Congressional Record, Volume 158 Issue 58 (Monday, April 23, 2012)

[Congressional Record Volume 158, Number 58 (Monday, April 23, 2012)]
[Senate]
[Pages S2568-S2579]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

PROVIDING FOR CONGRESSIONAL DISAPPROVAL OF THE RULE SUBMITTED BY THE
NLRB RELATING TO REPRESENTATION ELECTION PROCEDURES--MOTION TO PROCEED

Mr. ENZI. Mr. President, I make a motion to proceed to S.J. Res. 36.
The PRESIDING OFFICER. The clerk will state the resolution by title.
The assistant legislative clerk read as follows:

Motion to proceed to S.J. Res. 36, a joint resolution
providing for congressional disapproval, under chapter 8 of
title V, United States Code, of the rule submitted by the
National Labor Relations Board relating to representation
election procedures.

The PRESIDING OFFICER. Under the previous order, there will be 2
hours of debate equally divided and controlled between the two leaders
or their designees.
The Senator from Wyoming is recognized.
Mr. ENZI. Mr. President, I rise today to ask for disapproval to stop
the National Labor Relations Board's ambush election rule. This rule I
have been objecting to was put into place by an NLRB that is bound and
determined to stack the odds against American employees and to put
employers and employees in an unfair situation. Despite the fact that
unemployment has remained above 8 percent for the past 3 years, and
small business growth is the most important factor in reversing the
lackluster trend, the National Labor Relations Board has chosen to
impose new rules to aid big labor at the expense of employers, and
particularly small business employers and the jobs they would create.
If the Senate does not act now to stop this rule by passing my
resolution, it will go into effect on Monday, April 30, 10 months after
it was first proposed. The changes that are being made are going to be
a big surprise for the employers and employees who get

[[Page S2569]]

caught in this net, particularly, as I mentioned, the small employers
who do not have the human resource departments or in-house counsel. I
would expect that we elected representatives of the people are going to
face a lot of questions about what we did to stop this blatant effort
to stack the odds in big labor's favor--and we will be asked. This rule
will shift the law significantly in favor of big labor.
Let me take a moment to explain. Under current practice, there is a
25-day waiting period between the setting of an election by a hearing
officer and the actual secret ballot election. Employers could use this
time to familiarize themselves with the requirements and restrictions
of the law. This is very important because there are many ways that an
unknowledgeable employer with the best intentions could make a misstep
that would be heavily penalized by the NLRB. Employers also use the
time to communicate with their employees about the decision they are
making and correct misstatements and falsehoods that they may be
hearing from union organizers.
Parties also use this time to seek review of a decision made by a
hearing officer or an NLRB regional director. Under the new regulation,
the 25-day waiting period is abolished and employers may face an
election in as few as 10 days.
Is it fair to the employees to only have 10 days to learn how this
will affect his or her life, and how much of his or her money this will
cost?
Under current law, both parties are able to raise issues about the
election at a preelection hearing, covering such issues as which
employees should be included in the bargaining unit and whether
particular employees are actually supervisors. Under the new
regulation, parties will be barred from raising these questions until
after the election. Employees will be forced to vote without knowing
which other employees will actually be in the bargaining unit with
them. This is important information that weighs heavily in most
employees' vote.
Additionally, because of the NLRB's decision to allow micro-unions,
such as specialty health care, unions will essentially be granted any
bargaining unit they design and employers will have a very limited time
to weigh in.
Under current law, when either party raises preelection issues, they
are allowed to submit evidence and testimony and file posthearing
briefs for the hearing officer to consider, and have 14 days in which
to appeal decisions made with respect to that election.
Under the new regulation, the hearing officer is given the broad
discretion to bar all evidence and testimony unrelated to the question
of representation and all postelection briefs, and no appeals or
requests for stays are allowed. This can be quite a disadvantage for
employees as well.
What this all adds up to is an extremely small window of time from
filing a petition to the actual election, little opportunity for
employers to learn their rights or communicate with employees their
rights, and less opportunity for employees to research the union and
the ramifications of forming a union. The NLRB is ensuring that the
odds are stacked against employees and businesses. This vote is an
opportunity to tell the NLRB to reverse course.
If we pass this resolution, as I hope we will, the Senate will not be
the only branch of government telling the NLRB it is off track. Last
month, a District of Columbia Federal court told the NLRB that several
provisions of its notice-posting regulation were well exceeding their
authority and struck them down. This was a judge appointed by President
Obama. Two weeks ago, another Federal court--this time in South
Carolina--also ruled against the NLRB. It found that the entire notice-
posting regulation violated congressional intent. Following up on these
two rulings, the DC Court of Appeals stayed the entire rule until
appeals are completed. The court in that case was frustrated that the
NLRB did not postpone the rule itself, given the multiple negative
treatments in the courts.
Unfortunately, that reckless sense of blind mission is consistent
with this administration's NLRB. It is kind of like ``Thelma and
Louise'' driving off a cliff. I, for one, don't want to see the NLRB
drive our economy off a cliff. I hope this resolution will pull them
back and encourage them to focus on their statutory mission.
The NLRB enforces the National Labor Relations Act, which is the
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 have occurred, it has
been the result of careful negotiations with stakeholders. This change
is one-sided and super quick--an ambush to set up ambush elections.

The National Labor Relations Board is not an agency that typically
issues regulations. Listen to this: In fact, in over 75 years the
National Labor Relations Board has finalized only three regulations
through formal rulemaking, two of which occurred last year. Let me
repeat that. In over 75 years, the National Labor Relations Board has
finalized three regulations through informal rulemaking, and two of
them occurred just last year--under this current National Labor
Relations Board. As I mentioned, one of those was already struck down
by one court and stayed by another.
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 question of law. In contrast, the ambush election is not a
response to a real problem 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
finalized in just over 6 months despite the fact it drew over 65,000
comments in the 2-month period after it was first proposed.
Labor law history provides an interesting contrast to this rushed
regulatory approach. In the late 1950s, Congress became concerned about
undemocratic practices, labor racketeering, and mob influence in
certain labor unions. To address this the Senate created a special
committee--the Select Committee on Improper Activities in the Labor or
Management Field. That operated for 3 years and heard more than 1,500
witnesses over 270 days of hearings.
Based upon their investigations, the Senate negotiated and passed
legislation to protect the rights of rank-and-file union members and
employers. The legislation is known as the Landrum Griffin Act.
The issue of how long a period of time there should be between the
request for an election and the actual election came up during those
negotiations. My colleagues may be surprised to learn it was Senator
John F. Kennedy who argued vigorously for a 30-day waiting period prior
to the election. As he said:

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. . . . .
The 30 day waiting period is an additional safeguard against
rushing employees into an election where they are unfamiliar
with the issues.

Again, that was a quote by Senator John F. Kennedy. Fairness to the
employees--that is what Senator John F. Kennedy was talking about. The
30-day waiting period provision he supported did not ultimately become
part of the law, and, obviously, it is not a law today. Instead, the
NLRB adopted a practice of a 25-day waiting period in almost every
case. But this caution about the need for employees to have a chance to
become familiar with the issues is just as true today.
Employees who are not aware of the organizing activity at their
worksite, and even those who are, need to have an opportunity to learn
about the union they may join. They will want to research the union to
ensure it has no signs of corruption. They will want to know how other
work sites have fared with this union and whether they can believe the
promises the union organizers may be extending. Employees should have
every chance to understand the impact of unionization.
For example, they will no longer be able to negotiate a raise
individually with their employer. Doing their jobs better than a fellow
employee may no longer bring any benefit whatsoever. Union rules may
even hinder sales.

[[Page S2570]]

I once had an opportunity to visit a shoe factory. I was in the
retail shoe business, and we visited a shoe factory. As we went through
it, I saw some boxes of some of the shoes we normally carry and was
kind of interested in what the new fashion looked like. So I went over
and opened a box, and the roof caved in. Not actually, but it seemed as
if the roof caved in because it had to be somebody who had union
authority to open that box. It couldn't be the supervisor. So I
actually shut down the factory for about 30 minutes just by picking up
a box to look at the shoes that were probably going to be coming to my
store at one point in time.
Grievances cannot be brought straight to the employer but will,
instead, have to go through the filter of union management. Once the
union is certified, the National Labor Relations Board has instituted
significant restrictions for when it may be decertified; in other
words, when the employees can fire a union as their representative.
Employees are barred from petitioning for decertification for a full
year after the election and barred as well throughout the term of the
collective bargaining agreement. So there is a very small window in
which employees have any opportunity to get rid of a union they do not
support. They are going to be rushed into judgment, and then they are
stuck with it.
Four decades ago Senators recognized employees deserved the
opportunity to gather this and all other relevant information before
casting their votes. Unfortunately, the NLRB is choosing to ignore this
caution, and rank-and-file employees will suffer. Fairness to the
employee?
This situation is exactly what the Congressional Review Act was
intended for. When an agency takes regulatory action that is not
supported by the people and their representatives, the Congressional
Review Act gives Congress the chance to repeal that regulation.
In this case those advocating for the rule are doing so because they
cannot pass the bill they really want, which is card check. Card check
is where you have people go in and stand over employees' shoulders
while they check a box that says they want to be in a union. Then, with
enough signatures or enough boxes checked, there is no secret ballot
election. So many have referred to this as ``back-door card check''--
this particular NLRB regulation--and for good reason. Both proposals
seek to restrict all communication with employees prior to a union
election for union organizers only. Under both scenarios, employees are
likely to hear only one side of the story, and employers can be cut out
of the process altogether.
But the other side could not pass card check because once the
American public found out about what they were trying to do, they
objected. It took a little while because the card check legislation was
deceptively named ``The Employee Free Choice Act.'' In reality it would
have forced employees into the exact opposite of free choice. Any
Senator who opposed this card check legislation should also be voting
for this resolution to stop ambush elections.
Another reason the Congressional Review Act was designed for just
this situation is there is simply no other way we would be allowed to
have a vote on this issue in this Senate. Back in December, the House
of Representatives passed Chairman Kline's legislation that would have
effectively killed the ambush election regulation and codified a 35-day
waiting period before an election. The Workforce Democracy and Fairness
Act was passed with bipartisan support, but it has no chance of being
called up for a vote in the Senate. So this vote is the one chance
Senators will have to stand up for employees and small businesses that
want fairness.
By any measure, the current law and certification system provides
that fairness. The National Labor Relations Board keeps data on
elections timing and sets up annual targets to process elections and
decide complaints swiftly. Last year, they exceeded two of those
targets and came within three-tenths of a percentage point of meeting
the third. There is simply no justification for this regulation.
Last year, initial elections and union representation elections were
conducted in a median of 38 days after the filing of the petition.
Almost 92 percent of all initial elections were conducted within 56
days of the filing of the petition. Not only are the vast majority of
elections occurring in a timely fashion, but unions are winning more
than ever. 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 employees--whose right it is to make
the decision of whether or not to form a union--have a full opportunity
to hear from both sides about the ramifications of that decision.
This resolution will preserve the fairness and swift resolution of
claims which occur under current law. It will not disadvantage unions
or roll back any rights. Let me repeat that: This resolution will not
disadvantage unions or roll back any rights. What it will do is prevent
the small business employers in America from being ambushed and
employees from being misled with insufficient information into union
contracts they cannot get out of.
Under a successful Congressional Review Act disapproval, the agency
in question is prohibited from issuing any substantially similar
regulation. That means the National Labor Relations Board could not
just reissue this regulation and could not finalize many of the other
bad ideas they initially proposed. I will be speaking about some of
those later on in this debate.
Let's not wait for the courts to strike down this rule, as they have
the NLRB's other regulatory effort--which would make two out of three
in the last 75 years. With the President's appointment of the National
Labor Relations Board members when we were not in a Senate recess
period, the Senate did not confirm the people pushing this effort--
though, mostly, this was done by previous board members. But with the
President's recess appointments in place, the National Labor Relations
Board is poised to push forward other bad ideas aimed at helping union
bosses, not employees, and not job creators. It is time to stop this
agency and level the odds.
I am pleased to have 44 fellow Senators cosponsoring this resolution.
I will now yield time to other Members who would like to speak in favor
of it, first allowing the Senator from Iowa, the chairman of the
committee, an opportunity to speak, probably, against it.
I yield the floor.
The PRESIDING OFFICER. The Senator from Iowa.
Mr. HARKIN. Mr. President, I yield myself whatever time I may
consume.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HARKIN. Mr. President, I also want to clear up one parliamentary
question. The occupant of the chair stated we had 2 hours evenly
divided. I believe that is today. But on the agreement for the entire
debate on the Congressional Review Act, if I am not mistaken, it is 4
hours evenly divided.
The PRESIDING OFFICER. The Senator is correct.
Mr. HARKIN. I thank the Chair.
Mr. President, this Congressional Review Act challenge is the latest
chapter in an unprecedented Republican assault on unions. The amount of
time this Congress has wasted scrutinizing and bullying the National
Labor Relations Board over the last 2 years is simply astonishing. This
time the debate is about whether the NLRB acted appropriately when it
streamlined its procedures for setting up a union election and
eliminated unnecessary bureaucracy to make the agency more efficient.
This seems like a commonsense and logical step that if taken by any
other agency my colleagues on both sides of the aisle would be
applauding as a step forward for good government and efficiency. But
because these reforms were put forward by the NLRB--an agency my
Republican colleagues seem to do anything to undermine--we are all
standing here today debating the merits of this eminently sensible
action. It is a real shame.
At a time when we should be working together to rebuild our economy
and addressing the real challenges facing working families across this
Nation, instead Republicans are distracting this body with partisan
attacks on the National Labor Relations Board and on unions.

[[Page S2571]]

I would welcome the opportunity to spend this time on the Senate
floor debating how to make life better for middle-class families. I
would even welcome the opportunity to have a real debate about unions
and the important role they play in our country. What I deeply regret
is that we are instead going to spend time discussing the wild
misinformation that has been spread about National Labor Relations
Board rules that were properly undertaken, well within the agency's
authority and completely sensible. So let me take a moment to try to
set the record straight.
In December, after receiving public input, the NLRB announced that
some internal agency procedures governing union elections would be
changed. These are modest changes that not only make the procedures
more rational and efficient but also ensure that workers and employers
alike will have an opportunity to make their voices heard in an
environment free of intimidation. These changes, while modest, are
desperately needed. They will address the rare but deeply troubling
situation where an unscrupulous employer uses delay and frivolous
litigation to try to keep workers from getting a fair election. Let me
briefly explain how the process works and how the new rules will help.
Ever since the passage of the National Labor Relations Act in 1935,
workers have had a Federally protected right to choose whether to form
a union, and our national policy, as stated in that act, has been to
encourage collective bargaining. Workers who are interested in forming
a union can request an election if at least 30 percent of the workers
in that workplace sign a petition and present that to the National
Labor Relations Board. About 90 percent of the time, the employer and
the union reach an agreement covering when the election will be held,
the timing of it, and who is in the bargaining unit.
That is the ideal situation. That is what happens the majority of the
time. Although we would never know it from the rhetoric surrounding
these rules, the new procedures address only the roughly 10 percent of
situations where these preelection issues are in dispute and the rules
say nothing about 90 percent of the elections, where the two parties
reach a voluntary agreement on election terms.
This chart shows us only a tiny fraction of election petitions will
be affected by these rules. As I said, 90 percent of the time the
proposed union and the employers reach an agreement when the election
is going to be held, how it is going to be held and other procedures.
They voluntarily agree on that. Only 10 percent of the time do we have
employers, some that are highly unscrupulous that will do anything to
prevent their workers from having any kind of a voice in the running of
the facility, that go to extreme lengths to frustrate the will of those
who want to form a union. Again, the rules we are talking about don't
even affect 90 percent of the businesses.
This 10 percent of the time when the parties can't reach an
agreement, the NLRB then holds a hearing to decide who should be in the
bargaining unit. The NLRB's proposed rules deal with the mechanics of
that hearing and they attempt to cut back on the frivolous litigation
that has plagued the hearing process. That is the proposed rule. They
deal with the mechanics of that and cut back on this frivolous
litigation. Under the old rules, management could litigate every single
issue they could imagine at the preelection hearing. They could file
posthearing briefs over any issue no matter how minor, and they could
appeal any decision to the NLRB here in Washington. In many cases, the
election would be put on hold while the Board reviewed the case. The
workers then had to wait for the resolution of this litigation before
they could even vote.
When the management side took advantage of every opportunity for
delay, the average time before workers could vote was 198 days. Again,
we are talking about this 10 percent. When management took advantage of
every opportunity, the average time before workers could even vote was
198 days. We have some cases where it has been as long as 13 years
before employees were able to vote in a union election. While the
election process drags on, workers are often subjected to harassment,
threats, and, yes, firing.
A study by the Center for Economic and Policy Research found that,
among workers who openly advocate for a union during an election
campaign, one in five is fired. We know what kind of signal that sends
to the rest of the workers. A Cornell University study found that
workers were required to attend an average of ten anti-union meetings
during worktime before the election. By law, workers have the right to
organize. As I said, our official policy, as stated in the National
Labor Relations Act, is to encourage collective bargaining, but in
practice we allow delay and intimidation to make that right
meaningless.
The current NLRB election reforms do not solve this problem entirely,
but nevertheless they are an important step forward. They help clear
the bureaucratic redtape that has wasted government resources and
denied workers the right to a free choice. Under the new rules,
employers and unions can still raise their concerns about the petition
at a preelection hearing, but they can't play games to stall the
election. For example, under the new rules, employers can't waste time
before the election arguing over whether an individual worker is
eligible to vote. That worker then can vote a provisional ballot, and
the two sides can debate the issue after the election if it matters to
the outcome. What we have had in the past is, let's say we had a
proposed bargaining unit that was 200 people. Let's say they got 100 of
them to sign a petition. They usually try to get about 50 percent. They
present it to the NLRB. Management then says: Person A shouldn't be in
that bargaining unit because they are a supervisor, and person B over
here shouldn't be in here because that person is a clerk and not a
handler--or whatever it might be that wouldn't correspond to the
bargaining unit.
Let's say they raise that issue on five people. Under the present
situation, they could then take this to the NLRB, have hearings on each
one of those. If they didn't like the outcome, they could then take it
to Washington, DC and drag it out.
Under the new rules, what they would say is: OK. If management is
challenging those five people, we will set their ballots aside, and we
will have an election. If the election was 150 to 20 that they form a
union, then those 5 wouldn't make any difference one way or the other.
But if the election were close and those five would, then the NLRB
would step in and say: Wait a minute. The certification would be put on
hold until they decided whether those people were rightfully in the
bargaining unit to vote. Again, these are some of the games that have
been going on.
Another example is appeals. All parties still have the right to
appeal any decision they disagree with. But now, all appeals would be
consolidated after the election, which allows the Board to conserve its
resources and keep the election process moving forward.
These commonsense changes remove unnecessary delays from the process,
they cut down on frivolous legal challenges, and give workers the right
to a fair up-or-down vote in a reasonable period of time. The new rules
don't encourage unionization and they don't discourage it. They just
give workers the ability to say yes or no, without having to wait
several months or even years to do so.
There is rampant misinformation about this rule. To be clear, the
rule does not allow a so-called ambush election, where an employer is
taken by surprise and has no ability or opportunity to communicate with
workers about the pros and cons of a union. As anyone who has ever been
around a workplace that is part of an organizing drive would know,
employers always know what is going on, and they have ample opportunity
to express their views. They can require their workers to listen to an
anti-union message all day long every day, and that is perfectly legal,
while the union isn't even allowed into the facility to talk to other
workers.
This rule also does not change the content of what an employer can or
cannot say to its workers. It doesn't restrict an employer's free
speech rights in any way.
Finally--I wish to make this clear--the rule does not mandate that
elections be held within any particular

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timeframe. For anyone who has actually read the new rules, it is clear
it does nothing of the sort.
What these rules do accomplish is to help ensure that employers and
employees have a level playing field, where corporate executives and
rank-and-file workers alike have an equal chance to make their case for
or against a union. Some workplaces will choose a union, some will not.
But protecting the right of workers to make that choice brings some
balance and fairness to the system. Indeed, many employers have
recognized that the new rules are fair and balanced. Catholic Health
Care West, a health care company with 31,000 employees, filed comments
stating:

Reforms proposed by the NLRB are not pro-union or pro-
business. They are pro-modernization.

Further, Catholic Health Care West said they will:

Modernize the representation election process by improving
the Board's current representation election procedures that
result in unnecessary delays, allow unnecessary litigation,
and fail to take advantage of modern communication
technologies.

Mr. Willie West, founder and owner of West Sheet Metal Company in
Sterling, VA, wrote an article in the Hill newspaper stating that:

[t]hese seemingly minor changes certainly do not create
uncertainty for me and they will not affect my ability to
create jobs. In fact, if the NLRB standardizes the election
process, it seems to me this will reduce uncertainty and
turmoil in the workplace--especially for small businesses.

Mr. West is exactly right. The rules are an improvement for small
businesses and for those who want a cooperative relationship with their
employees. Again, keep in mind, 90 percent of the time they have no
problems. We are only talking about this 10 percent of the time. That
is what these rules are aimed at.
The new rules promote consistency among NLRB field offices. They
simplify procedures for all parties, making it easier for businesses to
plan. The old rules gave an advantage to the businesses with the most
money and those most willing to manipulate the system to frustrate
their employees' right to vote. Some of these businesses in that 10
percent could afford expensive lawyers to exploit the system and delay
elections. The old rules worked well for anti-union law firms--I will
grant you that--but not for small businesses on a budget.
By creating a fair, more transparent process, the NLRB is leveling
the playing field for small businesses.
Most important, the rules also take a small step to level the playing
field for ordinary Americans. The people who do the work in this
country deserve a voice in the decisions that affect their families and
their futures. Polls show that 53 percent of workers want
representation in the workplace, but fewer than 7 percent of private
sector workers are represented and one of the reasons is the broken
NLRB election system. Even though more workers than ever are expressing
an interest in having a voice on the job, the number of union
representation elections conducted by the NLRB declined by an
astounding 60 percent between 1997 and 2009.
When workers do file for NLRB elections, 35 percent give up in the
face of extreme employer intimidation and withdraw from the election
before a vote is even held. Let me repeat that. Workers have gone
around, they have gotten signatures, they have gotten the requisite 30
percent. They usually get a lot more than that, 40 to 50 percent. They
file with the NLRB. One out of every three of those give up in the face
of extreme employer intimidation. Why? Because one out of every five is
being fired because there is no real penalty against the employer for
firing someone for union organizing. It is against the law to fire an
employee because they were exercising their right to form a union, to
be in union organizing. But it happens all the time. Why do employers
not worry about it? Because there are no penalties. The penalty is
backpay minus any offsets.
I had a young man in Iowa I remember very well up in Mason City. He
had been involved in organizing a union at his workplace. He got fired.
He filed with the NLRB saying he was wrongly dismissed because of his
union-organizing activities.
They had a hearing. It dragged on for 3 years before the NLRB could
reach a decision, and the decision was, yes, he was fired because of
his union-organizing activities.
What was the penalty on the employer? They had to pay him 3 years'
backpay minus whatever he earned in the meantime as a worker.
How many people can go through years without working? Of course, he
had to work. He had to go to work, and he had to show how much money he
made in the meantime that had to be deducted from what his employer had
to pay him. Therefore, they had to pay practically nothing. Yet using
that as an example, they were able to frustrate the organizing of a
union. One-third give up in the face of extreme employer intimidation.
These are the problems that need to be addressed.
It is not just a problem for unions either, but for our entire middle
class and for the future of our economy. If we take a look at what is
happening to the middle class in America, it is being decimated. The
American people are insisting--even though we are not doing much of it
in Washington, I can assure you the American people are insisting that
we have a national dialog about the growing division between the haves
and have-nots in this country, about the detrimental impact this is
having on the standard of living of American middle-class families.
This has led to important discussions about tax loopholes for
corporations and millionaires. But as we learned from battles from
Wisconsin to Ohio and beyond, it is very much a conversation about
workers' rights.
Unions have always been the backbone of the American middle class
since we started having a middle class. Since 1973, private sector
unionization rates have declined from 34 percent of the labor force to
7 percent; from 1 out of every 3 workers in America belonging to a
union to now only 7 percent, 1 in about 15. While unionization rates
declined, so did the middle-class share of national income.
During some hearings we had last year--we had a number of hearings in
our committee about this. When we track union membership--this, the
blue line, from 1973 to today--and track the percent of workers covered
by collective bargaining agreements, and then track the middle-class
share of national income, look how they all go down the same. As
unionization declined the number of workers in collective bargaining
declined, and so did their share of the national income. That is what
has happened to the middle class in America. Simply, the fate of
America's unions parallels the fate of America's middle class.
Unions are not a relic of a bygone era, they are a vital element of a
fair and successful 21st-century economy. If we want to strengthen our
economy and rebuild the middle class, we should try to figure out how
to make unions stronger, how to get more people in collective
bargaining, not attack collective bargaining rights across the country.
We should be fighting to ensure that every hard-working American has a
right to be treated with dignity and respect on the job--and, yes, to
have a voice on that job. The current NLRB election reforms may fall
short of that lofty goal, but, as I said, they are an important step
forward, and they deserve support.
I urge my colleagues to vote no on this Congressional Review Act
challenge to NLRB's rules. Now that these rules are to go into effect--
and I am confident they will go into effect--it is time for this body
to stop wasting time, using the NLRB as an election year political
football.
I think these attacks on this modest rule go right after the
intelligence of working Americans. These attacks urge this body to help
prevent unions from being organized. But ordinary Americans and the
middle class want us to stop this political posturing and move forward
on building economic opportunity for the middle class--and, yes, to
support the right of people who want to form a union, to get rid of all
these delays, and to make sure we have rules in place which basically
reflect 90 percent of the employers in this country.
Ninety percent of the employers reach agreements with their employees
on having an election. It is that 10 percent that gets to be
frustrating. This is the purpose of this rule, to make everybody sort
of falls in the 90 percent, so

[[Page S2573]]

we have a fair and expeditious election process, one that is
understandable, one that does not lead to all this frivolous litigation
and delay.
We have another couple or 3 hours of debate on this matter. After
this is over, I hope we can start focusing on ways to genuinely help
the middle class in America.
I yield the floor.
The PRESIDING OFFICER. The Senator from Wyoming is recognized.
Mr. ENZI. Mr. President, most of the small businesspeople I know
consider themselves to be part of the middle class. I appreciate the
statistics the chairman provided about 90 percent of the elections
arriving at agreement prior to the election. What this rule is going to
do is change it so that only 10 percent make agreements beforehand
because there is no incentive for the union to participate at all. They
have the right to just take it over.
There are some statistics about unions and the middle class, and kind
of a myth, that the current election procedures discourage unionization
and are the main cause of private sector union decline. In the 1950s
private sector union membership reached its height of 35 percent of the
unionized workforce. Today it is less than 7 percent of the private
sector workforce that is unionized, and the decline of unionization in
the private sector can be attributed to several social, political, and
economic factors, including present-day workplace laws at both the
State and Federal level that have greatly improved working conditions;
a decline in the manufacturing base; the new nature of employment,
where people are more transient in their careers; and the desire for
contemporary employees to have a more cooperative relationship with
their employers, and vice versa. It is kind of a teamwork factor that
most businesses operate on today.
I think it was also said that employers have unfair access to
employees and regularly bombard employees with anti-union propaganda. I
think it was said it could happen 24 hours a day. The fact is
employers' speech regarding unionization is closely monitored and
regulated. For example, employers are restricted from visiting
employees at their homes, inviting employees into certain areas of the
workforce to discuss unionization, and making promises or statements
that could be construed as threatening, intimidating, or coercive. That
is the current law. Employers are required to provide unions with a
list of employee names and home addresses for representation election
purposes.

I think it was also said changes are needed because current
procedures discourage employees from forming unions. The fact is all
employees have the guaranteed right to discuss their support of
unionization and to persuade coworkers to do likewise at work. The only
restriction is that they not neglect their own work or interfere with
the work of others when doing so. Employees as well as unions have the
unlimited right to campaign in favor of unionization away from the
workplace.
The National Labor Relations Board election rule will postpone these
legitimate questions after the representation election is held and
could result in more post-election litigation. So there are a lot of
factors that were mentioned. I am not going to go into all of them.
As I have stated throughout the debate, the National Labor Relations
Board's ambush election rule is an attempt to stack the odds against
American employers, particularly small businesses that do not have a
specialist in that area or in-house counsel. Most small businesses
today cannot afford either of those. They can be put into this
situation of having to figure it all out in less than 10 days. That is
just to figure out the rules so they do not get some heavy fines from
the National Labor Relations Board.
Coupled with two other changes the administration is forcing, some
employers will be caught in a perfect storm. Taken together, ambush
elections, the National Labor Relations Board's micro-union decision,
and the Department of Labor's proposed rule on persuader activity
create a major shift in favor of organized labor.
The Supreme Court has expressly stated that an employer's free speech
rights to communicate his views to his employees is firmly established
and cannot be infringed by a union or the board under the National
Labor Relations Act. Yet the overarching goal of the National Labor
Relations Board and the Labor Department's efforts is to put up
barriers that can have the effect of limiting employer free speech.
Under the specialty health care decision permitting micro-unions,
unions can now gerrymander a bargaining unit so it is made up of a
majority of employees who support the union. In this decision, the
standard for whether a union's petition for a bargaining unit is
appropriate was changed to make it very difficult for employers to
prove it is not appropriate. The decision will lead to smaller units
which will be easier to organize and cause fragmentation and discord in
the workplace. Allowing micro-unions will increase the number of
bargaining units in the workplace. The result means an employer could
face multiple simultaneous organizing campaigns, all with shortened
election periods, thanks to this ambush rule. Those two combined can be
pretty dangerous.
Under the Department of Labor's proposed regulation to require
increased reporting of persuader activity, an employer, especially a
small employer, will rethink obtaining advice from lawyers or
consultants on what to do when faced with a union organizing campaign.
Taking away the ability to consult outside parties, combined with a
shortened election period, makes it nearly impossible for an employer
to not only educate his employees, but also to ensure his actions are
within the law.
For over 50 years the Department of Labor has been exempted from
reporting requirements advice provided to employers. The proposed rule
will significantly affect that definition. The complexities of the
National Labor Relations Act almost require an employer to seek advice
on what he is permitted to do or say to employees during a union
election, especially if the election period is as short as 10 days.
The proposed rule on persuader activity will chill employer speech to
the point that employers will not seek, and attorneys will not provide,
advice on any labor-related issue. So unions have turned to these
regulatory initiatives after losing the public and political battle
over the Employee Free Choice Act, otherwise known as card check.
Organized labor's end game remains the same, making it easier to
organize by taking away the employer's free speech right and the
employee's right to fair information.
Supporters of organized labor have acknowledged the winning strategy
is to gain voluntary recognition of the union from employers instead of
allowing employees to vote in a secret ballot election, despite a 71-
percent win rate. Ambush elections, increased reporting on persuader
activity, and the decision to allow micro-unions will set the bar for
an employer winning elections impossibly high, essentially coercing
them into voluntarily recognizing the union.
I do thank the Senator for mentioning that in 90 percent of the
elections there is an agreement before the election done in a
relatively short period of time that takes care of all the disputes. I
don't know if the purpose of Congress is to make sure 100 percent of
situations never occur or 90 percent or 99 percent, but everything
cannot be solved by doing a new rush to action regulation, particularly
by an organization that doesn't do those regulations normally.
In 75 years there have only been three regulations. Two of them were
done by the Labor Relations Board in the last year, and one of those
has already been set aside by the courts. So this is a rush-to-action
situation, and I hope my colleagues will join me in this resolution of
disapproval of the Congressional Review Act.
It is a very difficult bar to reach because the Senate will have to
pass the resolution of disapproval twice with a majority of votes. That
gives the other side the opportunity to see who might support it the
first time and see if they can talk them out of it the second time. But
after that, it has to go through the House, and then this is the
surprising part to me--if it passes both bodies where both bodies have
said they do not think the agency correctly interpreted what we put in
law, meaning Congress, who are the only ones with the right to pass a
law--what we

[[Page S2574]]

put into law, they are trying to change, and that third step is that it
requires the signature of the President in order for the Congressional
Review Act to become effective. We are an equal branch of government to
the administration. The administration writes the rule. We disapprove
of the rule because we say it doesn't follow the laws we have already
passed, and then the administration which wrote the law gets to say
whether the votes of the people in the House and in the Senate had any
effect at all.

The Congressional Review Act has a definite place, but it should have
been done using the authority of Congress itself, not the authority of
the Congress and the administration combined. We are at a point where
there is a heavy hand in the administration, and that will have a
drastic effect on business in this country. And if business fails,
there will be less employees, not more.
Mr. HARKIN. Mr. President, how much time do have I remaining?
The PRESIDING OFFICER. The majority has 36 minutes 25 seconds.
Mr. HARKIN. Mr. President, we are going to have a lot of time to
flush out some of these arguments again tomorrow when the vote gets
near, but I thought I might pick up on a couple of things here that my
good friend from Wyoming said. We do a lot of work together, and he is
a great Senator and a good friend of mine. He just happens to be wrong
on this issue, but other than that, he is a good friend of mine. This
is a good, healthy debate on policy.
There is a lot of talk about these ambush elections. Now we are going
to have ambush elections. Well, that is not so. The current median time
from when a petition is filed and when the election occurs is about 37
to 38 days. Again, I heard from my friend saying this could be ambush
elections, and all that kind of stuff. Even one of the Nation's largest
management-side law firm disagrees. One of the attorneys from Jackson
Lewis told the Wall Street Journal that he thinks the time would be
shaved between 19 and 23 days under the proposal.
Mr. Trauger, vice president of the National Association of
Manufacturers, said the elections would be held in 20 to 25 days under
the new rule. So that is not an ambush election at all. All this rule
does is remove these extra legal hurdles that can cause excessive
delays.
We keep hearing about rulemaking, and saying: Well, this board has
only issued three of these rules in the past 75 years, two of these
rules in the last couple of years. It makes it sound as though the NLRB
has ridden off the range here in terms of reasonableness. But the fact
is that when the board promulgated rules in the past, they did it
through the adjudicative process, not through rulemaking.
The Supreme Court and the U.S. Courts of Appeal have criticized the
board in the past for underutilizing its rulemaking authority. Courts
have said the rulemaking process is more transparent and more
inclusive. So through rulemaking this board has solicited broader
public input in its decisions.
What the NLRB has done in the last couple of years is opened up the
process for comment periods and rulemaking through the Administrative
Procedures Act, something the courts have been asking and advising the
NLRB that they should have been doing all along rather than relying on
the adjudicative process.
So, yes, my friend may be right about two of the three last couple of
years, but actually that is a move in the right direction. That is a
move for transparency and openness and letting all different sides have
their comments before they issue a final rule rather than doing it
through adjudication.
There was this quote about John Kennedy about a 30-day waiting
period. Well, I don't know, I have not looked at then-Senator Kennedy's
entire record. I suppose there are some things I might agree with him
on and some things I probably would not agree with him on. I don't know
what his thought processes were. All I can tell you is that no matter
what he said at that time as a Senator, the final bill did not have a
waiting period. The Senate put it in, the House did not, and when it
went to conference, they dropped it. So I think the rejection of that
proposed amendment could be more reasonably understood as an indication
that Congress did not believe a minimum time between petition and
election is necessary.
Sure, you can quote Kennedy, and I guess I can quote President Dwight
D. Eisenhower, and here is what he said:

Only a fool would try to deprive working men and women of
the right to join a union of their choice.

Well, we better not try to prevent them from joining a union of their
choice.
I have also heard this charge that somehow these rules tilt this more
in favor of the unions than management. No, they don't. Again, we have
mostly been talking here about the certification process. When union
organizers get the signatures, they file with NLRB and we have an NLRB
process. Basically that is what we are talking about here. But I would
point out to my friend on the other side of the aisle that these
procedures we are talking about also apply to decertification elections
as well. So since the same rules will apply to decertification
elections, the proposed rule will ensure that employees who have union
representation will be able to have a timely up-or-down vote to also
get rid of the union. So, to me, it is both. It is both on the
certification and the decertification side. It makes for things to be
much more expeditious, much clearer, and more understandable. That is
why I think many management firms and businesses see this as a
reasonable rule because when they would try to decertify, they don't
have to go through all of this frivolous litigation on the other side.
It applies to both certification and decertification, so it doesn't
tilt the playing field one way or the other.
Again, I applaud the National Labor Relations Board for moving in the
direction of more rulemaking, making it more open, making it more
transparent than what they have done in the past. But you know what it
boils down to? As long as I have been here, since 1985 in this body, we
have had ups and downs on the National Labor Relations Board. Let's
face it, what happens is the National Labor Relations Board has three
members from the President's political party and two from the other
side. So when you have a Democratic President in, then NLRB gets
attacked by Republicans. When a Republican President is in, it gets
attacked by Democrats, and it becomes kind of a political football. I
understand that, and we should all understand that is what this is too.
That is what this is all about.
I was just notified that a Statement of Administration Policy, SAP,
from the administration just came through. It said even if this vote
were held and the other side won--if it was voted to overrule the
NLRB--the President would veto it. And, surely, no one thinks there is
a two-thirds vote here to override the President's veto on this issue.
We are kind of wasting our time here. It is sort of another political
shot when there are so many important things we should be talking about
in terms of jobs, job creation, the economy, fair taxation, keeping our
jobs from going overseas, education, job retraining, and yet we are
spending our time talking about this. Well, be that as it may, the
facts are on the side that this rule is eminently reasonable, fair, and
I think will lead to a more predictable and less litigious and less
conflicting process when people want to form a union in this country.
As I said, 90 percent of the time we don't have these problems. But
for those 10 percent, it can be devastating, and it can thwart
individual workers who want to form a union. So I am hopeful we can
have a little bit more debate on this. I hope the vote tomorrow will be
conclusive and that we will turn this down and move ahead with more
important business confronting this country.
I yield the floor.
The PRESIDING OFFICER. The Senator from Wyoming.
Mr. ENZI. Mr. President, we are having an interesting duel of
statistics here, because to take care of the 10 percent that the
Senator from Iowa says has a problem, we will turn the other 90 percent
on their head. It also doesn't surprise me that the President has put
out a Statement of Administration Policy, a SAP. I always thought those
were pretty aptly named, but not surprised my resolution would be
opposed.
As I explained, this is a regulation written by the administration so
I

[[Page S2575]]

would expect the administration would not like and would veto it. There
has been only been one Congressional review action that has succeeded
and that was regarding the rule on ergonomics. And what happened was
the Department of Labor rushed through a 50-day regulation, and then we
had a change of Presidents and the new President didn't like it, so he
was willing to sign the Congressional Review Act resolution of
disapproval.
This is not a waste of time. This is an important action. It is to
warn agencies and boards that the ones that make the laws are Congress,
and we delegate that rulemaking authority, and it was delegated to the
administration of the National Labor Relations Board, and they are
abusing their authority.
What has changed? Well, there is the pre-election hearing. In the new
rule it says: ``A pre-election hearing is solely to determine whether a
question of representation exists.'' The important question, such as
which employee should be included in the bargaining unit or the
eligibility of an employee, won't be heard prior to an election.

A hearing officer may unilaterally bar testimony or
evidence he or she deems not relevant to a question raised at
a pre-election hearing--under this new regulation.

The effect?

A hearing officer will have wide latitude to prohibit
certain evidence introduced at a pre-election hearing, even
if such evidence is undisputed or stipulated, essentially
leading to the conclusion that an election is proper.

Under the new rule:

Parties are prohibited from seeking a review of a regional
director's decision and direction of an election by the
Board. All issues to review would be heard after an election.
Parties could seek a pre-election appeal if the issue would
otherwise escape Board review.

The effect?

Parties with a legitimate legal bar to an election will be
forced to run an unnecessary election. An unintended
consequence is that an employer would have to commit an
unfair labor practice in order to have their issues reviewed
by the full Board.

If you ask me, that is a pretty high bar they are putting in there.
The new rule says:

The 25-day waiting period between the direction of the
election and election date is eliminated.

The impact?

The 25 days allowed parties to digest and understand the
parameters of the regional director's decision to direct an
election, and for the Board to rule on the parties' requests
for the review of the decision.
Although not included in the Final Rule, the Board
originally proposed that a pre-election hearing will occur 7
days after the filing of a petition absent special
circumstances.

The effect? It forces employers to scramble to retain counsel. Again,
we are talking about small businessmen here. There is no limit on how
small of a business you can organize in this. It forces employers to
scramble to retain counsel, develop a strategy, prepare for a hearing,
and develop evidence. Many employers, especially small ones, will be
unable to provide a reasonable response so quickly, leading them to
agree to a stipulated election. There is not anything in this provision
that gives any protection for the person in the middle class running a
small business and trying to keep his business afloat. There used to be
some protections, but this new regulation--and, again, agencies do
write a lot of rules, but they don't write ones of this significance--
is only the third time it has been done by the National Labor Relations
Board. It was done in a hurry-up situation. Two out of the three were
done by this administration. One of those has already been set aside by
the courts. That is not a very good record. Now we are trying to do
this one on a hurry-up basis. I think there ought to be more
consideration for it.

Part of the role of Congress is to take a look at what the
administration is doing with their regulations, which we ultimately
give them the authority to do, to see if they are being done properly.
So this is just a major part of the need for oversight. Thankfully,
there is a process whereby we can get the right to debate this
oversight. That is what we are doing at this point.
I yield the floor to Senator Barrasso for such time as he needs.
The PRESIDING OFFICER. The Senator from Wyoming.
Mr. BARRASSO. Mr. President, I rise in support of my colleague from
Wyoming and the excellent work he is doing and continues to do, as well
as the leadership he continues to provide for all the Senate and
certainly for the people of Wyoming. He is the captain of our team. I
agree with him and wish to associate myself with the remarks of the
Senator from Wyoming and express my concerns about the new ambush
election rule issued by the National Labor Relations Board.
The National Labor Relations Board is the Federal agency charged with
conducting labor elections and investigating unfair labor practice
charges. The appointed members of this board are meant to help
facilitate a level playing field in the private sector workplace.
Unfortunately, recent actions have demonstrated that the board is much
more interested, in my opinion, in pursuing regulatory changes that
favor unions. They should be focused on ensuring that workers are able
to make informed decisions about their place of employment, not on
showing favoritism.
Let's take a look at the ambush election rule. On December 22 of last
year, the National Labor Relations Board issued a new rule. The new
rule greatly shortens the time period between the filing of a petition
for union representation and when that election is held. Under the
current rules, most union elections take place within about 38 days.
Under the new rules, the time could be cut almost in half. The ambush
election rule also narrows the scope of preelection hearings while
limiting the rights of a party to preelection appeals.
I believe this misguided rule undermines the basic fairness in the
representation election process. It limits the amount of information
received by employees regarding the impact of unionization on their
workplace. The rule also significantly restricts the ability of
employers to educate their employees and to share their perspective.
I believe this causes harm to workers. The decision on whether to
join or form a union is a very important decision for workers.
Employment decisions directly affect an individual's ability to support
their family, to pay their bills, and to sustain their livelihood.
Workers deserve to have all the information needed to make a well-
informed decision.
In order to seriously consider their options, employees must have the
opportunity to hear from both sides on the implications of
unionization. The ambush election rule, in my opinion, attempts to
quickly rush employees through the union election process, without
giving those employees the full picture and a clear understanding of
the issues.
I have great concerns about what I believe is a disregarding of
employer input. The ambush election rule disregards the rights of small
businesses and employers across this country. The new rule is
attempting to silence employers from discussing vital information with
their employees about unionization and the impact on their lives and on
their jobs. Under the new rule, employers would have a very limited
amount of time to share their views, to provide counterarguments, and
to explain what unionization would mean in the workplace. Employers
should be allowed time to fully explain the information to their
employees. Ultimately, I believe the purpose of the recently released
rule is to leave employers unable to effectively communicate with
workers about important workplace issues. The Board is infringing upon
the free speech rights of the employers.
I believe this new rule prevents employers from getting counsel. In
this tough economic environment, small business owners are facing an
incredible amount of pressure and responsibility. Job creators are
working hard to ensure their products and services are competitive.
They are working to find available markets for their goods and
services. They are trying to deal with the financial health of their
businesses.
Many small business owners are unaware of the complicated Federal
laws they must adhere to during the union election process. Due to the
variety of competing priorities and limited resources, small businesses
all across this country often don't employ inhouse legal counsel or
human resource professionals familiar with unionization laws. Under the
new rule,

[[Page S2576]]

however, the time constraints will make it even more difficult for them
to find appropriate counsel, to consult on the issues, and to prepare
for the election process. Employers will be scrambling to find a labor
attorney or a human resource professional to help explain their rights
and to ensure that their actions are permissible under current law. As
a result, many employers will be left at risk for unintentionally
violating certain Federal labor laws or silenced.
The National Labor Relations Board should not be forcing employers to
preemptively analyze Federal labor laws and figure out how best to
communicate their views of unionization in case a union petition
happens to pop up. Job creators should be focusing their scarce time
and resources on managing and growing their businesses, on trying to
put Americans back to work at a time of over 8 percent unemployment.
I view this whole new rule as unnecessary. There is no reason for the
new rule. The median timeframe for union elections has been 38 days
from the filing of the petition. About 91 percent of all the elections
held in 2011 occurred within 56 days. These numbers indicate the
petitions and elections are handled, and have been handled, in a timely
manner. Furthermore, the current election procedures are not impeding
the ability of unions to win the representation elections. According to
the National Labor Relations Board's own statistics, unions won about
71 percent of elections held in 2011.
When I take a look at what is happening with the National Labor
Relations Board, what comes to mind are the recent recess appointments
made by the President. This new rule we are facing and discussing is
not the first time the Obama administration has attempted to use the
NLRB to pursue the union's agenda. The administration continues to take
actions and push through policies that are unwise and even, in my
opinion, unconstitutional, in order to do the bidding of unions.
In an action that was both unprecedented and unconstitutional,
President Obama recess appointed three new members to the National
Labor Relations Board during a pro forma session of this Senate.
President Obama appointed three individuals. The nominations of two of
them, Sharon Block and Richard Griffin, were sent to the Senate only a
few days before the pro forma session began. As a result, the Senate
had no opportunity--none at all--to hold hearings or debate the
nominees. President Obama completely disregarded the constitutional
requirement of advice and consent for executive nominees. The
appointments were a heavy-handed effort by this administration to curry
favor, in my opinion, with the unions.

I come to the floor as someone who has talked at great length about
the impact of regulations and how they make it harder and more
expensive for our small businesses to hire people around the country.
Businesses are already having trouble keeping track of all the changing
rules and trying to abide by all the new requirements they face on
almost a daily basis. The only certainty being offered to the job
creators in the United States is that the Obama administration is going
to continue to change the rules of the game on businesses to meet its
own agenda. The ambush election rule is the exact type of regulatory
change that makes employers nervous and reluctant to expand their
businesses, to create new jobs, to hire and put people back to work.
This Federal Government should be focused on giving employers
stability, predictability, and opportunities for growth instead of
stacking the deck, as we see it, in favor of labor unions.
I come to the floor, as I know my colleagues will as well, in a call
to action to employ the Congressional Review Act. Under the
Congressional Review Act, Congress is able to overturn the ambush
election rule by passing a resolution of disapproval. I am proud to be
an original cosponsor of S.J. Res. 36, introduced by Senator Enzi. The
resolution of disapproval rescinds the new union election rule issued
by the National Labor Relations Board. Unless Congress takes action,
the new rule is scheduled to take effect on April 30 of this year--just
the end of this month. I call upon the Senate to pass S.J. Res. 36 and
prevent this dangerous rule from silencing employers and hindering the
ability of American workers to make informed decisions.
I thank the Chair, and I yield the floor.
The PRESIDING OFFICER. The Senator from Wyoming.
Mr. ENZI. Mr. President, I ask unanimous consent to have several
letters of support printed in the Record, along with a list of 18
organizations that support the resolution.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Congressional Review Act (S.J. Res. 36) Disapproval of NLRB Ambush
Election Rule

Support Letters (17)

Associated Builders and Contractors, Associated General
Contractors of America, Association of Equipment
Manufacturers, Coalition for a Democratic Workplace, U.S.
Chamber of Commerce, Food Marketing Institute, H.R. Policy
Association, National Association of Home Builders, National
Association of Manufacturers, National Association of
Wholesaler-Distributors, National Council of Chain
Restaurants, National Federation of Independent Business,
National Grocers Association, National Retail Federation,
National Restaurant Association, National Roofing Contractors
Association, Retail Industry Leaders Association.
Conservative and Free Market Groups: American Commitment,
Americans for Tax Reform, Alliance for Worker Freedom,
Competitive Enterprise Institute, WorkPlaceChoice.org,
Taxpayers Protection Alliance, Frontiers of Freedom, The
Heartland Institute, Ohioans for Workplace Freedom, 60 Plus
Association, Eagle Forum, Institute for Liberty, Center for
Freedom and Prosperity, Independent Women's Voice, Americans
for Prosperity, Let Freedom Ring, Center for Individual
Freedom, ConservativeHQ.com, Less Government, National Center
for Public Policy Research, Citizens for the Republic, The
James Madison Institute, Heritage Action for America, The
Club for Growth, The American Conservative Union, National
Taxpayers Union, The Committee for Justice.

Additional Support (Signatories of CDW letter)

National Organization (119): 60 Plus Association,
Aeronautical Repair Station Association, Agricultural
Retailers Association, AIADA, American International
Automobile Dealers Association, Air Conditioning Contractors
of America, American Apparel & Footwear Association, American
Bakers Association, American Concrete Pressure Pipe
Association, American Council of Engineering Companies,
American Feed Industry Association, American Fire Sprinkler
Association, American Foundry Society, American Frozen Food
Institute, American Hospital Association, American Hotel and
Lodging Association, American Meat Institute, American
Nursery & Landscape Association, American Organization of
Nurse Executives, American Pipeline Contractors Association,
American Rental Association, American Seniors Housing
Association, American Society for Healthcare Human Resources
Administration, American Society of Employers, American
Staffing Association, American Supply Association, American
Trucking Associations, American Wholesale Marketers
Association, AMT--The Association For Manufacturing
Technology, Assisted Living Federation of America,
Association of Millwork Distributors, Associated Builders and
Contractors, Associated Equipment Distributors, Associated
General Contractors of America, Association of Equipment
Manufacturers, Automotive Aftermarket Industry Association,
Brick Industry Association, Building Owners and Managers
Association (BOMA) International, Center for Individual
Freedom.
____

Chamber of Commerce

of the United States of America,

Washington, DC, February 16, 2012.
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 and co-sponsor S.J. Res. 36, a
resolution of disapproval that would repeal recent revisions
the National Labor Relations Board (NLRB or Board) made to
regulations governing union representation elections.
These regulations replace a process that, in the vast
majority of cases, worked fairly and efficiently. In fiscal
year 2010, the average time for union representation
elections was just 38 days, with more than 95 percent of all
elections occurring within 56 days. However, rather than look
at targeted solutions for the small percentage of cases that
take too long, the Board made sweeping changes that will
apply to all elections.
While the substantive regulations adopted by the NLRB are
detailed and complex, the end result is that election time
will likely decrease significantly at the expense of
important due process and free speech rights. The simple fact
is that employees deserve a fair campaign period to hear from
all sides and employers deserve an opportunity to have
critical election-related questions settled before an
election occurs. Organized labor has long sought to radically
reduce or

[[Page S2577]]

even eliminate this campaign period, which was precisely the
goal of the ``card check'' provisions of the deceptively
named ``Employee Free Choice Act'' (EFCA). Congress was right
to reject EFCA and it should likewise reject the NLRB's new
election regulations.
Due to the critical importance of this issue to the
business community, the Chamber strongly urges you to support
and co-sponsor S.J. Res. 36.
Sincerely,

R. Bruce Josten,

Executive Vice President,
Government Affairs.
____

April 16, 2012.
Dear Senator: On behalf of millions of job creators
concerned with mounting threats to the basic tenets of free
enterprise, the Coalition for a Democratic Workplace urges
you to support S. J. Res. 36, which provides 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 due process rights. The rule poses a threat
to both employees and employers. Please vote in favor of S.
J. Res. 36 when it comes to the Senate floor next week.
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.
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 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). Under
the rule's time frames, employers, particularly small ones,
will not have enough time to secure legal counsel, let alone
an opportunity to speak with employees about union
representation or respond to promises made by union
organizers, 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 urge you to support S.J. Res. 36 and
Congress to pass this much needed resolution. 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.
The Coalition for a Democratic Workplace and National
Organization (119): 60 Plus Association, Aeronautical Repair
Station Association, Agricultural Retailers Association,
AIADA, American International Automobile Dealers Association,
Air Conditioning Contractors of America, American Apparel &
Footwear Association, American Bakers Association, American
Concrete Pressure Pipe Association, American Council of
Engineering Companies, American Feed Industry Association,
American Fire Sprinkler Association, American Foundry
Society, American Frozen Food Institute, American Hospital
Association, American Hotel and Lodging Association, American
Meat Institute, American Nursery & Landscape Association,
American Organization of Nurse Executives, American Pipeline
Contractors Association, American Rental Association,
American Seniors Housing Association, American Society for
Healthcare Human Resources Administration, American Society
of Employers, American Staffing Association, American Supply
Association.
American Trucking Associations, American Wholesale
Marketers Association, AMT--The Association For Manufacturing
Technology, Assisted Living Federation of America,
Association of Millwork Distributors, Associated Builders and
Contractors, Associated Equipment Distributors, Associated
General Contractors of America, Association of Equipment
Manufacturers, Automotive Aftermarket Industry Association,
Brick Industry Association, Building Owners and Managers
Association (BOMA) International, Center for Individual
Freedom, Center for the Defense of Free Enterprise Action
Fund, Coalition of Franchisee Associations, College and
University Professional Association for Human Resources,
Consumer Electronics Association, Council for Employment Law
Equity, Custom Electronic Design & Installation Association,
Environmental Industry Associations, Fashion Accessories
Shippers Association, Federation of American Hospitals, Food
Marketing Institute, Forging Industry Association, Franchise
Management Advisory Council, Heating, Air-Conditioning and
Refrigeration Distributors International, HR Policy
Association, INDA, Association of the Nonwoven Fabrics
Industry, Independent Electrical Contractors, Industrial
Fasteners Institute, Institute for a Drug-Free Workplace.
Interlocking Concrete Pavement Institute, International
Association of Refrigerated Warehouses, International Council
of Shopping Centers, International Foodservice Distributors
Association, International Franchise Association,
International Warehouse Logistics Association, Kitchen
Cabinet Manufacturers Association, Metals Service Center
Institute, Modular Building Institute, Motor & Equipment
Manufacturers Association, NAHAD--The Association for Hose &
Accessories Distribution, National Apartment Association,
National Armored Car Association, National Association of
Chemical Distributors, National Association of Convenience
Stores, National Association of Electrical Distributors,
National Association of Manufacturers, National Association
of Wholesaler-Distributors, National Automobile Dealers
Association, National Club Association, National Council of
Chain Restaurants, National Council of Farmer Cooperatives,
National Council of Investigators and Security, National
Council of Security and Security Services, National Council
of Textile Organizations, National Federation of Independent
Business, National Franchisee Association, National Grocers
Association, National Lumber and Building Material Dealers
Association, National Marine Distributors Association, Inc.,
National Mining Association, National Multi Housing Council.
National Pest Management Association, National Ready Mixed
Concrete Association, National Retail Federation, National
Roofing Contractors Association, National School
Transportation Association, National Small Business
Association, National Solid Wastes Management Association,
National Stone, Sand & Gravel Association, National Systems
Contractors Association, National Tank Truck Carriers,
National Tooling and Machining Association, National Utility
Contractors Association, North American Die Casting
Association, North American Equipment Dealers Association,
Northeastern Retail Lumber Association, Outdoor Power
Equipment and Engine Service Association, Inc., Plastics
Industry Trade Association, Precision Machined Products
Association, Precision Metalforming Association, Printing
Industries of America, Professional Beauty Association,
Retail Industry Leaders Association, Snack Food Association,
Society for Human Resource Management, SPI: The Plastics
Industry Trade Association, Textile Care Allied Trades
Association, Textile Rental Services Association, Truck
Renting & Leasing Association, U.S. Chamber of Commerce,
United Motorcoach Association, Western Growers Association.
State and Local Organizations (60): Arkansas State Chamber
of Commerce, Associated Builders and Contractors, Inc.
Central Florida Chapter, Associated Builders and Contractors,
Inc. Central Pennsylvania Chapter. Associated Builders and
Contractors, Inc. Chesapeake Shores Chapter, Associated

[[Page S2578]]

Builders and Contractors, Inc. Connecticut Chapter,
Associated Builders and Contractors, Inc. Cumberland Valley
Chapter, Associated Builders and Contractors, Inc. Delaware
Chapter, Associated Builders and Contractors, Inc. Eastern
Pennsylvania Chapter, Associated Builders and Contractors,
Inc. Florida East Coast Chapter, Associated Builders and
Contractors, Inc. Florida Gulf Coast Chapter, Associated
Builders and Contractors, Inc. Georgia Chapter, Associated
Builders and Contractors, Inc. Greater Houston Chapter,
Associated Builders and Contractors, Inc. Hawaii Chapter,
Associated Builders and Contractors, Inc. Heart of America
Chapter, Associated Builders and Contractors, Inc. Indiana
Chapter, Associated Builders and Contractors, Inc. Inland
Pacific Chapter, Associated Builders and Contractors, Inc.
Iowa Chapter, Associated Builders and Contractors, Inc.
Keystone Chapter, Associated Builders and Contractors, Inc.
Massachusetts Chapter, Associated Builders and Contractors,
Inc. Michigan Chapter, Associated Builders and Contractors,
Inc. Mississippi Chapter, Associated Builders and
Contractors, Inc. Nevada Chapter, Associated Builders and
Contractors, Inc. New Orleans/Bayou Chapter, Associated
Builders and Contractors, Inc. Ohio Valley Chapter,
Associated Builders and Contractors, Inc. Oklahoma Chapter,
Associated Builders and Contractors, Inc. Pacific Northwest
Chapter, Associated Builders and Contractors, Inc. Pelican
Chapter, Associated Builders and Contractors, Inc. Rhode
Island Chapter, Associated Builders and Contractors, Inc.
Rocky Mountain Chapter, Associated Builders and Contractors,
Inc. South East Texas Chapter, Associated Builders and
Contractors, Inc. Virginia Chapter, Associated Builders and
Contractors, Inc. Western Michigan Chapter, Associated
Builders and Contractors, Inc. Western Washington Chapter,
Associated Builders and Contractors, Inc. North Alabama
Chapter.
Associated Industries of Arkansas, Associated Industries of
Massachusetts, CA/NV/AZ Automotive Wholesalers Association
(CAWA), California Delivery Association, Capital Associated
Industries (NC), Employers Coalition of North Carolina, First
Priority Trailways (MD), Garden Grove Chamber of Commerce,
Georgia Chamber of Commerce, GO Riteway Transportation Group
(WI), Greater Columbia Chamber of Commerce (SC), Greater
Reading Chamber of Commerce & Industry (PA), Kansas Chamber
of Commerce, Little Rock Regional Chamber of Commerce (AR),
London Road Rental Center (MN), Long Beach Area Chamber of
Commerce, Minnesota Grocers Association, Montana Chamber of
Commerce, Nebraska Chamber of Commerce & Industry, Nevada
Manufacturers Association, New Jersey Food Council, New
Jersey Motor Truck Association, North Carolina Chamber,
Northern Liberty Alliance (MN), Ohio Chamber of Commerce,
Texas Hospital Association.
____

National Federation of

Independent Business,

Washington, DC, February 27, 2012.
Hon. Michael Enzi,
Ranking Member, U.S. Senate, Committee on Health, Education,
Labor and Pensions (HELP), Washington, DC.
Dear Ranking Member Enzi: On behalf of the National
Federation of Independent Business (NFIB), the nation's
leading small business advocacy organization, I am writing in
support of S.J. Res. 36, a resolution of disapproval in
response to the National Labor Relation Board's (NLRB) rule
related to ``ambush'' elections. The ambush election rule
significantly alters the pre-election labor union process in
ways that would particularly harm small businesses, and we
appreciate your resolution of disapproval to nullify this
rule.
Despite Congress refusing to pass card check legislation,
it seems clear that the NLRB is intent on implementing card
check by regulation. The Board's rule on ``ambush'' elections
will significantly undermine an employer's opportunity to
learn of and respond to union organization by reducing the
so-called ``critical period'' from petition-filing to
election, from the current average time of 31 days to as few
as 10 21 days. NFIB believes that employee informed choice
will be compromised because the shortened time frame will
have business owners scrambling to obtain legal counsel, and
they will have hardly any time to talk to their employees.
This shortened time frame will hit small businesses
particularly hard, since small employers usually lack labor
relations expertise and in-house legal departments.
With the proposed ``ambush'' election rule, the NLRB has
demonstrated that it has little understanding or concern for
the unique demands that these actions would place on small
business. It is always a challenge for small business owners
to stay updated with new regulations and labor laws,
especially in the current economic environment. NFIB's
monthly economic surveys indicate that the small business
economy is still at recession levels, and nearly 20 percent
of small business owners surveyed indicate that economic and
political uncertainty is their number one concern.
Unfortunately, the pro-union actions of the NLRB will only
create more uncertainty for small business owners at a time
when the country needs them to be creating more jobs.
Thank you for introducing this legislation to help
America's small businesses. I look forward to working with
you to protect small business as the 112th Congress moves
forward.
Sincerely,
Susan Eckerly,
Senior Vice President, Public Policy.

Mr. ENZI. I also ask unanimous consent to have printed in the Record
an article by Phil Kerpen in the Daily Caller entitled ``Will any
Senate Democrat stand up to Obama's NLRB?''
There being no objection, the material was ordered to be printed in
the Record, as follows:

[From the Daily Caller, Apr. 19, 2012]

Will Any Senate Democrat Stand Up to Obama's NLRB?

(By Phil Kerpen)

With the spectacle of Senate Budget Chairman Kent Conrad
being forced to back down on actually offering a budget, it's
clearer than ever that Senate Democrats are pursuing a
deliberate strategy of doing nothing, blocking House-passed
bills and giving President Obama a free hand to use
regulators and bureaucrats to push his agenda forward. The
Senate has already failed to stand up to the EPA's back-door
cap-and-trade energy taxes and the FCC's self-created legally
dubious power to regulate the Internet. Next week we'll find
out if there are any Senate Democrats willing to stand up to
the NLRB bureaucrats who are imposing the failed card-check
legislation in bite-size pieces via bureaucratic decree.
The NLRB is giving the EPA a run for our money in the race
to see which agency can cause the most damage to our free-
market economy. Not only did the NLRB infamously sue Boeing
for opening a new plant in a right-to-work state, it is now
suing the state of Arizona to overturn the state's
constitutional guarantee of secret ballot protections in
union organizing elections. It has also pursued a dizzying
array of regulations and decisions designed to force workers
into unions against their will.
The NLRB suffered a setback this week when a district court
struck down its rule forcing employers to display posters in
the workplace touting the benefits of unionization. Next week
it could be dealt an even bigger blow if just a handful of
Senate Democrats stand up for the economic interests of their
constituents and the basic constitutional principle that the
people's elected representatives should make the laws in this
country.
The vote is on Senator Mike Enzi's (R WY) Congressional
Review Act (CRA) resolution of disapproval, S.J. Res 36,
which would simply overturn the NLRB's ambush elections rule,
which allows union organizers to spring elections on
employers and workers. Because of the CRA's special
procedures, the resolution cannot be filibustered and
therefore needs just 51 votes to pass. All but two
Republicans--Lisa Murkowski (R AK) and Scott Brown (R MA)--
are cosponsors, but not a single Democrat has signed onto the
resolution.
The ambush rule at issue was forced through the NLRB on a 2
to 1 party-line vote late last year, just before infamous
union lawyer Craig Becker's recess appointment to the board
expired. It could be the last action of the NLRB that will
have legal force for some time, because after Becker expired
at the end of the year, the board lacked the quorum necessary
to make decisions and issue rules. (Obama tried to re-
establish a quorum by non-recess-appointing another radical
union lawyer, Richard Griffin, among others, but those
appointments should be found invalid in court.)
The ambush rule is a prime example of the NLRB advancing an
element of legislation already rejected by Congress and
putting the interests of labor bosses above those of workers.
After the first version of card check that eliminated private
ballot elections entirely crashed into a wall of public
opposition, a revamped version of the legislation retained
elections but allowed union organizers to catch workers and
employers by surprise with ambush elections. That version
also failed in Congress, but the NLRB is pretending it passed
and moving forward just the same.
The current average period before an election after a union
files a petition is 38 days. This gives both the union and
management an opportunity to explain the facts and ensure
workers understand the high stakes in a representation
election. The new rule will shorten it to as little as 10
days and eliminate procedural safeguards employers currently
have to make sure union elections are duly authorized and
eligible workers are properly defined before an election
takes place.
NLRB Chairman Mark Pearce has indicated that if the rule
stands he intends to go much further. ``We keep our eye on
the prize,'' Pearce said in January, promising to force
employers to make confidential employee information,
including phone numbers and email addresses, available to
union organizers. That would potentially expose workers to
harassment, intimidation or even violence.
The vote on S.J. Res 36 will give the Senate an opportunity
to exercise its constitutional duty under Article I, Section
1 and stop the usurpation of legislative power by
unaccountable federal bureaucrats at the NLRB. Unfortunately,
it appears likely that once again Democratic senators will
find it more convenient to obstruct and allow the Obama
administration a free hand to govern by regulation.

[[Page S2579]]

Voters should watch next week's vote with this question in
mind: If my senator will not do the job of legislating,
shouldn't I elect someone who will?

Ms. COLLINS. Mr. President, I rise today to speak in favor of Senate
Joint Resolution 36, which would reject the National Labor Relations
Board's, NLRB, rule on representation procedures, the so-called
``ambush election'' rule. I am pleased to be an original co-sponsor of
this important legislation, introduced by Senator Enzi with 44
cosponsors.
On December 22, 2011, the NLRB finalized new regulations, which will
become effective on April 30, 2012, significantly limiting the time for
holding union representation elections. This change would result in
employees making the critical decision about whether or not to form a
union in as little as 10 days.
Back in 1959, then-Senator John F. Kennedy explained that ``the 30-
day waiting period [before a union election] is an additional safeguard
against rushing employees into an election where they are unfamiliar
with the issues . . . there should be at least a 30-day interval
between the request for an election and the holding of the election''
to provide ``at least 30 days in which both parties can present their
viewpoints.'' I agree with our former President and Senator. An
expedited timeframe would limit the opportunity of employers to express
their views, and leave employees with insufficient information to make
an informed decision.
According to the NLRB, in 2011 union representation elections were
held on average within 38 days. That is already below the NLRB's stated
target of 42 days. Therefore, this begs the question of why yet another
regulation is even necessary.
Businesses, our nation's job creators and the engine of any lasting
economic growth, have been saying for some time that the lack of jobs
is largely due to a climate of uncertainty, most notably the
uncertainty and cost created by new federal regulations.
This ambush election rule will particularly negatively affect small
businesses. Small business owners often lack the resources and legal
expertise to navigate and understand complex labor processes within
such a short time frame. In our current economy, it is critical that we
do everything possible to advance policies that promote U.S. economic
growth and jobs.
The Joint Resolution of Disapproval will not change current law. It
simply will protect employers and employees by allowing them to conduct
representation elections in the same manner that has been done for
decades.
The NLRB's goal should be to ensure fair elections and a level
playing field for all.
Mr. ENZI. Unless there is further debate, I yield back the balance of
our time for today.
Mr. HARKIN. Mr. President, this side yields back the balance of our
time for today as well.
The PRESIDING OFFICER. All time has been yielded back.

____________________