[Congressional Record Volume 160, Number 132 (Tuesday, September 16, 2014)]
[Senate]
[Pages S5631-S5632]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. ALEXANDER (for himself and Mr. McConnell):
  S. 2814. A bill to amend the National Labor Relations Act to reform 
the National Labor Relations Board, the Office of the General Counsel, 
and the process for appellate review, and for other purposes; to the 
Committee on Health, Education, Labor, and Pensions.
  Mr. ALEXANDER. Mr. President, today I am introducing the NLRB Reform 
Act with Senator McConnell. Our legislation is very simple. It will 
change the NLRB from an advocate to an umpire. That is the role the 
National Labor Relations Board was always supposed to have. The Board 
was created 79 years ago to act as an impartial umpire in labor 
disputes that threaten the free flow of commerce. The Board's decisions 
affect millions of private sector workers. But over time the Board has 
become an advocate for one interest group or the other, changing 
positions with each new administration.
  There are three significant problems the Board faces today:
  No. 1, the biggest problem is partisan advocacy. Today the majority 
of the five-member Board is made up of appointees who follow President 
Obama's political leanings. President Obama has appointed three labor 
union leaders to the Board.
  No. 2, the Board also has a freewheeling advocate for its general 
counsel. The Board's most recent general counsels have been exceeding 
their statutory authority and bringing questionable cases that threaten 
American jobs and threaten sending overseas manufacturing jobs that we 
need to keep here.
  No. 3, the National Labor Relations Board has been slow to resolve 
disputes. Last year 109 cases--that is 30 percent of the Board's 
caseload--were pending for more than a year.
  Occasionally someone will say to me: If Republicans were to win the 
Senate, what would Republicans do?
  What we would do is try to come up with sensible proposals that lead 
us in the right direction, proposals that have so much commonsense that 
they attract the support of enough Democrats and the House of 
Representatives and the President to become law. This is one such 
proposal.
  Our bill provides three solutions to the problems I identified:
  No. 1, it would end partisan advocacy on the National Labor Relations 
Board. The Board would become a six-member board of three Republicans 
and three Democrats, and a required majority of four will force both 
sides to find a middle ground.
  No. 2, it reins in the general counsel. Businesses and unions would 
be able to challenge complaints filed by the general counsel by taking 
them to the Federal district court, and they will have greater 
transparency about the basis and legal reasoning for the charges 
brought by the general counsel.
  No. 3, our legislation would encourage timely decisions. First, 
either party in a case before the Board may appeal to a Federal court 
of appeals if the Board fails to reach a decision in 1 year. Second, 
funding for the entire NLRB would be reduced by 20 percent if the Board 
is not able to decide 90 percent of its cases within 1 year over the 
first 2-year period following reform.
  Our bill would offer these solutions without taking away one single 
right, one single remedy from any employee, business, or union.
  With each new administration, the pendulum at the NLRB has swung 
further from the middle, further away from being an umpire. The result 
is that labor policy whipsaws back and forth, taking employees and 
employers for a wild ride. This has happened under most 
administrations, but it has been worse under the current 
administration. The minority leader mentioned several of those 
examples.
  Under the partisan advocacy of today's National Labor Relations 
Board, workers are losing their right to privacy. The Board is 
embarking on a regulatory effort to expand requirements that employers 
give employees' names and addresses to union organizers. The Board 
wants more personal information about these employees to be given to 
the organizing union, including telephone numbers, email addresses, the 
employee's work location, the employee's shift, the job 
classifications. They propose doing everything but attaching a GPS to 
the lapel of each employee.

  In my State of Tennessee, for example, we have had an ongoing 
organizing effort in the Volkswagen plant in Chattanooga. In a secret 
ballot election last February, employees at the Volkswagen plant said: 
We don't want a union; we don't need a union. So 712 to 626 they 
rejected the United Auto Workers' bid to unionize the plant. Imagine if 
you were one of those 712 employees who voted against unionizing. Now 
organizers can get your private email address and all of this other 
personal information.
  Here is another example. Factions of employees within single stores 
now have a path to forming their own unions. In 2011 the Board suddenly 
adopted a new way to define what makes a local union bargaining unit. 
The Board changed the law so that any group of employees with an 
overwhelming community of interest could become a bargaining unit and 
therefore a union. At the same time, the Board is moving a regulation 
to limit the employer's ability to question which employees should be 
in a bargaining unit. This allows a union to cherry-pick employees who 
will be most likely to support forming a union.
  How has this worked in the real world? Here is an example. The Board 
just approved a bargaining unit for cosmetic and fragrance employees in 
a Macy's department store--not the shoe salespeople, not the lady's 
fashion employees, not the junior's department, just cosmetic and 
fragrance. Imagine if every department of Macy's decided to form a 
union. The employer would have dozens of different groups to negotiate 
with, and the different unions would be fighting each other over who 
got the better raises and break rooms in terms of employment.
  During this administration the NLRB has ruled that common employment 
policies are unfair labor practices, such as--and Senator Scott brought 
this up at a hearing the other day--the NLRB has said that an employer 
may not have a policy that requires employees to be courteous to 
customers and fellow employees, or prohibiting employees from making 
negative comments about the business that employs them on social media 
or selecting arbitration for employment disputes.
  Our solution: Senator McConnell and I would solve this by requiring a 
six-member board of three Republicans and three Democrats. Like the 
Federal Election Commission, a majority of four will require both sides 
to find a middle ground.
  Here is the second problem. The Board's general counsel is acting 
like a freewheeling advocate, stretching labor law to its limits and 
sometimes beyond its limits. For example, in 2011 the general counsel 
moved to stop Boeing from building new airplanes at a nonunion plant in 
South Carolina. The general counsel to the NLRB jeopardized a $1 
billion factory and hundreds of jobs with this move, but even worse, he 
tried to make the case that a unionized American company can't expand 
its operations into one of the 24 States, such as Tennessee, with 
right-to-work laws which protect a worker's right to join or not to 
join a union. The general counsel eventually withdrew this outrageous 
complaint against Boeing, but if it had set a precedent, jobs would 
have fled overseas as manufacturers look to find a competitive 
environment in which to make and sell cars around the world.
  We want to make sure manufacturers such as Boeing, Nissan, and 
General Motors can have a competitive environment in the United States 
in which they can make airplanes and cars and other goods and sell them 
around the world. We do not want them making them in Mexico or Japan or 
Europe or somewhere else because we have undermined right-to-work laws. 
Our solution would allow employers and unions to challenge complaints 
filed against them by the general counsel in Federal court and give 
employers and unions new rights to learn the basis and legal reasoning 
of charges filed against them by the general counsel.

  Finally, the NLRB is taking too long to resolve cases. For example, 
one case has been pending at the Board for more than 7 years. The case 
involves the question of whether an employer has to allow labor union 
organizers access to private property.
  Our solution--Senator McConnell and I encourage a timely resolution 
of

[[Page S5632]]

cases, first, by allowing either party to appeal to a Federal court of 
appeals for a de novo, or fresh, review if the Board fails to reach a 
decision on the case within 1 year. To further incentivize timely 
resolution, we include the threat of a 20-percent budget cut with the 
Board if 90 percent of the cases are not decided within a year.
  In conclusion, while the increasing partisanship of the Board has 
appeared in Republican administrations as well as Democratic 
administrations, it has reached a climax in this administration. Three 
of this President's recent nominees came from major labor unions' 
leadership. One law professor at a major university said she can't use 
the most recent labor law textbook. The decisions changing the law are 
coming out so rapidly and the NLRB is venturing into new territory with 
these efforts at rulemaking. This is no way to maintain a national 
labor law policy.
  Our plan, the NLRB Reform Act, will, first, end partisan advocacy; 
second, rein in the general counsel; third, it will encourage timely 
decisions. Our bill would offer these solutions without taking away one 
right or one remedy from one employee, one business, or one union. I 
hope my colleagues will carefully review this proposal and consider 
cosponsoring the NLRB Reform Act.
                                 ______