[Congressional Record Volume 163, Number 131 (Wednesday, August 2, 2017)]
[Senate]
[Pages S4702-S4706]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                             Cloture Motion

  The PRESIDING OFFICER. Pursuant to rule XXII, the Chair lays before 
the Senate the pending cloture motion, which the clerk will state.
  The legislative clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on the nomination 
     of Marvin Kaplan, of Kansas, to be a Member of the National 
     Labor Relations Board for the term of five years expiring 
     August 27, 2020.
         Mitch McConnell, Chuck Grassley, Marco Rubio, Deb 
           Fischer, John Cornyn, Susan M. Collins, Lamar 
           Alexander, Roy Blunt, Luther Strange, Pat Roberts, 
           James Lankford, Bob Corker, Richard C. Shelby, John 
           Barrasso, Joni Ernst, Orrin G. Hatch.

  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call has been waived.

[[Page S4703]]

  The question is, Is it the sense of the Senate that debate on the 
nomination of Marvin Kaplan, of Kansas, to be a Member of the National 
Labor Relations Board, shall be brought to a close?
  The yeas and nays are mandatory under the rule.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. CORNYN. The following Senators are necessarily absent: the 
Senator from North Carolina (Mr. Burr) and the Senator from Arizona 
(Mr. McCain).
  The PRESIDING OFFICER (Mr. Sullivan). Are there any other Senators in 
the Chamber desiring to vote?
  The yeas and nays resulted--yeas 50, nays 48, as follows:

                      [Rollcall Vote No. 183 Leg.]

                                YEAS--50

     Alexander
     Barrasso
     Blunt
     Boozman
     Capito
     Cassidy
     Cochran
     Collins
     Corker
     Cornyn
     Cotton
     Crapo
     Cruz
     Daines
     Enzi
     Ernst
     Fischer
     Flake
     Gardner
     Graham
     Grassley
     Hatch
     Heller
     Hoeven
     Inhofe
     Isakson
     Johnson
     Kennedy
     Lankford
     Lee
     McConnell
     Moran
     Murkowski
     Paul
     Perdue
     Portman
     Risch
     Roberts
     Rounds
     Rubio
     Sasse
     Scott
     Shelby
     Strange
     Sullivan
     Thune
     Tillis
     Toomey
     Wicker
     Young

                                NAYS--48

     Baldwin
     Bennet
     Blumenthal
     Booker
     Brown
     Cantwell
     Cardin
     Carper
     Casey
     Coons
     Cortez Masto
     Donnelly
     Duckworth
     Durbin
     Feinstein
     Franken
     Gillibrand
     Harris
     Hassan
     Heinrich
     Heitkamp
     Hirono
     Kaine
     King
     Klobuchar
     Leahy
     Manchin
     Markey
     McCaskill
     Menendez
     Merkley
     Murphy
     Murray
     Nelson
     Peters
     Reed
     Sanders
     Schatz
     Schumer
     Shaheen
     Stabenow
     Tester
     Udall
     Van Hollen
     Warner
     Warren
     Whitehouse
     Wyden

                             NOT VOTING--2

     Burr
     McCain
  The PRESIDING OFFICER. On this vote, the yeas are 50, the nays are 
48.
  The motion is agreed to.
  The Senator from Washington.
  Mrs. MURRAY. Mr. President, I come to the floor today to stand up for 
the workers President Trump is failing. As a candidate running for 
President, Mr. Trump promised workers that he would put them first and 
that he would bring back good-paying, respectable jobs to their 
communities, but since day one, President Trump has done the exact 
opposite. He has rolled back worker protections and made it harder for 
families to be more secure.
  Now, this doesn't come as a surprise to me, especially when I look at 
President Trump's record as a businessman. I have to say that he has 
refused to allow even his own hotel workers to organize or join a 
union, preventing them from having the opportunity to better advocate 
for safer working conditions and better pay.
  We all know that strong unions have helped to create our middle 
class, and for many working families in the 20th century, a good union 
job, or the right to collective bargaining, helped them move up the 
economic ladder. But over the past few decades, we have seen a decline 
in unions and union membership across the country. As a result of that, 
our economy has started to favor corporations and those at the top. 
This paved the way for President Trump and billionaires like him to 
take advantage of their workers, with little recourse for everyday 
people who are the backbone of our country.
  The National Labor Relations Board gives workers the opportunity to 
file charges against corporations when they are illegally fired or when 
corporations retaliate against workers for exercising their rights. 
President Trump should be familiar with the NLRB, as his own businesses 
have had complaints filed numerous times. That is precisely why it is 
so important that the Board is independent and is committed to 
advocating for workers and their right to organize.
  The preamble of the National Labor Relations Act clearly states that 
it is the policy of the United States to encourage collective 
bargaining and to give workers a voice, allowing them to speak up for 
fair wages and safe working conditions. It is the responsibility of the 
NLRB to ensure that workers are being treated fairly and to resolve 
disputes between corporate management and workers.
  So it is clear to me that Board members should believe in the core 
mission that I just stated of the NLRB and should be committed to 
standing up for workers and their right to collective bargaining, which 
is exactly why I have very serious concerns about Mr. Marvin Kaplan's 
record, which has largely been in opposition to the work and mission of 
the NLRB.
  As a labor staffer in the House of Representatives, Mr. Kaplan 
prepared and staffed hearings where Republicans consistently attacked 
the NLRB. In fact, I would be hard-pressed to name a single example of 
Mr. Kaplan supporting the rights of workers and unions.
  In addition to Mr. Kaplan's opposition to the core mission of the 
Board, I also have deep reservations about Mr. Kaplan's lack of legal 
experience practicing before the NLRB. When I asked Mr. Kaplan about 
his lack of practical qualifications, his responses were telling: Have 
you ever represented a party, employer, or a union in an unfair labor 
practice case or representation case before the Board? No. Have you 
ever represented a worker in an employment matter? No.
  What is more, when asked to speak on the pressing questions facing 
the Board at his confirmation hearing, he actually confused basic labor 
issues and decisions, further calling into question whether he has the 
experience and knowledge to serve on this critically important Board.
  This is not a difficult concept for workers across the country to 
grasp. If you are not qualified for a job that is this important or if 
you want to undermine the basic goals of the law, you shouldn't get the 
job.
  So I will be voting no on Mr. Kaplan's confirmation. I urge my 
colleagues to do the same.
  I know my colleagues on both sides of the aisle want to strengthen 
our economy and rebuild our middle class. So I hope we can stand with 
working families across the country who today are simply asking for a 
fair shot.
  Thank you, Mr. President.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Hawaii.
  Mr. SCHATZ. Mr. President, there are two reasons why every Member of 
the Senate should vote against confirming Marvin Kaplan to the NLRB. 
The first is that he is just not qualified.
  The NLRB is the Federal agency that enforces our labor laws. It 
protects the rights of workers and the private sector to organize for 
better wages and better working conditions. It is up to them to make 
sure that their employers follow the law and that when there is an 
issue between employers and employees, everyone acts reasonably.
  Democrats and Republicans who have served on the NLRB have been the 
top labor and employment attorneys in their fields. They have had long 
careers working on labor issues, either as lawyers or as law 
professors. Many of them have spent time as staffers on the NLRB board. 
In other words, they understand the labor issues better than anyone. 
They may have a unique perspective on it one way or the other--sort of 
pro-management or pro-labor--but there is no question that previous 
nominees and previous members of the Board know labor law.
  Marvin Kaplan doesn't fit this profile. He is not a lawyer with any 
relevant labor experience. He has no record and no public positions on 
relevant labor law. What he is is a well-connected Capitol Hill 
staffer. His only qualification, that I can find, is that he has 
drafted some legislation for a committee in the House of 
Representatives. That does not stack up against the resumes of any 
other member who has served on the Board--Democrat or Republican.
  This lack of experience is dangerous. It means he will not know the 
intricacies and the historical development of labor law. He will simply 
be a rubberstamp who brings a political agenda to the Board, because he 
has no on-the-record opinions on these issues of his own.
  That was clear from the hearing on his nomination, when he would not 
properly commit to recuse himself from any issues he had worked on and 
to approach issues with an open mind, which brings me to the second 
reason. If somehow Senators can make an excuse for his lack of 
experience, we can't

[[Page S4704]]

deny that this is the opposite of the message that Congress should have 
received during the 2016 election.
  In November, Americans made clear that Washington had failed working 
families and that we have not done enough to stand up for American 
workers.
  Now here we are about to confirm a nominee to the NLRB, and the only 
experience he has is that he has drafted legislation to hurt American 
workers.
  The Board is about to face some important decisions. They could 
reverse a decision that holds big companies accountable for how their 
contractors treat workers. The future of American workers and their 
ability to organize will be influenced by this Board, which includes 
any members confirmed by the Senate.
  If Mr. Kaplan is appointed, it will further silence workers who 
already feel that they aren't being heard in Washington, DC.
  A vote for Mr. Kaplan is a vote that ignores the voices of American 
workers. It is a vote that further politicizes the NLRB at a time when 
we need to shore up our institutions against blind, corrosive ideology.
  I urge my colleagues to vote no on this nominee.
  I yield the floor.
  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. CASEY. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mrs. Ernst). Without objection, it is so 
ordered.
  Mr. CASEY. Thank you, Madam President.
  I rise to speak in opposition to the nomination of Marvin Kaplan to 
serve as a member of the National Labor Relations Board. Mr. Kaplan has 
spent much of his career as a staff member in Congress, where he worked 
to undermine unions and the rights of workers to bargain collectively.
  A key role of the National Labor Relations Board is to preserve the 
right of workers to bargain collectively. The Board itself is charged 
with enforcing the National Labor Relations Act, which Congress passed 
in 1935 in the depths of the Great Depression. The act gave workers the 
right to join unions, and it encouraged and promoted collective 
bargaining as a way to set wages and settle disputes over working 
conditions.
  This law that passed in the 1930s--and is still in effect today--is 
not simply a benefit to workers; it also benefits businesses, and it 
also benefits the economy. Section 1 of the act says, in pertinent 
part: ``The inequality of bargaining power between employees . . . and 
employers . . . substantially burdens and affects the flow of commerce, 
and tends to aggravate recurrent business depressions, by depressing 
wage rates and the purchasing power of wage earners.''
  There are a lot of important words there. When you have inequality of 
bargaining power, the findings of the Congress at the time said that 
would burden and affect the flow of commerce. So that tells you the 
impact on commerce. It also says that when you have inequality of 
bargaining power, that aggravates business depressions, and the result 
of that is depressing wages and depressing purchasing power.
  Everyone here knows that when we are measuring the American economy 
today--I am sure this has been true for many generations but especially 
today--the consumer plays a substantial role in our economy. So if that 
consumer, that worker has lower wages, that is not good for anyone. So 
giving workers the right to both organize and collectively bargain 
allows them to demand higher wages, thereby increasing their incomes 
and that purchasing power which is so critically important. That, in 
turn, of course, increases consumption and demand for goods, which, of 
course, increases production and employment. So all of these are tied 
together. Wages and benefits affect the economy, not just the worker 
and his or her family.
  I believe there is now a concerning trend to weaken the National 
Labor Relations Act and to tilt the Board against workers. Mr. Kaplan's 
nomination is another sign of this disconnect between the rhetoric of 
the administration claiming to be pro-worker and its actions that are 
of late anything but pro-worker. The administration claims it is here 
to support workers, but at every turn, we have nominees who have spent 
their careers working in the opposite direction.
  We know that in the 1950s and 1960s, the economy worked well for 
working Americans because 35 percent of workers were in a labor union. 
The decline of unions, the decline of the workers' voice, and the 
decline of collective bargaining have helped to lead us where we are 
today--stagnant wages over a long period of time, as well as power, 
wealth, and income, of course, concentrated at the top.
  So we know that unions helped workers to win higher wages, job 
security, and unprecedented benefits, including paid vacations, paid 
sick leave, and pensions that gave those workers and their families a 
measure of security, but it also increased their purchasing power, and 
it also, of course, strengthened the economy. American family incomes 
grew by an average of 2.8 percent per year from 1947 through 1973, with 
every sector of society seeing its income roughly double.
  We know now that in the last number of years, it has been a different 
story. Families across Pennsylvania and the United States know that the 
story is much different. It is not a coincidence that union membership 
has declined from its peak of 35 percent of private sector employment 
in the 1950s to less than 7 percent of private sector employment today. 
This is all the more reason to stop this assault on workers and labor 
unions.
  Nominees with a partisan history of working to undermine unions or 
undermine the National Labor Relations Act or undermine the National 
Labor Relations Board should not be confirmed to a position where they 
are supposed to act as an arbiter to protect the rights of workers to 
form a union and to bargain collectively. So I urge my colleagues to 
oppose the nomination of Marvin Kaplan to the National Labor Relations 
Board.
  Madam President, I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. BROWN. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BROWN. Madam President, during his campaign, President Trump made 
a lot of big promises to workers in Ohio and across the country. He 
told them he would look out for them.
  In a letter I sent to the President 2 days after the election, on 
November 10 or 11, asking the President to work with me to renegotiate 
NAFTA, insisting on ``Buy American'' provisions and infrastructure, the 
President scrawled across the top of the letter: ``I will never let 
down workers.''
  He said he would look out for them, but too often the people he puts 
in charge are along the lines of this latest nominee to the National 
Labor Relations Board, Marvin Kaplan. Mr. Kaplan has devoted his 
career--imagine such a thing--to working to strip workers of their 
rights and trying to undermine the workers' watchdog he is now seeking 
to join. I never question people's motives in this body. I just don't 
quite understand why somebody would devote his work life to trying to 
take away workers' rights and undermine labor protections. Someone who 
views unions and collective bargaining as a threat to be dealt with 
rather than as essential rights to be protected has no business serving 
on the National Labor Relations Board.
  The National Labor Relations Board was created, in part, at this 
desk. Then Senator Hugo Black of Alabama, in the early 1930s, sat at 
this desk. At this desk, one of the pieces of legislation he wrote was 
the minimum wage law. One of the other pieces of legislation he worked 
on with Senator Wagner was the National Labor Relations Act. In those 
days, people understood that you had created the National Labor 
Relations Act to strengthen workers, to create workers' rights, and to 
protect those workers' rights.
  Mr. Kaplan's nomination sets that on its head. It is the latest in a 
long, long line of evidence that we in this country

[[Page S4705]]

simply don't value work the way that we used to. Workers have 
continually seen their rights undermined. Workers' wages have been 
stagnant. People who work hard and play by the rules don't have the 
standard of living they had in our parents' generation or even half of 
a generation ago.
  We see companies refusing to pay overtime to workers who have earned 
it. We see companies misclassify workers so that companies can pay them 
less. We see executive salaries and CEO compensation going up and up 
and up. Yet for the broad middle class in this country, for people who 
aspire to be middle class, for low-wage workers, they have simply not 
gotten a raise for the last 20 years. So then, are we going to appoint 
somebody to the National Labor Relations Board--the President says we 
are going to confirm somebody to the National Labor Relations Board--
who has devoted his entire career to undermining workers, to taking 
away workers' rights, to scaling back workers' protections, and to 
scaling back wages--all these things we as a country never stood for?
  I don't know what is happening in this country that we think it is 
right to deprive workers of their wages, to take away overtime, to 
basically hit workers day after day after day in their pocketbooks, all 
while productivity goes up, profits go up, and while executive 
compensation goes up.
  When I was a kid, the average CEO-to-worker ratio of pay was about 35 
to 1 or maybe even less than that. Today it is often 300 or 400 to 1. 
The CEO will make 300 times what the average worker in the same company 
makes. How much is enough? What moral principle says to pay a CEO 300 
or 400 times what a worker makes? How much do they need? Why do they 
keep doing that?
  They keep doing that in part because of people like Mr. Kaplan, who 
always sides with the CEOs against the workers. As we think about this, 
I think everybody in this body can learn something from Pope Francis. 
At the end of June, Pope Francis spoke to workers in Italy at the 
Italian Confederation of Trade Unions. He was talking about something 
we do not think about much in this town that really ought to be at the 
heart of everything we do. He talked about the value and the dignity of 
work. An employer--a CEO--cannot say that he--and it is usually a 
``he''--values work when he takes away workers' rights. He cannot say 
he appreciates the dignity of work, when he scales back their wages or 
cheats them out of their overtime or takes away, by misclassification, 
the dollars she has earned.

  When Pope Francis talked about the dignity and value of work, he 
meant all work. He meant looking out for the little guy whether she 
punches a time clock or fills out a timesheet or makes a salary or 
earns tips, whether she is a contract worker or a temporary worker, 
whether he works in a call center or in a bank or on a factory floor.
  I went to my high school reunion in Mansfield, OH, about a year and a 
half ago. I sat across from a bank teller who works for one of the 
largest banks in the United States. She has worked at that bank for 30 
years. She makes $30,000 a year, and she has worked at a bank, as a 
bank teller, for most of the last 30 years. That is not respecting the 
dignity of work. That is simply undermining the value of work.
  Pope Francis said:

       The person thrives in work. Labour is the most common form 
     of cooperation that humanity has generated in its history.
       Work is a form of civil love . . . that makes the world 
     live and carry on.

  Yet too often that work--the cooperation that gives life purpose and 
that powers our country--does not pay off for the people who are doing 
it. While corporate profits are up, the GDP is up, and executive 
salaries have exploded upward, wages have barely budged. Workers simply 
have not shared in the wealth they have created.
  I went to an auto plant once after the passage of the North American 
Free Trade Agreement. At my own expense, I flew to Texas. I was 
representing a congressional district in Northeast Ohio then. I rented 
a car with a friend, went across the border from New Mexico, and I 
visited an auto plant in Mexico. It was an American company, but it was 
in Mexico.
  This auto plant looked just like an American auto plant. It was 
clean, and it was up-to-date. In fact, it was newer than most of our 
auto plants. The floors were clean, the workers were working hard, and 
the technology was up-to-date.
  Do you know the difference between the American auto plant and the 
Mexican auto plant? The Mexican auto plant did not have a parking lot 
because the workers did not make enough. They were not paid enough by 
this American auto company. They were not paid enough in Mexico to buy 
the cars they make. The work was not respected, profits were going up, 
the GDP was going up, executive salaries were going up, and the workers 
were not sharing in the wealth they created.
  This is a universal problem. It affects blue-collar workers, and it 
affects white-collar workers. It is in the industrial heartland of 
Ohio, and it is on the farmlands of Iowa. It is a problem on both 
coasts. People earn less. People cannot save for retirement. People 
feel less stable--all while working harder, all while producing more 
for their employers, which feeds right into huge executive 
compensation, but they do not share in the wealth they create for their 
companies. They are also less likely to have a union card that protects 
them.
  So the President's appointment to the National Labor Relations Board 
is pretty much a guy who has tried to make sure unions do not get a 
foothold in our economy and in our companies.
  The Pope spoke about the labor group. He said it performs an 
``essential role for the common good.''
  He said:

       It gives voice to those who have none . . . unmasks the 
     powerful who trample on the rights of the most vulnerable 
     workers, defends the cause of the foreigner, the least, the 
     discarded.

  This is the Pope talking.
  Think about airline baggage handlers. Airline baggage handlers used 
to make a good union wage. They used to work for United. They used to 
work for American. They used to work for Delta. Now they work for 
private companies that are contracted by United, American, and Delta. 
Airline baggage handlers' wages in the last 10 years have dropped 40 
percent. They are working just as hard--they are probably working 
harder--but they are making 40 percent less than they used to.
  Again, the Pope said:

     . . . unmasks the powerful who trample on the rights of the 
     most vulnerable workers, defends the cause of the foreigner, 
     the least, the discarded.
       The capitalism of our time does not understand the value of 
     the trade union because it has forgotten the social nature of 
     the economy, of the business. This is one of the greatest 
     sins.

  We know from rightwing attacks on the labor movement, from so-called 
right-to-work bills to Mr. Kaplan's efforts to undercut rules that 
protect workers, that too many in this country do not understand the 
value of the trade union.
  Right now, in Mississippi, autoworkers at Nissan are organizing and 
trying to form a union, and the corporation has responded. This foreign 
corporation has responded with despicable intimidation tactics. This is 
one of the most powerful, profitable companies in the world that is 
attacking workers one at a time in Mississippi.
  One worker said: ``There is no atmosphere of free choice in the 
Canton plant--just fear--which is what Nissan intends.''
  It is shameful the lengths that this corporation is going to--all to 
prevent workers from bargaining for fair pay. It is why we need a 
strong, not an undercut, weakened, emasculated National Labor Relations 
Board. We need a strong National Labor Relations Board to defend these 
workers and defend our laws on the books because an attack on unions is 
an attack on all workers. It is an attack on our economy as a whole 
because it depresses wages.
  There is the idea that you give tax cuts to the richest people in the 
country and that you make sure executive salaries are $5- and $10- and 
$15 million. You squeeze workers so they do not get increases. Is that 
a good economy? No. The money does not trickle down and build the 
economy. You build the economy from the middle out. We know that.
  In the 1990s, we built the economy from the middle out, with 22 
million private sector jobs during the Clinton years. In the Bush 
years, they had two

[[Page S4706]]

huge tax cuts for the rich under the Wall Street Journal theory that it 
would trickle down and everybody would be better. There was literally 
no net private sector job increase during the Bush years. There were 22 
million private sector jobs in the Clinton years and zero net growth in 
the Bush years. That is because, during the Bush years, they believed 
the economy was built from the top down. It is not large businesses 
that drive the economy--it is the workers. That is how you grow the 
economy--from the middle class out. If work is not valued, Americans 
cannot earn their way to better lives for their families no matter how 
hard they work.
  That is what I think of when I hear Pope Francis talk about the 
social nature of our economy. Work has to support families and 
communities. Today businesses seem to be more focused on cutting costs 
than on investing in their workforces. Workers are often nothing more 
than a line item in a budget, a cost to be minimized. More businesses 
use temp workers, more businesses use contractors--look at the 
airlines--and more businesses use subcontractors. They pay a lower 
wage. They provide less job security. They roll back their retirement 
benefits. They undercut their health benefits, and they take away legal 
protections. We have to change this.
  This spring, I laid out a plan to make work pay off by raising wages 
and benefits, including retirement, giving workers more say and more 
power in the workplace, encouraging companies to invest in their 
greatest asset--the American worker. My plan to restore the value of 
work has to include the labor movement. Modernizing labor law means 
recognizing the right of all workers, even those in alternative work 
arrangements, to collectively bargain for higher pay and better wages.
  Pope Francis concluded:

       There is no good society without a good union, and there is 
     no good union that is not reborn every day in the peripheries 
     that does not transform the discarded stones of the economy 
     into its cornerstones.

  We are a country of discarded stones--of people who rose from humble 
beginnings and joined together to build institutions that were greater 
than any one of us. We need laws that reflect that--that reflect the 
dignity of work and that reflect, as in the Pope's words, the dignity 
of every discarded stone, of each and every American who works too many 
hours for too little pay.
  The last thing we need for the National Labor Relations Board is 
another nominee who does not value work, who demeans work, and who 
demeans the workers and the unions who do it. Everyone in this town 
ought to listen a little more to Pope Francis and a little less to 
corporate lobbyists, a little less to big banks, and a little less to 
Wall Street. Maybe, then, we will start to make hard work pay off again 
for American workers. We can start today by rejecting this anti-worker 
nominee.
  I yield the floor.
  (Disturbance in the Visitors' Galleries.)
  The PRESIDING OFFICER. Expression of approval or disapproval is not 
permitted in the Gallery.
  Mr. BROWN. Madam President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Mrs. FISCHER. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.