Ted Kennedy

Mr. KENNEDY

Mr. KENNEDY. Mr. President, I see the Senator----

Mr. KENNEDY. I understand the other half hour is for the Senator from Pennsylvania. The Senator from Pennsylvania intended to yield to the Senator from Texas. I think I can yield 15 minutes to her on his behalf. I think the Senator can probably get more when Senator Specter gets back.

Mr. KENNEDY. Mr. President, would the Senator yield for a question?

Mr. KENNEDY. From what the Senator said, therefore, what we are doing on the border is the most extensive border security in the history of this country, No. 1; No. 2, with the--am I not correct on that, that this will be the most extensive--extensive paid-for border security in the history of this country? Am I correct?

Mr. KENNEDY. Secondly, if this legislation doesn't go through, we are not going to have that provision; is that not correct as well?

Mr. KENNEDY. All right. Thirdly, is the Senator saying this is not only an issue on border security, but it is an issue with regard to national security because we don't know who those people are and they disappear into our country, and those who have spoken about national security in this country have urged us to take this action?

Mr. KENNEDY

Mr. KENNEDY. Mr. President, will the Senator yield for a question?

Mr. KENNEDY. Isn't it true that the Finance Committee estimated that under these systems, there were going to be a certain number of mistakes that were going to be made?

Mr. KENNEDY. That is exactly right. It is significant numbers, in the hundreds of thousands, as I remember. It is in the hundreds of thousands of mistakes that are going to be made as they set this up. I am just wondering about the protection of those workers. In our bill, we provide that those individuals should be protected because they can keep their jobs while they appeal a nonconfirmation. I am wondering if the Senator will relate to us how he thinks----

Mr. KENNEDY

Mr. KENNEDY. Mr. President, today we take one more giant step to open the workplace doors wider for people with disabilities. The joining of businesses, consumers, and the Congress is powerful--and we will pass this bill. I thank Senator Roberts for his vision and leadership on this legislation. In the winter of 1999, President Clinton signed the last bill of the millennium into law at the FDR Memorial--it was the ``Ticket to Work'' Act. Hundreds of disabled people managed through the snow to get to the memorial that day, in hopes of finally being of part of our Nation's great economy. That law has made a big difference in giving disabled workers access to health care by allowing them to work and buy Medicaid--but securing actual employment has been a much harder challenge. Many of the nation's ``return to work'' programs are outdated and do not engage employers to hire disabled workers to the fullest extent possible. This legislation will expand opportunities for disabled workers and reward employers who are willing to do the right thing: by paying disabled workers a decent salary; by providing and contributing to the cost of their health care insurance; and by placing workers in an environment where they can work alongside their non-disabled friends and neighbors. ADA has led to enormous societal change. It has fundamentally altered how our society views disability, and that change will be its most lasting and significant contribution. But the ADA was also intended to address the very real barriers to people with disabilities looking for a job, a house, an education, and even a bus ride--and we still have a lot of work to do to meet that promise. This legislation is one positive step forward as we continue to fight for more opportunities for disabled people to go to work and contribute to their communities.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, today we take one more giant step to open the workplace doors wider for people with disabilities. The joining of businesses, consumers, and the Congress is powerful--and we will pass this bill. I thank Senator Roberts for his vision and leadership on this legislation. In the winter of 1999, President Clinton signed the last bill of the millennium into law at the FDR Memorial--it was the ``Ticket to Work'' Act. Hundreds of disabled people managed through the snow to get to the memorial that day, in hopes of finally being of part of our Nation's great economy. That law has made a big difference in giving disabled workers access to health care by allowing them to work and buy Medicaid--but securing actual employment has been a much harder challenge. Many of the nation's ``return to work'' programs are outdated and do not engage employers to hire disabled workers to the fullest extent possible. This legislation will expand opportunities for disabled workers and reward employers who are willing to do the right thing: by paying disabled workers a decent salary; by providing and contributing to the cost of their health care insurance; and by placing workers in an environment where they can work alongside their non-disabled friends and neighbors. ADA has led to enormous societal change. It has fundamentally altered how our society views disability, and that change will be its most lasting and significant contribution. But the ADA was also intended to address the very real barriers to people with disabilities looking for a job, a house, an education, and even a bus ride--and we still have a lot of work to do to meet that promise. This legislation is one positive step forward as we continue to fight for more opportunities for disabled people to go to work and contribute to their communities.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, I welcome this opportunity to pay tribute to the distinguished career of Frank Monahan, who will retire in a few days after 36 years of service to the U.S. Conference of Catholic Bishops. Since 1971, Frank Monahan has worked on many of the great social justice issues of our day, always taking the side of the vulnerable, the voiceless, and the victims, always standing firm in his belief that here on earth, God's work must be our own. In the finest Jesuit tradition of his alma mater, Loyola University of Chicago, Frank Monahan is a man who has dedicated himself to serving others. Early in his career, he was a Peace Corps volunteer in Nigeria. He was responding to President Kennedy's call to a new generation of Americans to engage themselves in public service and to help spread hope and the message of peace and cooperation throughout the world. He went on to work in Chicago public schools, helping to implement antipoverty programs and improve school lunch programs so that poor and hungry children would be free to learn, without fear of want. His good nature, strong commitment, and eternal optimism that we can leave the world better than we found it will be missed by all of us in Congress, but they will not soon be forgotten. It has been my great privilege through the years--under seven different Presidential administrations--to work with Frank on issues of fundamental fairness and justice. When I think of him, I am reminded of my brother Robert F. Kennedy's words: Each time a man stands up for an ideal, or acts to improve the lot of others, or strikes out against injustice, he sends forth a tiny ripple of hope, and crossing each other from a million different centers of energy and daring, those ripples build a current that can sweep down the mightiest walls of oppression and resistance. I commend Frank Monahan for the countless ripples of hope he has sent out in his career. We will be sad to see him leave, but heart in the fact that this great friend and ally will continue, in new and different fields, to live out the words of the Gospel of Mathew: For I was hungry and you gave me food, I was thirsty and you gave me drink, a stranger and you welcomed me, naked and you clothed me, ill and you cared for me, in prison and you visited me. He has certainly earned his retirement. As Frank and his family look forward to meeting the new challenges and opportunities that lay ahead, I am sure God is looking down on him now and saying, ``Well done, my good and faithful servant.''

Mr. KENNEDY

Mr. KENNEDY. Mr. President, it is long past time for the Nation's health care industry to adopt modern information technology. Such technology has revolutionized a wide array of American industries, and it holds the same promise for the health care industry. It has a clear capacity to increase efficiency and reduce costs at a time when the industry is being plagued by the alarming rise in health costs. Staggering inefficiencies imbedded in our health care system prevent patients across the country from receiving the type of care they deserve. Forty percent of Americans have been victims of preventable medical errors, and as many as 100,000 patients die each year from such errors. In a Nation which already spends more on health care than any other country, a modest investment in health IT is a small price to pay for a safer and less costly health care system. Some health facilities with resources at their disposal have already invested in IT systems with great success. Meanwhile, the most vulnerable institutions lag further and further behind in the adoption of necessary technology. It now costs a physician's office about $40,000 to implement a new IT system. Providers with financial need deserve access to information technology to close the health IT gap, so that patients across the country have access to quality health care. The Senate unanimously approved the Wired for Health Care Quality Act in the last Congress. Today, Senator Enzi, Senator Hatch, Senator Clinton, and I are reintroducing that bill, and we urge its swift passage. By setting national standards for health information technology and by offering funds for IT investment, the legislation will help providers overcome both the technical and the financial barriers to adopting and implementing health IT systems. Recognizing the financial challenges of such investments, our bill establishes several Federal funding mechanisms to encourage the adoption of this technology. The legislation authorizes Federal grants for providers in need and funds low interest loans in order to ease the burden on health care professionals who invest in new systems for electronic medical records and other purposes. Since the ability of physicians to share information is essential to ensuring effective treatment and eliminating wasteful spending, our bill also provides financial assistance to establish regional and local health IT networks. Rapid exchange of information is essential to ensuring that providers have complete patient information, but the adoption of such technology must be accompanied by strong patient privacy protection. Our bill specifies that the American Health Information Community will be a body to make recommendations to the Secretary of Health and Human Services on patient privacy, information security, and appropriate uses of the technology. In addition, the bill ensures that freestanding health information databases are subject to the same privacy rules as other health care entities and requires grant recipients to implement strong privacy protections themselves. To encourage the implementation of modern health information systems across the Nation, the legislation codifies the role of the National Coordinator for Health Information Technology in the Department of Health and Human Services to coordinate and expedite the adoption of health IT by Federal agencies. In addition, the bill establishes a public-private partnership, the Partnership for Health Care Improvement, to streamline the nationwide implementation of health information systems by establishing standards for interoperability that must be adopted by grant recipients and Federal contractors. Estimates indicate that the widespread adoption of electronic health records could save up to 30 percent in annual health spending, or more than $600 billion a year. Since 45 million Americans are uninsured, we can't delay the nationwide adoption of health IT systems any longer. Interoperability standards will eliminate inefficiencies caused by lack of uniform technology. Increased funding will reduce the widening health IT gap, making the advances of the information age available to all health facilities. The savings generated by these initiatives have the potential to give all Americans access to the Nation's state-of- the-art health care industry. I especially commend the work of my colleagues Senator Enzi, Senator Clinton, and Senator Hatch in developing this needed legislation, and I look forward to its enactment as soon as possible.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, it is long past time for the Nation's health care industry to adopt modern information technology. Such technology has revolutionized a wide array of American industries, and it holds the same promise for the health care industry. It has a clear capacity to increase efficiency and reduce costs at a time when the industry is being plagued by the alarming rise in health costs. Staggering inefficiencies imbedded in our health care system prevent patients across the country from receiving the type of care they deserve. Forty percent of Americans have been victims of preventable medical errors, and as many as 100,000 patients die each year from such errors. In a Nation which already spends more on health care than any other country, a modest investment in health IT is a small price to pay for a safer and less costly health care system. Some health facilities with resources at their disposal have already invested in IT systems with great success. Meanwhile, the most vulnerable institutions lag further and further behind in the adoption of necessary technology. It now costs a physician's office about $40,000 to implement a new IT system. Providers with financial need deserve access to information technology to close the health IT gap, so that patients across the country have access to quality health care. The Senate unanimously approved the Wired for Health Care Quality Act in the last Congress. Today, Senator Enzi, Senator Hatch, Senator Clinton, and I are reintroducing that bill, and we urge its swift passage. By setting national standards for health information technology and by offering funds for IT investment, the legislation will help providers overcome both the technical and the financial barriers to adopting and implementing health IT systems. Recognizing the financial challenges of such investments, our bill establishes several Federal funding mechanisms to encourage the adoption of this technology. The legislation authorizes Federal grants for providers in need and funds low interest loans in order to ease the burden on health care professionals who invest in new systems for electronic medical records and other purposes. Since the ability of physicians to share information is essential to ensuring effective treatment and eliminating wasteful spending, our bill also provides financial assistance to establish regional and local health IT networks. Rapid exchange of information is essential to ensuring that providers have complete patient information, but the adoption of such technology must be accompanied by strong patient privacy protection. Our bill specifies that the American Health Information Community will be a body to make recommendations to the Secretary of Health and Human Services on patient privacy, information security, and appropriate uses of the technology. In addition, the bill ensures that freestanding health information databases are subject to the same privacy rules as other health care entities and requires grant recipients to implement strong privacy protections themselves. To encourage the implementation of modern health information systems across the Nation, the legislation codifies the role of the National Coordinator for Health Information Technology in the Department of Health and Human Services to coordinate and expedite the adoption of health IT by Federal agencies. In addition, the bill establishes a public-private partnership, the Partnership for Health Care Improvement, to streamline the nationwide implementation of health information systems by establishing standards for interoperability that must be adopted by grant recipients and Federal contractors. Estimates indicate that the widespread adoption of electronic health records could save up to 30 percent in annual health spending, or more than $600 billion a year. Since 45 million Americans are uninsured, we can't delay the nationwide adoption of health IT systems any longer. Interoperability standards will eliminate inefficiencies caused by lack of uniform technology. Increased funding will reduce the widening health IT gap, making the advances of the information age available to all health facilities. The savings generated by these initiatives have the potential to give all Americans access to the Nation's state-of- the-art health care industry. I especially commend the work of my colleagues Senator Enzi, Senator Clinton, and Senator Hatch in developing this needed legislation, and I look forward to its enactment as soon as possible.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, I yield 15 minutes to the Senator from Pennsylvania.

Mr. KENNEDY. That is agreeable. We will try to accommodate the time. Senator Specter wanted 15 minutes; others are 5 minutes. But we will be glad to accommodate, so if he goes for 15, you can go for 5.

Mr. KENNEDY. That would be fine.

Mr. KENNEDY. Madam President, I yield myself 1 minute. The fact is, if we sink this bill, if we vote against this bill, we wouldn't even have tried to do all the background checks, we wouldn't even have tried to get a secure border. We know what so many Members of this body are against, but we have yet to hear what they are for. The Senator from Texas outlined in very considerable detail the kind of security to which we believe this legislation is committed. Defeat this legislation and all of that security is out the window. This bill may not be perfect, but it is the best opportunity we have to do something significant and substantial, and I believe the bill is good. I see my friend from Ohio. I yield him 5 minutes.

Mr. KENNEDY. Mr. President, I yield 3 minutes to the Senator from Colorado.

Mr. KENNEDY. Mr. President, I believe I have 6 minutes; is that correct?

Mr. KENNEDY. Mr. President, again I wish to thank my friend from Colorado for putting into 3 short minutes the compelling case for the support for cloture we will be voting on in just a very short period of time and thank him not only for his eloquence and his passion but also the strong ongoing effort he has made to try to make sure this legislation is worthy of the goals he has outlined. He has made an extraordinary contribution, and history will show it. If the Chair will let me know when I have 1 minute left. Mr. President, on the employee checkoff legislation, first of all, we want to point out that free elections are in the Employee Free Choice Act. They are in the legislation. We have heard a lot of issues and questions about whether they are in or they are not in. They are in the legislation. But let me really point out, in the few minutes that remain, why this legislation is necessary. It is necessary because of the impact of what is happening today to so many workers who are trying to be able to pursue their economic interests. This is Verna Bader, a machine operator in Taylor, MN. Verna wanted to form a union to help address health and safety problems at work. This is often the case. It isn't just their own economic interest; it is the health and safety problems they see on the job. She and other union supporters were harassed by the foreman, who threatened: ``If you do get a union in here, you're gonna find out that you aren't gonna have a job.'' We have heard of intimidation, and this is the type of intimidation which so many workers, when they try to form a union, are faced with. After employees voted to form a union, the harassment became unbearable for Verna. ``There's days that I literally went out of there crying. This is the kind of conditions that the employer set.'' Taylor Machine illegally shut down the department where union supporters worked. Eventually, the NLRB ordered the company to give them back their jobs. The company refused and appealed the ruling, delaying justice for the workers. Verna and her coworkers didn't get the backpay the company owed them until 8 years later. This is Bonny Wallace, a nurse from Roseburg, OR. Bonny and her coworkers decided to form a union after the hospital began increasing nurses' patient loads, forcing them to work mandatory overtime. Many times, these workers would come down exhausted at the end of their 8- hour shift and be told: No, you are going to have to continue to work. Many of them had children at home or children they were picking up at school, and they were told they had to go out. The workers tried to find out if they couldn't get at least some kind of recognition of their needs. ``We needed some help and some representation. We needed someone to listen to us, when management would not. That's why we called the union.'' The hospital started a campaign of fear and intimidation. Despite a shortage of workers, the hospital forced them to attend antiunion meetings during their shifts. The meetings were demeaning and dehumanizing. ``We felt insulted by the half-truths they put forward.'' The nurses won the election, but 1 year after the union was certified, they still had no contract. Management has come to bargaining meetings unprepared to negotiate, stalling the negotiations and slow-walking the outcome. So you have the situation where an individual is fired and another situation where they have just refused to negotiate. Now, what happens every year? These are the figures from 2005: 30,000 workers--30,000 workers--have had to get backpay from the National Labor Relations Board because of examples I have just given here this afternoon. And these are not the exception. This is what is happening all over America. It didn't used to be that way. It didn't used to be that way. Years ago, when they did have the card and the checkoff, the numbers that were actually being talked about at that time were about 3,000 individuals. Now, as has been pointed out during the course of the debate, the powers that are out there to defeat these workers, humiliate these workers, intimidate these workers are very effective, and we have 30,000 who get backpay. Employees are fired in one-quarter of all the private sector union- organizing campaigns. One in five workers who openly advocate for a union during an election campaign is fired. That is the technique used in order to destroy. That is what we are trying to deal with in this legislation. That is what this legislation is all about. Let us allow the workers to have the choice and the employee recognition that they can vote for or vote against having a union but not have intimidation. Finally, what are the penalties? I mentioned 30,000 different instances where they had to get backpay. The average backpay in 2005 was $2,660. Imagine that worker out of work for 8 years and finally gets the backpay, and the backpay is $2,660. If you had the violation on this Smokey Bear image, it would be $10,000. This is not only an economic issue, it is a moral issue, and we have this open letter from 124 religious leaders that states: We as leaders of the faith communities, representing the entire spectrum of U.S. religious life, call upon the U.S. Senate to pass the Employee Free Choice Act so that workers will be able to represent themselves. It is a civil rights issue. The Leadership Conference on Civil Rights and the Governors understand this. There is a letter from some 16 Governors, who think this makes sense. There is also this extraordinary letter from a former Secretary of Labor, Ray Marshall, and he quotes the Dunlop Commission. John Dunlop, a Republican, was probably one of the greatest Secretaries of Labor in the history of this country.

Mr. KENNEDY. Mr. President, over the past several days I have addressed the Senate several times about the dramatic changes in our economy, and the overwhelming challenges facing American workers. I am deeply concerned about the growing divide between the haves and have- nots in our country. Working families are not receiving their fair share of our economic gains, and it is threatening the vitality of the American middle class and the American dream. It is time to have a real conversation about economic security. We need to be talking about how we can return to the days where the rising tide really did lift all boats, and working Americans shared in the Nation's prosperity. Unfortunately, my colleagues on the other side of the aisle don't seem interested in having that conversation. Instead, they have chosen to spread misconceptions and half-truths about the Employee Free Choice Act. Before we can continue talking about the economic challenges facing America's workers, we need to set the record straight. I would like to clear up the misconceptions and half-truths about this legislation so we can return to focusing on the issues that matter to working families. First, several of my Republican colleagues have come to the Senate floor to argue that the current system for choosing a union works just fine. They argue that there is no real problem here because 60 percent of NLRB elections are won by unions. Actually, I still find that number disappointing, because in a substantial percentage of the elections that unions lose, the organizing efforts had majority support before the election process began. And nearly half the election petitions filed by unions are withdrawn even before the election occurs because union support has been so eroded that there is no point in going forward. Something happened during the election process to scare and intimidate workers. But more importantly, the number of NLRB elections that unions win does not tell the whole story. What tells the story is how many employees want a union and don't have one. What tells the story is how many workers never get to that stage of the process. According to a December 2006 poll by Peter Hart Research Associates, 58 percent of America's nonmanagerial workers--nearly 60 million--say they would join a union right now if they could. But only 7 percent of employees in the private sector have a union in their workplace. This shows that NLRB elections are not working to get workers the unions they want. Some critics have also taken issue with some of the supporting statistics that I and my Democratic colleagues have used to demonstrate the widespread problem of anti-union behavior and abuses of the law by employers. Specifically, they have attacked a study performed by Professor Kate Bronfenbrenner of Cornell University concluding that employees are fired in one-quarter of all private-sector union organizing campaigns. These attacks are unfounded. Professor Bronfenbrenner's study is one of many research projects that confirm what many of us have long known--that abuses of employees who try to form a union are rampant and our current system has proved inadequate to protect workers' rights. Kate Bronfenbrenner's research has been relied upon for 20 years by Congress and the U.S. Trade Deficit Review Commission, USTDR, among others, to gauge the extent of employer behavior that affects the exercise of rights by workers. Her research has been published in a number of peer-reviewed books and journals where it was found to have upheld the stringent standards for methodological review for those publications. It's abundantly clear that there is a serious problem, but Republicans argue that the Employee Free Choice Act is not the solution. They have pointed to a 2004 Zogby survey of union workers and a 2007 poll of workers by McLaughlin and Associates to argue that workers--even union workers--don't want this. Both the McLaughlin poll and the Zogby poll are unpersuasive. Both of these surveys presented people with a false choice--between majority sign-up and a fair and democratic election. Neither asked workers to choose between majority sign-up and the NLRB election process. I think if the choice was presented accurately those results would have been much different, because a fair and democratic choice is just not what the NLRB election process provides. NLRB elections are so skewed in favor of the employer there's nothing fair or democratic about them. The Hart research survey I have cited is far more accurate--I'll use the exact wording so there's no chance of misunderstanding: Under majority signup, once a majority of employees at a company join the union by signing authorization cards, the company must recognize and bargain with the union, with no election held. Do you favor or oppose this proposal? When asked this question--with no slant or bias in it--70 percent of union members and 50 percent of workers overall supported majority sign-up, compared to only 20 percent of union members and 36 percent of workers overall who opposed it. Beyond public perceptions, when it comes to the substance of the bill, each of the three major provisions of the act--the majority sign- up, the first contract timeline, and the enhanced penalties--has been the subject of misleading and inaccurate attacks. I will address each of these sections of the bill in turn. On majority sign-up, the most common criticism I have heard is that the Employee Free Choice Act is undemocratic or that it eliminates the secret ballot election. Neither of these assertions is true--the bill does not abolish the NLRB election process, and if the goal of a democratic system is to have an outcome that reflects the will of the people, the Employee Free Choice Act establishes a far more democratic alternative to the current system. Initially, the bill does not abolish the secret ballot election process. That process would still be available. It just gives workers-- not employers--the choice whether to use the NLRB election process or majority signup. My friend and colleague from Wyoming, Senator Enzi, has cited a letter from the Congressional Research Service, arguing that this letter proves that the bill eliminates secret ballot elections. With respect, I think that's a misreading of CRS's conclusions. What CRS said was that the bill would not permit an election when the majority of the employees has already signed valid authorizations designating a union as their collective bargaining representative. And that is correct--if the majority has already spoken and chosen a representative by signing authorization cards, the employees have already decided how they want to choose a union. It's that majority choice--the decision to choose a union through majority signup--that we want to protect. If the workers were to choose to use the election process instead--if they were to sign cards asking for an election rather than designating a bargaining representative--they would get an election. The Employee Free Choice Act lets the workers use the system they want. This makes perfect sense--after all, it is the workers' representative, why should the employer get to control how the workers get to choose? In their discussions of the majority signup process, my Republican colleagues seem to suggest that the NLRB election process is a model of democratic fairness. But nothing could be further from the truth. NLRB elections are nothing like the public elections we use to elect our Congressional representatives. One side has all the power. Employers control the voters' paychecks and livelihood, have unlimited access to voters, and can intimidate and coerce them with impunity. By the time employees get to vote in an NLRB election, the environment is often so poisoned that free choice is no longer possible. That is not a free election or a fair election. Workers should have the option to choose a better process. Another common criticism raised about majority signup is that employees may be coerced by their colleagues, or by union representatives, into supporting the union. This is really not a cause for significant concern. It is already clearly against the law for unions to coerce or intimidate employees into signing union authorization cards. Those cards are invalid and cannot be counted towards majority signup, and nothing in the Employee Free Choice Act changes that. Along these same lines, several of my colleagues have cited a Supreme Court case--NLRB v. Gissel Packing Company--for the proposition that authorization cards are an ``inherently unreliable'' indicator of true employee support for a union. I am distressed that my colleagues would take this quotation so drastically out of context. Those words--``inherently unreliable''--were used by the Court to articulate the employer's contention, which the Court rejected. In fact the Court in Gissel held the exact opposite! They found that authorization cards can adequately reflect employee desires for representation and the NLRB's rules governing the card collection process are adequate to guard against any coercion that might occur. I don't understand my colleague's suggestion that authorization cards aren't a valid indicator of a worker's wishes. We have always used these cards to determine whether workers want an election or not, and there's never been any suggestion that coercion or misrepresentation makes the process unfair. Majority signup is a better system. It respects the free choice of workers by giving them the freedom to choose a union in a simple, peaceful way. Experience has shown that when majority signup replaces the battlefield mentality of the NLRB election process, conflict is minimized and the workplace becomes more cooperative and productive--a win for both sides. Briefly, there are three more concerns that have been raised about majority signup that I would like to dispel. Each of these concerns reflects a misunderstanding of how the bill would affect current law. First, my Republican colleagues claim that the Employee Free Choice Act would require ``public'' card signings, which is simply untrue. Under the act, signing a card will be no more or less confidential than it is now. Under current law, workers can request an election if 30 percent of them sign cards saying they are interested in an election. The NLRB keeps the cards--and the card signer's identity--confidential and will not reveal that information to the employer. The Employee Free Choice Act does that change these NLRB confidentiality requirements that protect workers from being targeted by their employers for later retaliation. Second, some of my colleagues have suggested that the Employee Free Choice Act will ``silence'' employers and restrict their ability to express their views about the union. But nothing in the Employee Free Choice Act changes the free speech rights of an employer. Employers are still free to express their views about the union as long as they do not threaten or intimidate workers. The act also does not change the types of anti-union activity that are prohibited by law. What the act does do is strengthen the penalties for anti-union activity that are prohibited by law. It also allows workers to find an alternative to the contentious NLRB election process, when many of these violations of the law can occur. My friend and colleague from Utah, Senator Hatch, claims that by giving workers an alternative to the NLRB election process, the employer is ``effectively silenced'' because it is possible that the employer will not know about the majority signup campaign until the cards are presented to the employer. While that is theoretically possible, it is highly unlikely. Most employers know when employees are thinking about forming a union. Even in the rare instance where an employer was truly taken by surprise, the employer has no ``right'' to an additional period of time to engage in anti-union tactics. Majority signup is about workers choosing their own representative. Why should the employer have a guaranteed say in the workers' decision about their own representative? That would be like saying that one party in a court case can't hire a lawyer until the other party has a guaranteed period of time to argue that his opponent shouldn't be allowed to have a lawyer. It is nonsensical. Third, critics have argued that the Employee Free Choice Act inappropriately lets employees choose the appropriate unit for bargaining, instead of the National Labor Relations Board. Again, this reflects a misunderstanding of current law, and of the scope of the Employee Free Choice Act. Under current law, when employees petition for an election they have a right to choose the unit for bargaining. Employees need only choose an appropriate unit, not the most appropriate unit. Employers then have the right to ask the National Labor Relations Board to determine whether the unit chosen by the employees is inappropriate or unlawful. The Employee Free Choice Act does not alter the law in this respect. Employees will still have the right to choose their bargaining unit. EFCA maintains this important right for employees, while continuing to protect employers from being forced to recognize an inappropriate or unlawful unit. Unfortunately, opponents of this bill have not confined their misguided attacks to the majority signup provisions. They have also raised several unjustified criticisms of the provisions in the bill providing a timetable to get workers a first contract. Primarily, my Republican colleagues have argued that these provisions would allow the government to impose a contract on the parties, threatening business's bottom line. These sensationalistic references to ``government-imposed contracts'' are way off-base. It is a scare tactic that has no relationship to what this bill actually does. The Employee Free Choice Act does not compel arbitration whenever the parties have difficulty reaching a contract, as my colleagues suggest. It provides a procedure where unions or employers can seek assistance from the Federal Mediation and Conciliation Service if they are encountering difficulties in their negotiations. The first step of this process is mediation. Collective bargaining mediation provides a neutral, third-party mediator to assist the two sides in reaching contract agreement on their own. The FMCS has provided collective bargaining mediation services--including mediation of first contract negotiations--for more than 50 years, and they have an 86 percent success rate in helping the parties agree to a contract. That is a pretty impressive record. Only in the rare instance where mediation fails does the act provide for arbitration. Binding arbitration is a last resort, and will rarely be used. It primarily serves as an incentive to bring the parties to the table. Neither the union nor the employer wants any uncertainty in the process, and therefore the parties have a strong reason to sit down at the table and work things out on their own rather than letting an arbitrator rule. The bill's negotiating framework is similar to what is used in most Canadian provinces. Canada's experience shows that arbitration is rarely used, and is an incentive--rather than a roadblock--to parties reaching their own agreement. Finally, even in the rare case where parties do resort to arbitration, it will be limited to the issues that the parties are unable to agree on. These arbitrations will be handled by highly qualified FMCS arbitrators with long experience in crafting fair contract provisions. They will not impose unfair or extreme terms. I also don't know where my colleagues get the impression that an arbitration through the FMCS would produce a contract biased in favor of the union. It is not in anyone's interest to put a company out of business--workers would lose their jobs and unions would lose their members. Typically, arbitration produces middle-ground solutions that everyone can live with, and often parties settle their disputes during arbitration, alleviating the need for the arbitrator to render a decision at all. The second criticism that has been leveled against the first contract timeline is that in the rare instance where a contract is actually imposed through the arbitration process, workers will lose their ``right'' to vote to ratify the contract. This reflects a complete misunderstanding of current law. Under current law, employees do not have a ``right'' to ratify a collective-bargaining agreement. A ratification vote is a courtesy that unions routinely give the workers they represent as a matter of policy. It is not a legal requirement. Under the bill, if unions want to provide their members with input during the first contract negotiation process, they could submit the union's arbitration proposal to the membership for a ratification vote. This would ensure that the position the union takes in arbitration is consistent with the views of the membership. Perhaps most importantly, in the rare case where a union gets a contract through arbitration, this contract will only be for a 2-year term--a relatively short timeframe for a labor contract. And, during the short duration of the first contract, the membership will no doubt still be far better off than if they had no contract at all. Finally, opponents of the bill have argued that arbitration of first contracts is incompatible with the collective bargaining process. In support of this assertion, they cite a text on arbitration written by Elkouri and Elkouri, quoting it to say that using arbitration to reach a first contract is the ``antithesis of free collective bargaining.'' My Republican colleagues are taking this quotation out of context. Read in full, the text says: ``The arguments against compulsory arbitration as revealed in literature on the subject, are, broadly stated, that it is incompatible with free collective bargaining . . .'' Elkouri and Elkouri are merely reporting arguments made by others, not endorsing this position. Indeed, later in the book, the authors acknowledge that, in some instances in which ``the parties find it difficult or impossible to reach agreement by direct negotiation,'' and ``the use of economic weapons [may] be costly and injurious to both parties'' or to the public, ``interest arbitration by impartial, competent neutrals, whether voluntary or statutorily prescribed, offers a way out of the dilemma.'' Using interest arbitration to resolve difficult situations is hardly unheard of. In fact, it has become quite common in public sector employment, public utilities, and railroads. It is also used in most Canadian provinces, where it has been perfectly consistent with a robust system of collective bargaining. The system established by the Employee Free Choice Act gives a responsible employer every opportunity to pursue a contract fairly. There's bargaining, then there's mediation--arbitration is only a last resort. And the parties can always agree to keep talking or to extend any of the deadlines in the timetable. The process can last as long as it takes to reach a deal, so long as the parties are acting reasonably and can agree to keep talking. Finally, I would like to take just a brief moment to respond to an argument raised by my friend from Utah, Senator Hatch, regarding penalties. He argued that the Employee Free Choice Act is unfair because it requires employers--but not unions--to pay triple backpay when they violate workers rights. While it is true that the bill does not provide for the same treble backpay penalty against unions, this is hardly problematic. Backpay is a remedy for wages to which an employee would otherwise have been entitled. Unions do not have the power to fire, demote, layoff, or take away workers' raises or overtime pay. Those are abuses only an employer can impose. Because unions cannot retaliate against workers in this manner, there is no reason to impose treble backpay on them. In 2005 alone, over 30,000 workers received backpay from employers who violated their rights. In contrast, unions paid backpay to only 132 employees. This small set of backpay awards against unions primarily involves mishandled employee benefits--not the types of appalling abuses the Employee Free Choice Act is intended to address. When it comes to causing workers to lose their pay and benefits, it is employers--not unions--that are the problem, and the Employee Free Choice Act provides a solution, putting real teeth in the law, so that unscrupulous employers can no longer dismiss the penalties for violating workers rights as a minor cost of doing business. The Employee Free Choice Act does one thing--it empowers workers. It gives them the freedom to choose-- without fear of intimidation or harassment--whether they want union representation. There's nothing more democratic than that. I hope that my comments today have set the record straight. I hope that we can now move on to discussing the critical role this legislation can play in helping working families to overcome the challenges of new economy return to a time of shared prosperity. I urge all of my colleagues to vote to proceed to this bill so we can have that important debate.

Mr. KENNEDY. I will include those references in the Record, and I thank the Chair.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, I suggest the absence of a quorum.

Mr. KENNEDY. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.