[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.

                          ____________________