[Congressional Record Volume 158, Number 26 (Thursday, February 16, 2012)]
[Senate]
[Pages S853-S856]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. Enzi (for himself, Mr. Alexander, Ms. Ayotte, Mr. 
        Barrasso, Mr. Blunt, Mr. Boozman, Mr. Burr, Mr. Chambliss, Mr. 
        Coats, Mr. Coburn, Mr. Cochran, Ms. Collins, Mr. Corker, Mr. 
        Cornyn, Mr. Crapo, Mr. DeMint, Mr. Graham, Mr. Grassley, Mr. 
        Hatch, Mr. Heller, Mr. Hoeven, Mrs. Hutchison, Mr. Inhofe, Mr. 
        Isakson, Mr. Johanns, Mr. Johnson of Wisconsin, Mr. Kyl, Mr. 
        Lee, Mr. Lugar, Mr. McCain, Mr. McConnell, Mr. Moran, Mr. Paul, 
        Mr. Portman, Mr. Risch, Mr. Roberts, Mr. Rubio, Mr. Sessions, 
        Mr. Shelby, Ms. Snowe, Mr. Thune, Mr. Toomey, Mr. Vitter, and 
        Mr. Wicker):
  S.J. Res. 36. A joint resolution providing for congressional 
disapproval under chapter 8 of title 5, United States Code, of the rule 
submitted by the National Labor Relations Board relating to 
representation election procedures; to the Committee on Health, 
Education, Labor, and Pensions.
  Mr. ENZI. Mr. President, I rise today after introducing a 
Congressional Review Act Resolution of Disapproval to stop the National 
Labor Relations Board's unfair and unnecessary ambush elections rule. I 
am pleased that 43 fellow Senators have cosponsored this resolution. I 
know it will draw more support on the Senate floor as people learn the 
details of the new rule.
  This administration's National Labor Relations Board has done a lot 
of controversial things, but the ambush elections rule stands out 
because it is a politicized and unjustified effort to make a fair 
system less fair, and it is being rushed into effect over tremendous 
objection.
  The National Labor Relations Act, which the National Labor Relations 
Board enforces, is a carefully balanced law that protects the rights of 
employees to join or not join a union and also protects the rights of 
employers to free speech and unrestricted flow of commerce.
  Since it was enacted in 1935, changes to this statute have been rare. 
When they do occur, it is the result of careful negotiations with all 
the stakeholders. Most of the questions that come up under the law are 
handled through decisions of the board. Board decisions often do change 
the enforcement of the law significantly, but they are issued in 
response to an actual dispute and an actual question of law. In 
contrast, the ambush elections rule is not a response to a real issue 
because the current election process for certifying whether employees 
want to form a union is not broken.
  This rule was not carefully negotiated by stakeholders. Instead, it 
was rushed into place over just 6 months, despite the fact that it drew 
over 65,000 comments in the 2-month period after it was first proposed.
  Had the board held the comment period open longer to allow more input 
from the regulated community, which was clearly quite engaged on the 
proposal, it would certainly have received even more comments. Yet this 
relatively small agency reported that it gone through all 65,957 
comments in just the 7 weeks they took to release a modified rule, 
which was then finalized. The rule was finalized just days before the 
board lost its quorum with the expiration of Member Becker's recess 
appointment term. Under any circumstances, a rulemaking this hasty 
looks suspicious. In this case, there is simply no justification for 
the rush.
  Today's secret ballot elections occur in a median timeframe of 38 
days. Unions win more than 71 percent of elections--their highest win 
rate on record. The current system does not disadvantage labor unions 
at all. But it does ensure there is fairness for the employees whose 
right it is to make the decision of whether or not to form a union, to 
pay union dues, and to have some of their dues go into political 
campaigns and have the full opportunity to hear from both sides about 
the ramifications of that decision--to have the time to get full 
disclosure.
  There is supposed to be a poster that notifies employees of their 
right not to have their money go into political campaigns, but this 
administration has taken that off of the poster so they are no longer 
informed of that right.
  This principle of law has been upheld over nearly seven decades. It 
was Senator John F. Kennedy who argued during the debate over the 1959 
amendments to the law, saying:

       There should be at least a 30-day interval between the 
     request for an election and the holding of an election . . . 
     in which both parties can present their viewpoints.

  Frankly, whenever I hear a government decision that aims to limit 
information available to citizens and depress free speech, I am very 
concerned. It was that sort of agenda that was behind the card check 
legislation which was defeated in the Senate. Let me repeat that. It 
was that sort of agenda that was behind the card check legislation that 
was defeated in the Senate. I am afraid this rule has been hatched in 
the same laboratory, and I hope it will meet the same fate.
  The ambush elections rule eliminates the 25-day waiting period to 
conduct elections in cases where a party has filed a preelection 
request for review. It effectively eliminates the opportunity for 
parties to voice objections and settle issues before the elections and 
limits the ability to address them after elections as well.
  What are we trying to hide? The effect of these changes will be union 
certification elections held in as few as 10 days. Union organizers 
will hand-select members of the bargaining unit, and any review of the 
appropriateness of the unit makeup or status of employees who may 
qualify as supervisors will be postponed until after the election--
something always done before the election. Employees will be voting on

[[Page S854]]

whether to form a union without any idea of who will actually be in the 
bargaining unit.
  Employers will be caught off guard and potentially flying blind with 
regard to their rights under the law, particularly small businesses. 
Union organizers spend months, if not years, organizing and spreading 
their message to the employees, unbeknownst to the employer. So when a 
union files a representation petition, employers are already at a 
significant disadvantage in educating employees about their views on 
unionization. Employers also use this time to consult with their 
attorneys to ensure their actions are permissible under the law. 
Shortening the time period will increase the likelihood that employers 
will act hastily, opening themselves to unfair labor practice charges 
that have very severe consequences.
  I am particularly concerned about the small businesses that will be 
ambushed under this rule. Instead of focusing on growing and creating 
more jobs, they will be swamped with legal issues, with bargaining 
obligations, a less flexible workforce, and increased costs across the 
board. Most small businesses likely have no idea about the changes 
being made by the National Labor Relations Board because the rule was 
rushed into place so hastily.
  Instead of directing the National Labor Relations Board to focus on 
enforcing current law rather than ambushing small business job creators 
and their employees, President Obama has stacked the Board with 
unconstitutional recess appointees and requested a $15 million increase 
in their budget. He simply doesn't understand. He doesn't get it.
  By passing this resolution through both the House and Senate, we will 
strike a victory for those on the side of job creation and fairness to 
employees. It will also send a very important message to a runaway 
agency. Under this administration, the National Labor Relations Board 
has been more controversial than most observers can ever remember. They 
have flouted the intentions of Congress repeatedly.
  The President has redefined a recess appointment in order to keep it 
going. There is no law that allowed that. There is no change that has 
been made that would allow a President to do something different than 
has ever been done before. But he did it. He redefined the recess 
appointment in order to keep the Board going.
  A few weeks ago, National Labor Relations Board Chairman Pearce 
announced that he intends to push through even more controversial 
changes to the elections rules before the end of the year. He is 
planning to require a mandatory hearing 7 days after a petition is 
filed. Employers would be forced to file a position statement on 
important legal questions at the hearing or lose the right to 
subsequently argue those issues. He plans to require employers to 
provide personal employee information to union organizers, such as e-
mail addresses, within 2 days. Do you think the employees want to be 
harassed with e-mails? I doubt it. These changes would completely 
cripple any employer's ability to have a voice in the decisionmaking 
process, let alone a small employer's.
  Enacting a resolution of disapproval of the ambush elections rule 
would prevent Chairman Pearce from promulgating these destruction 
changes. It would not roll back any rights or privileges, it would 
simply return these workplace rules to current law. Current law. Not 
current rule, current law. It just returns it to the workplace rules we 
have under current law. I will remind my colleagues that current law is 
a fair system under which employees retain the right to decide by 
secret ballot election whether to form a union. Elections occur in a 
median of 38 days, and unions win 71 percent of the elections.
  I ask unanimous consent to have printed in the Record letters of 
support from a number of groups.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                              National Association


                                             of Manufacturers,

                                Washington, DC, February 16, 2012.
     Hon. Michael B. Enzi,
     Ranking Member, Committee on Health, Education, Labor and 
         Pensions, U.S. Senate, Washington, DC.
       Dear Senator Enzi: On behalf of the National Association of 
     Manufacturers (NAM), I am writing to express manufacturers' 
     strong support for S.J. Res. 36, the ``Resolution of 
     Disapproval'' of the National Labor Relations Board's (NLRB) 
     rule relating to representation election procedures.
       The NAM is the nation's largest industrial trade 
     association, representing small and large manufacturers in 
     every industrial sector and in all 50 states. The NAM's 
     mission is to enhance the competitiveness of the 
     manufacturing economy by advocating policies that are 
     conducive to U.S. economic growth.
       The NLRB's rule relating to representation election 
     procedures, finalized in December, represents one of many 
     recent actions and decisions made by the NLRB, stifling 
     economic growth and job creation. These actions would burden 
     manufacturers with harsh rules, making it harder to do 
     business in the United States. The rule would limit what 
     issues and evidence can be presented at a pre-election 
     hearing, potentially leaving important questions unresolved 
     until after an election has taken place, making these 
     questions moot.
       Furthermore, the rule would also eliminate the current 25 
     day ``grace period,'' compressing the time frame for 
     elections to occur in approximately 20 days. Business owners 
     would effectively be stripped of legal rights ensuring a fair 
     election and those who lack resources, or in house legal 
     expertise, will be left scrambling to navigate and understand 
     complex labor processes with too little time. Moreover, 
     employees will be denied the ability to make fully informed 
     decisions about whether they want to join a union. Finally, 
     the NLRB has not provided any evidence such a rule is needed 
     in order to address a systematic problem of representation 
     election delays. Absent any justification, the NAM believes 
     the rule is unnecessary and will create problems where none 
     currently exist.
       S.J. Res. 36 would send a strong message to the NLRB and 
     rein in the agency, whose actions have resulted in the most 
     dramatic changes to labor law in 75 years, threatening the 
     ability of business owners to create and retain jobs. We look 
     forward to continuing to work with you on our shared goals 
     for a strong economy, job creation and promoting fair and 
     balanced labor laws.

                              NLRB REPRESENTATION ELECTION STATUS THROUGH THE YEARS
----------------------------------------------------------------------------------------------------------------
                                                                    Election
                  Fiscal year                        Cases         agreement %      Median days      56-day %
----------------------------------------------------------------------------------------------------------------
2011..........................................  ..............  ................  ..............  ..............
2010..........................................            1790              92.1              38            95.1
2009..........................................            1690              91.9              37            95.5
2008..........................................            2085              91.8              38            95.1
2007..........................................            2080              91.2              39            93.9
2006..........................................            2296              91.1              38            94.2
2005..........................................            2715              89                39            93.6
2004..........................................            2537              89                39            93.6
2003..........................................            2659              88.5              40            92.5
2002..........................................            2871              86.1              41              91
2001..........................................            2842              88.2              40             N/A
10 year Average...............................            2356              89.9            38.9            93.8
----------------------------------------------------------------------------------------------------------------

                              National Restaurant Association,

                                                February 15, 2012.
     Michael B. Enzi,
     Ranking Member, Senate Health, Education, Labor, & 
         Pensions,Washington, DC.
       Dear Senator Enzi: We write on behalf of the National 
     Restaurant Association to commend you on your leadership 
     urging the use of the Congressional Review Act (CRA) to 
     challenge the National Labor Relations Board's (NLRB) 
     decision to issue ``ambush election'' regulations. These 
     regulations make it more difficult for small businesses to 
     respond and educate their employees during union election 
     campaigns.
       The ambush election regulations would, in practice, deny 
     employees' proper access to information on unions, while 
     restricting employers' rights of free speech and due process. 
     Specifically, the ambush election regulations restrict an 
     employer's ability to raise substantive issues and concerns 
     prior to a union election, such as allowing the NLRB

[[Page S855]]

     to limit the issues raised at a pre-election hearing and 
     preventing an employer from raising objections to the size 
     and scope of a unit.
       The ambush election regulations would also eliminate the 
     requirement that a union election not be held within 25 days 
     after a hearing judge rules on pre-election matters. As NLRB 
     Board Member Brian Hayes points out, the intent of the ambush 
     election regulations is to ``eviscerate an employer's 
     legitimate opportunity to express its views about collective 
     bargaining.''
       We praise your leadership on this issue and look forward to 
     assisting you as this matter moves toward a floor vote in the 
     US Senate.
           Sincerely,
     Angelo I. Amador, Esq.,
       Vice President Director, Labor & Workforce Policy.
     Michelle Reinke Neblett,
       Director, Labor & Workforce Policy.
                                  ____

                                               Associated Builders


                                        and Contractors, Inc.,

                                                February 16, 2012.
     The Hon. Michael B. Enzi,
     U.S. Senate,
     Washington, DC.
       Dear Senator Enzi: On behalf of Associated Builders and 
     Contractors (ABC), a national association with 74 chapters 
     representing more than 22,000 merit shop construction and 
     construction-related firms, I am writing to thank you for 
     introducing S.J. Res. 36, which provides for congressional 
     disapproval and nullification of the National Labor Relations 
     Board's (NLRB) rule related to representation election 
     procedures. ABC supports S.J. Res. 36 and urges Congress to 
     immediately pass this much-needed resolution, which will 
     nullify the ambush election proposal.
       The ambush election rule is nothing more than the Board's 
     attempt to promote the interests of organized labor by 
     effectively denying employees access to critical information 
     about the pros and cons of union representation. Stripping 
     employers of free speech and the ability to educate their 
     employees, the rule poses a threat to both employees and 
     employers.
       In August, ABC criticized the NLRB proposed ambush rule 
     that could dramatically shorten the time frame for union 
     organizing elections from the current average of 38 days to 
     as few as 10 days between when a petition is filed and the 
     election occurs. ABC submitted comments to the NLRB stating 
     the proposed rule would significantly impede the ability of 
     construction industry employers to protect their rights in 
     the pre-election hearing process; hinder construction 
     employers ability to share facts and information regarding 
     union representation with their employees; and impose 
     numerous burdens without any reasoned justification on small 
     merit shop businesses and their employees, which constitute 
     the majority of the construction industry. In the largest 
     response on record, the NLRB received more than 70,000 
     comments regarding the proposal, many of which strongly 
     opposed the changes.
       The Board published a final rule on December 22, 2011, with 
     an April 30, 2012 effective date. While it somewhat modified 
     the original proposal, disposing of the rigid seven- and two-
     day requirements, the final rule is identical in purpose and 
     similar in effect to the August proposal.
       At this time of economic challenges, it is unfortunate that 
     the NLRB continues to move forward with policies that 
     threaten to paralyze the construction industry and stifle job 
     growth. If left unchecked, the actions of the NLRB will fuel 
     economic uncertainty and have serious negative ramifications 
     for millions of American workers. We applaud you for 
     introducing S.J. Res. 36 and urge Congress to immediately 
     pass this much-needed resolution.
           Sincerely,
                                                 Geoffrey G. Burr,
     Vice President, Federal Affairs.
                                  ____

                                       National Retail Federation,
                                                February 16, 2012.
     Hon. Michael B. Enzi,
     U.S. Senate, 379A Russell Senate Office Building, Washington, 
         DC.
       Dear Senator Enzi: On behalf of the National Retail 
     Federation (NRF), I am writing to you urge your support for 
     the Joint Resolution of Disapproval challenging the National 
     Labor Relations Board's (NLRB) rule on ambush elections. 
     Senator Mike Enzi has introduced this resolution, and NRF 
     urges you to support this legislation.
       As the world's largest retail trade association and the 
     voice of retail worldwide, NRF's global membership includes 
     retailers of all sizes, formats and channels of distribution 
     as well as chain restaurants and industry partners from the 
     United States and more than 45 countries abroad. In the U.S., 
     NRF represents an industry that includes more than 3.6 
     million establishments and which directly and indirectly 
     accounts for 42 million jobs--one in four U.S. jobs. The 
     total U.S. GDP impact of retail is $2.5 trillion annually, 
     and retail is a daily barometer of the health of the nation's 
     economy.
       Senator Enzi's resolution will relieve the serious threat 
     to both employees and employers posed by a recently finalized 
     NLRB rule regarding election timing. The rule, announced 
     December 21, 2011, would drastically change the process for 
     union representation elections and would severely limit 
     worker access to information needed to make an informed 
     decision about whether or not to vote in favor of a union.
       The average amount of time that elapses in a NLRB election 
     is presently 37 days. Under the new rule, a vote could happen 
     in as few as fourteen days, leaving an employer little time 
     to prepare for an election. Moreover, since a union can be 
     organizing for an election and talking to employees for up to 
     a year before a formal petition for an election is submitted 
     to the NLRB, the new rule severely tilts the playing field 
     against employers. As a result, the quality and quantity of 
     information available to employees in consideration of the 
     issue will be severely unbalanced; and the rights of 
     employees who do not favor the union position will be 
     undermined.
       This action by the NLRB, taken along with a series of other 
     extraordinary rulings over the course of the last nine 
     months, are nothing more than an attempt to impose the 
     Employee Free Choice Act (card-check) on employees and 
     employers through regulation. We urge you to strongly reject 
     this ``backdoor'' card check agenda by a board of unelected 
     bureaucrats and restore balance to the organizing process so 
     that we can start removing the economic uncertainty facing 
     both employers and employees.
       NRF is fully behind Senator Enzi's effort, and we urge you 
     to support the Joint Resolution of Disapproval. We look 
     forward to working with the Senate to move this Resolution 
     forward.
           Sincerely,
                                                     David French,
     Senior Vice President, Government Relations.
                                  ____

                                                   Coalition for a


                                         Democratic Workplace,

                                                February 16, 2012.
       Dear Senators Enzi and Isakson and Representatives Kline, 
     Roe and Gingrey: On behalf of millions of job creators 
     concerned with mounting threats to the basic tenets of free 
     enterprise, the Coalition for a Democratic Workplace thanks 
     you for introducing S.J. Res. 36 and its companion resolution 
     in the House of Representatives, which provide for 
     congressional disapproval and nullification of the National 
     Labor Relations Board's (NLRB or Board) rule related to 
     representation election procedures. This ``ambush'' election 
     rule is nothing more than the Board's attempt to placate 
     organized labor by effectively denying employees' access to 
     critical information about unions and stripping employers of 
     free speech and dues process rights. The rule poses a threat 
     to both employees and employers. We support S.J. Res. 36 and 
     its House companion and urge Congress to immediately pass 
     these much-needed resolutions, which will nullify the ambush 
     election proposal.
       The Coalition for a Democratic Workplace, a group of more 
     than 600 organizations, has been united in its opposition to 
     the so-called ``Employee Free Choice Act'' (EFCA) and EFCA 
     alternatives that pose a similar threat to workers, 
     businesses and the U.S. economy. Thanks to the bipartisan 
     group of elected officials who stood firm against this 
     damaging legislation, the threat of EFCA is less immediate 
     this Congress. Politically powerful labor unions, other EFCA 
     supporters, and their allies in government are not backing 
     down, however. Having failed to achieve their goals through 
     legislation, they are now coordinating with the Board and the 
     Department of Labor (DOL) in what appears to be an all-out 
     attack on job-creators and employees in an effort to enact 
     EFCA through administrative rulings and regulations.
       On June 21, 2011, the Board proposed its ambush election 
     rule, which was designed to significantly speed up the 
     existing union election process and limit employer 
     participation in elections. At the time, Board Member Hayes 
     warned that ``the proposed rules will (1) shorten the time 
     between filing of the petition and the election date, and (2) 
     substantially limit the opportunity for full evidentiary 
     hearing or Board review on contested issues involving, among 
     other things, appropriate unit, voter eligibility, and 
     election misconduct.'' Hayes noted the effect would be to 
     ``stifle debate on matters that demand it.'' The Board 
     published a final rule on December 22, 2011, with an April 
     30, 2012 effective date. While it somewhat modified the 
     original proposal, the final rule is identical in purpose and 
     similar in effect to the proposal.
       The NLRB's own statistics reveal the average time from 
     petition to election was 31 days, with over 90% of elections 
     occurring within 56 days. There is no indication that 
     Congress intended a shorter election time frame, and indeed, 
     based on the legislative history of the 1959 amendments to 
     the National Labor Relations Act, it is clear Congress 
     believed that an election period of at least 30 days was 
     necessary to adequately assure employees the ``fullest 
     freedom'' in exercising their right to choose whether they 
     wish to be represented by a union. As then Senator John F. 
     Kennedy Jr. explained, a 30-day period before any election 
     was a necessary ``safeguard against rushing employees into an 
     election where they are unfamiliar with the issues.'' Senator 
     Kennedy stated ``there should be at least a 30-day interval 
     between the request for an election and the holding of the 
     election'' and he opposed an amendment that failed to provide 
     ``at least 30 days in which both parties can present their 
     viewpoints.''
       The current election time frames are not only reasonable, 
     but permit employees time to hear from both the union and the 
     employer and make an informed decision, which

[[Page S856]]

     would not be possible under the ambush election rule. In 
     fact, in other situations involving ``group'' employee 
     issues, Congress requires that employees be given at least 45 
     days to review relevant information in order to make a 
     ``knowing and voluntary'' decision. (This is required under 
     the Older Workers Benefit Protection Act when employees 
     evaluate whether to sign an age discrimination release in the 
     context of a program offered to a group or class of 
     employees.) Also, in many cases, employers, particularly 
     small ones, will not have enough time under the rule's time 
     frames to secure legal counsel, let alone an opportunity to 
     speak with employees about union representation or respond to 
     promises union organizers may have made to secure union 
     support, even though many of those promises may be completely 
     unrealistic. Given that union organizers typically lobby 
     employees for months outside the workplace without an 
     employer's knowledge, these ``ambush'' elections would often 
     result in employees' receiving only half the story. They 
     would hear promises of raises and benefits that unions have 
     no way of guaranteeing, without an opportunity for the 
     employer to explain its position and the possible 
     inaccuracies put forward by the union.
       For these reasons, we thank you for introducing S.J. Res. 
     36 and its House companion and urge Congress to immediately 
     pass these much-needed resolutions. If left unchecked, the 
     actions of the NLRB will fuel economic uncertainty and have 
     serious negative ramifications for millions of employers, 
     U.S. workers they have hired or would like to hire, and 
     consumers.
           Sincerely,
                                                    Geoffrey Burr,
                                                         Chairman.

  Mr. ENZI. Mr. President, I look forward to the opportunity to debate 
this resolution on the floor, and I thank the Senators who have joined 
me as original cosponsors.
  I yield the floor, and I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant editor of the Daily Digest proceeded to call the roll.
                                 ______