[Congressional Record Volume 158, Number 59 (Tuesday, April 24, 2012)]
[Senate]
[Pages S2616-S2627]
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
The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will resume consideration of the motion to proceed to S.J. Res.
36, which the clerk will report.
The 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 5, United States Code, of the rule submitted by the
National Labor Relations Board relating to representation
election procedures.
The ACTING PRESIDENT pro tempore. Under the previous order, there
will be 2 hours of debate, equally divided, between the leaders or
their designees on the motion to proceed.
The Senator from Wyoming.
Mr. ENZI. Mr. President, I yield such time to the Senator from South
Carolina as he may need.
The ACTING PRESIDENT pro tempore. The Senator from South Carolina.
Mr. GRAHAM. Mr. President, I would like to thank the Senator from
Wyoming for yielding but, more importantly, for his leadership on the
subject that brings us all to the floor.
The National Labor Relations Board has gotten a lot of attention
lately and
[[Page S2617]]
for reasons I don't think are too helpful to the cause. Obviously,
being from South Carolina, their decision to entertain a complaint
against the Boeing Company for moving to South Carolina, a complaint
filed by the machinists union that sat on their desk for 1 year and
then finally was brought forward by the NLRB to potentially close down
the South Carolina site and move the facility back to Washington, thank
God, is behind us now.
But at the end of the day, this organization, the National Labor
Relations Board, seems to be hell bent on changing processes across the
board more for political reason than a substantive reason.
What brings us here today is the rulemaking proposal to change the
time for union elections for employees to vote on whether they want to
be part of a union. It does away with the preelection consultation, the
idea of the employer and the people wanting to represent the employees
sitting down and seeing if they can work out a proposal or a
compromise; it shortens the election time to as little as 10 days. So
if you are in the company in question, you have a 10-day period before
the election. The current mean average is 38 days.
I would argue this is being done not to make things more efficient
but to change outcomes. Quite frankly, the outcome being desired is to
make the union position stronger, not to make the system more
efficient. That is what happens.
I expect a Republican President to nominate people to a board such as
the NLRB with a business background. I expect a Democratic President to
nominate people to the NLRB and like boards with maybe a more union
background. But I expect the Board not to take the agency and turn it
into a political organization and try to create by rulemaking what we
can't create by legislating. That is what brings us here today.
The whole complaint filed by the machinists union in Washington,
taking that complaint up that the move to South Carolina was somehow in
retaliation against the union in Washington when no one lost their job
in the State of Washington and no one's pay was reduced I think was
taking the NLRB into an area it has never gone before.
This is just a continuation of that pattern and this is not good
because the unelected aspect of our government, the NLRB and similar
agencies, has a lot of sway over our economy. At a time when we are
trying to make sure we create jobs in America and make it easier for
people to locate their companies here, proposals such as this are
undercutting what we need to be doing.
This is an unprecedented move. This kind of breathtaking change in
the rules has only happened, I think, two or three times, and this was
proposed as Mr. Becker was on the way out. Congress, under the
Administrative Review Act, has an opportunity to stop this before it is
too late. What this is being called on our side is sort of an ambush
election.
The point we are trying to make is that by changing this rule to a
10-day period and doing away with preelection negotiations basically
creates an environment where people are having to cast votes and not
understanding who is going to be representing them or the nature of
their decision. Why do we want to shorten an election? Why do we want
to do away with the ability to negotiate between the employer and
people who want to represent the employees?
I don't see this is addressing a problem that exists. I think this is
more motivated by getting at an outcome rather than reforming a
process. I hope some of our Democratic colleagues will say this is
excessive and unnecessary.
If the Congress doesn't stand in the way between the American people
and unelected bureaucrats, who will? This is your chance as a Member of
Congress to do something about the unelected side of government that is
growing more powerful by the day. We have a chance here to say no to a
rule that makes no sense, that is going to skew the playing field and,
quite frankly, I think represents the worst of special interest
politics.
I hope Senators will take an opportunity to exercise their authority
as a Member of Congress and say: Whoa. Time out. We don't need to go
down this road. Let's let people understand who will be representing
them, let the people who are going to vote in an election regarding
unionization of the workplace to have a meaningful understanding of
what they are about to vote on. There is no reason to shorten the
process to 10 days. I doubt most of us would like our elections to be
shortened to 10 days.
This is not about reforming an election process that is broken. It is
about trying to change the outcome and skew it to the benefit of one
side versus the other. Again, the rulemaking is not necessary. This is
a chance for a Member of Congress to stand and say no to the unelected
side of government at a time when somebody needs to say no to them.
I just hope and pray we can get some bipartisan support for this
because Senator Enzi has done a very good job of trying to explain to
the Senate and to our conference as a whole about what awaits the
American workforce if this rule is changed, why it is unnecessary. It
is not about reforming a broken process; it is trying to get an outcome
where one side benefits versus the other.
I just hope my colleagues on the other side of the aisle will look at
this as an opportunity for Congress to speak against the excessive
rulemaking and what I think is an abuse of a process.
With that, I yield, and I appreciate very much the leadership of
Senator Enzi.
The ACTING PRESIDENT pro tempore. The Senator from Wyoming.
Mr. ENZI. Mr. President, I thank the Senator from South Carolina,
particularly for the insight on the way that this particular Board
abused his State and found out they were wrong and got it all taken
care of. But his comments are particularly valuable in dealing with
this shortening of the time as well.
I thank him for speaking and I yield the floor.
Mr. HARKIN. Mr. President, I yield myself such time as I may consume.
For more than 1 year, I have been working on a series of hearings,
both in Washington, DC, and in Iowa, focusing on the state of the
American middle class.
We have learned that the American middle class is disappearing,
falling into the widening gulf between the haves and the have-nots. The
people who do the real work in this country are being squeezed to the
breaking point. Their paychecks aren't rising. Their benefits are
disappearing. Their pensions are disappearing. Their jobs are being
shipped overseas.
When we looked into the causes of this crisis, we found that the
middle class is not disappearing due to some inevitable effect of
forces beyond our control such as globalization and technology. In
fact, the decline of the middle class is primarily due to policy
failures. We have failed to respond to our changing economy, while at
the same time we have allowed many of the underpinnings of a strong
middle class, such as a fair minimum wage, strong overtime laws, and
defined benefit pensions to disappear.
One of the biggest factors in this downward spiral has been the
decline of American unions. As former Secretary of Labor Robert Reich
explained when he testified before the HELP Committee last year, when
unions were strong, the middle class thrived and our country prospered.
In the mid-1950s, more than one-third of all American workers in the
private sector were unionized and the unions demanded and received a
fair slice of the American pie. Nonunionized companies, fearing their
workers would otherwise want a union, offered similar deals. As
employers boosted wages, the higher wages kept the machinery of our
economy going by giving average workers more money to buy what they
produced. That is what the former Secretary of Labor Robert Reich said.
But now, unfortunately, that productive cycle has broken down.
Workers have lost their unions, and they don't have money in their
pockets to spend and help grow the economy. That is costing us the jobs
and holding back our economy.
There are lots of reasons for the decline in unions, but I think
again this chart which I showed yesterday is instructive. If we look at
the chart, from 1973 to 2010, we will see, first of all, in the green
line is the number of workers
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covered by collective bargaining agreements. Look how unionization has
declined. Here is the union membership. These are the ones covered by
collective bargaining agreements. Here is union membership going down
the same way. The red line is the middle class share of national
income. Look how it tracks it. So as union membership and collective
bargaining has decreased, the middle class share of national income has
decreased also, almost parallel. Again, lots of reasons, but I think a
big one is the broken union election process. It has become so riddled
with abuses that people are giving up on it altogether. As I mentioned
in my remarks yesterday, the number of union representation elections
has declined by an astounding 60 percent between 1997 and 2009. When
workers do file for an NLRB election, 35 percent give up in the face of
extreme employer intimidation and withdraw from the election before a
vote is even held, and that is after they have already signed the card
to petition for the NLRB to have an election, one-third of them never
get to an election.
The rule we are discussing today cannot solve all of these problems,
but as I said yesterday, it is a step in the right direction. It
addresses some of the most abusive situations where unscrupulous
companies are manipulating the process and creating delays so they can
buy more time to intimidate workers.
The primary way management can cause delay is to raise challenges at
the preelection hearing. Some of these disputes, such as challenging
the eligibility of an individual voter, can certainly wait until after
the election to be decided. That is what we do in elections across the
country. If a voter's eligibility cannot be confirmed, they vote a
provisional ballot until their eligibility can be verified. We don't
stop an election from happening until every voter's eligibility can be
confirmed. We don't do that. If there is a challenge, they vote a
provisional ballot and after the election they see whether they were
qualified to vote. Some of these challenges are downright silly, but
they have their intended effect, and that is to delay.
In 2002, one employer raised a preelection challenge arguing that the
International Association of Machinists was not a ``labor
organization'' within the meaning of the statute. The NLRB actually
held a hearing on this question and, of course, found that the
machinists who had been representing workers since 1888 are indeed a
labor union. But the election was delayed by a month to address that
one issue.
Some anti-union consultants bragged openly about their ability to
abuse the process and create delays. One union-busting law boasted on
its Web site how a 27-day hearing contributed to a 5-month delay
between filing of a petition and the election at a Massachusetts
hospital organizing drive.
Why is delay so important to management who do not want to bargain in
good faith with workers? Well, by delaying an NLRB election, they give
themselves more time to conduct an anti-union campaign and make it more
likely they will win.
One former anti-union consultant wrote a book that is very
instructive. Everyone should read it. It is called ``Confessions of a
Union Buster.'' He described his strategy as ``[c]hallenge everything .
. . then take every challenge to a full hearing . . . then prolong each
hearing'' as long as possible, then ``appeal every unfavorable
decision.'' The consultant explained that ``if you make the union fight
drag on long enough, workers . . . lose faith, lose interest, lose
hope.'' Let me repeat that. This is from an anti-union consultant who
wrote this book called ``Confessions of a Union Buster,'' and he said,
``if you make the union fight drag on long enough, workers . . . lose
faith, lose interest, lose hope.''
The impact on workers is clear. In 2000, workers at Dillard's
distribution center in Little Rock, AR, began efforts to organize a
union with the Union of Needletrades Industrial and Textile Employees,
UNITE for short. The campaign involved a unit of between 500 and 600
workers employed as pickers, packers, forklift drivers, loaders, other
warehouse workers, many making just over the minimum wage.
Dillard's management began talking with workers about the union
almost immediately after workers began signing cards--before the
petition was even filed. Aware that the company was likely to quickly
escalate its campaign, UNITE, the union, filed an election petition in
the spring of 2000, a couple of weeks after it began meeting with
workers. At the time it filed for the election, UNITE had signed union
authorization cards from 65 to 70 percent of the workers to join a
union.
Well, what happened? Soon after the union filed the election
petition, the company began holding mandatory captive audience meetings
and one-on-one meetings with all workers. Basically threats were made
that if the union were to succeed, the distribution center might lose
its competitiveness and be forced to shut down.
The employer also launched legal challenges to the workers' petition.
Get this. The management claimed that all professional and white collar
workers should be in the election unit--even those at the corporate
headquarters in a separate building adjacent to the distribution
center.
Well, the company forced a dispute that took months to resolve. The
company didn't want the white collar workers in the union, but by
challenging it and saying they should be in it, forced the NLRB to have
a hearing that took months to resolve.
The company took advantage of this delay to continue its anti-union
campaigning. It isolated union supporters by excluding them from
captive audience meetings and changing their shifts or job locations.
It distributed and posted anti-union literature and continued one-on-
one meetings.
Support for the union began to wane as workers' fears grew. Workers
felt they were under surveillance at work and could not discuss the
union at the worksite or even outside the distribution center before or
after their shifts. Workers grew too scared even to accept union
materials that their fellow workers handed out outside of the plant
gates. Attendance at general meetings and organizing committee meetings
fell sharply over the months leading up to the election. After facing
2\1/2\ months of intense anti-union campaigning, workers voted against
union representation by a margin of two to one. About 3 months before
that, over 65 percent to 70 percent of the workers had signed a
petition to form a union, but less than 3 months later, they voted two
to one not to have a union.
The NLRB has put in place reasonable rules to limit the kind of game
playing that the workers from Dillard's experienced. The NLRB hasn't
tried to advantage or disadvantage workers or stop employers from
spreading their message. All the board has done is send a clear message
to employers. They cannot abuse the process to buy themselves more time
to intimidate their workers. They get a fair period of time to convey
the message, and then the workers deserve their day at the ballot box.
This is not the radical act of an out-of-control board. It won't even
affect most employers, union or nonunion, one bit. As I pointed out
yesterday, 90 percent of all of the petitions that are filed succeed
without having NLRB input anyway. Management and workers get together
and work things out. But it is in those 10 percent of companies that go
on this massive campaign to intimidate and frighten workers, that is
what this rule is aimed at.
Preventing abuses of our laws that keep workers from having a union
is a small step in the right direction to help putting the middle class
back on track.
When I talk about this, a lot of people say, well, isn't it against
the law for management to fire workers for union activities? And I say,
yes, it is. But what is the penalty? The penalty is basically nothing.
I pointed this out yesterday, and I will say it again. There was a
young man in Iowa who had been organizing a union and was fired. He
filed a petition with the NLRB and it took him about 3 years to settle
the case. He found out that he had been fired because of union
activities and the penalty for the company was to give him all of his
back pay minus whatever he earned in between.
How many people can go for 2 or 3 years and not take care of their
family and pay their mortgage and pay to put food on the table without
having a job? So, of course, that intervening time this person had to
work, all the wages were subtracted from whatever the
[[Page S2619]]
company had to pay him, and it turned out basically it was nothing. So
there is no penalty. As I said, all the employer has to do is pay back
wages minus an offset of whatever the worker made in between the time
he was fired and the time the decision was made by the NLRB, so there
is no penalty for the employers to do that.
So, again, allowing our labor laws to be abused is a policy choice.
As I said in the beginning, a lot of the reason for the decline of the
middle class in America is because of policy choices that are made
here. We have tolerated these policy choices for far too long, these
abuses. Working families have suffered as a result; union membership
has declined. As I pointed out, the number of workers covered by
collective bargaining agreements has declined, and the middle class has
declined right along with it. There is much more we need to do to move
these trends back in the right direction.
I recently introduced a comprehensive bill, the Rebuild America Act,
that I think presents a bold agenda for restoring the American middle
class. That agenda--everything from investing in the infrastructure to
job retraining, better educational benefits, better pensions, raising
the minimum wage--also has restoring the right to form a union to
workers who have been unfairly denied this basic freedom. It would
provide real penalties for employers who abuse and fire workers to bust
unions and would try to restore real voice for the people who do the
real work in this country.
I hope that once we vote today and uphold the NLRB's eminently
sensible actions, we can move on and have a real debate about some of
these important ideas about restoring the middle class in this country
and building an economy that works for everyone.
I was listening to the comments made by my good friend from South
Carolina, and he alluded to the recent situation with a complaint filed
with the NLRB by the attorney for the NLRB. A year or so ago the
general counsel's office filed a complaint with the NLRB that the
Boeing company in Seattle had retaliated against its workers for union
activity, that type of thing. The fact is the NLRB--the body my
colleagues are attacking today--never acted on that. The company and
the workers settled it. Isn't that what we want? But somehow to listen
to my friend from South Carolina, he is saying he is even opposed to
letting the general counsel file a complaint. Well, that takes away the
basic right of anyone to have their grievances heard. So I hope that is
not what my friend from South Carolina meant. I want to point out that
I think there was a lot of abuse of the NLRB during that process even
though the NLRB was doing exactly what we told them to do: Take into
account all of the factors, look at all the evidence before you make a
decision. That is what they were doing when it erupted here on the
floor and a lot of political pressure was put on the NLRB. There were a
lot of threats on the NLRB. And as it turned out, it all worked out
because the union and Boeing got together, settled their differences
and we moved ahead. That is the way it ought to be in our country.
We should not cut off the right of people to actually file a
complaint if they have a complaint. The duty of the NLRB is to
investigate and to take into account all of the factors before they
issue any findings. But that never happened in that Boeing case because
Boeing is a good business. Boeing is one of our great businesses in
this country and does a lot for America. So you get the good
businesses, and the Machinist Union is a great union, and they worked
it out. That is the way things ought to be done, and 9 times out of 10
that is the way it happens.
What we are talking about here is the rules for NLRB to take care of
those bad actors who are out there, and to give people who want to form
a union at least a level playing field without having all of these
abuses and delays and intimidations and things like that.
That is what the issue is about, and hopefully this afternoon we will
have a good, affirmative vote to uphold the ability of the National
Labor Relations Board to issue this ruling.
I yield the floor.
The PRESIDING OFFICER (Mr. Manchin). The Senator from Wyoming.
Mr. ENZI. Mr. President, I yield myself such time as I may consume.
I wish to continue the debate a little bit on the Boeing situation
because the company was creating 2,000 additional jobs--reducing none
but creating 2,000 additional jobs--in South Carolina at a new plant.
The NLRB general counsel, who was not confirmed by this body, went
ahead and decided to investigate and work on a complaint and created a
lot of concern for 2,000 employees who didn't know whether they would
be able to work. The case actually wasn't settled.
I think the National Labor Relations Board realized they had made a
mistake and, because of the national controversy it created, actually
withdrew the case even though it could have taken about 3 or 4 years
through the courts to take care of it, and we covered that situation in
one of the hearings Senator Harkin asked for. I thought the company did
an outstanding job.
What we are talking about today relates a little bit to that because
the South Carolina folks decertified in the small window they had,
which says they weren't pleased with what they had been handed.
So some of these discussions are extremely important, and the time to
do those is extremely important. So today we are renewing this debate
on S.J. Res. 36, the Congressional Review Act Resolution of Disapproval
to stop the National Labor Relations Board's ambush elections rule.
This rule is the second formal rulemaking the National Labor Relations
Board has pushed through in the last year--their third in the past 75
years. There was only one before this Board decided they would take
unusual action. As I mentioned, the first rule has been struck down
already by Federal courts because it went far beyond the agency's
authority. This ambush elections rule is also being challenged in the
courts, but it is set to go into effect in less than a week--on Monday,
April 30--and that is why the Senate must act today to stop the
National Labor Relations Board from stacking the odds against America's
employees and small businesses.
During yesterday's debate, both sides got to air their concerns. I
wish to respond to some of what I heard.
There was much talk about the 90 percent of elections that go forward
under mutual agreement. The argument was that because both sides were
able to come to an agreement and because the wide majority of elections
occur in a timely fashion, parties should not mind losing their rights
to raise issues prior to the election. This argument is turning the
concept of coming to agreement on its head. Yes, it is true that 90
percent of elections occur under mutual agreement and occur in 38 to 56
days, but that is precisely because both sides have the ability to
raise issues of concern, such as which employees belong in the
bargaining unit, and have them resolved. In other words, both sides
have incentives to make fair requests because the other side has the
leverage of exercising the right to contest. When all of these rights
are taken away and an election is scheduled in as few as 10 days, the
result will be that less mutual agreement occurs.
The National Labor Relations Board has taken a process that is
working well and becoming swifter year after year and turning it into a
contentious process where the small business employer side feels
entirely ambushed. If the National Labor Relations Board were truly
intending to address the small minority of cases where long delays do
occur, they should have drafted a rule that addressed only those cases.
Yesterday both Chairman Harkin and I quoted Presidents from each
other's parties. I quoted John F. Kennedy's statement during labor law
debates in 1959 when he was a Senator here saying:
There should be at least a 30 day interval between the
request for an election and the holding of the election.
He went on to say:
The 30-day waiting period is an additional safeguard
against rushing employees into an election where they are
unfamiliar with the issues.
I agree that one of the most important reasons for a waiting period
is for the employees to learn more about the union they may join. This
is in fairness to the employee.
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In many cases, the election petition is the first time some employees
have ever heard about the union. They want to know what the union's
reputation is for honesty, keeping their promises, treating members
well, and working well with the employer to make sure the business
stays in business. Once a union is certified, it is very difficult for
employees to vote it out if they decide to. 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.
Employees should have a chance to understand that once they unionize,
they will no longer be able to negotiate a raise individually with
their employer. Exceptional performance will not be rewarded, and
grievances cannot be brought straight to the employer but will instead
have to go through the filter of union officials.
Chairman Harkin quoted former President Dwight Eisenhower. I haven't
had a chance to look up the quote's context, but the gist of it was
that only a fool would oppose the right of an employee to join a union.
My comment on that is that a vote for this resolution does absolutely
nothing to diminish the right of any employee to form a union. This
resolution will not change the law one bit. If we are able to stop the
ambush elections rule, union elections will still occur in a median of
38 days, with nearly 92 percent occurring in 56 days, just as it is
now. And I would even venture to guess that the unions will continue to
win the majority of elections. Last year they set a new record by
winning 71 percent of elections. That is under the old rule. So a vote
for this resolution may please both those former Presidents, whom we
all admire, and forcing a fast election--an ambush election--may
irritate employees into a negative vote.
Now, I know the President issued a policy on this that says that if
it comes to his desk, he will veto it, and that is his right. I checked
the Constitution. The Constitution says we are an equal branch of
government with the President. We do not serve for the President, we
serve with the President. That could be a quote from Senator Byrd, who
used to sit at that desk and pull out his copy of the Constitution and
point out that the President gets to do what he wants to do, but we
have a responsibility to do what we need to do.
In this case, one of the administrative branches is overreacting--
doing something it should not do--and we need to say no. If it gets to
the President's desk and he vetoes it, that is his part of the process,
although I think that when the law was written, it should have been
that if Congress, which passes the law and grants rulemaking authority,
disagrees in the Senate and the House, that ought to be the end of it.
It ought to be the end of a rule or regulation. It shouldn't be the
beginning of the process where the President can veto it, because he is
in charge of the side that created the rule. But our job should be to
take a look at these things, decide if they are right or wrong, and if
they are wrong, to vote against them as part of the process.
So I think many will be joining me on this resolution of
disapproval--at least I hope they will. That is our job and our right.
I yield the floor and reserve the remainder of my time.
The PRESIDING OFFICER. The Senator from Iowa.
Mr. HARKIN. Mr. President, I yield whatever time he may consume to my
good friend the Senator from Connecticut.
Mr. BLUMENTHAL. Mr. President, I join the distinguished leader of the
committee on Health, Education, Labor, and Pensions in opposing S.J.
Res. 36 and supporting the National Labor Relations Board rule that
would very simply modernize the process that workers use to decide
whether they want to form a union.
Right from the start, let's be very clear about what is at stake. It
is a rule that the National Labor Relations Board has formulated
pursuant to the Administrative Procedure Act set by the Congress of the
United States after comment that was solicited from all of the relevant
stakeholders and people who would be affected by it, and they are rules
that are long overdue because of the inconsistency and delays that are
endemic to the current process.
As I travel around the State of Connecticut and I hear from people
around the country, I consistently hear about problems that exist under
the present process for choosing a union. This rule does not determine
the outcome; rather, it simply modernizes and improves the process, and
it does it by a rulemaking process that is consistent with and pursuant
to the Administrative Procedure Act, which is the way the Congress has
said it should be done. In fact, it adopts the rulemaking procedure
rather than doing it by individual cases, which is the way the U.S.
Supreme Court and the courts of appeal have said to the Board it should
do more often. So, far from raising constitutional questions or issues
of procedural lack of process, the NLRB has acted in accordance with
the will of the Congress and the Constitution in formulating this rule.
Why is it necessary? Well, for one thing, there are 34 regional
offices of the National Labor Relations Board, and each of them has
different policies and practices for processing election petitions. We
are talking about petitions that are submitted by workers who want to
form a union and can do so by election when at least 30 percent of
those employees send the petition to the NLRB. The gap in time is an
opportunity for intimidation by unscrupulous employers. Fortunately,
they are a small minority of employers--but they exist--who wish to
discourage or deter workers from forming a union. That intimidation is
unacceptable. We should do everything we can to stop it.
Second, the delays themselves are intolerable. Some of those delays
are years--as long as 13 years in some instances--and the gap in time
discourages or deters the exercise of rights that are guaranteed under
the law.
So this new rule is simply to modernize the process, end
intimidation, and make sure that rights are made real, in real time, so
that employees can exercise those rights without any discouragement
from employers.
Are the employers free to communicate with workers? Of course they
are. The rights of communication on the part of the employers are not
eliminated by any means. Are they still part of the process? Yes,
indeed, employers remain a part of the process if they wish to be. The
effort here--in fact, as one of the employers who submitted comments to
the NLRB said quite pointedly--from Catholic Healthcare West, a health
care company with 31,000 employees, in its comments: ``Reforms proposed
by the NLRB are not pro union or pro business, they are pro
modernization'' and 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.''
That quote from an employer really says it all.
Some of the litigation is not only against the interests of
employees, it also is costly to the employers, especially when it fails
to succeed. It creates uncertainties for other employers, and it can
block representation and lead again to unnecessary delays.
This rule has an impact on real people in Connecticut and around the
country. To give you a couple of examples, registered nurses who are at
a number of the hospitals in Connecticut have come to me about the need
to reform this process. Members of the employee workforce at T-Mobile,
for example--Chris Cozza, a technician at T-Mobile USA in Connecticut,
joined with 14 colleagues, came to me to recount his experience. He
filed for union representation with the support of the Communications
Workers of America, the CWA. He experienced problems of exactly this
kind because his rights were delayed and thereby almost denied. When T-
Mobile USA filed a claim that officially challenged the status of the
CWA as a labor organization, he could see--Chris Cozza and all of us
could see--that clearly CWA is a labor organization. This tactic was
simply a delaying one, and the NLRB rule would prevent the kind of
frivolous challenges and frivolous litigation that occurred there.
Let me conclude by saying, as has been said already, this rule is
neither prounion or proemployer. It is simply profairness. It is
antidelay,
[[Page S2621]]
antifrivolous litigation, and it is profairness in the workplace.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Wyoming.
Mr. ENZI. Mr. President, I yield myself such time as I might consume.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. ENZI. Mr. President, one of the things I have been checking on
here is the statement that was made earlier that one in five people get
fired for working on organizing. That statement is based on a phone
survey of union activists for their estimate if an employee is
terminated during an organizing drive. It is not based on fact. The
fact is, unions only filed objections in approximately 1.5 percent of
the elections, and that number includes objections based on many issues
other than employee terminations.
Under the current law, it is illegal to terminate or discriminate in
any way against an employee for their union activities. If this occurs
during an organizing campaign, the National Labor Relations Board is
required to rerun the election since it created an unfair election.
This occurs in about 1 percent of all elections and has been decreasing
in recent years. I would expect that to increase in succeeding years if
this rule passes because this is an attack on small businesses and the
small businesses will not have the necessary information to know what
is legal and illegal, especially if they only have 10 days to get their
act together.
The National Labor Relations Board can go even further if they
believe a fair election is not possible. They can certify the union,
regardless of the vote, and order the employer to bargain.
I have information on some of the studies that have been done on
this, and the number does not come out nearly that high. Of course it
is terrible if there is even one person who is fired for organizing
activities but there is recourse that can be done.
I want to raise an important privacy issue that has come up as part
of the National Labor Relations Board's ambush elections rule. One
section of the initial proposed regulation concerned the private
information of employees. It raised so much concern that it was dropped
from the final rule. However, the National Labor Relations Board
Chairman has publicly stated that he plans to push this and other
dropped provisions into law later this year, now that President Obama's
so-called recess appointments have created a full board.
Under the current law, employers are required to provide employees'
names and addresses within 7 days once an election is set. The proposed
rule would not only expand the type of personal information that an
employer must turn over, but would require that information to be
turned over within 2 days of an election being set. Of course, if we
are moving it from 38 days down to 10 days, I can see where they would
want it in 2 days instead of the 7 that has been normal. The expanded
information that the National Labor Relations Board wants employers to
give to unions includes all personal home phone numbers, cell phone
numbers, e-mail addresses that the employer has for each employee. It
also would demand work location, shift information, and employment
classification.
Let's consider this for a moment. The National Labor Relations Board
wants to give employers 48 hours to turn over information of employees
who are eligible to vote, despite the fact that the employee's
eligibility may not even be determined at that point because of the
ambush elections rule, the elimination of this preelection hearing so
those sorts of things can be worked out as to who is exactly going to
be covered. In essence, an employer will be forced to turn over
personal information of employees who may not even be in the bargaining
unit. The rule even would have required that the employer alphabetize
the lists.
The threat of this new invasion of privacy is very alarming to most
people. The purpose of the information is so the union organizers can
come to your home, call you, e-mail you, find you outside your work
location and catch you before and after shifts. There is no prohibition
on how many times the organizers can contact you or at what times.
There is no ``opt out'' for those employees who simply do not want to
be contacted. And there are no protections in place to ensure that the
information does not go astray.
While a large part of this debate circles around the shortened
election time and what that means for employers, with good reason, I do
not want us to forget what this new rule could mean to the privacy of
employees. Supporters of expanding the information provided to the
unions claim the National Labor Relations Board is merely modernizing
this standard. In this time of Internet scams, identity theft, online
security breaches, and cyber bullying, protecting personal information
is not something to be taken lightly. Union elections can be a very
intense and emotional experience for employees and employers alike. The
last thing we want is for an individual's personal information, such as
an e-mail address, to be used as a harassment or bullying tool by an
angered party.
I want my colleagues to know what is at stake in this debate. A
successful Congressional Review Act petition also prohibits an agency
from proposing any ``substantially similar'' regulation unless
authorized by Congress. Therefore, by supporting my joint resolution,
we could put a stop to the Board's future attempt to force employers to
hand over more personal employee information.
I urge all my colleagues to support this resolution of disapproval.
This is one of the most important votes we will have on labor issues
this Congress. We need to let the National Labor Relations Board know
that their duty as a Federal agency is to be the referee and decide
what is fair for the parties involved based on the clear facts of the
case. Their job is not to tip the scale in favor of one party or
another. Tipping the scale is exactly what the National Labor Relations
Board is doing with the ambush elections rule. Congress needs to step
up and say ``no'' to the overbearing and burdensome nature of these
regulations coming out of so-called independent agencies. You can do
that by voting for my joint resolution, S.J. Res. 36.
Mr. President, I yield the floor and reserve the remainder of my
time.
The PRESIDING OFFICER. The Senator from Iowa.
Mr. HARKIN. Mr. President, a couple things.
I keep hearing it stated that: ambush elections. I want to point out,
there is no timetable set in these rules--none whatsoever. I keep
hearing: 10 days and 7 days and all that. That is not set. There are no
timetables at all. As I pointed out, 90 percent of NLRB elections are
conducted under voluntary agreements between the parties, and those
procedures are unchanged.
The current median time right now between when a petition is filed
and when an election occurs is 37 to 38 days. Jackson Lewis, the
Nation's biggest management-side law firm, said that--their attorney
Michael Lotito told the Wall Street Journal he thinks the time under
these rules would be shaved to between 19 and 23 days. Joe Trauger,
vice president of the National Association of Manufacturers, says the
elections would be held in 20 to 25 days under the new rules--hardly an
ambush election.
The other issue I want to briefly mention has to do with the
contacts--contacting and the right of privacy I heard here. Right now,
the only way a union can contact people is at their homes--at their
homes. The only information the union is allowed to get after the
petition is filed is the addresses of the workers, their home
addresses. What the Board is considering--but has not implemented--is
allowing unions to have access to e-mail addresses and/or phone
numbers. Well, it seems to me that is a lot less intrusive than going
to someone's home.
Now, again, it is much harder, obviously, for a union organizer to go
to a home. People go to their homes. They are with their families. They
have their children. They are busy. That is more intrusive than e-
mailing them, it seems to me. So I would hope we would look upon the
possibility that they might say that having their e-mail addresses and
phone numbers is less intrusive than going to their homes.
But that is not part of these rules whatsoever. They would still have
to contact them at their home, and the only information the employer
would have to give would be their home addresses.
[[Page S2622]]
Again, keeping in mind what these rules are--they are very modest
rules. I keep hearing that: Well, there have only been three rules
since the Board was comprised in 1938. Quite frankly, the Supreme Court
and appeals courts have said, time and time again, they should do
rulemaking because it is open, it is transparent, parties get to be
heard. So I think this Board is being more open and more transparent
than any Board before it.
This is not anything overwhelming, but it is a step in the right
direction to make sure we level the playing field and we do not have
these undue delays where the management can intimidate--intimidate--and
I gave some examples of it, and I have a whole ream of examples of
where management has delayed and delayed and delayed in order to
intimidate workers so they would eventually vote not to form a union.
Again, an employer has the right to communicate to their employees
all day long--in captive audiences, one-on-one meetings with
supervisors. The union can only contact the worker at that worker's
house, in the evening or on a weekend. So already the employer has much
more opportunity to converse with and to get its views known to its
workers than the union has--much more, all day long, at the job, on the
job, through supervisors, one-on-one contacts, group meetings, over the
loudspeaker, whatever it might be. So already there is much more
ability for the management to weigh in on this than it is for the
union.
The one thing we are trying to do with these rules is to say: Fine,
you can continue to do that. There will still be that disparity between
the ability of management to communicate to the workers and the union
to communicate, but what these rules are saying is, fine, you can do
that, but you cannot continue to do it month after month after month
and wear the workers down and intimidate them, make them afraid of
losing their jobs. And if you fire one person for union organizing,
that sends a chill across everybody else. You say: Well, but that is
illegal. Well, it may be illegal, but as I have pointed out, time and
time again, there are no penalties for that. It may be illegal, but
there are not much penalties for that. Management can always find some
excuse--that they may have fired someone for something other than union
activity, but everyone would know that person was fired because that
person was trying to organize a union.
We are saying you cannot just continue to drag these things out month
after month after month. The proposed rules simply say we will have
elections, and if there are challenges, if there are challenges by the
management as to who can vote in that election, then those challenges
would be held until after the election and then see whether those
individuals so challenged were really part of that unit and could vote
or whether they could not and whether that would even make a
difference.
Again, if there were 100, let's say, who signed a petition to form a
union, and that was 50 percent of the workers out of 200, and the
employer was challenging 5 of those, well, as it is now they could
challenge those 5, have a hearing, appeal the hearing, appeal that, and
just keep appealing it.
Well, the rules would say, OK, they can say those 5 are not part of
it, their ballots would be set aside, and they would have the election.
If the election was, let's say, 150 to 20 that they wanted to form a
union, those 5 would not make a difference one way or the other. If,
however, the election was very close and those 5 would make a
difference, then the results would be held in abeyance until such time
as it is determined whether those 5 so challenged were part of that
bargaining unit or not.
To me, this is a much more fair and decisive way of moving ahead
rather than these constant delays and intimidations that go on right
now in some of the places--not all, not all, but in some of the places.
It is like a lot of times we pass laws not because there are, let's
say, broad-based incursions on a person's freedoms or certain things we
want to address, but a lot of times we pass laws because there are a
few bad actors out there one way or the other and we want to make sure
those bad actors are not able to act unreasonably, kind of in violation
of what was intended by the National Labor Relations Act.
So that is what they are all about. They are very modest and, I
think, lend themselves to a much more reasonable path forward in union
organizing and voting.
I ask unanimous consent if there is a quorum call that both sides be
charged equally on the time.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Wyoming.
Mr. ENZI. Mr. President, I yield myself such time as I may use.
The PRESIDING OFFICER (Mr. Tester). Without objection, it is so
ordered.
Mr. ENZI. Mr. President, I do want to talk about this open and fair,
transparent process that was just referred to. Much has been said about
the flawed policy behind ambush elections we are discussing on the
Senate floor. But I want to spend a few minutes discussing the
rulemaking process that was followed or not followed for that matter by
the National Labor Relations Board.
While the other side portrays the changes as moderate, make no
mistake about it, this new rule greatly alters the election system,
especially should Chairman Pearce be able to finalize the more
controversial provisions that were previously proposed. This entire
rule took under 1 year to complete. The National Labor Relations Board
introduced the proposed rule on June 22, 2011, and published the final
rule only 6 months later on December 22, 2011.
Considering the scope of the rule and how much attention it garnered
from stakeholders, it is absurd to think that a Federal agency could
promulgate a rule that would have such a major effect on all employers,
in only 6 months. As evidence of how critical this rule's impact will
be on stakeholders, the Board received 65,957 comments. Let me repeat
that. The Board received 65,957 comments during the 60-day comment
period. That is an astounding number.
To compare, the Board's previous rulemaking on its notice posting
requirements garnered a little more than 6,000 comments. On November
30, 2011, the Board voted to move toward finalizing a new amended
proposed rule. The reason for this new amended rule was clear: The
Board was going to lose its quorum at the end of the congressional
session in late December 2011.
What continues to astonish me is that the Chairman claimed his staff
read each of the 65,957 comments, twice, in such a short period of
time. In rushing to finalize the ambush elections rule, the Board
discarded several well-established internal procedural precedents as
well. For example, until the ambush election rule, the Board did not
advance a major policy change without three affirmative votes. This was
a major policy change.
They never did it without three affirmative votes, whether through
rulemaking or a case decision. This was not the case in the ambush
elections rule where only two members voted in favor of finalizing the
rule. Further, the Board rejected the tradition of providing any
dissenting member at least 90 days to produce an opinion. Instead,
Chairman Pearce offered to publish a dissent after the final rule was
published. The process the Board used to promulgate the ambush
elections rule was rushed through for no good reason. Yet in the
process it decided to discard years of Board precedent.
I should also mention one of these people, one of the two who voted
for it, not three--one of the two who voted for the rule, and there
were two who voted for it--was a recess appointment because they knew
this body would not stand for that person with the radical views he
held, actually claiming before his appointment that he would cause this
sort of a thing to happen; that he would even be able to institute,
through Board procedures, card check.
Now, that is a pretty radical statement, and that alone was keeping
him opposed by both sides of the aisle. There were people on both sides
of the aisle who opposed card check.
So two people voted for it; one person voted against it. That person
was not allowed the right to put in a dissent opinion. That is wrong.
That is not open and transparent.
Now I would like to talk a little bit about the targeting of small
business
[[Page S2623]]
this regulation does as well. All of our States have a lot of small
business. Small business is the backbone of job creation in this
country. We need to make sure that process can still follow. Once a
petition for representation is submitted, the current median timeframe
for a union election to be held is 38 days. That is the median time.
The ambush election rule would shorten that timeframe to as few as 10
days.
For small business owners, with the range of company responsibilities
and limited resources, this puts them at a severe disadvantage. Most
small business owners are not familiar with complex labor laws they
have to adhere to during the representation election process. For
example, they may not be aware that certain statements and actions
could result in the National Labor Relations Board imposing a
bargaining obligation without a secret ballot election. They can
declare the election over. Furthermore, most small businesses do not
have the resources to employ in-house counsel or human resource
professionals familiar with these laws.
So holding an ambush election in as few as 10 days does not provide
small business owners with enough time to retain a competent labor
attorney, consult with them, and then adequately prepare for an
election. I have given the reasons before why it is unfair to the
employees. But it is also very unfair to a small business owner because
their day-to-day responsibilities range from sustaining a competitive
product, to managing personnel, to balancing the books at the end of
the day. I know. I have been there. I had a shoe store. They have to do
all of those things.
The definition by the Federal Government for a small business is 500
or less employees. In Wyoming that would be a big business. My
definition of a small business is where the owner of the business has
to sweep the sidewalks, clean the toilets, do the accounting, and wait
on customers--and definitely not in that order. So those day-to-day
responsibilities to keep the business competitive take a lot of time,
and given such a demanding schedule, it takes time for a small business
owner to fully understand the pros and cons of unionization. It takes
even longer for a small business owner to communicate these points to
their employees.
Ambush elections make it logistically impossible for small business
owners to fully discuss the effects of unionization with their
employees, partly because they will not even know what those effects
are, and neither will their employees.
A union organizing campaign does not begin on the day an employer
receives a petition for representation. It typically starts months or
even years before, when professional union organizers start conveying
their side of the story to targeted small business employees. They work
on it for months. By unjustly curtailing an employer's ability to
convey their point of view, ambush elections deny employees the
opportunity to hear both sides of the argument on unionization.
The small business employer is also at a disadvantage because the
union organizer will be in a position to set up the election to his
best advantage, essentially cherry-picking union supporters before the
election process begins. The organizers will have had limitless amounts
of time to analyze which employees could be argued to belong in the
bargaining unit, which may qualify as supervisors, and who is most
likely to support a union.
With ambush elections, the National Labor Relations Board will impose
the election before the employer has an opportunity to even question
those assumptions, especially since we have significantly restricted
the one tool--the preelection hearing--that the small businessman would
have to question who is in and who is out.
According to a recent Bloomberg study, unions win 87 percent of
secret ballot elections held 11 to 15 days, compared to a 58-percent
rate when elections are held 36 to 40 days. By shortening the election
timeframe, labor unions will undoubtedly win more representation
elections--perhaps. The perhaps is that they may really irritate the
employees and win less of them. The way that it is held in 11 to 15
days is when the employer and the employees agree on all of the issues
and get the election to move forward. So it can happen in a short
period of time right now. Otherwise, the median time would not be 38
days.
But I think this rule will alienate those people who have been
getting together and arriving at these agreements. So for small
business owners, the surge of union bargaining obligations means a less
flexible workforce, increased labor costs, and fewer opportunities for
job creation. And they are the job creators.
The National Labor Relations Board is only creating more uncertainty
for small business at a time when the country needs them to focus on
creating jobs. Small businesses account for over half of the jobs in
the private sector and produce roughly one-half of the privately
generated GDP in the country. In 2010, small businesses outpaced gross
job gains of large businesses by 3 to 1.
As the National Labor Relations Board has publicly indicated, ambush
elections are only the beginning of a round of regulations aimed at
making it easier for unions to win representation elections in American
workplaces. Proposed regulations, such as requiring small businesses to
compile a list of employee phone numbers and e-mails and then handing
them over to union organizers before an election are time consuming.
They are costly. They are extremely invasive. Furthermore, they are
indicative of how this administration is more concerned about boosting
labor union membership than creating jobs.
We have to create jobs. We cannot continue to pick on the small
businessman and put him at a disadvantage. This is a rule that is
looking for a place to act. It is not one that was needed or requested
other than by labor organizers. I think it will have repercussions. So
I would ask everyone to vote for the resolution of disapproval so this
does not go into effect, although we have been promised, of course, a
Presidential veto if it makes it to his desk.
But that is Congress. We have the right to say we do not think the
rule is right. The President has the right to say his administration is
right and veto the law. But we have to make that statement, and we have
to make it on behalf of small businesses and employees.
A lot of this has to do with employee fairness and giving them the
time to figure out what the union will do with them and for them and to
them.
I yield 3 minutes to the Senator from Alabama for morning business,
as I understand it.
The PRESIDING OFFICER. The Senator from Alabama is recognized.
Postal Reform
Mr. SESSIONS. Mr. President, I thank the Senator from Wyoming for his
thoughtful remarks on this important subject. I hope our colleagues are
listening.
Later today, I will offer a budget point of order on the postal bill.
It adds $34 billion to the debt. It violates the agreement we reached
last August, in which we said there would be limits to how much debt we
would increase and how much spending we would increase.
The first big bill coming down the pike adds $34 billion. Every penny
of the new spending is added to the debt. There is no offset to it.
Those of us who supported the concept of a limitation on spending--and
I didn't think it limited it enough last summer, but many thought it
did, but agreed to that limit--have to know this. When I raise that
budget point of order, somebody will probably rise and ask for a vote
to waive the budget, waive the limitations on spending and debt that we
just passed last August.
We need not kill reform of the Postal Service. We need to send this
bill back to the committee and let them produce legislation that either
spends not so much or doesn't spend money or, if they do spend money,
pay for it through cuts in spending that are perfectly available.
GAO has said there is over $400 billion spent each year in
duplicative and wasteful programs. We have GSA off in Las Vegas in hot
tubs on taxpayers' money. We could pay for this bill if it is so
important that we have to do it; if we don't, that is what the vote
would be.
I urge my colleagues to understand the importance of it. Our Members
who believed it was important to have a
[[Page S2624]]
limit on spending in order to gain a debt increase last summer,
increase the debt ceiling, should vote against the motion to waive
because to do so--to vote for waiving the budget would undermine, in
the first real opportunity, the agreement we reached.
I thank the Chair and reserve the remainder of my time.
The PRESIDING OFFICER. The Senator from Wyoming.
Mr. ENZI. Mr. President, I ask unanimous consent to have printed in
the Record three additional letters of support from the Motor and
Equipment Manufacturers Association and National Council of Textile
Organizers and the Building Owners and Managers Association
International.
There being no objection, the material was ordered to be printed in
the Record, as follows:
The Motor & Equipment Manufacturers Association (MEMA)
represents over 700 companies that manufacture motor vehicle
parts for use in the light vehicle and heavy-duty original
equipment and aftermarket industries. Motor vehicle parts
suppliers are the nation's largest manufacturing sector,
directly employing over 685,000 U.S. workers and contributing
to over 3.2 million jobs across the country.
MEMA urges your boss to support S.J. Res. 36 and help
overturn the ``ambush election'' rule, which is part of the
NLRB's aggressive and unchecked regulatory agenda. Parts
manufacturers are very concerned by recent unnecessary and
unwarranted actions by the NLRB that threaten employer-
employee relations as well as job growth and productivity.
MEMA members strongly oppose the NLRB's ambush election rule
which would shorten the time frame during which union
elections may be held, limiting an employer's ability to
prepare for an election and an employee's opportunity to make
an informed decision about joining a union.
Please contact Ann McCulloch at [email protected] or 202
312 9241 with any questions. Thank you for your
consideration.
Sincerely,
Ann Wilson,
Senior Vice President, Government Affairs, Motor &
Equipment Manufacturers Association.
____
Building Owners and Managers
Association International,
Washington, DC, April 24, 2012.
Hon. Mike Enzi,
U.S. Senate, Hart Senate Office Building, Washington, DC.
Dear Ranking Member Enzi: The Building Owners and Managers
Association (BOMA) International urges you to support S.J.
Res. 36, which will prevent the National Labor Relations
Board (NLRB) from moving forward with its ``ambush'' election
rule. The rule is an attempt by the NLRB to enact the
Employee Free Choice Act through regulation. The NLRB's
actions are detrimental to workers, businesses and our
economy and must be stopped.
Under the rule, building owners and managers and the
companies they do business with could face an election held
to determine whether or not the employees want union
representation in as few as 14 days after the union files a
petition. This would leave little or no opportunity to talk
to employees about union representation or respond to any
promises by union organizers--no matter how unrealistic.
Union organizers lobby employees for months outside the
workplace without an employer's knowledge, so these
``ambush'' elections would result in employees receiving only
half the story. In an effort to rush the election, the rule
also robs employers of free speech and due process rights. In
fact, under the rule, the NLRB could even conduct elections
before it settles which employees would be in the union. How
is a worker supposed to make an informed choice about unions
in these circumstances?
The median time from petition to election without this rule
is a far more reasonable 31 days. The legislative record
shows Congress intended an election period of at least 30
days in order to ``safeguard against rushing employees into
an election where they are unfamiliar with the issues.''
The Building Owners and Managers Association (BOMA)
International is an international federation of more than 100
local associations and affiliated organizations. Founded in
1907, its 16,500-plus members own or manage more than nine
billion square feet of commercial properties. BOMA
International's mission is to enhance the human, intellectual
and physical assets of the commercial real estate industry
through advocacy, education, research, standards and
information. On the Web at www.boma.org.
Again, on behalf of building owners and managers across the
country, I urge you to support S.J. Res. 36 and help rein in
this out-of-control agency.
Regards,
Karen W. Penafiel,
Vice President, Advocacy.
____
National Council
of Textile Organizations,
Washington, DC, April 24, 2012.
Dear Senator: I am writing on behalf of the U.S. textile
industry and the nearly 400,000 workers the industry employs.
I am the president of the National Council of Textile
Organizations and I urge you to support S.J. Res. 36 when it
comes to a vote today. S.J. Res. 36 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 enact the
Employee Free Choice Act through the regulatory process and
to deny employees and workers access to critical information
about unions. In addition, the ``ambush'' election rule
strips employers of their rights to free speech and due
process. The rule poses a threat to employers and workers
alike and needlessly interrupts an employer's day to day
business operation.
The National Council of Textile Organizations (NCTO) is a
unique association representing the entire spectrum of the
textile industry. From fibers to finished products, machinery
manufacturers to power suppliers, NCTO is the voice of the
U.S. textile industry. There are four separate councils that
comprise the NCTO leadership structure, and each council
represents a segment of the textile industry and elects its
own officers who make up NCTO's Board of Directors.
NLRB statistics note that the average time from petition to
election is 31 days, noting that over 90 percent of elections
take place within 56 days. NCTO strongly believes that the
current election time frames are reasonable, and permit
workers time to hear from the union and the employer. The
ability to take into account the perspectives of management
and the unions allows workers to make informed decisions,
which would not be possible under the new ambush election
rule if allowed to go into effect. NCTO is particularly
concerned about how our small and medium manufacturers would
be affected by the rule's time frames; employers will not
have the appropriate time to retain legal counsel, or to
speak with workers about union representation. The reality is
that union organizers are persuading workers for months
outside the workplace without an employer's knowledge; these
``ambush'' elections would often result in workers'' hearing
only one perspective on union membership. Workers would be
made unrealistic promises that can't be kept and be offered
guarantees of benefits that unions have no way of attaining.
If the employer does not have an opportunity to explain their
position and any possible inaccuracies that could be levied
by the union, how can a worker make an informed and objective
decision regarding representation?
For these reasons, NCTO urges you to vote yes on S.J. Res.
36 when the Senate votes today. If left unchecked, the
actions of the NLRB will fuel economic uncertainty and have
serious negative ramifications for millions of employers,
U.S. workers, and consumers.
Sincerely,
Cass Johnson,
President.
Mr. ENZI. Also, there will be key vote alerts from the Associated
Builders and Contractors, Associated General Contractors, Brick
Industry Association, Competitive Enterprise Institute, Heritage Action
for America, International Franchise Association, International
Warehouse Logistics Association, National Grocers Association, National
Association of Manufacturers, National Federation of Independent
Business, National Restaurant Association, National Roofing Contractors
Association, National Taxpayers Union, the Retail Industry Leaders
Association, and the U.S. Chamber of Commerce.
I yield the floor and reserve the remainder of my time. I suggest the
absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. ENZI. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. ENZI. Mr. President, I yield up to 10 minutes to the Senator from
Georgia, Mr. Isakson.
The PRESIDING OFFICER. The Senator from Georgia is recognized.
Mr. ISAKSON. Mr. President, I haven't been able to hear all the
speeches, but I commend Senator Enzi on his detailed and eloquent
explanation on how we arrived where we are today.
I wish to add a history lesson of my own to tell you my journey in
terms of where we are. As a student in college in the 1960s, in
business management, I learned a lot about the Industrial Revolution,
the labor revolution, the development of labor unions and labor/
management practices as they developed from the 1920s until the 1960s
and now up until today.
It is absolutely correct that the playing field was unlevel in the
1920s and
[[Page S2625]]
1930s. It is absolutely true that we had poor working conditions,
safety risks were high, and wage-an-hour issues were debated. There was
a place and an appropriate nature for us to level the playing field so
management and labor could go together, head-to-head, and negotiate and
arbitrate and have binding agreements upon themselves to protect the
safety of workers and also improve the environment of the workers in
the United States.
For 75 years those laws served us well. All of a sudden, it seems
there is a perfect storm. From every corner, the NLRB seems to be
making proposals to try to tilt the playing field away from fairness
and equity and it is not right.
Last year, 70 percent of the elections for unionization in the United
States of America were successful. There is not a problem in terms of
people being able to organize and negotiate collectively. The problem
is that the regulatory bodies are attempting to circumvent the
legislative branch of government and to rule and regulate what they
cannot pass on the floor of the Senate.
When Mr. Becker was appointed to the NLRB last year by the President,
over the objection of the Senate and during the recess--it was an
example of where the President used a recess appointment to go around
the lack of approval, and advice and consent of the Senate.
This particular legislation we are talking about is similar to the
specialty health care decision. The specialty health care decision
allowed unions to create micro unions within the same working body,
where there could be a plethora of unions in one store, all to fracture
and fragment the ability of a business to cross-train and compete
effectively. It is an attack on the free enterprise system and
circumvents what our Founding Fathers intended us to do.
We have a legislative branch with the House and Senate; an executive
branch with the President, the Vice President, the Cabinet and his
appointees; and we have a court system. The President makes initiatives
that go through the legislature. The legislative body takes initiatives
and passes laws. Ultimately, the courts are the arbiters if either one
or both ever challenges the ruling of one or the executive order of
another. That is the way it should be. But right now we have a two-
legged stool in America. Instead of legislative, executive, and
judicial branches, we have a judicial and executive branch trying to
run the country. We all know what happens to a two-legged stool. It
falls over.
I talked with some businesspeople this morning who talked about the
uncertainty of doing business in America. It didn't all have to do with
ambush elections or specialty health care movements or special posters
to promote unionization in the workplace, but they were part of it. The
regulations that come from the administration through the Department of
Labor, the National Labor Relations Board, the National Mediation
Board, and a plethora of other organizations, are making it difficult
for America to do business in a time where it is essential that we do
business.
When the stimulus passed 18 to 24 months ago--maybe 30 now--it was
designed to bring unemployment down to 6 percent. Unemployment remains
above 8 percent, and one of the reasons it does is that the deployment
of capital by businesses is not taking place because of the uncertainty
of the workplace and what lies ahead, whether it is health care,
whether it is ambush elections, card check, or whatever it might be.
So I come to the floor to commend the Senator from Wyoming for taking
an initiative that is available to the Senate to bring a resolution of
disapproval forward for a resolution of an executive branch body that
circumvents the legislature itself. I hope he is successful in sending
the message that it is time for us to take American politics and
American justice and American legislation back to what our Founding
Fathers intended.
Let's stop trying to take a playing field--one that has been level
for 75 years, where we have had the greatest labor-management relations
in the history of any country in the world--and tear it up or put us
into a situation where we are adversaries, as we were 75 years ago.
Let's stop the ambush election. Let's stop the arbitrary posting. Let's
stop the specialized unionization. Let's stop all of this and return to
the laws that have worked for three-quarters of a century. Three-
quarters of a century is a great test of time. There is no reason now,
through appointments to a regulatory body, to change the history of the
Senate and the history of the court system.
I will end by quoting a President of the United States--a Democratic
President of the United States--who, on April 21, 1959, was U.S.
Senator John Fitzgerald Kennedy. In his campaign for the Presidency, he
declared that elections should have at least 30 days between their call
and the vote so employees can be fully informed on their choices from
both sides of the issue. If it was right for John F. Kennedy on April
21, 1959, it is right for the Senate today, on April 24, 2012.
I commend the Senator from Wyoming on his presentation, his
intensity, and his ability to bring this issue before the American
people and to the floor of the Senate.
I yield the floor.
Mr. HARKIN. Mr. President, how much time is remaining?
The PRESIDING OFFICER. The Senator from Iowa has 20 minutes, and the
Senator from Wyoming has 12 minutes.
Mr. HARKIN. Mr. President, there are just a couple of things I wish
to bring up in response to some of the statements that have been made
on the floor.
First of all, I wish to make it very clear that the NLRB has
scrupulously followed all legal and procedural requirements for
rulemaking under the Administrative Procedure Act, and by increasing
the use of rulemaking, it has been the most inclusive and transparent
Board in history--in history. This process has given all sides abundant
opportunity to provide input to the NLRB. There was opportunity for
written comments, written responses to other comments, and even a
public hearing.
I would like to point out again that there is no requirement in the
Administrative Procedure Act to facilitate a dissent. Even though there
isn't, the NLRB's traditional practice has given Member Hayes an
opportunity to dissent. He was given that chance. But these practices
do not allow him to filibuster or run out the clock to thwart the
actions of his colleagues.
The Board filed a notice of proposed rulemaking on June 22, 2011,
provided 60 days for filing public comments, and received over 65,000
comments, of which, I might note, all but around 200 were form letters.
There were 65,000 comments, and all but around 200 were form letters.
But still there were 200 comments, ensuring a wide range of views and
stakeholder input. The Board arranged an opportunity for staff from
Member Hayes's office to brief congressional staff on his dissent from
the notice of proposed rulemaking, and, although not required to do so,
the Board also provided an opportunity for oral public comments at a
hearing conducted on July 18 and 19, 2011, in which over 60 labor and
management lawyers, public interest groups, employer and labor
organizations, workers, and other related constituents participated.
The Board provided an additional 14 days following the 60-day comment
period in which to file written reply comments. Again, this is not
required by the APA--the Administrative Procedure Act--or any other
law. Then the NLRB held a public vote on a final rule on November 30
and published the final rule in late December. So quite frankly, under
the Administrative Procedure Act, which all other agencies follow, the
NLRB bent over backward to be transparent and to allow dissent.
I have heard it said that Member Hayes was not allowed enough time.
Well, he had his first dissent. But from June 22 until November, Mr.
Hayes had all that time to file a dissent if he wanted to--to write a
dissent. I mean, is that not enough time to write a dissent? It seems
to me that is more than enough time. But that was not done. So I just
want to make it clear that I think Mr. Hayes was given more than enough
time to write his dissent if he wanted to. He did write one dissent
over the proposed rules, but he had the additional opportunity from
June 22 until November. Again, the APA, under rulemaking, doesn't
entitle him to dissent, but the Board allowed him to
[[Page S2626]]
have a dissent if he wanted to. They had access to public comments on
the proposed rules. They were given summaries and copies of specific
comments the other members found informative. His office had months to
incorporate those comments and write a second dissent but chose not to.
That was his own choice. That was his own choice. He was not prevented
from doing so. That was his own choice.
There are a lot of little items like that which I think are kind of
being misinterpreted, but here is the essence of it, right here. Here
is the essence of what this is all about. Stripped of all the falderal
and all of this and all of that and which Board member was for card
check and who wasn't and on and on and on, this is what it is about,
right here, this statement. This is Martin Jay Levitt, who was an anti-
union consultant who wrote a book called ``Confessions of a Union
Buster,'' published in 1993. ``Confessions of a Union Buster.'' Here is
what he said:
Challenge everything . . . then take every challenge to a
full hearing . . . then prolong each hearing . . . appeal
every unfavorable decision . . . if you make the union fight
drag on long enough, workers lose faith, lose interest, lose
hope.
That is what it is about. It is about denying people their right
under the National Labor Relations Act to fairly and expeditiously have
a vote on whether to form a union. This is not new. This has been going
on since the 1940s and 1950s, since Taft-Hartley. There have been
forces at work in this country since the adoption of the National Labor
Relations Act in 1935 to break unions. They do not want to give workers
a right to have a voice in collective bargaining. They will go to
extreme limits to deny union members their rights. They will do
everything they can to try to break up unions. Taft-Hartley was the
first of that, and we have had several things since that time.
Our job is to try to make it a level playing field--as level as
possible, anyway--and to give workers a right that is not just a right
in name only or in words but a real, factual right to form a union and
have the election without challenging everything, taking every
challenge to a full hearing, prolonging each hearing, appealing every
unfavorable decision. As I quoted earlier, if you make the union fight
drag on long enough, workers lose faith, lose interest, and lose hope.
And I might add, if you drag it on long enough, it gives the employer
every opportunity to intimidate workers so they won't join a union or
maybe fire people who were active in the union organization drive--to
find some reason why they should be fired, anyway. That is what this is
about.
What the NLRB has finally done, through an open process, through a
rulemaking process, through perhaps one of the most open and
transparent processes in the history of the NLRB, is to say: Let's have
a system whereby certification votes can be held within a reasonable
amount of time. There was no time limit put in there. There is no 7 or
10 days. That is what Mr. Hayes said in his dissent. He just plucked
that out of thin air. But that is not in the ruling. That is not in the
ruling at all. Most people who have looked at it have said: Well, it
may shorten it to 20 to 30 days, somewhere in there. It seems to me
that is fair enough. That is fair enough.
But that is really what this is all about, and I hope Senators, when
they vote, will recognize that what the Board has done is to take the
unfair process we have had for so long and made it more fair for
everyone.
I will point out one last time that the procedures the NLRB has come
up with, which are under fire right now from the other side, apply to
certification votes as well as to decertification votes. If a company
wants to decertify a union, then the union can't drag that out days and
months at a time. They can't drag that out for decertification either.
So it seems to me that on both sides--certification and
decertification--we have a level playing field, and neither side can
drag it out interminably to try to frustrate the real desires and
wishes of the workers.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Wyoming.
Mr. ENZI. Mr. President, I yield 8 minutes to the Senator from South
Dakota.
The PRESIDING OFFICER. The Senator from South Dakota.
Mr. THUNE. Mr. President, I wish to commend the Senator from Wyoming
for his great work on the subject.
As Americans know firsthand, we continue to struggle with an economy
that is not performing well or meeting the needs of workers. The
unemployment rate remains at about 8 percent, as has been the case for
the last 28 months. Much of this can be attributed to a lack of
certainty on the part of employers.
One need look no further than the regulatory policies being pushed by
this administration to understand why job creators are not creating
jobs. Back on December 22 of 2011, the technically independent National
Labor Relations Board published the final rule on representation-case
procedures, better known as the ``ambush elections'' rule. This new
rule could allow a union to organize an election in as little as 10
days. This new rule is the most drastic and sweeping modification to
the union election process in more than 60 years.
According to the National Labor Relations Board, the median time in
which an election is held is 38 days, and 92 percent of all elections
occur within 56 days. In fiscal year 2011 the NLRB reports that 71.4
percent of unions won their elections, which is up 3\1/2\ percent from
fiscal year 2010. It is hard for one to claim that union elections are
being held up unnecessarily with these sorts of track records.
The changes put forth by the NLRB will radically change the process
of union organizations and will limit an employer's ability to respond
to union claims before an election, thereby stifling debate and
ambushing an employer and employees. Employers use the time after an
election petition has been received to ensure compliance with the
National Labor Relations Act, to consult with human resource
professionals, and to inform--to inform--their employees about the
benefits and shortcomings of unionizing. It is nearly impossible for a
small business owner to navigate the regulations of the National Labor
Relations Act without the assistance of outside counsel, which will be
hard to find in 10 days or less.
On April 21, 1959, then-Senator John F. Kennedy stated, and I quote:
The 30-day waiting period is an additional safeguard
against rushing employees into an election where they are
unfamiliar with the issues.
It appears that rushing elections is exactly what the NLRB and big
labor are hoping for. After all, unions win 87 percent of elections
held 11 to 15 days after an election request is made. The rate falls to
58 percent when the vote take place after 36 to 40 days.
On a decision as important as whether to form a union, workers should
have the opportunity to hear from both sides, free from any pressure
one way or the other, an opportunity that the NLRB's recent decision
would take away.
In addition to ambushing employers with union elections, the NLRB has
now decided to recognize micro-unions. The NLRB ruled that so long as a
union's petitioned-for unit consists of an identifiable group of
employees, the NLRB will presume it is appropriate.
What does this mean for America's small businesses? This means that
at your local grocery store there could be a cashiers union, a produce
union, a bakers union, the list goes on and on. Micro-unions, coupled
with ambush elections, can cause one small business to deal with
several bargaining units in the workplace and little time to no time to
raise concerns against such actions.
The Supreme Court has expressly stated:
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 NLRB.
The recent actions of the NLRB have all but silenced any freedom of
speech once enjoyed by employers. For the State of South Dakota,
increased unionization will mean higher costs for the health care
industry, driving up health costs for hospitals and consumers. It will
also mean higher costs for hotels, tourism, small businesses, and other
service industries. The Federal Government should not be acting to slow
or hinder job growth in our current economy but should instead be
looking for ways to foster job growth.
[[Page S2627]]
In addition to radically changing the way in which union elections
are organized, the NLRB promulgated a rule requiring most private
sector employers to post a notice informing employees of their rights
under the National Labor Relations Act. I believe this is yet another
example of Federal overreach by this administration that benefits their
special interest allies at the expense of American businesses that are
currently struggling to create jobs, which is why I introduced the
Employer Free Speech Act last year.
If enacted, this legislation would prohibit the NLRB from requiring
employers to post a notice about how to establish a union. I am happy
to report that on April 17, 2012, the DC Circuit Court of Appeals
agreed with me and has stopped the NLRB from enforcing this unnecessary
and burdensome rule.
This administration is making a habit of using regulatory policies to
strengthen unions and harm the economy. In these difficult times, the
last thing government should be doing is putting roadblocks in front of
American businesses as they attempt to do their part to turn our
economy around and to create jobs.
In the 74 years of the NLRB's existence prior to 2009, the Board had
promulgated just one substantive rule. It is time that the NLRB return
to its main function, which is to act as a quasi-judicial agency. These
actions by the NLRB further push our government down a dangerous path,
one in which decisions no longer lie in the hands of those elected by
the people but by unaccountable bureaucrats sitting in Washington
disconnected from people.
For these reasons and many others, I am supporting S.J. Res. 36, and
I want to encourage my colleagues on both sides of the aisle to stand
with American employees and employers and to vote to stop the NLRB from
moving forward with what is a misguided and deeply flawed ambush
election rule.
I congratulate the Senator from Wyoming for getting this matter on
the Senate floor and giving us an opportunity to debate it. This is yet
another example of an administration that seems to be bent upon
creating more excessive overreaching regulations, making it more
difficult and more expensive for American small businesses to create
jobs and to get the economy growing again. I hope my colleagues will
join me in voting to stop this from happening.
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