[Congressional Record Volume 156, Number 129 (Thursday, September 23, 2010)]
[Senate]
[Pages S7370-S7383]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
CONGRESSIONAL DISAPPROVAL OF THE RULE SUBMITTED BY THE NATIONAL
MEDIATION BOARD RELATING TO REPRESENTATION ELECTION PROCEDURES--MOTION
TO PROCEED
Mr. ISAKSON. Madam President, I move to proceed to the consideration
of S.J. Res. 30.
The ACTING PRESIDENT pro tempore. Under the previous order, there
will now be 2 hours for debate on the motion to proceed, with the time
equally divided and controlled between the Senator from Iowa, Mr.
Harkin, and the Senator from Georgia, Mr. Isakson, or their designees.
The Senator from Georgia.
Mr. ISAKSON. Madam President, I yield myself up to 15 minutes of the
time.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. ISAKSON. Madam President, on May 11, 2010, the National Mediation
Board, the board that oversees labor relations in transportation--in
the railroad and airlines industries--finalized a regulation repealing
the 75-year-old majority rule. Under the majority rule, a majority of
the organizing unit was required to affirmatively vote yes to unionize.
The repeal of this rule means that now a minority in the bargaining
unit can organize, essentially permanently, the entire organization of
the unit.
Today, I am asking this body to pass S.J. Res. 30 to undo this rule
change under the procedures created by the Congressional Review Act of
1996. This law allows Congress to disapprove regulatory rules issued by
Federal agencies by enacting a joint resolution of disapproval. This
resolution will revoke a recent regulation promulgated by the National
Mediation Board eliminating the old majority rule that had been in
place for 75 years under 12 Presidential administrations.
Under the old rules, a majority of the workers in the organizing unit
were required to affirmatively vote yes in order to organize. Under the
new rules, however, only a majority of those voting are required to
vote yes to organize a union.
Let me give you an example. If an organizing unit had 10,000
employees, under the 75-year-old rule, 5,001 would have had to vote
affirmatively for a union. Under the new rule, if only 4,000 turned out
to vote, only 2,001 would have had to vote affirmatively to be able to
unionize. In fact, in large measure, it seems to me, it is kind of
``card check lite.''
There is no sound legal or policy basis for hastily
changing a rule that has been in
[[Page S7371]]
place and upheld repeatedly for 75 years. Throughout this
time, the majority rule has furthered the primary purpose of
the Railway Labor Act, which is ``to avoid any interruption
to commerce or to the operation of any carrier engaged
therein.''
The Supreme Court of the United States has upheld the rule not once
but twice. The National Mediation Board, under both Democratic and
Republican administrations, previously rejected changes to the majority
rule on four separate occasions. In fact, the National Mediation Board,
under former President Jimmy Carter of Georgia, concluded that only
Congress could make such a decision.
Even the Obama administration's own Labor Department defended the
soundness of the majority rule, writing on October 8, 2009:
For 70 years, the Board has required, when there is no
representative and just one organization is seeking to be
representative, a majority of the workers in the craft or
class to vote for that organization.
In so doing, President Obama's own Labor Department argued that all
past boards ``reasonably construed'' the Railway Labor Act.
As former National Mediation Board Chairman Elizabeth Dougherty wrote
in her strong dissent of the repeal of the majority rule, making this
change ``would be an unprecedented event in the history of the National
Mediation Board.''
She continued:
Regardless of the composition of the board or the
inhabitant of the White House, this independent agency has
never been in the business of making controversial, one-sided
rule changes at the behest of only labor or management.
The majority rule is not unfair to organizing efforts, as over two-
thirds of the 1,850 reported elections since 1935 have resulted in a
union. Moreover, an average of 72 percent of airline and railroad
employees are represented by unions, while only 8 percent of private-
sector workers are union represented.
One of the reasons the majority rule was approved is because
recognition of a union under the Railway Labor Act is essentially
permanent, and I reiterate that. The decision is essentially permanent
and irrevocable. Thus, to reference my example earlier, the minority of
2,001 in an employee group of 10,000 could irrevocably unionize an
organization and make it permanent.
Quoting the Obama administration's Labor Department again:
Unlike the National Labor Relations Act, the Railway Labor
Act does not provide for a decertification process.
``Does not provide for a decertification process.''
Therefore, the union's certification continues until
another union makes a showing of interest to represent the
respective class or craft. . . . Consequently, it is of
utmost importance that a certified union has the support of
the workers it is certified to represent.
While existing practice allows for a cumbersome and slow ``straw
man'' union disillusion process, the Railway Labor Act has no
decertification process as there is under the National Labor Relations
Act.
The current ``straw man'' union disillusion process is Byzantine and
nearly impossible for workers to use. This is how National Mediation
Board Chairman Dougherty described the process:
Employees who no longer wish to be represented by a union
must select an individual to stand for election (the so-
called ``straw man''), convince a majority of the eligible
voters in the craft or class to sign authorization cards for
that individual (while attempting to explain that this
individual is not actually going to represent them), and then
file an application with the Board. If the requisite showing
of interest is met, an election is authorized, and the
employees must either vote for the ``straw man,'' with the
hope that he will later disclaim interest in representing the
craft or class, or abstain from voting.
What a ridiculous process that is.
Unfortunately, the new rule allows no corollary process by which
employees can choose to opt out of unionization. Thus, the Obama
administration greatly lowers the bar for unionization, while
continuing to ensure that it is nearly impossible to decertify a union.
In Teamsters v. BRAC, the DC Circuit Court wrote:
It is inconceivable that the right to reject collective
representation vanishes entirely if the employees of a unit
once choose collective representation. On its face, that is a
most unlikely rule, especially taking into account the
inevitability of substantial turnover of personnel within the
unit.
If the Obama administration truly sought to ``more accurately measure
employee choice,'' they would have provided a parallel process by which
employees could vote out a union in an election conducted in the same
manner as the election which resulted in certification of the union in
the first place. Of course, they did not do that.
Quoting Chairman Dougherty again:
Apparently, employee choice only matters to the Majority
when it relates to changing the status quo from no
representation to representation and not the other way
around.
The impact of this is dramatic in my State, and it has a dramatic
impact on Delta Air Lines, which is headquartered in my State.
On April 14, 2008, Delta and Northwest Airlines announced a merger.
Before the merger, Delta was a predominantly nonunion organization. Its
pilots were unionized, but flight attendants and ground personnel were
nonunion. Delta employees--many of whom reside in Georgia--were and
still are some of the most dedicated employees of any company in the
United States, and some of the best paid employees in the airline
industry, which explains why Delta employees have voted down six
unionization drives since 2000 alone.
Some of the former employees of Northwest, which was a much smaller
operation than Delta, wish the new Delta to adopt their old labor
agreements. Those old labor agreements at Northwest led to a long
history of labor strife, lower pay, and burdensome work rules.
I say, leave that decision up to the workers. If the benefits of
union representation are so great, then why the need to change the
rule? This administration simply refuses to obey the will of the
majority of the class and has chosen to side with the union in the
passing of this rule.
As National Mediation Board Chairman Dougherty has written, the
board's actions are targeted at ``40,000 employees at two major
airlines--the largest group of elections in the history of the National
Mediation Board. I believe it is harmful to the reputation and
credibility of the [National Mediation] Board for it to take a position
in favor of a change to our election rules during these elections.''
In short, we are here today for one reason and one reason only: The
Obama administration has chosen to tilt the outcome of unionization
elections at Delta Air Lines in favor of the transit unions.
Let me discuss the integrity of this process that took place at the
Board.
Once confirmed by the Senate, revoking the majority rule was clearly
job one for Members Puchala and Hoglander. Only 5 weeks after Mr.
Hoglander was confirmed on July 24, 2009, the AFL-CIO requested the
rule change on September 2, 2009.
Two months later, on November 2, the National Mediation Board issued
the proposed rule. Not coincidentally, the transit unions immediately
withdrew their applications to organize Delta, giving Hoglander and
Puchala more time to stack the deck in their favor. Public remarks of
union leaders from the Association of Flight Attendants have since
confirmed their insider knowledge of the proposed rule.
On November 6, the Democratic members of the National Mediation Board
told Chairman Dougherty they had prepared a ``final'' version of the
proposed rule and she had only 1\1/2\ hours to consider their proposal.
Further, the Democratic majority told her she would not be permitted
to publish a dissent in the Federal Register. Of course, publication of
a dissent is not prohibited by any agency.
Finally, on May 11, 2010, the Democratic majority issued their final
rule, having prevented an honest and forthright debate and comment--all
of this from an administration that prides itself on transparency.
Throughout their effort to repeal the majority rule, the Democratic
majority and the National Mediation Board intentionally left Chairman
Dougherty out of the process. As she wrote in her stinging dissent:
``This rule was drafted without my input or participation.''
I am concerned this course of conduct by two former union leaders
plainly reflects a predetermination to proceed with a course of action
beneficial to transit unions at the expense of fairness and sound
public policy.
Chairman Dougherty is correct when she writes:
[[Page S7372]]
Independent agencies have an obligation to avoid even the
appearance of impropriety. The Board's failure to do so in
this instance has damaged the Board's reputation irreparably.
Clearly, this administration is afraid that the Employee Free Choice
Act, which it promotes, will not pass the Senate in the near future. As
a result, President Obama has repeatedly assured union bosses in
Washington that his administration will use the Federal regulatory
agencies and Executive orders to implement their radical agenda on
behalf of labor bosses in Washington.
We are just beginning to see the impact that former union boss Craig
Becker is having as a member of the NLRB. Mr. Becker was rejected by
this body on a bipartisan vote. The President responded by thwarting
the will of the Senate and extending to Mr. Becker a recess
appointment.
Since assuming his position, Mr. Becker has been anything but
impartial to the unions. He has refused to recuse himself in cases
involving his old employer, the SEIU, and is doggedly attempting to
foster card check campaigns at businesses throughout the country.
Last week, President Obama said:
What we've done instead [of getting EFCA passed in the
Senate] is try to do as much as we can administratively to
make sure that it's easier for unions to operate.
The repeal of the majority rule fits into this pattern. It is yet
another attempt by the Obama administration to circumvent the Congress
of the United States and vilify American businesses.
As the Supreme Court wrote in Russell v. National Mediation Board in
1985:
Employees were given the right under the (Railway Labor)
Act not only to vote for collective bargaining, but to reject
it as well.
Unfortunately, the Obama administration's two Democratic nominees to
the National Mediation Board, in repealing a 75-year-old rule without
congressional approval or adequate reasoning, have recklessly tossed
aside fairness and impartiality to benefit their former labor bosses in
the labor movement. In so doing, they have eviscerated the right the
Supreme Court articulated.
The Congressional Review Act is the appropriate legislative vehicle
for Congress to undo this assault on workers' rights. I urge my
colleagues to support this resolution of disapproval.
I ask unanimous consent that letters supporting this resolution from
the U.S. Chamber of Commerce, the National Association of
Manufacturers, the Alliance for Worker Freedom, Americans for Limited
Government, and Associated Builders and Contractors be printed in the
Record.
I also ask unanimous consent to have printed in the Record a document
entitled ``Letters from Workers.''
There being no objection, the material was ordered to be printed in
the Record, as follows:
U.S. Chamber of Commerce,
Washington, DC, September 22, 2010.
To the Members of the United States Senate:
The U.S. Chamber of Commerce, the world's largest business
federation representing the interests of more than three
million businesses and organizations of every size, sector,
and region, urges you to support S.J. Res. 30, a resolution
of disapproval that would repeal revisions the National
Mediation Board made to its regulations concerning union
organizing under the Railway Labor Act.
The Board's revisions, which were finalized on May 11,
2010, overturn more than 70 years of precedent and make it
possible for a union to be organized without the support of a
majority of employees in the craft or class. Strong policy
arguments favor the time-tested rule the Board has
jettisoned, including the fact that the Board has no rule
permitting decertification of a union should the employees
later decide they do not want to maintain representation.
In addition, the regulatory process that led to the
adoption of the rule was little more than a sham. The Board
majority not only excluded the single minority member from
deliberations over the rule, but it censored her dissent.
Furthermore, while the rule was contentious enough to draw
thousands of comments, the Board did not change a single word
of the proposed rule when it was finalized, further
evidencing that the regulatory process adhered to was
egregiously flawed. Policy differences aside, Congress should
not permit an agency to set policy in such a manner.
Due to the critical importance of this issue to the
business community, the Chamber strongly urges you to support
S.J. Res. 30. The Chamber may consider votes on, or in
relation to, this issue in our annual How They Voted
scorecard.
Sincerely,
R. Bruce Josten.
____
National Association of
Manufacturers,
September 20, 2010.
Dear Senator: The National Association of Manufacturers
(NAM)--the nation's largest industrial trade association--
urges you to support S.J. Res. 30, a ``resolution of
disapproval'' to prevent the National Mediation Board (NMB)
from changing union election rules under the Railway Labor
Act.
Manufacturers are increasingly concerned with efforts to
implement major changes to our nation's labor laws outside of
Congress through executive branch actions. The NMB's recent
decision to promulgate a new rule goes contrary to the intent
of the Railway Labor Act and is an attempt to circumvent the
legislative process.
The Railway Labor Act requires a majority of all eligible
employees to affirmatively choose to allow a labor union to
collectively bargain on their behalf with their employer.
However, in 2009 members of the NMB finalized a proposed rule
which allows union organizers to unionize workplaces if only
a simple majority of employees who participated in a union
representation election chose to certify the labor union
instead of requiring an affirmative vote for union
representation from a majority of all employees that would be
covered by the labor union seeking to be certified. This
approach goes counter to decades of labor law precedent and
skews the careful balance inherent in federal labor law.
The NMB failed to demonstrate sound policy justification
needed to implement such a sweeping change to our labor law
system. The final rule that has been issued is beyond the
legal authority of the Board and is arbitrary and capricious.
The NAM responded to the NMB's proposed rulemaking and
submitted comments highlighting these concerns. Unfortunately
the Board finalized the rule in May 2010 without addressing
our concerns--and those of many other employers.
The failure of a union to receive a true majority support
among the employees it seeks to represent is disruptive to
employee-employer relations and puts the stability of
interstate commerce in question. Labor unions covered by the
RLA must be able to have the support of the majority of
employees to provide effective representation in labor
negotiations.
In order to promote fair and equitable labor relations that
protect the rights of the majority of workers, an affirmative
change--from a non-union to union workplace--should require
an affirmative majority vote from those eligible to vote.
Employees who choose not participate in elections are in
effect choosing to maintain the status quo and should not be
required to directly participate in representation elections
in order to maintain their status.
The Senate should disapprove this rule by supporting S.J.
Res. 30, as it would harm positive employee relations and
sets a disturbing precedent for other federal labor boards
like the National Labor Relations Board. More importantly, we
believe the NMB is circumventing the proper role of Congress
in setting our nation's labor laws on a level playing field
to protect the rights of those who wish to be represented by
a labor union and those who do not.
As manufacturers face tremendous amounts of uncertainty in
these challenging economic times, Congress should not allow a
federal agency to issue regulations that harm manufacturers'
ability to create and retain jobs.
On behalf of manufacturers, we urge your support for S.J.
Res. 30. We look forward to continue working with you on our
shared goals for a strong economy, job creation and promoting
fair and balanced labor laws.
Sincerely,
Joe Trauger,
Vice President.
____
Alliance for Worker
Freedom,
Washington, DC, September 17, 2010.
Dear Senator: On behalf of the Alliance for Worker Freedom
(AWF), I urge you to support Senator Isakson's S.J. Res 30,
which condemns the National Mediation Board's (NMB) decision
to ease unionization standards for airline and railway
employees.
Since the creation of the National Mediation Board in 1934,
a majority of transport workers' votes has been required to
form a union. Last year, the AFL-CIO viewed this traditional
voting practice as an impediment to their unionization
efforts and lobbied the NMB to amend this practice. The NMB
complied with the AFL-CIO's request and in May ruled that
union elections for workers subject to the Railway Labor Act
should be decided by only a majority of workers who cast
ballots, not total company workers. This move would make it
substantially easier for unions to win elections and could
encourage deceptive election practices.
Overturning seventy-five years of precedent and two Supreme
Court rulings, the National Mediation Board has overstepped
its understood authority. Although frequently challenged,
numerous institutions, under both Democrat and Republican
Administrations, upheld the ``majority rule'' practice. The
Supreme Court twice ruled in favor of ``majority rule''
unionization election standards.
Furthermore, the National Mediation Board has upheld
challenges to majority rule four times, on grounds that:
``Certification based upon majority participation promotes
[[Page S7373]]
harmonious labor relations. A union without majority support
cannot be as effective in negotiations as a union selected by
a process which assures that a majority of employee's desire
representation.''
AFL-CIO's complaints that transport companies have made it
too difficult to unionize workers, thus necessitating the
NMB's change, is largely unfounded: majority rule has been
used in more than 1,850 elections, and unions have won more
than 65 percent of the time.
The merits of majority rule can be thoroughly weighed,
debated, and voted on by our legislators, not the three
members of the National Mediation Board.
Sincerely,
Christopher Prandoni,
Executive Director.
____
[From ALG News, Sept. 21, 2010]
ALG Urges Senate to Support Isakson Resolution Against Union
Organization by Plurality Rule
Fairfax, VA.--Americans for Limited Government (ALG)
President Bill Wilson today urged the Senate to support a
resolution of disapproval against a National Mediation Board
rule that allows for union organization at railways and
airlines with less than a majority of employees voting
``yes.''
The resolution of disapproval is being proposed by Senator
Johnny Isakson, who in The Hill wrote ``The Obama
administration's decision to repeal this rule means that now
a minority of the bargaining unit can organize--permanently--
the entire organizing unit.''
``The National Mediation Board simply does not have the
legal authority to make such a radical change without
Congressional authorization,'' Isakson stated in a press
release. ``With this rule change, a union could be
permanently recognized without a majority of employees having
ever supported representation.''
That is because on May 11th, 2010, the National Mediation
Board repealed the so-called ``Majority Rule.'' Under the old
rule, it took a majority of an organizing unit voting ``yes''
to permanently organize a union. Now, it only takes a
majority of those voting, a considerably lower threshold.
lsakson wrote in The Hill, ``[U]nder the Majority Rule, if
a bargaining unit had 6,000 employees, 3,001 must have voted
for a union to organize the unit. However, under the new
rule, if only 1,000 of 6,000 vote, and 501 of those 1,000
vote yes, all 6,000 are permanently unionized, even if a
majority of them become disenchanted with the union
leadership.''
Isakson's resolution is expected to have an up-or-down vote
on Thursday under expedited rules.
Wilson said the rule change most likely had been made to
accommodate the merger of Delta Airlines and Northwest. ``The
new company is 40 percent union, and most of that is from the
Northwest employees. Since they didn't already have a
majority, the only way to get a union for the whole company
was to change the rules to accommodate a decades-long effort
by Big Labor to unionize Delta.''
According to CNN Money, ``Unlike its competitors, Delta
employees have declined to join labor unions in the past,
priding themselves on having great relationships with the
company and enjoying the freedom to negotiate contracts with
managers one on one.''
Wilson said that the National Mediation Board had violated
their authority under the Railway Labor Act, urging the
Senate to ``uphold the original intent of the law, which
never included allowing a minority of workers at a company to
unionize. The National Mediation Board has clearly stepped
out of its statutory role as a neutral arbiter, and into
being an advocate on behalf of union organizers.''
Wilson's sentiments echoed those of the Chair of the
National Mediation Board, Elizabeth Dougherty, who in her
dissent wrote, ``Regardless of the composition of the board
or the inhabitant of the White House, this independent agency
has never been in the business of making controversial, one-
sided rule changes at the behest of only labor or
management.''
Wilson said this was ``just the latest example of an agency
seizing the power to legislate from Congress,'' concluding,
``First it was the EPA with the carbon endangerment finding.
Then the National Labor Relations Board opening the door for
card check. And now the National MedianBoard allowing for
unionization with less than majority support.''
____
Associated Builders and
Contractors, Inc.,
Arlington, VA, September 23, 2010.
U.S. Senate,
Washington, DC.
Dear Senator: On behalf of Associated Builders and
Contractors (ABC), a national association with 77 chapters
representing 25,000 merit shop construction and construction-
related firms with 2 million employees, I write to express
strong support for S.J. Res. 30, offered by Senator Isakson
and urge you to vote in favor of this resolution. The
resolution disapproves the rule submitted by the National
Mediation Board relating to representation election
procedures (published at 95 Fed. Reg. 26062 (May 11, 2010)),
and would resolve that such rule shall have no force or
effect.
The May 11 National Mediation Board rule requires employers
governed under the Railway Labor Act to recognize and bargain
with a union, even where a majority of affected employees
have not voted to do so. This rule overturns 75 years of
precedent and promotes union organizing at the expense of
employees that do not favor union representation. Moreover,
this radical change injects further uncertainty into our
economy at a time when we can afford it least.
ABC believes the National Mediation Board's ruling reflects
a disturbing trend by the federal government to promote
unionization at the expense of free and open competition,
economic growth and employees that do not favor union
representation. ABC urges you to support S.J. Res. 30 and
vote in favor of this resolution.
Sincerely,
Geoff Burr,
Vice President, Federal Affairs.
____
Letters From Workers
On Monday, when this vote was scheduled, we launched an
email address, [email protected], and we asked the
real experts--the workers affected by this rule change--to
write us and offer their thoughts.
The response has been overwhelming. As of this morning,
we've received over 100 individual letters in three days, not
form letters or postcards, but carefully crafted letters
decrying the unfairness of the NMB's rule change.
One of my constituents, a proud Delta flight attendant
named Debi Shaw from Gainesville, Georgia contacted dozens of
her friends and colleagues. Ms. Shaw collected over three
dozen letters by herself.
I wish I could read all these letters into the record, but
I wanted to share just a sample with my colleagues in the
time I have.
One such letter came from Susan Powell of Buford, Georgia.
She writes, ``I have invested 31 years into a fabulous career
at Delta and I feel so blessed to have been able to work for
such a wonderful company all these years. The intentions of
the NMB are totally transparent and should not be tolerated
by Congress--or any other body or individual (including
President Obama) who claims to embrace honesty, fairness and
ethics. It is abundantly clear to me that motivation of the
newest Obama appointees to the NMB is to pave the way for the
AFA to gain entry into Delta Air Lines--I see no other
justification for imposing voting rules on Delta flight
attendants contrary to the voting rules applied to union
elections at all other carriers. I have loved my career at
Delta and I am so proud of the monumental efforts my company
and my fellow employees have made to emerge from bankruptcy
and return to profitability. I watched in horror years ago as
the unions at Eastern Airlines single-handedly brought their
own company to its knees--and I was forever grateful that I
had chosen to work for Delta, as opposed to Eastern. It is my
belief that an election in favor of the AFA will be the
ruination of my company and the end of the blissful career I
have enjoyed at Delta.''
Another eloquent letter came from Karla Kelsey. ``I am a 32
year Delta flight attendant. I do not understand why the NMB
would change a rule that has been in place for 75 years. It
is, obviously, a decision partial to the unions, not the
employees. . . . I am not interested in union representation
and I resent how this situation has been handled. The impact
on my life would be hugely negative if the AFA is voted in.
What is fair about a union being able to come into my company
with only a majority of those who vote as opposed to a
majority of all flight attendants who would be represented?''
I didn't just hear from pre-merger Delta employees. I heard
from Avery C. Parker, who had been with Northwest Airlines
for 31 years. She writes, ``The NMB's decision to change the
75 plus year's old law concerning labor elections is very
disturbing to me to say the least. . . . Is this how a
government agency that has thousands of employees, counting
on them to have an un-bias opinion, should act?''
Several workers contacted me complaining about the
harassment they experience by union organizers. A flight
attendant from Greensboro, Georgia, Toni Holman complains
that ``pro-union activists are spreading really nasty and un-
true rumors; are using intimidation tactics; and are also
sabotaging the luggage, hotel rooms, etc of many flight
attendants who are vocal anti-union or have ``No Way AFA''
bag tags on their suitcases. We are being targeted and
persecuted. I also feel harassed by the bombardment of un-
requested mail/e-mail/and telephone calls.''
Again, I received dozens of letters from across the
country. I will be including a sampling in the record of this
debate, so these workers know they have a voice in their
Congress.
Mr. ISAKSON. Madam President, I reserve the remainder of my time.
The ACTING PRESIDENT pro tempore. The Senator from Iowa.
Mr. HARKIN. Madam President, I strongly oppose the resolution of
disapproval offered by my good friend, the Senator from Georgia. I
tried to listen to all my friend said, but let's just keep in mind what
this is all about. The resolution we have before us would keep in place
outdated and undemocratic election procedures that undermine workers'
fundamental rights.
[[Page S7374]]
Hard-working Americans deserve better, and I encourage my colleagues to
vote down this resolution.
By way of background, the Railway Labor Act governs labor-management
relations for the rail and air industries. As the Supreme Court has
noted, the Railway Labor Act was expressly passed to ``encourage
collective bargaining.'' Under the act, a majority of employees have
the right to decide if they wish to be represented by a union, and they
use elections to make that choice. Unfortunately, for many years, the
National Mediation Board, which implements the Railway Labor Act, has
had antiquated elections procedures that place huge obstacles in the
way of workers who are trying to exercise their basic right.
Under these archaic rules, a union did not win an election if it won
a majority of the votes cast. Let me repeat that. Under these archaic
rules, a union did not win an election even though they may have won a
majority of the votes cast. How can that be? Well, because, instead, a
majority of all eligible voters, or all those who voted, a majority--
instead of just counting all of those who voted, it said it had to be
all eligible voters had to cast a vote for the union. What that meant
was that anyone who didn't vote was automatically counted as a ``no''
vote. So all nonvoters were automatically and arbitrarily treated as a
``no'' vote or a vote against unionization. So if you didn't vote, that
equaled a ``no'' vote. Doesn't that strike you as kind of odd?
This procedure is not only contrary to the election rules governing
workers under the National Labor Relations Act, but it is contrary to
basic principles of democracy underlying elections held throughout the
United States, from student council elections to elections for United
States Senators. Think about this. In virtually every election in this
country, except those involving rail and aviation workers, a voter has
a right to vote one way or the other or not to vote at all. However,
under the archaic rules of the National Mediation Board, there is no
right not to vote because if you don't vote you are counted as a ``no''
vote, whether you wanted to be a ``no'' vote or not. Maybe a lot of
people don't vote for one reason or another.
As Senators, it would be apparent to all of us that this current rule
makes no sense. For example, in the Senate, we cast hundreds of votes
in each Congress. Inevitably, with one or two exceptions, most of us
miss a vote or two, whether there is something going on in our State
that we have to attend to or a family illness or whatever. We would be
outraged if we missed a vote because of those circumstances and our
vote was counted as a ``no'' vote when maybe we didn't want to vote no,
but it would be automatically counted as a ``no'' vote if we didn't
vote. We would be outraged at that.
In addition, in our contests for reelection, we would be outraged if
every eligible voter who chooses not to vote is presumed to be a vote
for our opponent; in other words, a ``no'' vote on us. That is pretty
interesting, isn't it?
If you choose not to vote, you are counted as no. Well, it is no less
outrageous to arbitrarily assign a position to nonvoters in a union
election.
Again, there are many reasons a person might not vote. As I
mentioned, they might be ill, forgot, or maybe they are just
disinterested in the result, don't care one way or the other. That is
why a basic principle of elections is that a voter's decision not to
vote has no impact on an election's outcome. Again, I will repeat: A
basic principle of elections in our country is that a voter's decision
not to vote has no impact on the outcome of that election.
Indeed, in 1937, the Supreme Court, in Virginian Railway Company v.
Systems Federation No. 40, in interpreting the very statute at issue--
the Railway Labor Act--expressly said:
Election laws providing for approval of a proposal by a
specified majority of an electorate have been generally
construed as requiring only the consent of the specified
majority of those participating in the election. Those who do
not participate are presumed to assent to the expressed will
of those who vote.
It makes sense. If you don't vote, what you are saying is, for one
reason or another, whichever side wins, they win. Whatever the
expressed will is of the yes or the no, I give my assent to that by not
voting. That is what the Supreme Court said.
This basic system of conducting elections works for school boards. It
works for State legislatures. It works for Congress. It works for all
businesses governed by the National Labor Relations Act, and it
certainly will work for rail and aviation workers.
Now, given the antidemocratic nature of its union election
procedures, in May the National Mediation Board issued a long overdue
rule change. Under the new rules, a majority of those who actually vote
in the election is required for the union to prevail. Under this
procedure, an employee, a worker, can choose to vote for a union, they
can choose to vote against unionization, or they can choose not to vote
at all. The rule, very simply, recognizes that in an election, the side
with the most votes wins.
Well, I think the National Mediation Board should be commended for
its new, more democratic rule. It is consistent with the procedure used
in other elections in our country and will ensure fairness and equal
treatment for rail and aviation workers.
Nevertheless, my friend from Georgia and others wish to overturn the
application of these basic democratic principles to air and rail
workers. First, as I understand it, they argue that because the
National Mediation Board's old rules are 75 years old, they should
remain unchanged. Well, just because something is old doesn't mean it
should remain forever. A rule's age is irrelevant in evaluating its
fairness. Our country has rightly eliminated many flawed election rules
when circumstances changed. It is time to discard this one too.
The justification for the original rule is long outdated. Rail and
aviation workers, like workers at many other businesses, are spread
throughout the country. Seventy-five years ago, with often poor
communications, there was a legitimate concern that many employees
would not learn that a union campaign was taking place or that a vote
was scheduled. The National Mediation Board feared that a small but
informed minority of workers could dominate the election process and
dictate a result for a majority of employees, many of whom may not even
have known an election was occurring. That is not true today. Given
today's modern technology--the Internet, e-mail, cell phones--these
concerns are simply no longer relevant and should not dictate the
Board's current election procedures.
Secondly, I believe the Senator from Georgia is wrong when he claims
that the National Mediation Board has exceeded or does not have
authority to implement this rule change. On June 25, a Federal court
rejected this argument, finding that the change was well within the
agency's authority. The Railway Labor Act does not specify any
particular election procedures and leaves the means of conducting
elections up to the Board.
The process the Board used to adopt their new rule was fair, open,
and allowed all parties an opportunity to comment, using the same
notice and comment process under the Administrative Procedures Act as
used by other Federal agencies.
The National Mediation Board published a notice of proposed
rulemaking in the Federal Register on November 3, 2009, that included a
detailed explanation of why the Board was considering this change. It
allowed parties 60 days to comment and provided a detailed rationale
for the proposal. The Board considered nearly 25,000 public comments
and held a public meeting where over 34 members of the public
testified. Federal agencies issue new regulations every day following
the same notice and comment procedures employed by the Board in this
procedure, and nothing untoward happened here. It was fully open, fully
aboveboard, and in compliance, as I said, with the Administrative
Procedures Act.
My friend from Georgia and others have argued that one of the
National Mediation Board members, Linda Puchala, may have somehow
misled Congress during her confirmation hearings and failed to consider
the new rule with a fair and open mind. There is simply no evidence to
support this claim. On May 12, 2009, Ms. Puchala answered a written
question from the Senator from Georgia. He asked:
[[Page S7375]]
Please state your views regarding the importance of
honoring the Board's 60-year history of precedents in matters
involving representation and mediation.
That was the question. Ms. Puchala responded:
The board has a long history of precedents in matters
involving representation and mediation. I think it is
important to review each case on its merits and to
consider all applicable precedents when making decisions.
Sounds logical to me. It is important to review each case on its
merits. I would hope all individuals who have appointed positions in
the Federal Government would take cases on their individual merits.
Consider precedents, of course, if they are applicable, but to consider
it on its merits.
As I understand it, that is precisely what Ms. Puchala did in this
instance. In the almost 6 months between her confirmation and the
publication of the notice of proposed rulemaking on November 3, 2009,
she had ample time to carefully consider all points of view about the
proposed change and implemented what she considered to be a fair rule.
As a Federal judge wrote in rejecting these challenges:
The level of detail with which the agency considered and
discussed negative comments in the Final Rule belies
allegations that the Board rushed its consideration of the
new rule. . . .
That is a Federal judge.
Opponents have also argued--and I just heard this--that the
Republican National Mediation Board member Elizabeth Dougherty was
unfairly excluded from the consideration of the new rule. While I
believe the internal deliberative processes of agencies should
appropriately be kept confidential, I am reassured by the district
court's finding on this point that there was no evidence that the
majority board members violated any procedural rule or acted in bad
faith. That was the finding of the district court.
Finally, throughout the course of the public debate over this rule
change, opponents of the new rule have claimed that the National
Mediation Board is trying to ``do card check by running around the
backdoor.''
This is just pure nonsense. The National Mediation Board rule has
nothing to do with the Employee Free Choice Act or card check. It does
not modify in any way the way rail and aviation workers vote. Rather,
it simply makes clear that a decision not to vote will not arbitrarily
be treated as a ``no'' vote.
While this debate has nothing substantive to do with the Employee
Free Choice Act or card check, there is one common thread. At the heart
of opposition to this rule, and also at the heart of opposition to the
Employee Free Choice Act, is a fear on the part of some people that,
yes, workers will exercise their fundamental right to organize.
I want to make it very clear. I happen to be a supporter of the
Employee Free Choice Act. I keep asking: Why is it that workers are
compelled to walk across broken glass, to go through some kind of a
boot camp harassment to exercise what is their legal right in this
country: to join a legal organization? Why should they have to go
through all that? That is why I have supported the Employee Free Choice
Act.
Let's be clear what we are talking about today. Let's be clear what
this means with this new rule. It means that rail and aviation workers
have a voice in the workplace. Some people may consider that awful. I
do not. It means fair wages and benefits. It means better and safer
working conditions. It means workers have the right to be heard. They
have the right to organize. They have the right to be heard in
collective bargaining.
Indeed--I repeat--the Railway Labor Act, as the Supreme Court noted,
was expressly passed to ``encourage collective bargaining.'' Maybe
there are some who do not want to encourage collective bargaining. I
think we are better off when we do have collective bargaining and we
respect the rights of workers in this country.
These are the goals I hope every Member of the body could support. I
applaud the National Mediation Board's decision to discard an outdated,
antidemocratic rule, and to ensure fundamental fairness to rail and
aviation workers in this country. Why should they be the only ones,
among all the workers in this country, all those covered by the
National Labor Relations Act, why should these two be the only ones
where if they do not vote, it is counted as a ``no'' vote. It does not
happen anywhere else. It is an arcane, outdated rule. It should be
brought into the spirit of democracy we have in this country. You can
vote yes, you can vote no, or you do not have to vote. If you do not
want to vote, you should not be assigned a ``yes'' vote or ``no'' vote
to the fact you did not vote. It should not be counted at all in the
outcome of the election.
I strongly encourage my colleagues to oppose this resolution of
disapproval.
Madam President, I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Georgia.
Mr. ISAKSON. Madam President, let me take a moment to share a few
alternative ideas to the distinguished Senator's representation.
First of all, with regard to Ms. Puchala's response to my question in
the confirmation hearing that all rules ought to be judged on their
merit, I think that is a very good response. But it is coincidental or
ironic that in one of the largest union votes in the history of
America--the vote that will take place between Delta and Northwest
employees on whether to unionize flight attendants--that when they were
sworn in as board members, the previous application by the union for an
election was postponed to give enough time for the rule change to take
place in the first place.
I do not know if that was judgment on merit or whether it happened to
be just coincidental timing. I will say it was probably not based
solely on the merit of the decision.
Secondly--and I love the Senator from Iowa. He and I are dear
friends--if you follow his thought process on not counting ``no''
votes, you have to look at this. Past practice at the National
Mediation Board dictated that an absolute majority of workers in the
class be required to vote to unionize, and once that union takes place
it is a permanent decision. Yes, there is an archaic straw-man
alternative. However, if you follow the thought of the Senator from
Iowa in its entirety, once we are elected to the Senate, we would not
have to run for reelection again. That is because the National
Mediation Board has no decertification process. This is essentially a
permanent decision by the workers. I do not think it should be a
permanent decision when one of us is elected to Congress. That is why
we have elections in Congress every 2 years or in the Senate every 6
years.
Let's remember this is a decision. When we change this rule, we are
allowing a minority to make a permanent decision for a class of
workers. That is a very high threshold. I think requiring a majority
vote of all those affected not only makes sense, but the reason it was
done was to protect the National Mediation Board's intent in the first
place in terms of interstate commerce in the United States of America.
Another point Congress had no say in this process, even though Article
1 of the Constitution of the United States allows only us to regulate
commerce.
I wanted to add those two points. On the case of merit, I think it is
obvious there were some considerations specifically because of one
vote, i.e, the vote of the AFA and IAM. That is why the unions withdrew
their applications and postponed the vote, to give the National
Mediation Board an opportunity to pass the rule and affect a pending
vote to organize.
I wanted to make a point with regard to current policy not allowing
people to be represented. Under the Railway Labor Act, 72 percent of
the employees are unionized versus the 8 percent for all American
workers. Nobody is talking about a rule preventing organization. We are
only talking about requiring a threshold because of the permanency of
the decision. That is very important.
We are not trying to skew the balance between labor and management.
We are trying to equalize that balance. To change this rule, given the
threshold that has been in place for 75 years, is to skew the process
in favor of union bosses over workers' rights. That should not be the
intent of the Congress of the United States. That is why the National
Mediation Board rules are what they are, and that is why the Supreme
Court of the United States has twice upheld it.
[[Page S7376]]
Madam President, I am happy to yield 10 minutes of my time to the
distinguished Senator from Utah, Mr. Hatch.
The ACTING PRESIDENT pro tempore. The Senator from Utah.
Mr. HATCH. Madam President, I thank both my colleagues.
It has become customary to expect pendulum swings in labor law each
time the White House changes hands and appoints new government
officials to lead the Federal executive branch and independent
agencies. Sometimes the law changes every 4 years, depending on who is
sitting at the NLRB, Department of Labor, OSHA, EEOC, and so on. One
year a particular issue might favor labor, and 4 years later the very
same issue might favor management.
By analogy, at the NLRB, for example, 1 year graduate school teaching
assistants are students not covered by the National Labor Relations
Act. The next year they are deemed to be employees covered by the act.
Then shortly thereafter, they are once again deemed to be students.
Soon we may learn they will once again be employees.
The same is true with regard to the definition of ``supervisors''
excluded from the National Labor Relations Act. One would think that
after 75 years, the NLRB would be able to define who is and who is not
a supervisor. Instead, the law changes as the political pendulum
swings.
What has actually changed other than the people confirmed by the
Senate to make the decisions, to call the shots? Without any evidence
of changed circumstances in the workplace or relieving the agency's own
administrative burden--in fact, without any evident rationale--the only
apparent reason for the changes in the NMB's representation election
process is in the people who call the shots.
Obviously, this is not the way to promote stability in labor
relations and employment law. It makes it difficult for employers,
employees, unions, and the lawyers counseling them to ever be assured
what the law is in any given area or any given time.
Mercifully, for some issues and at some agencies, it does not work
that way. Until recently, that could be said for the National Mediation
Board and the process by which it conducted union representation
elections.
For 75 years, the procedure which has been applied consistently by
the NMB for conducting union representation elections has been the
same.
Boards appointed by Democratic Presidents Roosevelt, Truman, Johnson,
Carter, and Clinton have agreed that the process through which labor
organizations obtain certification as the representative of a majority
of the craft or class is the cornerstone of stable labor relations in
the air and rail industries. That has been the law for 75 years.
In fact, the NMB appointed by President Carter unanimously ruled that
it did not have authority to administratively change the form of the
NMB's ballot used in representation elections and that such a change,
if appropriate, could only be made by Congress. That is until now.
The new members of the NMB, after assuring this Senate under oath at
their confirmation hearings that they had no plans to reverse
precedent, after only months on the job, reversed the NMB's longest
standing precedent.
By rule, the NMB now certifies representatives elected by a minority
of the craft or class so long as they constitute a majority of those
voting. This is not just a minor change, this change destabilizes the
cornerstone of stable labor relations under the Railway Labor Act and
75 years of NMB precedent which was consistent with the plain statutory
language and congressional intent.
Here is how it is destabilizing. First, the former law which required
election of a representative by a majority of the craft or class
quelled any doubts about the authority of the selected representative.
The new procedure will do nothing but foment dissent.
Second, the former certification procedure facilitated the process
for employees and their representative to work cohesively toward
negotiating and maintaining agreements with an air or rail carrier. The
carrier knew the majority of the entire craft or class supported the
union, not simply a majority of those voting. This gave the
representative more standing. The new procedure will undermine the
representative's authority.
Third, the former certification procedure discouraged raids by rival
unions and interunion conflicts. The new procedure will encourage such
raids.
Fourth, the former certification process recognized the reality in
the air and rail industries that, unlike the National Labor Relations
Act, negotiations for collective bargaining agreements cover a broad
craft or class of employees spread over multiple, geographic locations.
Therefore, there is a strong need to demonstrate majority support
across those geographic locations, not as the current procedure,
smaller units of employees.
So, if anything, the new rules are destabilizing rather than
promoting greater stability. The result ignores the clear congressional
statutory mandate to maintain stability in the air and rail industries.
I repeat, after assuring us they would not do so, the new NMB members
overruled 75 years of precedent which had been consistent through both
Democratic and Republican administrations. And how did they do it? It
certainly speaks volumes that the rule was developed without the input
or participation of the sole Republican member of the three-member NMB,
former Chair Elizabeth Dougherty, who was notified of the existence of
a proposed rule late one morning and given 24 hours to review the rule
and draft a dissent--24 hours to comment on a rule that scraps a
precedent which had existed for 75 years and which is likely to
discombobulate two great industries. I thought this form of arrogant,
rushed, exclusionary rulemaking only exists in Congress when the
majority wants to steamroll legislation.
Finally, while changing the rules for certification of a labor
representative, the NMB flatly refused to even consider the democratic
procedure of decertifying the labor representative should the employees
so freely and independently choose. Now, I have heard of ``one man, one
vote,'' but ignoring the right of the employees to decertify a union is
more like ``one man, one vote, one time.'' How can you have a
democratic process where a minority of employees can vote a union in
without having a mirror process allowing the majority of employees to
be able to vote the union out if a majority of employees become
dissatisfied with their representation?
Today, we should stand up and say no--no, you cannot tell us one
thing in confirmation hearings and courtesy visits and then do exactly
the opposite on the job. We should exercise our voting rights in the
Senate under the Congressional Review Act to review this outrageous NMB
rule which benefits only one group--labor unions--not employees,
certainly not employers, and not the public.
Madam President, I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Georgia.
Mr. ISAKSON. Madam President, I suggest the absence of a quorum, and
I ask unanimous consent that the time during the quorum be equally
divided between the majority and the minority.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. ISAKSON. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. ISAKSON. Madam President, I yield up to 6 minutes to the
distinguished Senator from Nevada, Mr. Ensign.
The ACTING PRESIDENT pro tempore. The Senator from Nevada.
Mr. ENSIGN. Madam President, I rise today to discuss the resolution
before us--a resolution of disapproval to prevent the implementation of
the recent National Mediation Board regulations. Many Americans are
likely unaware of the vote we are about to have today, let alone the
controversial rule it concerns.
Last May, the National Mediation Board finalized a new regulation
that would turn 75 years of union voting precedent on its head. I
believe a vote to support this resolution of disapproval is a vote to
protect our Nation's workers. Specifically, the National Mediation
Board has changed
[[Page S7377]]
the voting rules under the Railway Labor Act. The Railway Labor Act is
the law that sets labor union rules for railways and airline employees.
For the past 75 years, under this act, a majority of employees in an
``organizing unit'' have had to vote yes to form a union. Under this
new change, only a majority of employees who actually vote are needed
to form a union.
How does this new rule work in practice? For example, if an airline
has 1,000 employees who are nonunion today, currently 501 must vote yes
to unionize. But under this new union rule, if only 300 of those
employees vote, then it would require only 151 of those employees to
unionize and speak for the entire 1,000 employees. Since there is no
procedure to deunionize under the Railway Labor Act, once this union is
formed, these 1,000 employees would be permanently unionized. There is
simply no way to vote out a certified union in this part of the law
even if a majority is unhappy with the union leadership. This doesn't
make sense given that the National Labor Relations Act--the law that
governs most labor unions in this country--does allow workers to
deunionize.
It is also concerning that the National Mediation Board effectively
blocked out the input of its sole Republican member, Chairman Elizabeth
Dougherty, during the rulemaking process. Chairman Dougherty stated:
The proposal was completed without my input or
participation, and I was excluded from any discussions
regarding the timing of the proposed rule.
That sounds like what has been going on here lately.
It certainly doesn't sound like the transparency on which the other
side of the aisle campaigned.
The American people listening to this debate may be thinking this
rule change sounds like nothing more than a political payback to labor,
and in my opinion, they are right. The American people listening today
may also be thinking this whole debate sounds vaguely familiar, and
they would be right again. A proposal called card check may ring a
bell. Recall that under the Democrats' card check litigation, American
workers would be deprived of the right to a secret ballot when voting
on whether to form a union. And while card check and the National
Mediation Board rule change may not be one in the same, they both lead
to an identical outcome: undermining the fundamental rights of American
workers.
You may be asking whether this rule will help workers in the airline
and railway industries unionize. Perhaps this rule is needed because
the employers have stacked the deck of cards against unionization
efforts. But let's look at the facts. An average of 72 percent of
airline and railway employees today are unionized, compared to only 8
percent in the rest of the private sector. I repeat: 72 percent in
airlines and railways, only 8 percent in the rest of the private
sector. So it can't be the case that this new policy is in response to
the failure of 75 years of voting precedent or employers blocking the
ability for employees to unionize. In fact, workers at Delta have voted
down six organizing drives over the past 10 years.
This Nation is facing unprecedented economic difficulties. I speak
from experience. The unemployment rate in my State of Nevada is 14.4
percent. We lead the country, unfortunately. The Federal bureaucracy
should be working to strengthen our economy, not create an environment
for American businesses that leads to an uneven playing field and, at
the end of the day, more uncertainty. Uncertainty does not help create
jobs.
To conclude, the members of the National Mediation Board have not
provided Congress with any substantial evidence that a change in union
voting procedures is needed. I believe this rule change is a sign of a
dangerous trend--a trend that runs counter to the core principles of
American democracy and the ability to choose freely through a fair
voting process. As such, I urge my colleagues to support Senator
Isakson's resolution, S.J. Res. 30, and vote down the National
Mediation Board rule.
Madam President, I yield the floor, and I suggest the absence of a
quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. ISAKSON. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. ISAKSON. Madam President, I yield up to 5 minutes to the
distinguished Senator from Georgia, Mr. Chambliss.
The ACTING PRESIDENT pro tempore. The Senator from Georgia.
Mr. CHAMBLISS. Madam President, first of all, I thank my colleague
from Georgia for allowing me to come over to speak on this issue, and I
rise to concur with the resolution introduced by my friend and my
colleague, Senator Isakson.
For more than 75 years, our labor laws governing airline and railway
employees have been upheld under both Democratic and Republican
administrations and in two Supreme Court decisions. Recently, however,
the National Mediation Board acted unilaterally to change a
longstanding statute without seeking the consent of Congress.
Unfortunately, this change is based more on politics than on the
merits of the law. Historically, if you had 100 employees who wanted to
vote to form a union, you would need a majority of those employees--or
51--to vote in favor of unionizing. Now, in accordance with the new
rule change from the National Mediation Board, if 10 members choose to
vote on whether to organize, a majority of 6 members voting yes would
bring all 100 members under union control. That is not the way the law
was ever intended to operate, and it should not be changed by an
arbitrary action on the part of this Board. Not only would a minority
of workers have a tremendous influence over other employees in such a
workplace, but when a union is formed, employees would not have the
same right to decertify the union under the new minority rule.
While the Obama administration is attempting to amend our labor laws
in order to facilitate the unionization process, the old majority rule
was anything but anti-union because today an average of 72 percent of
railway and airline employees are unionized, compared to only 8 percent
of all workers in the remainder of the private sector.
Not only is the new rule change flawed, but the procedure by which it
came about was dreadfully biased. The National Mediation Board is made
up of three members and has existed since 1934 to coordinate labor-
management relations within the railroad and airline industries. The
two Democratic appointees decided to move forward with this rule change
without input or participation from the Republican-appointed Chairman.
What the National Mediation Board has implemented goes beyond the
scope of its capacity as well as its jurisdiction, and it is going to
result in a rather lengthy court battle if this rule does come about.
There is no need for this rule change when 72 percent of the airline
and railroad industry is already unionized and has had the opportunity
to unionize under this law. The responsibility of a change in labor
laws of this magnitude and affecting this many workers should
ultimately rest with Congress, not with a small board of political
appointees.
I am proud to be an original cosponsor of the resolution of my
colleague from Georgia. I urge my colleagues to follow his lead on this
issue and to agree to this resolution.
I yield the remainder of my time to Senator Isakson.
Mr. ISAKSON. Madam President, I suggest the absence of a quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
Mr. ISAKSON. Madam President, I ask unanimous consent the order for
the quorum call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. ISAKSON. I ask unanimous consent to reinstate the quorum call
providing the additional time used is equally divided between the
majority and minority.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
[[Page S7378]]
Mr. CARDIN. Madam President, I ask unanimous consent the order for
the quorum call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. CARDIN. Madam President, I thank Senator Harkin for his
leadership on this issue in opposing the Senate Joint Resolution 30. I
join him in urging my colleagues to oppose the resolution.
The National Mediation Board is an important entity. They have the
responsibility to oversee labor-management relations in the rail and
aviation industry. On May 11 of this year, they issued a final rule
that allowed a majority of voting employees--let me repeat that, a rule
that allows a majority of the voting employees--to determine the
outcome of union representation elections.
I don't understand the controversy. I thought we all agreed that
majority rules, as far as what should happen. The rule is common sense.
Let me explain the problem. I know it has been said before on the
floor.
Prior to this regulation, if a person did not show up and did not
vote, it was counted as a negative. Suppose we conducted our elections
that way. Suppose we were to say that if a majority of people do not
show up to vote, you do not have an election. It makes sense that we
count the votes that are cast. We don't know, from who does not vote,
how they would vote, and to say that is a negative defies the
democratic system we hold so dear in this country. Not participating
voters were counted as ``no'' votes, and this regulation makes it clear
that will no longer be the case.
Opponents of this rule change argue the Board does not have the
authority to change the rule. That is not true also. The Railway Labor
Act gives the NMB discretion on conducting union elections and
procedure is not outlined in the statute. U.S. Supreme Court and
District Court decisions have confirmed that authority, so they have
that authority.
Then the opponents say this rule is about the Employee Free Choice
Act, an issue that has some controversy among some of my Members. But
that is not true. This rule deals with areas where we already have
union representation.
I was proud to join 38 of my Senate colleagues in signing a letter in
December of 2009, encouraging the National Mediation Board to change
its outdated union election procedures. That is exactly what they have
done. The old procedure is not used in any other union elections. It
does not follow the democratic norm for elections that all Americans
value and respect. The old procedure does not even make any sense.
I urge my colleagues to oppose S.J. Res. 30. To me, this is a matter
of basic fairness. It is a matter of what the values of our Nation are
all about. Those who participate get the right to decide. You cannot
participate by not participating and that is what the rule makes clear.
We will count the votes that are cast, but we are not going to count
those votes that are not cast. I urge my colleagues to oppose the
resolution.
I yield the floor and suggest the absence of a quorum.
Mr. HARKIN. If the Senator will withhold the request for the quorum
call.
Mr. CARDIN. I will withhold it.
Mr. HARKIN. Madam President, how much time do we have on our side?
The ACTING PRESIDENT pro tempore. The Senator has 35 minutes.
Mr. HARKIN. On the opposite side?
The ACTING PRESIDENT pro tempore. There is 22 minutes.
Mr. HARKIN. We have 35 minutes left on our side. I yield 10 minutes
or however much he needs, up to 10 minutes to my friend, the Senator
from Minnesota.
The ACTING PRESIDENT pro tempore. The Senator from Minnesota.
Mr. FRANKEN. Madam President, I rise to discuss my opposition to the
resolution before us, the resolution disapproving the National
Mediation Board's ruling on election procedures. This ruling finally
brings union election rules in the rail and aviation industries in line
with union elections in every other industry. It also brings them in
line with every other democratic election for public office at the
Federal, State, and local levels.
Today, after the NMB rule change, a union election at an airline will
be like any other election. Employees who are the voters will have the
opportunity to access a ballot. If they want union representation, they
will vote yes. If they do not want union representation, they will vote
no. If they do not have a strong opinion or if they forget to vote,
then they do not count. Election officials count up the cast ballots
and the category with the most votes wins.
Does anything about that description raise any flags? Probably not.
Because that is how elections work in this country. Prior to the NMB
rule change, an airline union election worked very differently.
Election officials counted people who did not vote as ``no'' votes.
Imagine if Senate elections worked that way for us--if, to elect a
Senator, 50 percent of the eligible voters in the State had to vote for
a candidate. In the 2000 elections, when every single State except for
my home State of Minnesota had less than 60 percent turnout, what would
have happened?
Let's say, for the sake of it, that all the races had as high a
turnout as Minnesota--60 percent. They did not, but let's say so. In
order to capture 50 percent of the entire electorate, a candidate would
have to get 84 percent of the votes cast. If no Senator captured 84
percent under the old NMB rules, those States would not get a Senator.
There would be no one here or almost no one. It would be a lonely
place.
Thankfully, that is not how Senate elections work. Thankfully,
airline elections will not work like that going forward. But that is
how they worked in the past. In a 2008 Delta flight attendant election,
the outcome was 5,306 in favor of union representation out of 5,375.
That sounds like a pretty strong victory in favor of the union, right?
Wrong. The National Mediation Board was forced to compute the tally by
counting nonvoters as ``no'' votes; thus, it ended up with 5,306 votes
in favor of the union and 8,074 not in favor. So the vote failed, even
though less than 1 percent of those voting against the union
represented actual cast ballots.
I should admit I have a special concern in this debate. My home State
is home to thousands of Delta employees. Prior to the merger, they were
Northwest employees and most were unionized. Now they are facing a
scary prospect: losing union representation after enjoying its benefits
for decades. Union representation has provided them with living wages,
retirement security, and health benefits. Compare this to a flight
attendant for a different airline who revealed she was eligible for
food stamps, despite working full time.
In professions in which full-time workers get food stamps, union
representation is even more vital. The NMB rule change will give Delta
workers a meaningful choice, the same meaningful choice voters have in
every other democratic election in this country. The claim that this
rule change is unfair or undemocratic is simply not true. This change
will bring real democracy to elections in the airline and rail
industries. I think we can all agree that democracy has served our
country well. I think we can agree on that. I urge my colleagues to
vote against this resolution.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Georgia.
Mr. ISAKSON. Before I introduce Senator Enzi, the distinguished
Senator from Minnesota asked a rhetorical question regarding this
election being similar to an election to the Senate. I would note one
remarkable difference. National Mediation Board elections are unionized
under current law as a permanent decision. Senators are elected every 6
years and then stand before the voters once again, so there is a
significant difference between those two standards.
Madam President, I will recognize for up to 10 minutes the
distinguished Senator from Wyoming.
The ACTING PRESIDENT pro tempore. The Senator from Wyoming.
Mr. ENZI. Madam President, I rise today to urge my colleagues to join
me in supporting this joint resolution disapproving the National
Mediation Board rule that will deprive railway and airline employees of
a voice in their representation elections.
For 75 years, the Board's procedure for voting on union
representation properly reflected the geographically broad workforce of
the rail and airline
[[Page S7379]]
industries. Under this time-tested procedure, the workforce would
become unionized if the majority of all the workers in a class voted to
join a union.
The new rule has changed the way employees' votes are counted in
order to favor the union. For 75 years, not voting at all has counted
as a no vote. Now, employees who do not vote or cannot vote will lose
any chance to weigh in on the question of union representation. In
fact, a minority of workers in a class could determine the fate of the
entire workforce. This new rule conflicts with the plain language of
the statute. The method for selecting a union is expressly described in
the Railway Labor Act: ``The majority of any craft or class of
employees shall have the right to determine who shall be the
representatives of the craft or class for the purposes of this Act.''
No matter what the Board's policy justifications for this rule are, the
law is clear. Supporting this resolution will send a message to those
who want to change this 75-year-old rule to favor unions in an industry
that is already majority unionized. The only appropriate manner to
create new policy here is to amend the statute.
Proponents of the new rule say the election procedure under the
Railway Labor Act should mirror the procedure used under the National
Labor Relations Act. While this procedure may work fine with smaller
units of workers, typically working within the same workplace, it is
not an equitable method for workers in the railway or airline
industries. The classes of railway and airline workers were
intentionally created to be systemwide in order to allow uniform
workplace rules and prevent the shutdown of an entire carrier should
there be a strike in one local.
With workers geographically spread out across the country and working
on different shifts, it is difficult for transportation industry
employees to communicate their views with coworkers and voice their
opinions during a union election. For 75 years, abstaining has been a
way of saying ``not sure'' or ``need more information,'' as well as
``no.'' In many companies, unions try year after year to gain the
backing of a majority of employees through elections. This rule change
silences those who do not vote because they don't feel like they have
gotten enough information to decide. Instead of requiring a union to
convince the workforce to support the union, the Board is seeking to
allow unions to force their way in. This is a matter of deep concern
because once a union is certified, there is no way to decertify it.
Currently, the Board does not have a specific decertification
process. This makes it nearly impossible for employees unhappy with
their union to organize their fellow employees and vote the union out
of their workplace. It seems logical that since the Board acted to make
it easier for employees to join a union, it would have also simplified
the process for employees to get rid of their union. But, despite
requests to do so during the notice and comment period for the rule,
they did not. In fact, employees stuck in unions they do not support
because of this rule will also not have the benefit of State right to
work laws, which would allow an employee to opt out of full union
membership and dues obligations. The Railway Labor Act preempts the 22
States that have adopted right to work laws.
The Board has acknowledged that its primary duty in resolving
representative disputes is ``to determine the clear, uncoerced choice
of the affected employees.'' I could not agree more. But that important
duty needs to apply equally when employees seek to vote a union out of
their workplace. The fact that the new rule fails to include a
decertification process based on the majority of votes cast, is not
only troubling, but evidences the true intent of the Board and this
administration to tilt the playing field to favor unions over
individual workers' rights.
Last year this body unanimously confirmed two nominees to the
National Mediation Board. Several members of the HELP Committee,
including my office, specifically asked each of them about their
position on changing the way a majority in a unionization election is
measured. In reply these nominees stated that they had no preconceived
agenda to alter election rules that have been in place for 75 years.
Yet, practically before the ink had dried on their confirmations, these
two nominees began pushing through this regulation which is a wholesale
reversal of those rules to the benefit of labor unions. It is not as
uncommon as it should be for nominees to say one thing in their
confirmation hearings and act differently once in office, but this
example may be one of the most concerning because of the way it was
done.
In their haste, the majority NMB members thoroughly disregarded the
rights of the single minority member. The minority member was given no
notice about the other Board members' plans, including even the fact
that there was a rulemaking effort underway. Instead, she was presented
with the proposed rule to be published and given 1\1/2\ hours to review
and determine if she would support it. They even tried to stop her from
publishing a dissent to the rule proposal. Silencing dissenting views
appears to be an alarming trend at the Board. And unfortunately, it has
gone beyond the National Mediations Board.
Over at the National Labor Relations Board, workers' rights and
freedoms are similarly at risk. Just recently, at the end of August,
the NLRB chose to revisit a 2007 ruling known as Dana Corp. that
protected workers' rights to a secret ballot vote. In that 2007 ruling,
the Board held that card check was inferior to the use of secret ballot
voting in union elections. The Board concluded that when an employer
recognized a union in the workplace by card check, employees had the
right to request a secret ballot vote to show whether they actually
wanted union representation. This was an important ruling to protect
workers from union coercion and intimidation that can occur in the card
check process. The ruling gave employees a voice in whether they
actually wanted union representation, instead of having their employer
and a union decide for them.
Now fast forward to August 2010. The NLRB has just decided to revisit
that 2007 ruling. Why? There has not been a major shift in management-
labor relations that warrants such a change. In fact, the 2007 ruling
has served as an important oversight mechanism. According, to the Wall
Street Journal, since the 2007 ruling, 1,111 workplaces have become
union by the card check process, of which 54 of those have demanded a
vote. Only 15 of the 54, voted against the union. So clearly, the 2007
ruling has not led to huge losses for the unions. But it did give
employees a say in their workplace.
This Congress should be very concerned about the current state of
these administrative boards that were intended to be independent.
Concealed agendas cannot become the norm for Senate confirmed
positions. If it is then we will have difficulty confirming anyone
whose former employer would fall under the nominee's jurisdiction.
I thank the Senator from Georgia, Mr. Isakson, for offering this
resolution to send a message to the National Mediation Board that when
they seek a change in policy, they must do so within their
constitutional and legal authority.
I also note that every member of our caucus has cosponsored Senator
Isakson's resolution and joins him in sending this message. I urge all
of my colleagues to vote for this resolution.
Mr. LEVIN. Madam President, I have long supported the rights of
workers to form unions, and I support the National Mediation Board's
new rule allowing those in the rail and airline industries to form a
union based on the votes cast by a simple majority, a basic principle
of democracy.
Under the previous rule, a vote not cast was counted as a vote
against the union, in spite of the fact that it is impossible to
discern the intention of someone not casting a vote. The new rule
adopted by the National Mediation Board mirrors the practice of the
National Labor Relations Board, which oversees union elections in other
sectors, and it mirrors the rules by which we choose our elected
officials: the only votes counted are those actually cast.
Discontinuing this unfair and undemocratic practice was the right
thing for the National Mediation Board to do. The new rule is fair to
all parties, and is consistent with our democratic traditions. For this
reason, I do not support the Isakson resolution opposing this new
regulation.
[[Page S7380]]
The PRESIDING OFFICER. The Senator from Iowa.
Mr. HARKIN. Madam President, I do not have any more speakers on our
side. I wanted to respond on a couple of issues that have come up here
in the remarks in the last several minutes, last hour and a half, I
guess, since we have been here.
First, having to deal with the idea that somehow under the National
Mediation Board when there is an election for a union that it is
permanent. Now, right. I mean, my friend from Georgia is right. You
cannot kind of compare it to Senators, because we have to run every 6
years. I understand that.
I think it is still holds, though, that should someone who does not
vote be counted as a no or a yes either way--I would ask my friend from
Georgia to think about this in terms of not elections for Senators but
how about ballot initiatives? We have school bond issues, and school
bond issues get, maybe, what, 30 percent of the vote out. Should all of
the people who do not vote be counted no against a bond issue?
I do not know about my friend's State of Georgia, but I know in Iowa
we have retention ballot initiatives for our judges. We have a very
good nonpartisan, nonpolitical way of getting judges. But then the
judges come up on the ballot every so often. Yes or no, should they be
retained? They do not have to run against anybody and no one runs for a
judgeship. But should they be retained?
Well, obviously not too many people vote on that. Should people who
do not vote be counted automatically as a no vote? I do not think
people would like that. A lot of people do not vote because they may
not have enough information to vote one way or the other, so they leave
it go and say, well, maybe other people who know better could have
their votes counted yes or no.
We have had ballot initiatives for minimum wages. Should all of those
who do not vote be counted as no? I think it is a very fundamental
principle of our system of government, as the Supreme Court has said
many times in the past, that a ballot not cast should not in any way
influence the outcome of the election, of any election.
The outcome of the election is determined by the yes and no votes,
not by people who do not vote, a very basic principle. So that is one
point I wanted to clarify.
This old rule of the National Mediation Board that people keep
talking about, saying it is been the same for 75 years, I could quite
frankly argue that it should not have been that way in the first place,
although as I said in my opening statement I understand some of the
rationale for it, that 75 years ago, where you did not have rapid
communications and things such as that, you would not want a small
group that maybe had voted a union in, and other people did not even
know about it. But that is hardly the case today. Hardly. Everyone
knows about it with instant communications and everything else. That is
hardly the case today.
It is time to get rid of old, archaic rules that govern certain kinds
of elections. Gosh knows, we have had a lot of old archaic rules in
elections in this country going back to Jim Crow laws and things such
as that. But we have moved beyond that, and those old kinds of rules
should not apply any longer. So we move on and we recognize that people
ought to have the right to vote, and that if you do not vote, it should
not be counted as a no or a yes vote one way or the other.
Regarding the issue of when the union is voted in, it is as though
they are forever, it is permanent. I have heard that argument made.
Well, that is not necessarily true. But that is under the National
Labor Relations Act the same thing. If a union is voted in, it is not
voted in for 1 year or 3 years or 5 years. It exists until such time as
the union is decertified.
There are two processes. There is a process under the National Labor
Relations Act for decertification, and there is a process under the
National Mediation Board for decertification. Essentially, with the
exception of how they start, they both rely upon an election by secret
ballot as to whether the union will continue to represent the workers
of that plant or that industry or that association or whatever.
Under the National Mediation Board, if a union was voted in, the
employees could at some point say, look, I do not think enough people
want to maintain a union here. What they do is they put up a person to
run in a union election, a straw man. People know if they vote for that
person, they are voting to get rid of the union, because if that person
wins, that person will not represent the workers.
This is done. There is nothing wrong with that. It is fine. So
workers know if they vote for this person, it ends the union. If they
vote against this person, it continues the union. It is all by secret
ballot. The National Labor Relations Act is basically the same way. If
an employer or employees want to decertify a union, they file a
petition with the NLRB, and then there is an election, as to whether
the union will continue to represent the workers.
There may be a little bit of difference in structure between the
National Labor Relations Act and the National Mediation Board, but, in
essence, they are the same thing. You have a secret ballot as to
whether the union continues. So it is not that the union is there in
perpetuity, it is there as long as the workers want to continue to be
represented by a union.
Lastly, I will digress a little bit from the point at hand; that is,
the issue at hand on the matter before us on overturning this rule, to
say a couple of things about unionization and workers who belong to
unions in our country. It is a shame that union workers are somehow
almost degraded as not even being worthy of being citizens in this
country; that somehow a union has dark overtones, that somehow unions
are destructive or not in keeping with American society or who we are
as a people.
If we look at the history of the country, it was unions that built
the middle class in America. I defy anyone to refute what I just said,
that it was unions that built the middle class. It was unions that
instituted things such as the minimum wage, such as safe working
conditions, such as making sure they had a fair share in terms of
wages, that they had an 8-hour workday and a 40-hour workweek and time
and a half overtime--all these things were brought by unionization,
people collectively bargaining for wages, hours, and conditions of
employment. Maybe there are some who would like to undo the Wagner Act.
If they do, fine. I suppose some people believe we shouldn't have any
unions at all.
China doesn't have any independent unions. Do we want to be like
that? Unions built the middle class in America.
Unions today do a very good job of representing workers, both in the
public and private sectors. Today, we have too few people in America
who actually belong to unions. We should have more, but we have made it
more and more difficult for people to freely exercise their right to
actually join a union. I just looked at a list of countries in the G8.
With the exception of Russia, which I can't get figures for, the United
States basically is at the bottom. Canada, 27 percent of their
workforce is unionized; Japan, 18 percent; Italy, 33 percent; Germany,
19 percent. Look at the economy of Germany. The United Kingdom is 27
percent, and the United States is 11.9 percent. We are down there at
the bottom. One cannot say that somehow if we have unions and we are
highly organized, that our economy is going to be bad. Quite frankly,
these other economies are doing as well or better than we are, and they
have pretty strong unions.
I digress because it seems that time after time we hear people in a
subtle way hinting or implying that unions, by their very nature, are
somehow destructive of American free enterprise and our capitalist
system. I don't think anything could be further from the truth. If it
were not for unions, our economy would have gone down the tubes a long
time ago.
Quite frankly, I believe one of the reasons we have seen in the last
few years a widening gap between the rich and the poor--and it is
happening; no one can refute that. The gap between the very wealthy and
those at the bottom is growing rapidly and has grown rapidly just over
the last 10, 15, 20 years--is coincidental with the fact that fewer and
fewer people belong to unions, and more and more unions are being
decertified or it is more difficult for people to join unions. Unions
are
[[Page S7381]]
being busted through by one means or another.
I often tell the story of my brother Frank. He is now deceased. He
went to work for a plant in west Des Moines, IA, back in the early
1950s. It was unionized by the United Auto Workers. My brother was
disabled, but the owner of the plant--it was privately held--Mr.
Delavan, owned the plant and hired a lot of people with disabilities.
They had good jobs, good wages and hours. It was a great place to work.
He worked there for 23 years. He worked there for 10 years one time,
his first 10 years, and they gave him a gold watch because in 10 years
he never missed 1 day of work and was not late once. In fact, in 23
years, he only missed 5 days of work because of a blizzard. In all
those years, they never had one labor strike, not one labor problem, no
strikes, nothing. They would have their bargaining agreement. They
would bargain with the owner. They would move on. They never had a work
stoppage, never had any problems, until Mr. Delavan got old and sold
the plant to a group of investors.
The investors came in and openly bragged--and I have the newspaper to
prove it--if you want to see how to get rid of a union, come to
Delavan's. That was in the Des Moines Register.
When the contract came up for negotiation, the employer refused to
negotiate. They would sit down and talk for a little bit, but nothing
could be agreed upon. It went on and on. Finally, the union had to call
a strike, the first time ever. The new owners, the investors, brought
in what the striking workers called the scabs, the replacement workers,
brought them in, kept them there. One year later, they had a vote to
decertify the union because the new people there didn't want to lose
their jobs. They decertified the union, busted the union.
Why did they want to do that? Because a lot of the people, such as my
brother who had worked there for 23 years, had established seniority.
They were getting paid a good hourly wage. But the new investors
figured out they could get rid of all those people, hire younger
people, pay them a lot less, and they would make more profit. That is
exactly what happened. Investors made more profit. But they got rid of
a lot of people and destroyed a lot of lives. People who had worked
there for a long time and had families basically were told they were
used up, burned out, out on the trash heap out in back.
I often think about that. I think about what happened. There was no
reason to break that union other than to have more profits for the
investors and less for the workers.
That has been going on in this country at least for the last 25 to 30
years. So is it any surprise that fewer and fewer people are getting
more and more wealth and more and more people are getting less?
I hear people talking about unions and they don't want to strengthen
unions, don't want to help unions. I want to make sure the playing
field is open and level and that the secret ballot is fairly used, that
people should have a better chance at joining a union than what they
have in the United States today. That is why I am for the Employee Free
Choice Act. It will strengthen the right of people to actually freely
and openly join a collective bargaining unit. That would be better for
the country. I state that unequivocally. The more and more we denigrate
workers in terms of their ability to collectively bargain, we will hurt
the economy. When we strengthen unions, when we strengthen people and
give them better rights and better chances to organize and bargain
collectively, then more and more of our money, our national economy,
more of that will go to the workers, maybe less to capital. I think
that is the way it should be. Too much of our money is going to capital
and not enough to labor. We need a better balance there. About the only
way that will happen is through collective bargaining.
Count me as a person who is strongly in favor of collective
bargaining and strongly opposed to this effort to overturn a rule made
by the National Mediation Board which I believe rights an injustice,
rights a wrong, and says that: In the future, if you have an election,
if you don't vote, your vote is not counted one way or the other. The
outcome of the election will be decided by those who vote yes or no in
a secret ballot.
Madam President, I ask unanimous consent that at 12:20 p.m., there be
10 minutes of debate remaining on the joint resolution; that it be
equally divided and controlled between Senators Isakson and Harkin;
further, that at 12:30 p.m., the Senate immediately proceed to a vote
on the motion to proceed to S.J. Res. 30, the joint resolution of
disapproval.
The PRESIDING OFFICER (Mrs. Hagan). Without objection, it is so
ordered.
Mr. HARKIN. How much time is on our side?
The PRESIDING OFFICER. The Senator has 11 minutes.
Mr. HARKIN. And on the other side?
The PRESIDING OFFICER. There is 13 minutes.
Mr. HARKING. I thank the Chair and yield the floor.
The PRESIDING OFFICER. The Senator from Georgia.
Mr. ISAKSON. Madam President, I wish to address the remarks of the
distinguished chairman which in many ways validate the reason we should
all vote for S.J. Res. 30. I wish to tell my colleagues why.
The chairman said unionization is permanent, but it is kind of not
permanent if you make a decision under the National Mediation Board. I
wish to clear that up.
I ask unanimous consent to print in the Record the October 8, 2009,
letter from Sandra Polaski, Deputy Under Secretary of Labor for the
Obama administration, sent to Cleopatra Doumbia-Henry, Director of
International Labor Standards Department, International Labor Office in
Geneva, Switzerland, who was asked a number of questions regarding U.S.
labor law as it affects aviation and transportation.
There being no objection, the material was ordered to be printed in
the Record, as follows:
U.S. Department of Labor,
Bureau of Int'l. Labor Affairs,
Washington, DC, October 8, 2009.
Ms. Cleopatra Doumbia-Henry,
Director, International Labor Standards Department,
International Labor Office, Geneva, Switzerland.
Dear Ms. Doumbia-Henry: Enclosed are the observations of
the United States Government in Freedom of Association Case
No. 2683 concerning the procedures and practices of the
National Mediation Board, with particular reference to flight
attendants at Delta Airlines. I trust that this information
will be brought to the attention of the Governing Body
Committee on Freedom of Association.
Per your request, we invited the U.S. Council for
International Business to submit their views, and those of
Delta, on the complaint. We will transmit these observations
as soon as they are available.
Sincerely,
Sandra Polaski,
Deputy Undersecretary.
Mr. ISAKSON. I will quote from her answer to question 15.
Unlike the National Labor Relations Act (NLRA), the
[Railway Labor Act] does not provide for a decertification
process.
This is the Under Secretary of Labor for the Obama administration.
Therefore, the union's certification continues until
another union makes a showing of interest to represent the
respective class or craft. In this circumstance, as this
showing requires authorization from at least a majority of
the class or craft, the alleged disadvantage of NMB
certifying method works to the advantage of the incumbent
union.
I didn't say that; the Under Secretary of Labor said that.
With regard to the examples the distinguished chairman used with
regard to bond issues and the Missouri plan and things of that nature,
I wish to make a few points.
When you do vote for a bond issue, you vote it up or down. Most
government bond issues are 20- to 30-year terms, which means in 20, 30
years, they are over. Organization under the National Mediation Board
is in perpetuity. Then the distinguished chairman talked about what I
think is called the Missouri plan, which is judges, where you can vote
up or down on whether to continue a judge. You do that about every 4
years in the State of Iowa; right? Whatever the judicial term is, it is
not in perpetuity. This is in perpetuity, with the narrow exception
stated.
Then, the chairman talked about the minimum wage. The minimum wage
has risen from $1 to its current level because we periodically had
elections to change it. This is permanent.
[[Page S7382]]
So when we take the arguments he made about being anti-union or not
in favor of unions, the National Mediation Board organization
essentially guarantees the organization of a union remain in
perpetuity, which is why it ought to require a majority of all people
covered.
The chairman talked about an Iowa union that had been decertified.
Those employees work under the NLRA. We can't have it both ways. The
Railway Labor Act should be like the National Labor Relations Act,
under which the decertification process is parallel to the organization
process.
I am honored and privileged to represent the State that is home to
Delta Airlines. I know what kind of an employer they are, and they do
not deserve to be vilified by the Obama Administration. I have a letter
I have already asked to be printed in the Record, but I would like to
read a part of this letter from a Delta employee by the name of Susan
Powell of Buford, GA. She writes:
I have invested 31 years into a fabulous career at Delta
[Air Lines] and I feel so blessed to have been able to work
for such a wonderful company all these years. The intentions
of the National Mediation Board are totally transparent and
should not be tolerated by Congress--or any other body or
individual (including President Obama) who claims to embrace
honesty, fairness and ethics. It is abundantly clear to me
that motivation of the newest . . . appointees to the
National Mediation Board is to pave the way for an
Association of Flight Attendants to gain entry into Delta Air
Lines--I see no other justification for imposing voting rules
on Delta flight attendants contrary to the voting rules
applied to union elections at all other carriers.
That is a key point.
I have loved my career at Delta and I am so proud of the
monumental efforts my company and my fellow employees have
made to emerge from bankruptcy and return to profitability. I
watched in horror years ago as the unions at Eastern Airlines
single-handedly brought their own company to its knees--and I
was forever grateful that I had chosen to work for Delta, as
opposed to Eastern. It is my belief that an election in favor
of the AFA will be the ruination of my company and the end of
the blissful career I have enjoyed at Delta.
I have tons of letters from Delta employees--including from many who
were employed by NMA before the merger--that are just like the remarks
made by Susan Powell. This is a great company, a company where, on one
of its anniversaries, its employees raised the money internally to buy
the company an anniversary jet for their fleet. Delta Air Lines is a
great company that has operated under the National Mediation Board's
regulations since it was incorporated as an airline carrier in the
United States of America. Those regulations should continue without
this pro-union change by the Obama Administration, as they should for
everybody else in the 75-year history who has been granted their rights
under a National Mediation Board regulation, which has served the
industry well, served commerce in the United States of America well,
and served transportation well. We should not allow two members of an
appointed board to overturn 75 years of history and 75 years of
precedent.
I reserve the remainder of my time and suggest the absence of a
quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. HARKIN. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HARKIN. Madam President, are we at 12:20 p.m., the time where we
have 10 minutes divided?
The PRESIDING OFFICER. There is 3 minutes until that appointed time.
Mr. HARKIN. I will take 3 minutes.
First of all, in response to my friend from Georgia--and he is my
friend; he is a great guy--this person, Ms. Polaski, Under Secretary of
Labor, may have written a letter, but as Under Secretary of Labor she
does not work for the National Mediation Board. She does not
necessarily have the experience of interpreting its laws or procedures.
That is the job of the National Mediation Board itself and of Federal
judges, which, I have to remind you, upheld the Board's actions 100
percent in this matter.
Secondly, on the matter of decertification, I strongly disagree with
my friend from Georgia. There is a procedure under the National
Mediation Board, as under the National Labor Relations Act. If a person
wants to get rid of the union under the NMB, they can file a petition,
if they can get 50 percent plus one person to show an interest--quite
similar to the National Labor Relations Act. If they can get 50
percent, they can file a petition with the NMB. The NMB then has an
election. If that person wins, that person is not represented by any
union, so the union is gone. There is just a little bit of a difference
from the National Labor Relations Act, but the outcome is basically the
same.
So there is a way. The Senator is right. I would say my friend is
right; it is not a formal decertification. But it is a way of getting
rid of the union, one way or the other. It may not be formal
decertification, but it is a way that the union can be gotten rid of
under the NMB.
I yield the floor.
The PRESIDING OFFICER. The Senator from Iowa.
Mr. HARKIN. Madam President, how much time now is remaining?
The PRESIDING OFFICER. The Senator has 4\1/2\ minutes remaining.
Mr. HARKIN. Madam President, as an agreement between the Senator from
Georgia and myself, we have agreed that since he is the author of this
joint resolution, he will close out the debate. I think that is proper.
I will just take a little bit of the remaining time on this side
again to reiterate why this resolution of disapproval should be
defeated.
No. 1, as has been adequately stated many times, it is time to get
rid of antiquated, outdated rules that say if you do not vote, it is
counted as a ``no'' vote. That does not make any sense.
Again, this idea that it is in perpetuity--it is not. There are ways
for people to get rid of unions under the NMB, as under the NLRB. So it
is not in perpetuity at all. It is just, again: How should ballots be
counted? Should a person who does not vote be counted as a ``no''? That
should not be so.
Even if you accept the argument that it is in perpetuity, why should
someone who does not vote be counted as a ``no'' vote? On the judges,
we say that every 4 years they are up. That is true; they are not kind
of in for perpetuity. But why should someone who does not vote be
counted as a ``no'' vote? It does not make sense in any system. I do
not care what the length of time is or whether it is in perpetuity or
for 2 months or 2 days; those who do not vote should not be counted no
or yes, one way or the other.
Secondly, the National Mediation Board went through proper procedures
in giving notice and comment in rulemaking. As I said, they published
it on November 3 of last year, a detailed explanation of why they were
considering it. They had 60 days of comment, 25,000 public comments, a
public hearing. Thirty-four members of the public testified.
Well, this is what Federal agencies do. They follow the
Administrative Procedures Act in doing this, and that is exactly what
the Board did.
So no one was misled. No one was kept out of it. There was no
evidence to support any claims that one member somehow was excluded or
did not have an opportunity to have input into this process.
Again, I understand why this resolution has come up. I understand
that for whatever reason, Delta Air Lines does not wish to be
unionized. Well, that is fine. That is their right. But there ought to
be a process whereby the workers have a fair, open chance to organize,
if they want to. It is not illegal in this country to belong to a
union--perfectly legal. The National Mediation Board has set up rules
and procedures under which workers who work for Delta or for
Northwest--the combined group now--can decide whether they want to have
a union. To me, that is the American way.
So why should we now say: Well, no, we want that old rule that if you
do not vote, it is counted as a ``no'' vote? That is what this is all
about. Stripped to its essence, if you vote for the resolution
introduced by my friend from Georgia, what you are saying is, if a
person does not vote, it is counted as a ``no'' vote. You are also
voting to override the National Mediation Board's decision, which has
already been upheld by Federal courts.
But, in essence, that is what it is. If you believe a person who does
not vote
[[Page S7383]]
should have their vote counted as a ``no'' vote, you probably ought to
vote for my friend's resolution. I do not think we should.
I think we should uphold good democratic principles, principles by
which, I say, bond issues or other ballot initiatives are always done.
You do not count someone if they do not vote. We do not do it here. We
do not do it anywhere in this country, and it should not apply here any
longer. So I ask for a ``no'' vote on the resolution of disapproval so
we can have free, fair, and open elections.
The PRESIDING OFFICER. The Senator has used his time.
The Senator from Georgia.
Mr. ISAKSON. Madam President, I keep hearing the argument that you
should not count a ``no'' vote; it is undemocratic. Today, at 2:15, the
Senate will vote on a cloture motion, and everyone who does not vote is
counted as a ``no'' vote as it requires 60 votes out of 100 to get
cloture. So we have to make that point from the outset, No. 1.
No. 2, this is not about being antiunion or against unions or
promanagement. This is about a 75-year-old history in the United States
of America for the essential service of commerce in terms of railroads
and airlines. We have historically had the National Mediation Board
rule that required a majority of the people who would be affected in
the class rather than just a simple majority of those voting for a very
precise reason: because it is a permanent decision, as referenced by
the quotes in letters from the Under Secretary of Labor.
While I understand the chairman's remark that the Under Secretary of
Labor is just the Under Secretary of Labor, she is the Under Secretary
of Labor appointed by the President of the United States.
While the chairman says the courts have ruled in favor of this
particular ruling of the National Mediation Board, the Supreme Court
has twice said they are wrong. Granted, those were in other cases. But
twice the National Mediation Board authority has gone to the U.S.
Supreme Court, and twice the U.S. Supreme Court has upheld it.
Even all the way back to 1976, President Jimmy Carter, from the State
of Georgia, spoke eloquently about the importance of National Mediation
Board rules and what it takes to unionize under that versus the NLRB.
So I appreciate very much the arguments the Senator has made, but the
facts are quite clear that it is better for the United States of
America, it is better for workers in the transportation industry, and
it has been historically upheld by the highest Court in the land that
the rules of the National Mediation Board serve the people of the
United States of America better than any other alternative that was
presented.
So with all due respect, I would quote that letter, once again, from
the Delta flight attendant who talked about their 31-year experience.
Why would you, in the cause of a merger, have a union request for an
election pulled out to give a board enough time to change the rules
under which that election would take place? It is not fair.
I wish to also say the 1996 Congressional Review Act is very
important. Congress ought to have a say-so in the action of boards of
the executive branch. We do have a system of three branches of
government. We do have a system of checks and balances. But it has
obviously been, apparently--as in this case and in others--that this
administration has attempted, where it can, to go around the authority
of the Senate in advice and consent, by appointing czars or, in this
case, to go around the Senate of the United States by using the
National Mediation Board.
I would respectfully submit this is a legitimate question--not of
whether you are for a union or against one or prefer management and do
not prefer a union--this is a debate about extending a 75-year-old
precedent which has served the United States of America well and has
been upheld in 12 administrations and by the Supreme Court twice. It
has been argued favorably by those 12 administrations every time it has
been challenged and by the current administration's documentation,
which I submitted, which has shown this is a permanent decision at the
National Mediation Board.
I would submit, the right thing for us to do is to join together
today and vote yes in favor of the motion to proceed to S.J. Res. 30. I
respectfully urge my colleagues to do that.
I yield back the remainder of the time.
The PRESIDING OFFICER. All time having been yielded back, the
question is on agreeing to the motion to proceed to S.J. Res. 30.
Mr. ISAKSON. Madam President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The clerk will call the roll.
The legislative clerk called the roll.
Mr. KYL. The following Senator is necessarily absent: the Senator
from Alaska (Ms. Murkowski).
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 43, nays 56, as follows:
[Rollcall Vote No. 239 Leg.]
YEAS--43
Alexander
Barrasso
Bennett
Bond
Brown (MA)
Brownback
Bunning
Burr
Chambliss
Coburn
Cochran
Collins
Corker
Cornyn
Crapo
DeMint
Ensign
Enzi
Graham
Grassley
Gregg
Hatch
Hutchison
Inhofe
Isakson
Johanns
Kyl
LeMieux
Lincoln
Lugar
McCain
McConnell
Nelson (NE)
Pryor
Risch
Roberts
Sessions
Shelby
Snowe
Thune
Vitter
Voinovich
Wicker
NAYS--56
Akaka
Baucus
Bayh
Begich
Bennet
Bingaman
Boxer
Brown (OH)
Burris
Cantwell
Cardin
Carper
Casey
Conrad
Dodd
Dorgan
Durbin
Feingold
Feinstein
Franken
Gillibrand
Goodwin
Hagan
Harkin
Inouye
Johnson
Kaufman
Kerry
Klobuchar
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
McCaskill
Menendez
Merkley
Mikulski
Murray
Nelson (FL)
Reed
Reid
Rockefeller
Sanders
Schumer
Shaheen
Specter
Stabenow
Tester
Udall (CO)
Udall (NM)
Warner
Webb
Whitehouse
Wyden
NOT VOTING--1
Murkowski
The motion was rejected.
____________________