[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.
______