out against it?

Mrs. KASSEBAUM. Mr. President, I say to the Senator from Iowa that I cannot disagree with what he is saying. But then, would you turn right around and say that the President of the United States should enter into and completely change the dynamics by intervention? I think what we are debating about is what authority the President has to tilt the balance of what we really have felt was a balance. And I am sympathetic with what the Senator from Iowa is pointing out; that Goodyear worked it out and they did not at Bridgestone. But I argue that through this Executive order we now find the President completely intruding in a labor-management relationship. If we find legislation to decide to do so and have that debate and vote, that is a different matter. But I think the Senator from Iowa certainly recognizes that we have some question about what is in the Constitution and the separation of powers between the executive and the legislative branches. As much as I am sympathetic with the argument that the Senator from Iowa is pointing out, the argument I would want to make on this amendment is the way we are trying to intrude on law that does exist. That is my point. I think the case made is one that obviously resonates, but this is the wrong way to handle it.

Mrs. KASSEBAUM. So these very workers who were in jeopardy of losing their jobs because the company was going bankrupt now have at least had an opportunity, if they so chose to do so, to work for a company that is productive and is going strong. Whether or not they should have done it by replacing striking workers, I would argue, is not what we should be debating here. I suggest to the Senator from Iowa, we can have this debate at another time. But what we should be debating here is something that follows on just the past weeks and months of debate that we have had on the separation of powers regarding the Constitution. That is why I feel we ought to take seriously this Executive order. I do not mean to intrude on the time of the Senator from Iowa, but I think that if you get into the particular situation of Bridgestone/ Firestone it was not a question of long-time workers somehow being forced out in the cold. There was a great tragedy that Firestone was teetering on the edge of bankruptcy and was going under. But I would like to go back to the fundamental issue here, which really is the separation of powers. I yield and thank the Senator from Iowa.

Mrs. KASSEBAUM. Mr. President, in response to the Senator from Massachusetts saying a family had worked a lifetime at Firestone, is it not correct to say that Firestone was going broke when it was purchased by Bridgestone? So the future of the workers at the old Firestone Co. was in some jeopardy at that time. Not to go into, again, a lengthy debate on the practices of Bridgestone, but, at the time the whole issue was not wages so much as hours. The Senator from Iowa has already discussed that. But they said they needed to do the shift in hours to cover capital costs. When you mentioned what Iowa chipped in and asked the taxpayers to spend in support of Bridgestone. Was that not something that was debated, at least, in the Iowa Legislature? Or was it a decision made by the Governor, I suppose, on how much taxpayers' support would be given to Bridgestone at that time? It was not something that was done without some approval somewhere along the line, isn't that correct?

Mrs. KASSEBAUM. Mr. President, I wonder if the Senator from Iowa will yield for a moment, again?

Mrs. KASSEBAUM. We can debate the differing interpretations of Japanese labor law, but I do think it is different. I just wanted to say that I think it is unfair to compare the two. At some point, I will go into it, but I wanted to make that point. I thank the Senator.

Mrs. KASSEBAUM. They do not strike in Japan.

Mrs. KASSEBAUM. I do not want to get into a debate about Bridgestone's policies in this country, but wouldn't the Senator from Iowa agree that labor law is very different in Japan? So I think that when you say that in Japan they could not do this, this is because they have different labor laws in Japan and seldom have strikes. I do not think it is an exact comparison about what they may be trying to do in the United States versus the fact they would not do it in Japan. There are many reasons they cannot do it in Japan, is that not correct?

Mrs. KASSEBAUM. I wonder if the Senator will yield for a question.

Mrs. KASSEBAUM. Mr. President, I want to respond to several things that have come up during the course of the debate this morning. First, this amendment is not an effort to embarrass the President. Second, I feel strongly that this Executive order sets a precedent that we need to carefully examine. Third, we all care about justice in the workplace and for the workers. But it has been stated that this Executive order will actually restore the balance. That through this Executive order there will be balance that then will be maintained between management and labor. I argue that actually it will totally unbalance the labor/management relationship which has existed over 60 years under our Federal labor laws. Sometimes it has been abused by management. Sometimes it has been abused by labor. It was stated that if management can hire permanent replacement workers, then it would be very unfair to the strikers. Why would, indeed, strikers not be able to have any voice at that point? Strikes have continued on, and at great loss to those who were striking, where permanent replacement workers have been hired. However, if you were to forbid any permanent replacement workers, then strikes could continue on forever and the workplace could be totally shut down. A business could be totally shut down. Leverage has to be equal on both sides. I suggest that when discussing this Executive order it is very murky to talk about either Caterpillar or Bridgestone/Firestone because at some point large companies, in fact many companies large or small, have Federal contracts. This would say, if indeed a strike is ongoing--which Bridgestone/Firestone is--and there have been permanent workers hired, it does apply to them. So I suggest the Executive order will not restore the balance between labor and management. It actually undermines it. This is not a debate about the minimum wage. This is not a debate about Davis-Bacon. This is not a debate about school lunches or child care or welfare reform--all the things that have come into play. It is indeed not about any of these. I suggest to the Senator from Minnesota, because he cares passionately about this, that there could be a time when a Republican President could issue an Executive order banning all strikes. If you start down this slippery slope of totally disregarding labor law, the legislative authority to enact law, this could happen. Where authority to shape labor law should be is in the halls of Congress where it is determined through legislation. There has been much talk here about President Reagan and President Bush by Executive order having done the same thing. If I may, I will just go through this again. The Bush administration did issue an Executive order requiring Federal contractors to post a notice informing workers of their rights under Federal labor law. That is a given. That was not, in any way, changing labor law. President Reagan, when air traffic controllers went on an illegal strike, did replace those striking workers with permanent replacement workers. There was legislation that followed in both the House and Senate wanting reinstatement of those fired air traffic controllers after a certain period of time, but this legislation did not pass. And that is why we get to the third one, Mr. President, which I suggest might be a little murkier--and I listened to Senator Kennedy's arguments regarding the prehire agreements. There are some, in fact, who believe that President Bush's Executive order was illegal although it was never challenged in court. It could have been challenged, just as I assume this Executive order will be challenged. Unlike the case of the prehire agreement Executive order, we are currently faced with a situation where Congress has declined to change the law for more than 60 years. I argue that this striker replacement Executive order has far broader implications. If we continue down what I have said is a slippery slope, I fear we may see future administrations that will then be trying to limit not only the rights of management but the rights of workers as well. This is not the way we should determine major labor law--by an Executive order. I share many of the sympathies that have been expressed by either the Senator from Wisconsin or the Senator from Minnesota about the desire to see stability in the workplace, the desire for good wages, the desire for those who are working today to know they have a future in that workplace instead of uncertainty from month to month, if not year to year. But this is not the answer. And I suggest, Mr. President, that it creates an imbalance that will cause greater uncertainty in the workplace and greater instability in the workplace, not less. As we look to the future of trade, productivity, and competition, we want to be able to be partners with both labor and management and try to realize a stable and productive workplace. But through this Executive order, we have undermined, I think, and further eroded a sense of trust and a responsibility that should exist between labor and management. If we tie one hand behind management's back, or if someone finds a way to tie one hand behind labor's back, we have created imbalance. Who is to say what issue is fair or unfair? It cannot be done here. Many of us argue this about the baseball strike. We have said that Congress should not intervene in these strikes. There must be some credence given to the bargaining table, where management and labor have to come together, I hope, for the best interests of both sides. That is what this argument is about. It is not about the Contract With America and all of these other extraneous issues. It is about an Executive order that takes away the rights of Congress to, by legislation, enact or reject legislation--in this case, affecting labor law, which has always been our prerogative. We can have the debate once again on permanent replacement for striking workers at another time and in another forum. But this debate is simply about an Executive order. The reason I add it as an amendment to the defense supplemental is that many of those who have worked with defense contracts are the very workers and businesses that could well be affected by this Executive order. That is why it seems to me to fit on the defense supplemental legislation before us today. I do not think there needs to be extended debate because I believe we all know what the issue at hand is and how we feel. I would be happy to enter into a time agreement. time, and stand willing to do so, Mr. President, if that will be agreed to by the other side of the aisle. I yield the floor. Mr. WELLSTONE addressed the Chair.

Mrs. KASSEBAUM. No. I will respond when the Senator from Minnesota yields the floor.

Mrs. KASSEBAUM. Mr. President, I appreciate the answer. I think it is still very unclear, and I think it indicates why there would be a lot of uncertainty about this Executive order. I appreciate the answer.

Mrs. KASSEBAUM. First, you implied this Executive order would not affect very many companies, that it will only touch on a few Federal contractors. I notice there is some confusion about this that maybe you can clarify. There has been some question as to whether it would or would not affect the Bridgestone/Firestone strike for which, of course, there have been permanent replacement workers. For all intents and purposes, it has been thought that this Executive order was only proactive, not reactive. It states: The provisions of section 3 of this order shall only apply to situations in which contractors have permanently replaced lawfully striking employees after the effective date of this order. In section 3, there is some confusion. It says: When the Secretary determines that a contractor has permanently replaced lawfully striking employees, the Secretary may debar the contractor, thereby making the contractor ineligible to receive Government contracts. So I think it could be read that the Secretary of Labor could, as a matter of fact, go back and say that if there were permanent replacement workers, then the contractor could be debarred from Federal contracts. This places us, of course, right in the middle of a major management/labor dispute. One which, of course, is taking a real toll. I would like to ask the Senator from Wisconsin, who has the floor, if he knows what the clarification may be? I think this could cause real confusion.

Mrs. KASSEBAUM. I wonder if the Senator from Wisconsin will yield to me for a moment for a question? Going back to a question between the Senator from Minnesota and the Senator from Wisconsin a minute ago.

Mrs. KASSEBAUM. Mr. President, if I may speak for a few moments. I spoke last night, when I offered my amendment, about what I regarded as an exceptionally important issue. I would like to go through some of those same arguments again for those who might not have been in their offices or on the floor last night. I offered an amendment that would prevent the President's Executive order on striker replacements from taking effect. I offered the amendment because I am deeply troubled by the precedents that will be set by this Executive order. This is not a debate about whether there should or should not be the opportunity to replace striking workers with permanent replacement workers. As we debate this amendment, Mr. President, we will hear a great deal on both sides about the use of permanent replacements. In my view, a ban on permanent replacements will upset the fundamental balance in management-labor relations that has existed now for 60 years. We have debated this issue for three Congresses now, and I know there are strongly held views on both sides. That is not the only issue that is at stake here. The central issue before Members this morning is whether our national labor policy should be determined by executive fiat rather than by an act of Congress. I think this is an enormously important question, Mr. President, because it really does set a precedent that we should consider carefully. By limiting the rights of Federal contractors to hire permanent replacements, the President has, in effect, overturned 60 years of Federal labor law with the stroke of a pen. I am not a constitutional scholar. But I do know that it is the President's role to enforce the laws, not to make them. By issuing this Executive order, the President has, in my view, overstepped his bounds. For the first time, to my knowledge, the President has issued an Executive order that contravenes current law. The order will effectively prohibit one group, Federal contractors, from taking action that every other company is legally permitted to do under current law. Regardless of what one thinks about the merits of the striker replacement issue, we should all be concerned about the precedent that this order will set. For example, what if a President decided to debar Federal contractors whose workers decided to go on strike? Mr. President, the right to strike is legal, just as the right to hire permanent replacement workers for striking workers is legal. So it could eventually affect both sides of the coin if indeed we are going to start down this slippery slope. Supporters of the President's action should think twice about the precedent this will set for future administrations that wish to alter labor law through the Federal procurement process. We will hear in the course of this debate that this Executive order is nothing new, that such orders were issued by previous administrations. The fact is that none of those Executive orders ran contrary to established labor law. For example, President Bush issued an Executive order to enforce the Supreme Court's Beck decision. That order merely required employers to post a notice to employees informing them of the law. Its purpose was to enforce the law as set by Congress and interpreted by the courts. No one's rights were infringed. No congressional policy was violated. No new rights were established. No existing rights were taken away. By contrast, this new Executive order overturns a legal right that has existed for 60 years and undermines the existing framework of our Federal labor law which Congress, for decades, has declined to change. Mr. President, we all have sympathy for the situations occurring in plants today where there have been long ongoing strikes. We have sympathy for the hardships striking workers face. But I am a strong supporter of the collective bargaining process. If indeed we tie one hand behind our back, whether it is for strikers or for employers, we have harmed the collective bargaining process. I urge my colleagues to look at the fine print of this Executive order. It sets out a new and unprecedented enforcement and regulatory scheme, all without the slightest input of Congress. The Executive order gives the Secretary of Labor the power to determine violations of the order, a power which Congress in similar circumstances has delegated to the National Labor Relations Board. In addition, the Executive order gives the Secretary of Labor authority to write new regulations on who will be subject to the order. Not only does the Executive order circumvent Congress by making a new law, it also creates more new regulations. According to the Washington Post today, at least part of the administration's motivation for issuing the Executive order stems from recent strikes such as Bridgestone/Firestone Co. We can all appreciate the emotions and upheavals that occur in any labor dispute. They are troubling to each and every one of us whether it occurs in our State or not. Just weeks ago the Senate overwhelmingly rejected a sense-of-the- Senate resolution urging intervention in the Bridgestone dispute. Here again, the administration has chosen to go around Congress by this Executive order. Many on both sides feel quite strongly about the issue of striker replacements. I believe existing law provides an appropriate balance between the interests of management and labor. But we will also hear from those who oppose this amendment because they believe that using striker replacements is inherently unfair. That issue will be debated, I am sure, at another time. We have done so in the past. Mr. President, that misses the point. Regardless of what we believe about striker replacements, it is up to Congress and not the President to set our national labor policy through legislation. We should not relinquish that authority by permitting this Executive order to stand.

Mrs. KASSEBAUM

Mrs. KASSEBAUM. Madam President, I suggest the absence of a quorum.

Mrs. KASSEBAUM. Madam President, I appreciate the Senator's statement. I, too, think it is a very important issue. I ask unanimous consent that the following Senators be listed as original cosponsors: Senators Dole, Warner, Hatch, Thurmond, Gramm, and Gregg.

Mrs. KASSEBAUM

Mrs. KASSEBAUM. Madam President, I ask unanimous consent that further reading of the amendment be dispensed with.

Mrs. KASSEBAUM. Madam President, if I may just explain for a moment. I believe it is going to be the expressed wish of the chairman and the managers on the floor to bring this amendment up again tomorrow, but I would like to briefly talk about it yet this evening. I am offering an amendment which would prohibit the executive branch from spending any money to implement the Executive order limiting Federal contractors from hiring permanent striker replacements. This legislation assures that the Congress, rather than the executive branch, decides major labor-management relations policy. Federal labor law permits workers to strike. It also permits employers to continue to operate during a strike, if necessary, by hiring permanent replacements for striking workers. This has been the law of the land for 60 years. Madam President, as my colleagues may recall, during both the 102d and the 103d Congress, the Senate rejected legislation that would have amended our Federal labor laws to prohibit employers from hiring permanent striker replacements. In fact, more Senators voted against the measure in 1994 than in 1992. In an attempt to make an end-run around the Congress, the administration today has issued an Executive order that would debar Federal contractors that hire permanent striker replacements. I view this as a direct challenge to congressional authority. Congress makes the laws, not the administration. We have the responsibility, as the representative body of the people, to decide labor-management policy through legislation. The executive branch should not attempt to use the Federal procurement process to make major changes in our labor laws. The amendment I am offering today prohibits the administration from spending any appropriated funds during the 1995 fiscal year to implement or enforce any Executive order that would limit Federal contractors or subcontractors in their use of permanent striker replacements. This amendment assures that the Congress, rather than the administration, establishes Federal labor policy. Madam President, I understand that the administration contends that the striker replacement Executive order is no different than previous Executive orders issued by past Republican Presidents. This argument has no merit. If I may just for a moment comment on those previous Executive orders. The Reagan and Bush administrations issued Executive orders requiring Federal contractors to post a notice informing workers of their rights under Federal labor law, prohibiting Federal contractors from signing agreements that they would hire only unionized work forces, and prohibiting the illegally striking air traffic controllers from being rehired into Federal jobs. None of these Executive orders that I mentioned--and there were three--dealt with a subject that the Senate had debated and rejected. None of these Executive orders was an attempt to make wholesale changes in the balance of labor-management relations. Clearly, these previous Executive orders differed significantly from the striker replacement Executive order. Madam President, I suggest this action is without precedent. I urge my colleagues to give support to this amendment. Madam President, if there is no further debate at the moment on this amendment, I ask unanimous consent to speak as if in morning business for a few moments.

Mrs. KASSEBAUM. Madam President, I send an amendment to the desk which is a second degree to the first committee amendment, and ask for its immediate consideration.

Mrs. KASSEBAUM. Madam President, if I may ask a parliamentary question, Is the Bumpers amendment the pending business? Is that correct?

Mrs. KASSEBAUM

Mrs. KASSEBAUM. Madam President, I would like to speak for just a moment in memory of Senator Jacob Javits, the distinguished New York Republican who served in this Chamber for 24 years. I think it does us all good to reflect on his career. I was honored to serve with Senator Javits for 2 years. In that time, I came to admire and respect him as a man who always scrupulously prepared for any legislation, who worked hard out of the spotlight, and who voted his conscience. And what a conscience it was. He did not have his name attached to very many bills--he was a Republican, after all, back when Republicans were not in the majority. Senator Javits served from 1958, just missing the years that the Republicans were in a majority at the time of President Eisenhower, to 1980, just again missing the time the Republicans had a majority. But Jack Javits had his hand in more landmark legislation than most. The War Powers Act, the ERISA Act protecting private pensions, and the establishment of the National Endowment for the Arts and Humanities are often cited. But he also played important roles in civil rights and housing legislation, and late in his career, as the ranking member of the Foreign Relations Committee, he helped set the stage for the historic Middle East peace settlement. Nine years ago yesterday, Senator Javits died. His daughter, now the director of a housing program for disabled homeless, wrote a tribute to her father for yesterday's New York Newsday. She carries on his legacy well. I ask unanimous consent that her article be printed in the Record. It is a fitting homage to her father, a man of public service and conscience. We miss

Mrs. KASSEBAUM. Madam President, I yield the floor and I suggest the absence of a quorum.