[Congressional Record Volume 161, Number 21 (Monday, February 9, 2015)]
[Senate]
[Pages S861-S864]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. ALEXANDER (for himself, Mr. Enzi, Mr. McConnell, Mr. 
        Blunt, Mr. Cornyn, Mr. Hatch, Mr. Isakson, Ms. Ayotte, Mr. 
        Burr, Mr. Sessions, Mr. Risch, Mr. Perdue, Mr. Coats, Mr. 
        Scott, Mr. Roberts, Mr. Kirk, Mr. Barrasso, Mr. Thune, Mr. 
        Rubio, Mr. Boozman, Mr. Corker, Mr. Flake, Mr. Cassidy, Mr. 
        Heller, Mr. Wicker, Mr. Shelby, Ms. Collins, Mr. Paul, Mr. 
        Cotton, Mrs. Capito, Mr. Lankford, Mr. Vitter, Mr. McCain, Mr. 
        Hoeven, Mr. Moran, Mr. Johnson, Mr. Graham, Mr. Inhofe, Mr. 
        Grassley, Mr. Cochran, Mr. Gardner, Mrs. Ernst, Mr. Daines, 
        Mrs. Fischer, and Mr. Cruz):
  S.J. Res. 8. 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 case procedures; to the Committee on Health, Education, 
Labor, and Pensions.
  Mr. McCONNELL. Mr. President, recently the Senate has had a lot of 
discussion about partisan overreach. We have talked about an 
administration that seems to view democracy as what it can get away 
with, not what it can work cooperatively to achieve. It is worrying for 
our country, and we keep seeing more examples of it.
  Consider the administration's effort to weaken workers' rights. This 
administration's appointees on the National Labor Relations Board 
released their so-called ambush rule back in December. It is designed 
with one purpose in mind: to fatten the wallets of powerful political 
bosses by weakening the rights of middle-class workers.
  Republicans believe a worker has a right to make her own informed 
choices about joining a union. We don't think powerful political bosses 
should attempt to make that decision for her, but that is just what 
this rule aims to achieve. These bosses think they can enrich their own 
coffers if they can deny workers real opportunities to

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weigh the pros and cons of joining a union. For instance, in an era of 
stagnant wages, does a worker want to see her paycheck shrink so a 
political boss can attend more campaign fundraisers? Republicans think 
that is a choice for the worker to make. Does a worker want to give up 
her right to demand better pay or a promotion that she deserves and 
cede those decisions to a distant political organization?
  Republicans think she has a right to make those choices for herself 
and she has a right to make them in an informed way, but the 
administration's ambush rule would dramatically weaken her ability to 
do so. In many cases it wouldn't even allow her more than a handful of 
days to weigh the pros and cons of such a costly and important 
decision. It is really not fair. And it is not just me saying that; 
consider the words of John F. Kennedy. Here is what he had to say about 
it. ``There should be at least a 30-day interval'' for union elections, 
he said. He noted that these 30 days represent a safeguard against 
``rushing employees into an election where they are unfamiliar with the 
issues.'' Kennedy was right.
  There is another important issue at stake here too. Just as 
Republicans think a worker has a right to make her own informed 
choices, Republicans also think her personal information is none of the 
business of powerful political bosses. But the administration's ambush 
rule would allow those bosses to access things such as her email 
address and cell number without--without--her permission. It also would 
allow those bosses to track her, to know exactly when and where she is 
working--again, without her permission. She can't opt out and she can't 
unsubscribe. This is really chilling. This is really extreme.
  What about the men and women who rise early every day to fulfill 
their dreams, the men and women who provide so many opportunities for 
others to fulfill theirs? This ambush rule is also aimed at preventing 
someone with a small business of her own from even having a real 
conversation with her employees about the cost and the benefits of 
joining a union. The ambush rule would give extraordinary power to 
political bosses on the outside, while shutting her voice down--the one 
person who probably knows more about and cares more about her employees 
than anyone else. After years spent building a dream and caring about 
the men and women who helped her get there, this rule is an insult--an 
insult--to entrepreneurs like her.
  Moreover, it is not the men and women on the assembly line who are 
demanding the ambush rule. There is no demand for this coming up with 
the workforce in America. So who is demanding it? It is the powerful 
political bosses who worry that more and more workers are making an 
informed choice not to join a union. Those bosses are worried about 
what informed choices could mean for them--less money, less power.
  So this far-reaching rule--the so-called Mt. Everest of regulations--
is not the result of the administration seeking out the best policy; it 
is just another example of the administration seeing what it can get 
away with. It is a brazen attempt to enrich powerful political friends 
of the White House by weakening workers' rights. It is not fair for 
workers, and it is not right for our country.
  My good friends the Senators from Tennessee and Wyoming are here on 
the floor to explain what Congress plans to do to stand up for basic 
fairness in the workplace. They are going to talk about this latest 
example of partisan executive overreach--the kind of overreach that is 
coming to define the Obama administration--and what Congress plans to 
do next.
  Madam President, I see the Senator from Tennessee is on his feet, and 
I yield the floor.
  The PRESIDING OFFICER. The Senator from Tennessee.
  Mr. ALEXANDER. Mr. President, I thank the Chair for the recognition 
and the majority leader for his remarks and his leadership. I am also 
glad to be here with the Senator from Wyoming, who over the years has 
been the leading Republican Senator on the issue of ambush elections.
  We are here today, as the majority leader said, to introduce a 
Congressional Review Act resolution to stop a new National Labor 
Relations Board rule. I would like to speak about that for a few 
minutes and then let the Senator from Wyoming continue.
  Last December the NLRB issued a final rule that shortened the 
timeline between when pro-union organizers ask an employer for a secret 
ballot election and when the election actually takes place. I refer to 
this as an ambush election because it forces a union election before an 
employer has a chance to figure out what is going on. Even worse, it 
jeopardizes employees' privacy by requiring employers to turn over 
personal employee information--including email addresses, phone 
numbers, shift hours, and locations--to union organizers.
  The effect of this resolution will be to permit the majority leader 
to bring this resolution to the floor after the congressional recess. 
There will be 10 hours of debate. The resolution cannot be amended, and 
it needs a majority vote to pass. The House of Representatives is 
following a similar procedure. Both Houses must vote on it. If it 
passes both Houses, the President can sign or veto the resolution. If 
the President decides to veto, it would take 67 votes to override. If 
the NLRB's new ambush election rule is disapproved, the Board cannot 
issue a substantially similar rule without congressional approval.
  Today, more than 95 percent of union elections occur within 56 days 
after a petition is filed, but under this new rule elections could take 
place in as few as 11 days after a petition is filed. This rule will 
harm employers and employees alike, and here is how.
  If you are an employer who gets ambushed--in other words, a union 
election happens before you really know what is going on--on day 1 you 
get a faxed copy of an election petition that has been filed at your 
local NLRB regional office stating that 30 percent of your employees 
support a union. The union may have already been quietly trying to 
organize for months without your knowledge. Your employees have been 
able to hear only the union's pitch.
  By day 2 or 3 of this process, you must publicly post an election 
notice in your workplace and post it online as well if you communicate 
with your employees electronically.
  By noon on day 7, you must file with the NLRB what is called a 
statement of position. This is a comprehensive, written legal document 
in which an employer sets out legal positions and claims. Under this 
new NLRB rule, you, the employer, waive your rights to use any legal 
arguments not raised in the document. On day 7, you must also present 
the union and the NLRB with a list of prospective voters as well as 
their job classifications, shift hours, and work locations.
  On day 8, a pre-election hearing is held at the NLRB regional office, 
and an election date is set.
  By day 10, the employer must present the union with a list of 
employee names, personal email addresses, personal cell phone numbers, 
and home addresses.
  Day 11 is the earliest day on which the NLRB could conduct the 
election under the new rule. The union has the power to postpone an 
election by an additional 10 days at this point, but the employer has 
no corresponding power.
  Under this new NLRB rule, before the hearing on day 8 an employer 
will have less than 1 week to figure out what an election petition is, 
find legal representation--many employers don't have a labor lawyer as 
a matter of course--determine legal positions on the relevant issues, 
learn what statements and actions the law permits and prohibits, gather 
information required by the NLRB, communicate with employees about the 
decision they are making, and correct any misstatements and falsehoods 
employees may be hearing from union organizers. Making even the 
slightest mistake in the lead-up to an election can result in the NLRB 
setting aside the results and ordering a rerun election or, worse, the 
Board could require an employer to automatically bargain with the 
union.
  But it is the employees who stand to lose the most under this new 
rule. First, because of this ambush election, employees may only hear 
half the story about what unionizing may mean for them and for their 
workplace. When a workplace is unionized--especially in a State that 
does not have a right-to-work law--employees have their dues money 
taken out of every paycheck,

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whether they like it or not. Employees lose the ability to deal 
directly with their employer to address concerns, or ask for a 
promotion or raise, and instead have to work through the union.
  Important considerations, such as which of their fellow employees 
will be included in the bargaining unit, will no longer be determined 
before the election. As the two dissenting members of the NLRB put it: 
Employees will be asked to ``vote now, understand later.''
  Second, employees lose their privacy because the final rule we seek 
to overturn requires employers to hand over employees' personal email 
addresses, cell phone numbers, shift locations, and job 
classifications, even if the employee has made it clear he does not 
want to be contacted by union organizers.
  This rule appears to be a solution in search of a problem. Only 4.3 
percent of union elections occur more than 56 days after the petition 
is filed. The current median number of days between when the petition 
is filed and the election is held is just 38 days.
  These figures are well within the NLRB's own goals for timely 
elections. Unions won 64 percent of elections in 2013. In recent years, 
the union win rate has actually been going up. So what is the problem?
  The majority leader said it very well when he referred to a 1959 
debate over amendments to the National Labor Relations Act. Then-
Senator John F. Kennedy warned against rushing employees into a union 
election. Senator Kennedy said:

       There should be at least a 30-day interval between the 
     request for an election and the holding of the election...in 
     which both parties can present their viewpoints.
       The 30-day waiting period is an additional safeguard 
     against rushing employees into an election where they are 
     unfamiliar with the issues.

  It is clear to see this rule is wrong. That is why Senator Enzi, 
Senator McConnell, and I are asking the Senate to disapprove the rule 
and prohibit the National Labor Relations Board from issuing any 
substantially similar rule.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Wyoming.
  Mr. ENZI. Mr. President, I ask unanimous consent to speak for up to 
15 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. ENZI. Mr. President, I thank the Senator from Tennessee, Mr. 
Alexander, for his comments.
  I don't think I have ever heard it put quite as concisely or the 
timeline explained quite as well as he did. I hope people are paying 
attention. I hope people take a look at the journal and see exactly how 
short a timeframe that is for both the employer and the employees.
  So I rise to support the resolution of disapproval that would repeal 
the National Labor Relations Board's ambush election rule.
  I again thank my friend Senator Alexander for his leadership as the 
chairman of the Health, Education, Labor and Pensions Committee and for 
leading this effort to prevent yet more misguided Federal regulation 
that will hurt American businesses and employees.
  Unfortunately this isn't the first time we have had to fight this 
rule from the NLRB. When I led the Congressional Review Act resolution 
to stop this rule in 2012, I truly appreciated Senator Alexander's 
support and am proud to support him now. I didn't have the votes to 
pass the resolution in 2012, but we have had some elections and some 
changes in the Senate since then.
  The rule the National Labor Relations Board has proposed would be a 
tremendous burden on employers, especially small businesses. If this 
rule goes into effect, it will mean employers will barely have time to 
meet their preelection legal obligations. It will mean employees will 
be rushed into an election without time to study and consider what the 
unionization would mean for them, for their workplace, and for their 
community. Also, Big Labor will be able to force elections through in 
order to boost revenue from union dues and increase the influence of 
Big Labor.
  Our economy is already grappling with Federal rules and regulations 
that hold back businesses. This rule from the National Labor Relations 
Board will be yet another break, slowing down our economy at a time 
when we need to encourage employers and businesses to grow. It would be 
especially harmful to small businesses, which are the backbone of our 
economy and the most important factor in maintaining our fragile 
economic growth.
  Small businesses that don't have human resource departments and more 
particularly don't have in-house legal counsel already face a 
significant burden when they have to navigate union elections. This 
rule would only make it harder. This rule would hurt businesses for the 
sole purpose of helping unions that don't need it.
  Union elections are supposed to be held in a timely and fair manner, 
which is what the current system achieves. The average time between 
filing an election petition, as has been mentioned, and holding the 
vote is 38 days, and nearly all elections happen within 2 months.
  That process allows employers to understand their rights and meet 
their legal obligations. It allows employees to educate themselves 
about what unionization means for them personally and for their work, 
and it ensures that union elections will be a fair opportunity for 
workers to decide whether to organize.
  Under the current system there is a 25-day waiting period between the 
setting of an election and the actual secret ballot election. That 
window of time is crucial. Employers use that time to understand their 
rights and restrictions in the process and to meet their legal 
obligations.
  The union election process is not simple, nor is it straightforward 
for employees. There are numerous places where a well-meaning employer 
working to meet their obligations could misstep and face heavy 
penalties from the National Labor Relations Board.
  Employers also use this time to communicate with their employees 
about the decision they are making and to clear up misstatements, 
rumors or falsehoods that have been going around.
  The time between petitioning for election and voting is also used for 
parties to study decisions by hearing officers or the National Labor 
Relations Board's regional director and ask for clarification or 
review.
  Under the National Labor Relations Board's rule, all the 
opportunities for anyone involved with the process to understand their 
legal obligations, to exercise their rights, to study or debate the 
arguments for or against unionization or even to learn about the issue 
would be squeezed into as little as 14 days.
  Is it fair for an employee to only have 10 days to learn how his or 
her vote will affect the rest of their time with that employer--we have 
to remember they are going to be working during that time probably--or 
how much money membership in a union is going to cost them or what it 
means for their ability to negotiate directly with their employer for 
raises or other benefits or concerns or any of the countless other 
issues an employee might want to approach his or her employer about?
  Under current law, both parties are able to raise issues about the 
election at a preelection hearing, covering such issues as which 
employees should be included in the bargaining unit and whether 
particular employees are actually supervisors.
  Under the new regulation, parties will be barred from raising these 
questions until after the election. Employees will be forced to vote 
without knowing which other employees will actually be in the 
bargaining unit with them. This is important information that weighs 
heavily in most employees' votes.
  Under current law, when either party raises preelection issues, they 
are allowed to submit evidence and testimony, and file post-hearing 
briefs for the hearing officer to consider, and then they have 14 days 
in which to appeal decisions made with respect to that election.
  Under the new regulation, the hearing officer is given the broad 
discretion to bar all evidence and testimony unrelated to the question 
of representation and all post-election briefs and no appeals or 
requests for stays are allowed. This could be quite a disadvantage for 
employees as well as employers.
  What this all adds up to is an extremely small window of time for 
filing

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the petition to the actual election, little opportunity for employers 
to learn their rights or communicate with their employees their rights, 
and less opportunities for employees to research the union and the 
ramifications of forming the union.
  The NLRB is ensuring that the odds are stacked against the employees 
and the businesses. This vote is an opportunity to tell the National 
Labor Relations Board to reverse course.
  I hope this resolution will convince the National Labor Relations 
Board to pull back from this disastrous rule and encourage them to 
focus on their statutory mission rather than overturning decades of 
settled practice that ensures that this process is held in a timely 
manner and that there is a fair opportunity for all sides to 
understand, to participate, and to exercise their rights.
  The NLRB's purpose is to enforce the National Labor Relations Act, 
which is a carefully balanced law that has only rarely been changed. 
When changes have occurred, they have been the result of careful 
negotiations, with input from stakeholders and thoughtful debate.
  The NLRB is attempting a sneak attack through the rulemaking process. 
This is an ambush on the National Labor Relations Act to set up ambush 
elections.
  The National Labor Relations Board is an agency that has historically 
issued very few regulations. Most of the questions that come up under 
the law are handled through the decisions of the Board. Board decisions 
often do change the enforcement of the law significantly, but they are 
issued in response to an actual dispute and a question of law.
  In contrast, the ambush election is not a response to a real problem 
because the current election process for certifying whether employees 
want to form a union is not broken. The rule was not carefully 
negotiated by stakeholders, it was not made with careful debate, and 
there was no attempt to reach a consensus.
  In the late 1950s Congress worked to pass the Landrieu-Griffin Act, 
which protected the rights of both rank-and-file union members and 
their employees. This was a carefully constructed piece of legislation 
that came out of a special committee to study the issue, that heard 
from more than 1,500 witnesses over 3 years. And Congress debated the 
issue of how long a period of time there should be between the request 
for an election and the actual election coming up during those 
negotiations.

  My colleagues may be surprised to learn--although they wouldn't if 
they were listening to the previous two speeches--that it was Senator 
John F. Kennedy who argued vigorously for a 30-day waiting period prior 
to the election. He said:

       There should be at least a 30 day interval between a 
     request for an election and the holding of an election . . . 
     in which both parties can present their viewpoints. . . . The 
     30 day waiting period is an additional safeguard against 
     rushing employees into an election where they are unfamiliar 
     with the issues.

  Again, that was a quote by Senator John F. Kennedy, speaking directly 
to the need for fairness to employees. The 30-day waiting period 
provision he supported did not ultimately become part of the law, and 
obviously it is not a law today. Instead, the NLRB adopted the practice 
of a 25-day waiting period in almost every case.
  This caution about the need for employees to have a chance to become 
familiar with the issues is just as true today. Employees who are not 
aware of the organizing activity at their worksites and even those who 
are need to have an opportunity to learn about the union they may join. 
They will want to research the union to ensure it has no signs of 
corruption. They will want to know how other worksites have fared with 
this union and whether they can believe the promises the union 
organizers may be extending. Employees should have every chance to 
understand the impact of unionization. Four decades ago Senators 
recognized that employees deserved the opportunity to gather this and 
all other relevant information before casting their votes. 
Unfortunately, the NLRB is choosing to ignore this caution, and rank-
and-file employees will suffer.
  This situation is exactly what the Congressional Review Act was 
intended for. When an agency goes too far and tries to impose rules and 
regulations that are unnecessary or harmful--in this case, both--the 
Congressional Review Act gives Congress an expedited process for 
repealing that regulation. It is a process that cannot be held up and 
cannot be stalled or put off to ensure that Congress can act when it 
needs to stop an out-of-control agency.
  By any measure, the current law and certification system for union 
elections ensures that the process is fair for all parties and that all 
parties have the opportunity to exercise their rights and to fully 
understand the implications. The National Labor Relations Board has not 
made the case that elections are being held up or stalled. They cannot 
make the case because the data doesn't support it. I want to repeat. 
The National Labor Relations Board has not made the case that elections 
are being held up or stalled. They cannot make that case because the 
data doesn't support it. There is no need for this rule, which is just 
a handout to Big Labor, which relies on pushing unions forward before 
businesses and employees have a chance to study and understand the full 
effects.
  This resolution will preserve the fairness and swift resolution of 
claims which occur under current law. It will not disadvantage unions 
or roll back any rights. It is important to say that again because 
there is going to be a lot of misinformation about what this resolution 
does. This resolution does not disadvantage unions or roll back any 
union rights. What it does is it ensures that small business employers 
and employees in America are not unfairly disadvantaged by a burdensome 
process and that employees are not misled with insufficient or 
incorrect information during the union election process.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. ENZI. Mr. President, I ask unanimous consent for 1 additional 
minute.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. ENZI. Under a successful Congressional Review Act disapproval, 
the agency in question is prohibited from issuing any substantially 
similar regulation. That means the National Labor Relations Board could 
not just reissue this regulation again and again, as they have 
currently done.
  I encourage my colleagues to support this resolution to ensure that 
the National Labor Relations Board understands that this rule is a no-
go and that we will stand up to ensure a fair process.

                          ____________________