[Congressional Record Volume 158, Number 59 (Tuesday, April 24, 2012)]
[Senate]
[Pages S2628-S2630]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          NLRB ELECTION RULES

  Mr. LEVIN. Mr. President, we find ourselves debating yet another 
effort in the campaign against working men and women in this country. 
Over and over again in this body, and in State legislatures across the 
country, some have sought to undermine the ability of their 
constituents--dedicated teachers, electricians, assembly-line workers, 
and civil servants, just to name a few--to come together to bargain for 
fair wages and benefits. The resolution of disapproval before us is 
just another attempt to weaken unionized labor in this country, and I 
will not support it.
  The representation process we are debating, which is overseen and 
administered by the National Labor Relations Board--NLRB--is used when 
a group of workers want to hold a union representation vote or when an 
employer wants to hold a similar vote to decertify a union.
  Now let me be clear. What we are considering is a resolution that 
would effectively nullify a number of worthwhile rule changes intended 
to streamline and modernize the process for administering a union 
representation election. And, if adopted, it would essentially bar the 
NLRB from promulgating any similar rules in the future.
  These changes will help cut down on needless delays that can occur at 
preelection hearings, eliminate the arbitrary minimum 25 day waiting 
period following a decision to hold an election, and will clarify the 
election appeals process. And, the new rules will allow for the use of 
modern technologies, including email and other forms of digital 
communication.
  The NLRB proposed these amendments last summer, allowed for ample 
time to consider public comments, and finalized the changes this past 
December. These are reasonable updates meant to accommodate modern 
forms of communication and discourage delay tactics that can unfairly 
stall a representation vote for months on end. The finalized rules will 
help ensure that the unionization process is fair and timely for 
employees, employers, and unions. And despite what some of my 
colleagues have stated, the rules are not encouraging an ``ambush.'' 
They are encouraging an election. I urge my colleagues to join me in 
voting against this disapproval resolution.
  I yield the floor.
  Mr. HARKIN. Mr. President, over the past 2 days my Republican 
colleagues have raised several arguments about what the NLRB rule will 
do. I now want to respond to their points and to clarify once again: 
this is a modest rule that simplifies preelection litigation in the 
small number of cases where the parties don't reach agreement and must 
resort to litigation.
  First, my colleagues across the aisle have pointed out that unions 
have recently won about 71 percent of elections, and so, they argue, 
the current system is completely fair to unions. This is an incredibly 
deceptive statistic. Unions have filed far fewer petitions in recent 
years--down from over 4,100 in 2001 to just over 2,000 in 2011. And in 
almost a third of cases where petitions are filed, the petition is 
withdrawn before an election. In other words, the process of getting to 
an election can be so slow, and employer anti-union attacks so potent, 
that unions are discouraged from going through the entire election 
process. For the most part, only in the rare cases where support is 
truly overwhelming or the employer does not oppose the union do unions 
win.
  In a related vein, Republicans have argued that elections are 
currently held promptly--on average, between 30 and 40 days after a 
petition is filed--and therefore no change in the rule is needed. But 
this argument misses the point of the rule. Currently, in the 10 
percent of cases that are litigated, it takes around 124 days to get to 
an election. It takes around 198 days when parties exhaust their appeal 
rights. This rule addresses those situations where employers engage in 
excessive--and often frivolous--litigation to slow down the process. 
Without question, in those cases, it takes far too long and these new 
NLRB procedures are a desperately needed fix to shorten that time 
period for the 10 percent of cases that are litigated.
  I have also heard the argument that if employers engage in misconduct 
that interferes with workers' choice during a long election campaign, 
the NLRB can rerun the election. But the time it takes to get to a 
second election only compounds the frustration and loss of hope workers 
suffer when their opportunity to make a choice is delayed for too long. 
Many unions won't bother to seek a second election, even if there was 
employer misconduct, if workers are too discouraged.
  One of the major improvements in this bill--deferring challenges to 
voter eligibility until after the election when they are small in 
number--has also been mischaracterized. Opponents of the rule claim 
that workers will be confused about who is in the bargaining unit with 
them. The reality is, challenged voters will be deferred only when they 
are small in number relative to the size of the bargaining unit. So 
there will be little or no confusion about the exact individuals in the 
unit. Moreover, workers will know full well the essential identity of 
the group they are a part of; individual employees may come and go over 
time as workers retire or find new jobs, but the identity of the unit 
is what remains constant. The unit identity is what workers need to 
know to be able to make an informed choice about whether to vote for a 
union.
  I hear a lot from the other side how this rule will dramatically 
shorten the time to an election and how it will lead to so-called 
ambush elections. There is no basis for this prediction. Opponents of 
the rule can't even agree among themselves how much time the rule will 
shave off an election. Senator Enzi suggested that this rule will lead 
to an election in 10 days; Senator Barrasso suggested it will almost 
halve the current median time of 38 days. An attorney from the 
management-side labor law firm Jackson Lewis told the Wall Street 
Journal that he thinks the time would be between 19 and 23 days. The 
vice president of the National Association of Manufacturers predicted a 
hearing 20 to 25 days after the petition is filed.
  The reason there are so many different numbers floating around is 
because the rule simply does not say anything about a timeframe for 
elections. Certainly it is true that in the 10 percent of cases that 
are litigated--where the process is abused and delays are rampant--the 
rule likely will shorten the time period by instituting more efficient 
procedures. But as to the 90 percent of cases where there is voluntary 
agreement, the NLRB will continue to work with parties as it always has 
to arrive at a reasonable election date.

[[Page S2629]]

  In connection with their undue speculation about timing of elections, 
supporters of this resolution have also argued that employers will not 
have enough time to communicate with workers under the rule. Because 
the rule does not actually address timing of an election in the great 
majority of cases, this is pure speculation as well. Moreover, it is 
well-known that election campaigns begin long before a petition is 
filed. If employers wish to mount an anti-union campaign, they will 
almost certainly do so when they learn a drive is happening. They will 
not wait until a petition is filed.
  Similarly, my colleagues have argued that workers will only hear the 
union's side of the story under this rule. I must point out that it is 
employers who continue to have the right to hold ``captive audience'' 
meetings. They can hold meetings on work time where they can require 
workers' attendance, and they can browbeat workers about why they think 
unions are bad. Unions have no such access to a workplace. The playing 
field for communicating with workers is currently dramatically skewed 
in favor of employers. It will remain skewed in favor of employers 
after this rule goes into effect. All this rule does is to put some 
limits on those employers who would drag out elections to better 
exploit their communications advantage.
  My colleagues on the other side argue that small businesses will have 
to confront election issues and familiarize themselves with the law in 
a very short timeframe. As I have said repeatedly, there is no reason 
to expect an election will occur any more quickly in the great majority 
of cases. Employers would have ample time to review the law. What the 
new rules do is to put small businesses on the same footing with large 
employers that can afford excessive, all-out litigation of preelection 
issues. The process is simplified so that all employers have to deal 
with straightforward and presumably cheaper procedures that give them 
all a fair and equal chance to address preelection issues.
  My colleagues have argued that this rule creates an uncertain 
business climate. In fact, the rule does just the opposite. It creates 
a very predictable process because it applies uniform procedures 
designed to cut down on pointless litigation.
  My Republican colleagues also suggest that this rule will cause more 
litigation because unions will have less incentive to reach voluntary 
agreements. But, in fact, unions will continue to have every incentive 
to have an agreement on election issues. Hearings still take time and 
resources even though they are now more streamlined than before. Unions 
would not want to undergo the expense, uncertainty, and delay of a 
hearing even though the process will be much improved under this rule. 
I am confident the great majority of cases will continue to be resolved 
by voluntary agreement.
  Let me stress that this rule treats both sides the same way--the rule 
applies to elections to decertify a union as well as elections to 
certify one. Although it has been pointed out that there are certain 
times, such as the first year after a certification vote, when workers 
are not permitted to petition to decertify a union, the NLRB does 
provide adequate, defined time periods when workers are permitted to 
file a decertification petition. Workers' right to file such a petition 
during those time periods is well-established, and workers who don't 
want a union have a clear method to vote the union out.
  Finally, it has been pointed out that the NLRB recently lost a court 
battle over its rule requiring a notice posting. But the reality is, 
the NLRB won this court battle in one district court and lost in 
another. One court upheld the core of the rule--that the NLRB can 
require a posting of workers' right to form a union. The DC Circuit 
Court of Appeals has now blocked the rule to avoid confusion over who 
has to implement the rule and who doesn't. That court likely won't 
issue a decision resolving this matter until the fall, but it has 
absolutely no bearing on the legality or legitimacy of the rule we are 
debating today. Indeed, the furor over notifying employees of their 
rights is a perfect example of the extremity of Republican opposition 
to worker rights. My colleagues have all spoken about the importance of 
workers being informed about the pros and cons of unionization, but 
they object to a simple poster that explains workers' rights under the 
law.
  To conclude, this rule will cause no real change for the vast 
majority of businesses that approach the NLRB election process in good 
faith. It imposes no new requirements at all for parties who come to 
the process in good faith and negotiate an agreement. The rule simply 
addresses the small number of employers that abuse the NLRB election 
process and deliberately cause delay to buy themselves more time to 
bombard workers with an anti-union message. The rule also makes NLRB 
preelection litigation more efficient, saving government resources. It 
is a commonsense reform that deserves our full support. I strongly urge 
my colleagues to vote down the resolution disapproving of this NLRB 
rule.
  The PRESIDING OFFICER. Who yields time?
  Mr. HARKIN. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. HARKIN. 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. HARKIN. Mr. President, how much time is remaining?
  The PRESIDING OFFICER. There is 5 minutes for the majority and 3 
minutes for the minority.
  Mr. HARKIN. Mr. President, I will, obviously, yield to my good 
friend, Senator Enzi, for his closing remarks, but I again just want to 
point out that this ruling by the NLRB is imminently reasonable.
  They went through rulemaking, as I have said before, one of the most 
transparent boards we have ever had in history. Rather than going 
through the adjudicative process, they went through rulemaking and a 
comment period. People were allowed to come in, and they even had an 
oral hearing which is not even required by the Administrative Procedure 
Act. Mr. Hayes was allowed due time for filing dissents. He chose not 
to do so for whatever reason. So everything was complied with. In fact, 
they bent over backwards to even do more than what the Administrative 
Procedure Act requires under rulemaking. So that is No. 1.
  No. 2, the essence of the rule is eminently fair. It applies both to 
certification and decertification. There is no 10 days. I keep hearing 
about this 10 days. Mr. Hayes put that in his dissent, but there is 
nothing in the rule that requires a 10-day election. Nothing.
  Lastly, again, what is this all about? I will say it one more time. 
This is what it is about, this is it: This is Mr. Martin Jay Levitt who 
wrote a book, ``Confessions of a Union Buster.'' He was a consultant to 
businesses that didn't want to have unions formed, and here is what he 
said in his book. Here is the way they should do things if they don't 
want to have a union:

       [C]hallenge everything . . . then take everything 
     challenged 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 establishing a level playing 
field now so workers do indeed have their full rights--not a paper 
right but a full viable right to form a union and to have an election 
within a reasonable period of time.
  Mr. President, I yield the floor. If my friend needs some more time, 
I yield him whatever time I have remaining.
  The PRESIDING OFFICER. The Senator from Wyoming.
  Mr. ENZI. Mr. President, I thank the chairman for the gift of time. 
There is nothing that is a greater gift than that.
  Of course, I would like everyone to vote for my resolution of 
disapproval. This did not go through a process that was open and 
transparent. In fact, there was only one person who voted for this who 
was confirmed by the Senate. There were two people who voted for it. 
The other one lost, in a bipartisan way, the ability to be on that 
committee, so he was recess-appointed. So one person confirmed by the 
Senate is making this rule, and there was also

[[Page S2630]]

one person confirmed by the Senate who was against it. So it was a 1-
to-1 tie. That would normally defeat anything.
  The biggest thing that is being taken away in this, the biggest thing 
that collapsed the time down to a potential 10 days, the biggest thing 
is eliminating the preelection hearing. That is when the employees--the 
employees--get their fairness of finding out exactly who is going to be 
represented, who is going to be part of their unit, and get any of 
their questions answered about this organization that is about to 
receive their dues. It seems like the employees, for fairness, ought to 
have that right. It also ought to be for the employers to have that 
right, especially small businesspeople to have the time to get it 
together so they are not violating any of the National Labor Relations 
Board's rules that they can easily step into and be in big trouble 
during one of these elections.
  I urge all of my colleagues to support this resolution of disapproval 
and stop the National Labor Relations Board's ambush election rule. 
This vote will send a message to the National Labor Relations Board 
that their job is not to stack the odds in favor of one party or 
another--under this administration or another--but to fairly resolve 
disputes and conduct secret ballot elections.
  We have heard from several speakers on the other side of the aisle 
that this debate and vote are a waste of time. Debating the merits of 
this regulation is not a waste of time for the millions of small 
businesspeople and millions of employees who are going to be negatively 
impacted by it. In fact, once it goes into effect next week, I believe 
all of us will be hearing from unhappy constituents and asked what we 
did to stop this legislation, and we will be asked. The contention that 
we should not be able to raise concerns about the National Labor 
Relations Board's ambush election regulation before it goes into effect 
sounds a lot like what the National Labor Relations Board is trying to 
do to small businesses and employees who have questions about a 
certification election.

  This regulation will take away the right to question whether the 
appropriate employees are in the bargaining unit or whether it includes 
supervisors and managers who should not be in the union or whether it 
leaves out a group of employees who should be in the union because they 
have similar jobs, and if they are excluded, they will lose ground 
against the newly unionized employees. This regulation takes away the 
right to present evidence and testimony at a preelection hearing and to 
file briefs supporting a position.
  Because of the Congressional Review Act, we Senators have had the 
opportunity to present evidence and have debate. That is a privilege 
the NLRB is taking away from many small employers and employees, and 
that will lead to some suffering of the employees.
  I urge my colleagues to vote for the motion to proceed to S.J. Res. 
36. Again, it is a congressional privilege and we should take advantage 
of it. It is a chance to send a message that we want all of our boards 
to be fair and equal.
  I yield back any remaining time.
  The PRESIDING OFFICER. Time was yielded back.

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