[Congressional Record (Bound Edition), Volume 158 (2012), Part 4]
[Senate]
[Pages 5307-5318]
[From the U.S. 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

  Mr. ENZI. Mr. President, I make a motion to proceed to S.J. Res. 36.
  The PRESIDING OFFICER. The clerk will state the resolution by title.
  The assistant 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 PRESIDING OFFICER. Under the previous order, there will be 2 
hours of debate equally divided and controlled between the two leaders 
or their designees.
  The Senator from Wyoming is recognized.

[[Page 5308]]


  Mr. ENZI. Mr. President, I rise today to ask for disapproval to stop 
the National Labor Relations Board's ambush election rule. This rule I 
have been objecting to was put into place by an NLRB that is bound and 
determined to stack the odds against American employees and to put 
employers and employees in an unfair situation. Despite the fact that 
unemployment has remained above 8 percent for the past 3 years, and 
small business growth is the most important factor in reversing the 
lackluster trend, the National Labor Relations Board has chosen to 
impose new rules to aid big labor at the expense of employers, and 
particularly small business employers and the jobs they would create.
  If the Senate does not act now to stop this rule by passing my 
resolution, it will go into effect on Monday, April 30, 10 months after 
it was first proposed. The changes that are being made are going to be 
a big surprise for the employers and employees who get caught in this 
net, particularly, as I mentioned, the small employers who do not have 
the human resource departments or in-house counsel. I would expect that 
we elected representatives of the people are going to face a lot of 
questions about what we did to stop this blatant effort to stack the 
odds in big labor's favor--and we will be asked. This rule will shift 
the law significantly in favor of big labor.
  Let me take a moment to explain. Under current practice, there is a 
25-day waiting period between the setting of an election by a hearing 
officer and the actual secret ballot election. Employers could use this 
time to familiarize themselves with the requirements and restrictions 
of the law. This is very important because there are many ways that an 
unknowledgeable employer with the best intentions could make a misstep 
that would be heavily penalized by the NLRB. Employers also use the 
time to communicate with their employees about the decision they are 
making and correct misstatements and falsehoods that they may be 
hearing from union organizers.
  Parties also use this time to seek review of a decision made by a 
hearing officer or an NLRB regional director. Under the new regulation, 
the 25-day waiting period is abolished and employers may face an 
election in as few as 10 days.
  Is it fair to the employees to only have 10 days to learn how this 
will affect his or her life, and how much of his or her money this will 
cost?
  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' vote.
  Additionally, because of the NLRB's decision to allow micro-unions, 
such as specialty health care, unions will essentially be granted any 
bargaining unit they design and employers will have a very limited time 
to weigh in.
  Under current law, when either party raises preelection issues, they 
are allowed to submit evidence and testimony and file posthearing 
briefs for the hearing officer to consider, and 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 postelection briefs, and no appeals or 
requests for stays are allowed. This can be quite a disadvantage for 
employees as well.
  What this all adds up to is an extremely small window of time from 
filing a petition to the actual election, little opportunity for 
employers to learn their rights or communicate with employees their 
rights, and less opportunity for employees to research the union and 
the ramifications of forming a union. The NLRB is ensuring that the 
odds are stacked against employees and businesses. This vote is an 
opportunity to tell the NLRB to reverse course.
  If we pass this resolution, as I hope we will, the Senate will not be 
the only branch of government telling the NLRB it is off track. Last 
month, a District of Columbia Federal court told the NLRB that several 
provisions of its notice-posting regulation were well exceeding their 
authority and struck them down. This was a judge appointed by President 
Obama. Two weeks ago, another Federal court--this time in South 
Carolina--also ruled against the NLRB. It found that the entire notice-
posting regulation violated congressional intent. Following up on these 
two rulings, the DC Court of Appeals stayed the entire rule until 
appeals are completed. The court in that case was frustrated that the 
NLRB did not postpone the rule itself, given the multiple negative 
treatments in the courts.
  Unfortunately, that reckless sense of blind mission is consistent 
with this administration's NLRB. It is kind of like ``Thelma and 
Louise'' driving off a cliff. I, for one, don't want to see the NLRB 
drive our economy off a cliff. I hope this resolution will pull them 
back and encourage them to focus on their statutory mission.
  The NLRB enforces the National Labor Relations Act, which is the 
carefully balanced law that protects the rights of employees to join or 
not join a union, and also protects the rights of employers to free 
speech and unrestricted flow of commerce. Since it was enacted in 1935, 
changes to this statute have been rare. When they have occurred, it has 
been the result of careful negotiations with stakeholders. This change 
is one-sided and super quick--an ambush to set up ambush elections.
  The National Labor Relations Board is not an agency that typically 
issues regulations. Listen to this: In fact, in over 75 years the 
National Labor Relations Board has finalized only three regulations 
through formal rulemaking, two of which occurred last year. Let me 
repeat that. In over 75 years, the National Labor Relations Board has 
finalized three regulations through informal rulemaking, and two of 
them occurred just last year--under this current National Labor 
Relations Board. As I mentioned, one of those was already struck down 
by one court and stayed by another.
  Most of the questions that come up under the law are handled through 
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 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. This 
rule was not carefully negotiated by stakeholders. Instead, it was 
finalized in just over 6 months despite the fact it drew over 65,000 
comments in the 2-month period after it was first proposed.
  Labor law history provides an interesting contrast to this rushed 
regulatory approach. In the late 1950s, Congress became concerned about 
undemocratic practices, labor racketeering, and mob influence in 
certain labor unions. To address this the Senate created a special 
committee--the Select Committee on Improper Activities in the Labor or 
Management Field. That operated for 3 years and heard more than 1,500 
witnesses over 270 days of hearings.
  Based upon their investigations, the Senate negotiated and passed 
legislation to protect the rights of rank-and-file union members and 
employers. The legislation is known as the Landrum Griffin Act.
  The issue of how long a period of time there should be between the 
request for an election and the actual election came up during those 
negotiations. My colleagues may be surprised to learn it was Senator 
John F. Kennedy who argued vigorously for a 30-day waiting period prior 
to the election. As he said:

       There should be at least a 30 day interval between the 
     request for an election and the holding of an election . . . 
     in which both parties can present their viewpoints. . . . . 
     The

[[Page 5309]]

     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. Fairness to the 
employees--that is what Senator John F. Kennedy was talking about. 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 a practice of a 25-day waiting period in almost every 
case. But 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 
worksite, 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 
work sites 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.
  For example, they will no longer be able to negotiate a raise 
individually with their employer. Doing their jobs better than a fellow 
employee may no longer bring any benefit whatsoever. Union rules may 
even hinder sales.
  I once had an opportunity to visit a shoe factory. I was in the 
retail shoe business, and we visited a shoe factory. As we went through 
it, I saw some boxes of some of the shoes we normally carry and was 
kind of interested in what the new fashion looked like. So I went over 
and opened a box, and the roof caved in. Not actually, but it seemed as 
if the roof caved in because it had to be somebody who had union 
authority to open that box. It couldn't be the supervisor. So I 
actually shut down the factory for about 30 minutes just by picking up 
a box to look at the shoes that were probably going to be coming to my 
store at one point in time.
  Grievances cannot be brought straight to the employer but will, 
instead, have to go through the filter of union management. Once the 
union is certified, the National Labor Relations Board has instituted 
significant restrictions for when it may be decertified; in other 
words, when the employees can fire a union as their representative. 
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. So there is a very small window in 
which employees have any opportunity to get rid of a union they do not 
support. They are going to be rushed into judgment, and then they are 
stuck with it.
  Four decades ago Senators recognized 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. Fairness to the 
employee?
  This situation is exactly what the Congressional Review Act was 
intended for. When an agency takes regulatory action that is not 
supported by the people and their representatives, the Congressional 
Review Act gives Congress the chance to repeal that regulation.
  In this case those advocating for the rule are doing so because they 
cannot pass the bill they really want, which is card check. Card check 
is where you have people go in and stand over employees' shoulders 
while they check a box that says they want to be in a union. Then, with 
enough signatures or enough boxes checked, there is no secret ballot 
election. So many have referred to this as ``back-door card check''--
this particular NLRB regulation--and for good reason. Both proposals 
seek to restrict all communication with employees prior to a union 
election for union organizers only. Under both scenarios, employees are 
likely to hear only one side of the story, and employers can be cut out 
of the process altogether.
  But the other side could not pass card check because once the 
American public found out about what they were trying to do, they 
objected. It took a little while because the card check legislation was 
deceptively named ``The Employee Free Choice Act.'' In reality it would 
have forced employees into the exact opposite of free choice. Any 
Senator who opposed this card check legislation should also be voting 
for this resolution to stop ambush elections.
  Another reason the Congressional Review Act was designed for just 
this situation is there is simply no other way we would be allowed to 
have a vote on this issue in this Senate. Back in December, the House 
of Representatives passed Chairman Kline's legislation that would have 
effectively killed the ambush election regulation and codified a 35-day 
waiting period before an election. The Workforce Democracy and Fairness 
Act was passed with bipartisan support, but it has no chance of being 
called up for a vote in the Senate. So this vote is the one chance 
Senators will have to stand up for employees and small businesses that 
want fairness.
  By any measure, the current law and certification system provides 
that fairness. The National Labor Relations Board keeps data on 
elections timing and sets up annual targets to process elections and 
decide complaints swiftly. Last year, they exceeded two of those 
targets and came within three-tenths of a percentage point of meeting 
the third. There is simply no justification for this regulation.
  Last year, initial elections and union representation elections were 
conducted in a median of 38 days after the filing of the petition. 
Almost 92 percent of all initial elections were conducted within 56 
days of the filing of the petition. Not only are the vast majority of 
elections occurring in a timely fashion, but unions are winning more 
than ever. Unions win more than 71 percent of elections--their highest 
win rate on record. The current system does not disadvantage labor 
unions at all, but it does ensure employees--whose right it is to make 
the decision of whether or not to form a union--have a full opportunity 
to hear from both sides about the ramifications of that decision.
  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. Let me repeat that: This resolution will not 
disadvantage unions or roll back any rights. What it will do is prevent 
the small business employers in America from being ambushed and 
employees from being misled with insufficient information into union 
contracts they cannot get out of.
  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 and could not finalize many of the other 
bad ideas they initially proposed. I will be speaking about some of 
those later on in this debate.
  Let's not wait for the courts to strike down this rule, as they have 
the NLRB's other regulatory effort--which would make two out of three 
in the last 75 years. With the President's appointment of the National 
Labor Relations Board members when we were not in a Senate recess 
period, the Senate did not confirm the people pushing this effort--
though, mostly, this was done by previous board members. But with the 
President's recess appointments in place, the National Labor Relations 
Board is poised to push forward other bad ideas aimed at helping union 
bosses, not employees, and not job creators. It is time to stop this 
agency and level the odds.
  I am pleased to have 44 fellow Senators cosponsoring this resolution. 
I will now yield time to other Members who would like to speak in favor 
of it, first allowing the Senator from Iowa, the chairman of the 
committee, an opportunity to speak, probably, against it.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. HARKIN. Mr. President, I yield myself whatever time I may 
consume.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HARKIN. Mr. President, I also want to clear up one parliamentary

[[Page 5310]]

question. The occupant of the chair stated we had 2 hours evenly 
divided. I believe that is today. But on the agreement for the entire 
debate on the Congressional Review Act, if I am not mistaken, it is 4 
hours evenly divided.
  The PRESIDING OFFICER. The Senator is correct.
  Mr. HARKIN. I thank the Chair.
  Mr. President, this Congressional Review Act challenge is the latest 
chapter in an unprecedented Republican assault on unions. The amount of 
time this Congress has wasted scrutinizing and bullying the National 
Labor Relations Board over the last 2 years is simply astonishing. This 
time the debate is about whether the NLRB acted appropriately when it 
streamlined its procedures for setting up a union election and 
eliminated unnecessary bureaucracy to make the agency more efficient.
  This seems like a commonsense and logical step that if taken by any 
other agency my colleagues on both sides of the aisle would be 
applauding as a step forward for good government and efficiency. But 
because these reforms were put forward by the NLRB--an agency my 
Republican colleagues seem to do anything to undermine--we are all 
standing here today debating the merits of this eminently sensible 
action. It is a real shame.
  At a time when we should be working together to rebuild our economy 
and addressing the real challenges facing working families across this 
Nation, instead Republicans are distracting this body with partisan 
attacks on the National Labor Relations Board and on unions.
  I would welcome the opportunity to spend this time on the Senate 
floor debating how to make life better for middle-class families. I 
would even welcome the opportunity to have a real debate about unions 
and the important role they play in our country. What I deeply regret 
is that we are instead going to spend time discussing the wild 
misinformation that has been spread about National Labor Relations 
Board rules that were properly undertaken, well within the agency's 
authority and completely sensible. So let me take a moment to try to 
set the record straight.
  In December, after receiving public input, the NLRB announced that 
some internal agency procedures governing union elections would be 
changed. These are modest changes that not only make the procedures 
more rational and efficient but also ensure that workers and employers 
alike will have an opportunity to make their voices heard in an 
environment free of intimidation. These changes, while modest, are 
desperately needed. They will address the rare but deeply troubling 
situation where an unscrupulous employer uses delay and frivolous 
litigation to try to keep workers from getting a fair election. Let me 
briefly explain how the process works and how the new rules will help.
  Ever since the passage of the National Labor Relations Act in 1935, 
workers have had a Federally protected right to choose whether to form 
a union, and our national policy, as stated in that act, has been to 
encourage collective bargaining. Workers who are interested in forming 
a union can request an election if at least 30 percent of the workers 
in that workplace sign a petition and present that to the National 
Labor Relations Board. About 90 percent of the time, the employer and 
the union reach an agreement covering when the election will be held, 
the timing of it, and who is in the bargaining unit.
  That is the ideal situation. That is what happens the majority of the 
time. Although we would never know it from the rhetoric surrounding 
these rules, the new procedures address only the roughly 10 percent of 
situations where these preelection issues are in dispute and the rules 
say nothing about 90 percent of the elections, where the two parties 
reach a voluntary agreement on election terms.
  This chart shows us only a tiny fraction of election petitions will 
be affected by these rules. As I said, 90 percent of the time the 
proposed union and the employers reach an agreement when the election 
is going to be held, how it is going to be held and other procedures. 
They voluntarily agree on that. Only 10 percent of the time do we have 
employers, some that are highly unscrupulous that will do anything to 
prevent their workers from having any kind of a voice in the running of 
the facility, that go to extreme lengths to frustrate the will of those 
who want to form a union. Again, the rules we are talking about don't 
even affect 90 percent of the businesses.
  This 10 percent of the time when the parties can't reach an 
agreement, the NLRB then holds a hearing to decide who should be in the 
bargaining unit. The NLRB's proposed rules deal with the mechanics of 
that hearing and they attempt to cut back on the frivolous litigation 
that has plagued the hearing process. That is the proposed rule. They 
deal with the mechanics of that and cut back on this frivolous 
litigation. Under the old rules, management could litigate every single 
issue they could imagine at the preelection hearing. They could file 
posthearing briefs over any issue no matter how minor, and they could 
appeal any decision to the NLRB here in Washington. In many cases, the 
election would be put on hold while the Board reviewed the case. The 
workers then had to wait for the resolution of this litigation before 
they could even vote.
  When the management side took advantage of every opportunity for 
delay, the average time before workers could vote was 198 days. Again, 
we are talking about this 10 percent. When management took advantage of 
every opportunity, the average time before workers could even vote was 
198 days. We have some cases where it has been as long as 13 years 
before employees were able to vote in a union election. While the 
election process drags on, workers are often subjected to harassment, 
threats, and, yes, firing.
  A study by the Center for Economic and Policy Research found that, 
among workers who openly advocate for a union during an election 
campaign, one in five is fired. We know what kind of signal that sends 
to the rest of the workers. A Cornell University study found that 
workers were required to attend an average of ten anti-union meetings 
during worktime before the election. By law, workers have the right to 
organize. As I said, our official policy, as stated in the National 
Labor Relations Act, is to encourage collective bargaining, but in 
practice we allow delay and intimidation to make that right 
meaningless.
  The current NLRB election reforms do not solve this problem entirely, 
but nevertheless they are an important step forward. They help clear 
the bureaucratic redtape that has wasted government resources and 
denied workers the right to a free choice. Under the new rules, 
employers and unions can still raise their concerns about the petition 
at a preelection hearing, but they can't play games to stall the 
election. For example, under the new rules, employers can't waste time 
before the election arguing over whether an individual worker is 
eligible to vote. That worker then can vote a provisional ballot, and 
the two sides can debate the issue after the election if it matters to 
the outcome. What we have had in the past is, let's say we had a 
proposed bargaining unit that was 200 people. Let's say they got 100 of 
them to sign a petition. They usually try to get about 50 percent. They 
present it to the NLRB. Management then says: Person A shouldn't be in 
that bargaining unit because they are a supervisor, and person B over 
here shouldn't be in here because that person is a clerk and not a 
handler--or whatever it might be that wouldn't correspond to the 
bargaining unit.
  Let's say they raise that issue on five people. Under the present 
situation, they could then take this to the NLRB, have hearings on each 
one of those. If they didn't like the outcome, they could then take it 
to Washington, DC and drag it out.
  Under the new rules, what they would say is: OK. If management is 
challenging those five people, we will set their ballots aside, and we 
will have an election. If the election was 150 to 20 that they form a 
union, then those 5 wouldn't make any difference one way or the other. 
But if the election were

[[Page 5311]]

close and those five would, then the NLRB would step in and say: Wait a 
minute. The certification would be put on hold until they decided 
whether those people were rightfully in the bargaining unit to vote. 
Again, these are some of the games that have been going on.
  Another example is appeals. All parties still have the right to 
appeal any decision they disagree with. But now, all appeals would be 
consolidated after the election, which allows the Board to conserve its 
resources and keep the election process moving forward.
  These commonsense changes remove unnecessary delays from the process, 
they cut down on frivolous legal challenges, and give workers the right 
to a fair up-or-down vote in a reasonable period of time. The new rules 
don't encourage unionization and they don't discourage it. They just 
give workers the ability to say yes or no, without having to wait 
several months or even years to do so.
  There is rampant misinformation about this rule. To be clear, the 
rule does not allow a so-called ambush election, where an employer is 
taken by surprise and has no ability or opportunity to communicate with 
workers about the pros and cons of a union. As anyone who has ever been 
around a workplace that is part of an organizing drive would know, 
employers always know what is going on, and they have ample opportunity 
to express their views. They can require their workers to listen to an 
anti-union message all day long every day, and that is perfectly legal, 
while the union isn't even allowed into the facility to talk to other 
workers.
  This rule also does not change the content of what an employer can or 
cannot say to its workers. It doesn't restrict an employer's free 
speech rights in any way.
  Finally--I wish to make this clear--the rule does not mandate that 
elections be held within any particular timeframe. For anyone who has 
actually read the new rules, it is clear it does nothing of the sort.
  What these rules do accomplish is to help ensure that employers and 
employees have a level playing field, where corporate executives and 
rank-and-file workers alike have an equal chance to make their case for 
or against a union. Some workplaces will choose a union, some will not. 
But protecting the right of workers to make that choice brings some 
balance and fairness to the system. Indeed, many employers have 
recognized that the new rules are fair and balanced. Catholic Health 
Care West, a health care company with 31,000 employees, filed comments 
stating:

       Reforms proposed by the NLRB are not pro-union or pro-
     business. They are pro-modernization.

  Further, Catholic Health Care West said they 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.

  Mr. Willie West, founder and owner of West Sheet Metal Company in 
Sterling, VA, wrote an article in the Hill newspaper stating that:

     [t]hese seemingly minor changes certainly do not create 
     uncertainty for me and they will not affect my ability to 
     create jobs. In fact, if the NLRB standardizes the election 
     process, it seems to me this will reduce uncertainty and 
     turmoil in the workplace--especially for small businesses.

  Mr. West is exactly right. The rules are an improvement for small 
businesses and for those who want a cooperative relationship with their 
employees. Again, keep in mind, 90 percent of the time they have no 
problems. We are only talking about this 10 percent of the time. That 
is what these rules are aimed at.
  The new rules promote consistency among NLRB field offices. They 
simplify procedures for all parties, making it easier for businesses to 
plan. The old rules gave an advantage to the businesses with the most 
money and those most willing to manipulate the system to frustrate 
their employees' right to vote. Some of these businesses in that 10 
percent could afford expensive lawyers to exploit the system and delay 
elections. The old rules worked well for anti-union law firms--I will 
grant you that--but not for small businesses on a budget.
  By creating a fair, more transparent process, the NLRB is leveling 
the playing field for small businesses.
  Most important, the rules also take a small step to level the playing 
field for ordinary Americans. The people who do the work in this 
country deserve a voice in the decisions that affect their families and 
their futures. Polls show that 53 percent of workers want 
representation in the workplace, but fewer than 7 percent of private 
sector workers are represented and one of the reasons is the broken 
NLRB election system. Even though more workers than ever are expressing 
an interest in having a voice on the job, the number of union 
representation elections conducted by the NLRB declined by an 
astounding 60 percent between 1997 and 2009.
  When workers do file for NLRB elections, 35 percent give up in the 
face of extreme employer intimidation and withdraw from the election 
before a vote is even held. Let me repeat that. Workers have gone 
around, they have gotten signatures, they have gotten the requisite 30 
percent. They usually get a lot more than that, 40 to 50 percent. They 
file with the NLRB. One out of every three of those give up in the face 
of extreme employer intimidation. Why? Because one out of every five is 
being fired because there is no real penalty against the employer for 
firing someone for union organizing. It is against the law to fire an 
employee because they were exercising their right to form a union, to 
be in union organizing. But it happens all the time. Why do employers 
not worry about it? Because there are no penalties. The penalty is 
backpay minus any offsets.
  I had a young man in Iowa I remember very well up in Mason City. He 
had been involved in organizing a union at his workplace. He got fired. 
He filed with the NLRB saying he was wrongly dismissed because of his 
union-organizing activities.
  They had a hearing. It dragged on for 3 years before the NLRB could 
reach a decision, and the decision was, yes, he was fired because of 
his union-organizing activities.
  What was the penalty on the employer? They had to pay him 3 years' 
backpay minus whatever he earned in the meantime as a worker.
  How many people can go through years without working? Of course, he 
had to work. He had to go to work, and he had to show how much money he 
made in the meantime that had to be deducted from what his employer had 
to pay him. Therefore, they had to pay practically nothing. Yet using 
that as an example, they were able to frustrate the organizing of a 
union. One-third give up in the face of extreme employer intimidation. 
These are the problems that need to be addressed.
  It is not just a problem for unions either, but for our entire middle 
class and for the future of our economy. If we take a look at what is 
happening to the middle class in America, it is being decimated. The 
American people are insisting--even though we are not doing much of it 
in Washington, I can assure you the American people are insisting that 
we have a national dialog about the growing division between the haves 
and have-nots in this country, about the detrimental impact this is 
having on the standard of living of American middle-class families. 
This has led to important discussions about tax loopholes for 
corporations and millionaires. But as we learned from battles from 
Wisconsin to Ohio and beyond, it is very much a conversation about 
workers' rights.
  Unions have always been the backbone of the American middle class 
since we started having a middle class. Since 1973, private sector 
unionization rates have declined from 34 percent of the labor force to 
7 percent; from 1 out of every 3 workers in America belonging to a 
union to now only 7 percent, 1 in about 15. While unionization rates 
declined, so did the middle-class share of national income.
  During some hearings we had last year--we had a number of hearings in 
our committee about this. When we track union membership--this, the 
blue line, from 1973 to today--and

[[Page 5312]]

track the percent of workers covered by collective bargaining 
agreements, and then track the middle-class share of national income, 
look how they all go down the same. As unionization declined the number 
of workers in collective bargaining declined, and so did their share of 
the national income. That is what has happened to the middle class in 
America. Simply, the fate of America's unions parallels the fate of 
America's middle class.
  Unions are not a relic of a bygone era, they are a vital element of a 
fair and successful 21st-century economy. If we want to strengthen our 
economy and rebuild the middle class, we should try to figure out how 
to make unions stronger, how to get more people in collective 
bargaining, not attack collective bargaining rights across the country. 
We should be fighting to ensure that every hard-working American has a 
right to be treated with dignity and respect on the job--and, yes, to 
have a voice on that job. The current NLRB election reforms may fall 
short of that lofty goal, but, as I said, they are an important step 
forward, and they deserve support.
  I urge my colleagues to vote no on this Congressional Review Act 
challenge to NLRB's rules. Now that these rules are to go into effect--
and I am confident they will go into effect--it is time for this body 
to stop wasting time, using the NLRB as an election year political 
football.
  I think these attacks on this modest rule go right after the 
intelligence of working Americans. These attacks urge this body to help 
prevent unions from being organized. But ordinary Americans and the 
middle class want us to stop this political posturing and move forward 
on building economic opportunity for the middle class--and, yes, to 
support the right of people who want to form a union, to get rid of all 
these delays, and to make sure we have rules in place which basically 
reflect 90 percent of the employers in this country.
  Ninety percent of the employers reach agreements with their employees 
on having an election. It is that 10 percent that gets to be 
frustrating. This is the purpose of this rule, to make everybody sort 
of falls in the 90 percent, so we have a fair and expeditious election 
process, one that is understandable, one that does not lead to all this 
frivolous litigation and delay.
  We have another couple or 3 hours of debate on this matter. After 
this is over, I hope we can start focusing on ways to genuinely help 
the middle class in America.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Wyoming is recognized.
  Mr. ENZI. Mr. President, most of the small businesspeople I know 
consider themselves to be part of the middle class. I appreciate the 
statistics the chairman provided about 90 percent of the elections 
arriving at agreement prior to the election. What this rule is going to 
do is change it so that only 10 percent make agreements beforehand 
because there is no incentive for the union to participate at all. They 
have the right to just take it over.
  There are some statistics about unions and the middle class, and kind 
of a myth, that the current election procedures discourage unionization 
and are the main cause of private sector union decline. In the 1950s 
private sector union membership reached its height of 35 percent of the 
unionized workforce. Today it is less than 7 percent of the private 
sector workforce that is unionized, and the decline of unionization in 
the private sector can be attributed to several social, political, and 
economic factors, including present-day workplace laws at both the 
State and Federal level that have greatly improved working conditions; 
a decline in the manufacturing base; the new nature of employment, 
where people are more transient in their careers; and the desire for 
contemporary employees to have a more cooperative relationship with 
their employers, and vice versa. It is kind of a teamwork factor that 
most businesses operate on today.
  I think it was also said that employers have unfair access to 
employees and regularly bombard employees with anti-union propaganda. I 
think it was said it could happen 24 hours a day. The fact is 
employers' speech regarding unionization is closely monitored and 
regulated. For example, employers are restricted from visiting 
employees at their homes, inviting employees into certain areas of the 
workforce to discuss unionization, and making promises or statements 
that could be construed as threatening, intimidating, or coercive. That 
is the current law. Employers are required to provide unions with a 
list of employee names and home addresses for representation election 
purposes.
  I think it was also said changes are needed because current 
procedures discourage employees from forming unions. The fact is all 
employees have the guaranteed right to discuss their support of 
unionization and to persuade coworkers to do likewise at work. The only 
restriction is that they not neglect their own work or interfere with 
the work of others when doing so. Employees as well as unions have the 
unlimited right to campaign in favor of unionization away from the 
workplace.
  The National Labor Relations Board election rule will postpone these 
legitimate questions after the representation election is held and 
could result in more post-election litigation. So there are a lot of 
factors that were mentioned. I am not going to go into all of them.
  As I have stated throughout the debate, the National Labor Relations 
Board's ambush election rule is an attempt to stack the odds against 
American employers, particularly small businesses that do not have a 
specialist in that area or in-house counsel. Most small businesses 
today cannot afford either of those. They can be put into this 
situation of having to figure it all out in less than 10 days. That is 
just to figure out the rules so they do not get some heavy fines from 
the National Labor Relations Board.
  Coupled with two other changes the administration is forcing, some 
employers will be caught in a perfect storm. Taken together, ambush 
elections, the National Labor Relations Board's micro-union decision, 
and the Department of Labor's proposed rule on persuader activity 
create a major shift in favor of organized labor.
  The Supreme Court has expressly stated that 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 board under the National 
Labor Relations Act. Yet the overarching goal of the National Labor 
Relations Board and the Labor Department's efforts is to put up 
barriers that can have the effect of limiting employer free speech.
  Under the specialty health care decision permitting micro-unions, 
unions can now gerrymander a bargaining unit so it is made up of a 
majority of employees who support the union. In this decision, the 
standard for whether a union's petition for a bargaining unit is 
appropriate was changed to make it very difficult for employers to 
prove it is not appropriate. The decision will lead to smaller units 
which will be easier to organize and cause fragmentation and discord in 
the workplace. Allowing micro-unions will increase the number of 
bargaining units in the workplace. The result means an employer could 
face multiple simultaneous organizing campaigns, all with shortened 
election periods, thanks to this ambush rule. Those two combined can be 
pretty dangerous.
  Under the Department of Labor's proposed regulation to require 
increased reporting of persuader activity, an employer, especially a 
small employer, will rethink obtaining advice from lawyers or 
consultants on what to do when faced with a union organizing campaign. 
Taking away the ability to consult outside parties, combined with a 
shortened election period, makes it nearly impossible for an employer 
to not only educate his employees, but also to ensure his actions are 
within the law.
  For over 50 years the Department of Labor has been exempted from 
reporting requirements advice provided to employers. The proposed rule 
will significantly affect that definition. The complexities of the 
National Labor Relations Act almost require an employer to seek advice 
on what he is permitted

[[Page 5313]]

to do or say to employees during a union election, especially if the 
election period is as short as 10 days.
  The proposed rule on persuader activity will chill employer speech to 
the point that employers will not seek, and attorneys will not provide, 
advice on any labor-related issue. So unions have turned to these 
regulatory initiatives after losing the public and political battle 
over the Employee Free Choice Act, otherwise known as card check. 
Organized labor's end game remains the same, making it easier to 
organize by taking away the employer's free speech right and the 
employee's right to fair information.
  Supporters of organized labor have acknowledged the winning strategy 
is to gain voluntary recognition of the union from employers instead of 
allowing employees to vote in a secret ballot election, despite a 71-
percent win rate. Ambush elections, increased reporting on persuader 
activity, and the decision to allow micro-unions will set the bar for 
an employer winning elections impossibly high, essentially coercing 
them into voluntarily recognizing the union.
  I do thank the Senator for mentioning that in 90 percent of the 
elections there is an agreement before the election done in a 
relatively short period of time that takes care of all the disputes. I 
don't know if the purpose of Congress is to make sure 100 percent of 
situations never occur or 90 percent or 99 percent, but everything 
cannot be solved by doing a new rush to action regulation, particularly 
by an organization that doesn't do those regulations normally.
  In 75 years there have only been three regulations. Two of them were 
done by the Labor Relations Board in the last year, and one of those 
has already been set aside by the courts. So this is a rush-to-action 
situation, and I hope my colleagues will join me in this resolution of 
disapproval of the Congressional Review Act.
  It is a very difficult bar to reach because the Senate will have to 
pass the resolution of disapproval twice with a majority of votes. That 
gives the other side the opportunity to see who might support it the 
first time and see if they can talk them out of it the second time. But 
after that, it has to go through the House, and then this is the 
surprising part to me--if it passes both bodies where both bodies have 
said they do not think the agency correctly interpreted what we put in 
law, meaning Congress, who are the only ones with the right to pass a 
law--what we put into law, they are trying to change, and that third 
step is that it requires the signature of the President in order for 
the Congressional Review Act to become effective. We are an equal 
branch of government to the administration. The administration writes 
the rule. We disapprove of the rule because we say it doesn't follow 
the laws we have already passed, and then the administration which 
wrote the law gets to say whether the votes of the people in the House 
and in the Senate had any effect at all.
  The Congressional Review Act has a definite place, but it should have 
been done using the authority of Congress itself, not the authority of 
the Congress and the administration combined. We are at a point where 
there is a heavy hand in the administration, and that will have a 
drastic effect on business in this country. And if business fails, 
there will be less employees, not more.
  Mr. HARKIN. Mr. President, how much time do have I remaining?
  The PRESIDING OFFICER. The majority has 36 minutes 25 seconds.
  Mr. HARKIN. Mr. President, we are going to have a lot of time to 
flush out some of these arguments again tomorrow when the vote gets 
near, but I thought I might pick up on a couple of things here that my 
good friend from Wyoming said. We do a lot of work together, and he is 
a great Senator and a good friend of mine. He just happens to be wrong 
on this issue, but other than that, he is a good friend of mine. This 
is a good, healthy debate on policy.
  There is a lot of talk about these ambush elections. Now we are going 
to have ambush elections. Well, that is not so. The current median time 
from when a petition is filed and when the election occurs is about 37 
to 38 days. Again, I heard from my friend saying this could be ambush 
elections, and all that kind of stuff. Even one of the Nation's largest 
management-side law firm disagrees. One of the attorneys from Jackson 
Lewis told the Wall Street Journal that he thinks the time would be 
shaved between 19 and 23 days under the proposal.
  Mr. Trauger, vice president of the National Association of 
Manufacturers, said the elections would be held in 20 to 25 days under 
the new rule. So that is not an ambush election at all. All this rule 
does is remove these extra legal hurdles that can cause excessive 
delays.
  We keep hearing about rulemaking, and saying: Well, this board has 
only issued three of these rules in the past 75 years, two of these 
rules in the last couple of years. It makes it sound as though the NLRB 
has ridden off the range here in terms of reasonableness. But the fact 
is that when the board promulgated rules in the past, they did it 
through the adjudicative process, not through rulemaking.
  The Supreme Court and the U.S. Courts of Appeal have criticized the 
board in the past for underutilizing its rulemaking authority. Courts 
have said the rulemaking process is more transparent and more 
inclusive. So through rulemaking this board has solicited broader 
public input in its decisions.
  What the NLRB has done in the last couple of years is opened up the 
process for comment periods and rulemaking through the Administrative 
Procedures Act, something the courts have been asking and advising the 
NLRB that they should have been doing all along rather than relying on 
the adjudicative process.
  So, yes, my friend may be right about two of the three last couple of 
years, but actually that is a move in the right direction. That is a 
move for transparency and openness and letting all different sides have 
their comments before they issue a final rule rather than doing it 
through adjudication.
  There was this quote about John Kennedy about a 30-day waiting 
period. Well, I don't know, I have not looked at then-Senator Kennedy's 
entire record. I suppose there are some things I might agree with him 
on and some things I probably would not agree with him on. I don't know 
what his thought processes were. All I can tell you is that no matter 
what he said at that time as a Senator, the final bill did not have a 
waiting period. The Senate put it in, the House did not, and when it 
went to conference, they dropped it. So I think the rejection of that 
proposed amendment could be more reasonably understood as an indication 
that Congress did not believe a minimum time between petition and 
election is necessary.
  Sure, you can quote Kennedy, and I guess I can quote President Dwight 
D. Eisenhower, and here is what he said:

       Only a fool would try to deprive working men and women of 
     the right to join a union of their choice.

  Well, we better not try to prevent them from joining a union of their 
choice.
  I have also heard this charge that somehow these rules tilt this more 
in favor of the unions than management. No, they don't. Again, we have 
mostly been talking here about the certification process. When union 
organizers get the signatures, they file with NLRB and we have an NLRB 
process. Basically that is what we are talking about here. But I would 
point out to my friend on the other side of the aisle that these 
procedures we are talking about also apply to decertification elections 
as well. So since the same rules will apply to decertification 
elections, the proposed rule will ensure that employees who have union 
representation will be able to have a timely up-or-down vote to also 
get rid of the union. So, to me, it is both. It is both on the 
certification and the decertification side. It makes for things to be 
much more expeditious, much clearer, and more understandable. That is 
why I think many management firms and businesses see this as a 
reasonable rule because when they would try to decertify, they don't 
have to go through all of this frivolous litigation

[[Page 5314]]

on the other side. It applies to both certification and 
decertification, so it doesn't tilt the playing field one way or the 
other.
  Again, I applaud the National Labor Relations Board for moving in the 
direction of more rulemaking, making it more open, making it more 
transparent than what they have done in the past. But you know what it 
boils down to? As long as I have been here, since 1985 in this body, we 
have had ups and downs on the National Labor Relations Board. Let's 
face it, what happens is the National Labor Relations Board has three 
members from the President's political party and two from the other 
side. So when you have a Democratic President in, then NLRB gets 
attacked by Republicans. When a Republican President is in, it gets 
attacked by Democrats, and it becomes kind of a political football. I 
understand that, and we should all understand that is what this is too. 
That is what this is all about.
  I was just notified that a Statement of Administration Policy, SAP, 
from the administration just came through. It said even if this vote 
were held and the other side won--if it was voted to overrule the 
NLRB--the President would veto it. And, surely, no one thinks there is 
a two-thirds vote here to override the President's veto on this issue. 
We are kind of wasting our time here. It is sort of another political 
shot when there are so many important things we should be talking about 
in terms of jobs, job creation, the economy, fair taxation, keeping our 
jobs from going overseas, education, job retraining, and yet we are 
spending our time talking about this. Well, be that as it may, the 
facts are on the side that this rule is eminently reasonable, fair, and 
I think will lead to a more predictable and less litigious and less 
conflicting process when people want to form a union in this country.
  As I said, 90 percent of the time we don't have these problems. But 
for those 10 percent, it can be devastating, and it can thwart 
individual workers who want to form a union. So I am hopeful we can 
have a little bit more debate on this. I hope the vote tomorrow will be 
conclusive and that we will turn this down and move ahead with more 
important business confronting this country.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Wyoming.
  Mr. ENZI. Mr. President, we are having an interesting duel of 
statistics here, because to take care of the 10 percent that the 
Senator from Iowa says has a problem, we will turn the other 90 percent 
on their head. It also doesn't surprise me that the President has put 
out a Statement of Administration Policy, a SAP. I always thought those 
were pretty aptly named, but not surprised my resolution would be 
opposed.
  As I explained, this is a regulation written by the administration so 
I would expect the administration would not like and would veto it. 
There has been only been one Congressional review action that has 
succeeded and that was regarding the rule on ergonomics. And what 
happened was the Department of Labor rushed through a 50-day 
regulation, and then we had a change of Presidents and the new 
President didn't like it, so he was willing to sign the Congressional 
Review Act resolution of disapproval.
  This is not a waste of time. This is an important action. It is to 
warn agencies and boards that the ones that make the laws are Congress, 
and we delegate that rulemaking authority, and it was delegated to the 
administration of the National Labor Relations Board, and they are 
abusing their authority.
  What has changed? Well, there is the pre-election hearing. In the new 
rule it says: ``A pre-election hearing is solely to determine whether a 
question of representation exists.'' The important question, such as 
which employee should be included in the bargaining unit or the 
eligibility of an employee, won't be heard prior to an election.

       A hearing officer may unilaterally bar testimony or 
     evidence he or she deems not relevant to a question raised at 
     a pre-election hearing--under this new regulation.

  The effect?

       A hearing officer will have wide latitude to prohibit 
     certain evidence introduced at a pre-election hearing, even 
     if such evidence is undisputed or stipulated, essentially 
     leading to the conclusion that an election is proper.

  Under the new rule:

       Parties are prohibited from seeking a review of a regional 
     director's decision and direction of an election by the 
     Board. All issues to review would be heard after an election. 
     Parties could seek a pre-election appeal if the issue would 
     otherwise escape Board review.

  The effect?

       Parties with a legitimate legal bar to an election will be 
     forced to run an unnecessary election. An unintended 
     consequence is that an employer would have to commit an 
     unfair labor practice in order to have their issues reviewed 
     by the full Board.

  If you ask me, that is a pretty high bar they are putting in there. 
The new rule says:

       The 25-day waiting period between the direction of the 
     election and election date is eliminated.

  The impact?

       The 25 days allowed parties to digest and understand the 
     parameters of the regional director's decision to direct an 
     election, and for the Board to rule on the parties' requests 
     for the review of the decision.
       Although not included in the Final Rule, the Board 
     originally proposed that a pre-election hearing will occur 7 
     days after the filing of a petition absent special 
     circumstances.

  The effect? It forces employers to scramble to retain counsel. Again, 
we are talking about small businessmen here. There is no limit on how 
small of a business you can organize in this. It forces employers to 
scramble to retain counsel, develop a strategy, prepare for a hearing, 
and develop evidence. Many employers, especially small ones, will be 
unable to provide a reasonable response so quickly, leading them to 
agree to a stipulated election. There is not anything in this provision 
that gives any protection for the person in the middle class running a 
small business and trying to keep his business afloat. There used to be 
some protections, but this new regulation--and, again, agencies do 
write a lot of rules, but they don't write ones of this significance--
is only the third time it has been done by the National Labor Relations 
Board. It was done in a hurry-up situation. Two out of the three were 
done by this administration. One of those has already been set aside by 
the courts. That is not a very good record. Now we are trying to do 
this one on a hurry-up basis. I think there ought to be more 
consideration for it.
  Part of the role of Congress is to take a look at what the 
administration is doing with their regulations, which we ultimately 
give them the authority to do, to see if they are being done properly. 
So this is just a major part of the need for oversight. Thankfully, 
there is a process whereby we can get the right to debate this 
oversight. That is what we are doing at this point.
  I yield the floor to Senator Barrasso for such time as he needs.
  The PRESIDING OFFICER. The Senator from Wyoming.
  Mr. BARRASSO. Mr. President, I rise in support of my colleague from 
Wyoming and the excellent work he is doing and continues to do, as well 
as the leadership he continues to provide for all the Senate and 
certainly for the people of Wyoming. He is the captain of our team. I 
agree with him and wish to associate myself with the remarks of the 
Senator from Wyoming and express my concerns about the new ambush 
election rule issued by the National Labor Relations Board.
  The National Labor Relations Board is the Federal agency charged with 
conducting labor elections and investigating unfair labor practice 
charges. The appointed members of this board are meant to help 
facilitate a level playing field in the private sector workplace. 
Unfortunately, recent actions have demonstrated that the board is much 
more interested, in my opinion, in pursuing regulatory changes that 
favor unions. They should be focused on ensuring that workers are able 
to make informed decisions about their place of employment, not on 
showing favoritism.
  Let's take a look at the ambush election rule. On December 22 of last 
year, the National Labor Relations Board issued a new rule. The new 
rule greatly

[[Page 5315]]

shortens the time period between the filing of a petition for union 
representation and when that election is held. Under the current rules, 
most union elections take place within about 38 days. Under the new 
rules, the time could be cut almost in half. The ambush election rule 
also narrows the scope of preelection hearings while limiting the 
rights of a party to preelection appeals.
  I believe this misguided rule undermines the basic fairness in the 
representation election process. It limits the amount of information 
received by employees regarding the impact of unionization on their 
workplace. The rule also significantly restricts the ability of 
employers to educate their employees and to share their perspective.
  I believe this causes harm to workers. The decision on whether to 
join or form a union is a very important decision for workers. 
Employment decisions directly affect an individual's ability to support 
their family, to pay their bills, and to sustain their livelihood. 
Workers deserve to have all the information needed to make a well-
informed decision.
  In order to seriously consider their options, employees must have the 
opportunity to hear from both sides on the implications of 
unionization. The ambush election rule, in my opinion, attempts to 
quickly rush employees through the union election process, without 
giving those employees the full picture and a clear understanding of 
the issues.
  I have great concerns about what I believe is a disregarding of 
employer input. The ambush election rule disregards the rights of small 
businesses and employers across this country. The new rule is 
attempting to silence employers from discussing vital information with 
their employees about unionization and the impact on their lives and on 
their jobs. Under the new rule, employers would have a very limited 
amount of time to share their views, to provide counterarguments, and 
to explain what unionization would mean in the workplace. Employers 
should be allowed time to fully explain the information to their 
employees. Ultimately, I believe the purpose of the recently released 
rule is to leave employers unable to effectively communicate with 
workers about important workplace issues. The Board is infringing upon 
the free speech rights of the employers.
  I believe this new rule prevents employers from getting counsel. In 
this tough economic environment, small business owners are facing an 
incredible amount of pressure and responsibility. Job creators are 
working hard to ensure their products and services are competitive. 
They are working to find available markets for their goods and 
services. They are trying to deal with the financial health of their 
businesses.
  Many small business owners are unaware of the complicated Federal 
laws they must adhere to during the union election process. Due to the 
variety of competing priorities and limited resources, small businesses 
all across this country often don't employ inhouse legal counsel or 
human resource professionals familiar with unionization laws. Under the 
new rule, however, the time constraints will make it even more 
difficult for them to find appropriate counsel, to consult on the 
issues, and to prepare for the election process. Employers will be 
scrambling to find a labor attorney or a human resource professional to 
help explain their rights and to ensure that their actions are 
permissible under current law. As a result, many employers will be left 
at risk for unintentionally violating certain Federal labor laws or 
silenced.
  The National Labor Relations Board should not be forcing employers to 
preemptively analyze Federal labor laws and figure out how best to 
communicate their views of unionization in case a union petition 
happens to pop up. Job creators should be focusing their scarce time 
and resources on managing and growing their businesses, on trying to 
put Americans back to work at a time of over 8 percent unemployment.
  I view this whole new rule as unnecessary. There is no reason for the 
new rule. The median timeframe for union elections has been 38 days 
from the filing of the petition. About 91 percent of all the elections 
held in 2011 occurred within 56 days. These numbers indicate the 
petitions and elections are handled, and have been handled, in a timely 
manner. Furthermore, the current election procedures are not impeding 
the ability of unions to win the representation elections. According to 
the National Labor Relations Board's own statistics, unions won about 
71 percent of elections held in 2011.
  When I take a look at what is happening with the National Labor 
Relations Board, what comes to mind are the recent recess appointments 
made by the President. This new rule we are facing and discussing is 
not the first time the Obama administration has attempted to use the 
NLRB to pursue the union's agenda. The administration continues to take 
actions and push through policies that are unwise and even, in my 
opinion, unconstitutional, in order to do the bidding of unions.
  In an action that was both unprecedented and unconstitutional, 
President Obama recess appointed three new members to the National 
Labor Relations Board during a pro forma session of this Senate. 
President Obama appointed three individuals. The nominations of two of 
them, Sharon Block and Richard Griffin, were sent to the Senate only a 
few days before the pro forma session began. As a result, the Senate 
had no opportunity--none at all--to hold hearings or debate the 
nominees. President Obama completely disregarded the constitutional 
requirement of advice and consent for executive nominees. The 
appointments were a heavy-handed effort by this administration to curry 
favor, in my opinion, with the unions.
  I come to the floor as someone who has talked at great length about 
the impact of regulations and how they make it harder and more 
expensive for our small businesses to hire people around the country. 
Businesses are already having trouble keeping track of all the changing 
rules and trying to abide by all the new requirements they face on 
almost a daily basis. The only certainty being offered to the job 
creators in the United States is that the Obama administration is going 
to continue to change the rules of the game on businesses to meet its 
own agenda. The ambush election rule is the exact type of regulatory 
change that makes employers nervous and reluctant to expand their 
businesses, to create new jobs, to hire and put people back to work. 
This Federal Government should be focused on giving employers 
stability, predictability, and opportunities for growth instead of 
stacking the deck, as we see it, in favor of labor unions.
  I come to the floor, as I know my colleagues will as well, in a call 
to action to employ the Congressional Review Act. Under the 
Congressional Review Act, Congress is able to overturn the ambush 
election rule by passing a resolution of disapproval. I am proud to be 
an original cosponsor of S.J. Res. 36, introduced by Senator Enzi. The 
resolution of disapproval rescinds the new union election rule issued 
by the National Labor Relations Board. Unless Congress takes action, 
the new rule is scheduled to take effect on April 30 of this year--just 
the end of this month. I call upon the Senate to pass S.J. Res. 36 and 
prevent this dangerous rule from silencing employers and hindering the 
ability of American workers to make informed decisions.
  I thank the Chair, and I yield the floor.
  The PRESIDING OFFICER. The Senator from Wyoming.
  Mr. ENZI. Mr. President, I ask unanimous consent to have several 
letters of support printed in the Record, along with a list of 18 
organizations that support the resolution.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

  Congressional Review Act (S.J. Res. 36) Disapproval of NLRB Ambush 
                             Election Rule


                          Support Letters (17)

       Associated Builders and Contractors, Associated General 
     Contractors of America, Association of Equipment 
     Manufacturers, Coalition for a Democratic Workplace, U.S.

[[Page 5316]]

     Chamber of Commerce, Food Marketing Institute, H.R. Policy 
     Association, National Association of Home Builders, National 
     Association of Manufacturers, National Association of 
     Wholesaler-Distributors, National Council of Chain 
     Restaurants, National Federation of Independent Business, 
     National Grocers Association, National Retail Federation, 
     National Restaurant Association, National Roofing Contractors 
     Association, Retail Industry Leaders Association.
       Conservative and Free Market Groups: American Commitment, 
     Americans for Tax Reform, Alliance for Worker Freedom, 
     Competitive Enterprise Institute, WorkPlaceChoice.org, 
     Taxpayers Protection Alliance, Frontiers of Freedom, The 
     Heartland Institute, Ohioans for Workplace Freedom, 60 Plus 
     Association, Eagle Forum, Institute for Liberty, Center for 
     Freedom and Prosperity, Independent Women's Voice, Americans 
     for Prosperity, Let Freedom Ring, Center for Individual 
     Freedom, ConservativeHQ.com, Less Government, National Center 
     for Public Policy Research, Citizens for the Republic, The 
     James Madison Institute, Heritage Action for America, The 
     Club for Growth, The American Conservative Union, National 
     Taxpayers Union, The Committee for Justice.


             Additional Support (Signatories of CDW letter)

       National Organization (119): 60 Plus Association, 
     Aeronautical Repair Station Association, Agricultural 
     Retailers Association, AIADA, American International 
     Automobile Dealers Association, Air Conditioning Contractors 
     of America, American Apparel & Footwear Association, American 
     Bakers Association, American Concrete Pressure Pipe 
     Association, American Council of Engineering Companies, 
     American Feed Industry Association, American Fire Sprinkler 
     Association, American Foundry Society, American Frozen Food 
     Institute, American Hospital Association, American Hotel and 
     Lodging Association, American Meat Institute, American 
     Nursery & Landscape Association, American Organization of 
     Nurse Executives, American Pipeline Contractors Association, 
     American Rental Association, American Seniors Housing 
     Association, American Society for Healthcare Human Resources 
     Administration, American Society of Employers, American 
     Staffing Association, American Supply Association, American 
     Trucking Associations, American Wholesale Marketers 
     Association, AMT--The Association For Manufacturing 
     Technology, Assisted Living Federation of America, 
     Association of Millwork Distributors, Associated Builders and 
     Contractors, Associated Equipment Distributors, Associated 
     General Contractors of America, Association of Equipment 
     Manufacturers, Automotive Aftermarket Industry Association, 
     Brick Industry Association, Building Owners and Managers 
     Association (BOMA) International, Center for Individual 
     Freedom.
                                  ____

                                               Chamber of Commerce


                              of the United States of America,

                                Washington, DC, February 16, 2012.
       To the Members of the United States Senate: The U.S. 
     Chamber of Commerce, the world's largest business federation 
     representing the interests of more than three million 
     businesses and organizations of every size, sector, and 
     region, urges you to support and co-sponsor S.J. Res. 36, a 
     resolution of disapproval that would repeal recent revisions 
     the National Labor Relations Board (NLRB or Board) made to 
     regulations governing union representation elections.
       These regulations replace a process that, in the vast 
     majority of cases, worked fairly and efficiently. In fiscal 
     year 2010, the average time for union representation 
     elections was just 38 days, with more than 95 percent of all 
     elections occurring within 56 days. However, rather than look 
     at targeted solutions for the small percentage of cases that 
     take too long, the Board made sweeping changes that will 
     apply to all elections.
       While the substantive regulations adopted by the NLRB are 
     detailed and complex, the end result is that election time 
     will likely decrease significantly at the expense of 
     important due process and free speech rights. The simple fact 
     is that employees deserve a fair campaign period to hear from 
     all sides and employers deserve an opportunity to have 
     critical election-related questions settled before an 
     election occurs. Organized labor has long sought to radically 
     reduce or even eliminate this campaign period, which was 
     precisely the goal of the ``card check'' provisions of the 
     deceptively named ``Employee Free Choice Act'' (EFCA). 
     Congress was right to reject EFCA and it should likewise 
     reject the NLRB's new election regulations.
       Due to the critical importance of this issue to the 
     business community, the Chamber strongly urges you to support 
     and co-sponsor S.J. Res. 36.
           Sincerely,

                                              R. Bruce Josten,

                                         Executive Vice President,
     Government Affairs.
                                  ____

                                                   April 16, 2012.
       Dear Senator: On behalf of millions of job creators 
     concerned with mounting threats to the basic tenets of free 
     enterprise, the Coalition for a Democratic Workplace urges 
     you to support S. J. Res. 36, which 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 placate 
     organized labor by effectively denying employees' access to 
     critical information about unions and stripping employers of 
     free speech and due process rights. The rule poses a threat 
     to both employees and employers. Please vote in favor of S. 
     J. Res. 36 when it comes to the Senate floor next week.
       The Coalition for a Democratic Workplace, a group of more 
     than 600 organizations, has been united in its opposition to 
     the so-called ``Employee Free Choice Act'' (EFCA) and EFCA 
     alternatives that pose a similar threat to workers, 
     businesses and the U.S. economy. Thanks to the bipartisan 
     group of elected officials who stood firm against this 
     damaging legislation, the threat of EFCA is less immediate 
     this Congress. Politically powerful labor unions, other EFCA 
     supporters and their allies in government are not backing 
     down, however. Having failed to achieve their goals through 
     legislation, they are now coordinating with the Board and the 
     Department of Labor (DOL) in what appears to be an all-out 
     attack on job-creators and employees in an effort to enact 
     EFCA through administrative rulings and regulations.
       On June 21, 2011, the Board proposed its ambush election 
     rule, which was designed to significantly speed up the 
     existing union election process and limit employer 
     participation in elections. At the time, Board Member Hayes 
     warned that ``the proposed rules will (1) shorten the time 
     between filing of the petition and the election date, and (2) 
     substantially limit the opportunity for full evidentiary 
     hearing or Board review on contested issues involving, among 
     other things, appropriate unit, voter eligibility, and 
     election misconduct.'' Hayes noted the effect would be to 
     ``stifle debate on matters that demand it.'' The Board 
     published a final rule on December 22, 2011, with an April 
     30, 2012 effective date. While it somewhat modified the 
     original proposal, the final rule is identical in purpose and 
     similar in effect.
       The NLRB's own statistics reveal the average time from 
     petition to election was 31 days, with over 90% of elections 
     occurring within 56 days. There is no indication that 
     Congress intended a shorter election time frame, and indeed, 
     based on the legislative history of the 1959 amendments to 
     the National Labor Relations Act, it is clear Congress 
     believed that an election period of at least 30 days was 
     necessary to adequately assure employees the ``fullest 
     freedom'' in exercising their right to choose whether they 
     wish to be represented by a union. As then Senator John F. 
     Kennedy Jr. explained, a 30-day period before any election 
     was a necessary ``safeguard against rushing employees into an 
     election where they are unfamiliar with the issues.'' Senator 
     Kennedy stated ``there should be at least a 30-day interval 
     between the request for an election and the holding of the 
     election'' and he opposed an amendment that failed to provide 
     ``at least 30 days in which both parties can present their 
     viewpoints.''
       The current election time frames are not only reasonable, 
     but permit employees time to hear from both the union and the 
     employer and make an informed decision, which would not be 
     possible under the ambush election rule. In fact, in other 
     situations involving ``group'' employee issues, Congress 
     requires that employees be given at least 45 days to review 
     relevant information in order to make a ``knowing and 
     voluntary'' decision (this is required under the Older 
     Workers Benefit Protection Act when employees evaluate 
     whether to sign an age discrimination release in the context 
     of a program offered to a group or class of employees). Under 
     the rule's time frames, employers, particularly small ones, 
     will not have enough time to secure legal counsel, let alone 
     an opportunity to speak with employees about union 
     representation or respond to promises made by union 
     organizers, even though many of those promises may be 
     completely unrealistic. Given that union organizers typically 
     lobby employees for months outside the workplace without an 
     employer's knowledge, these ``ambush'' elections would often 
     result in employees' receiving only half the story. They 
     would hear promises of raises and benefits that unions have 
     no way of guaranteeing, without an opportunity for the 
     employer to explain its position and the possible 
     inaccuracies put forward by the union.
       For these reasons, we urge you to support S.J. Res. 36 and 
     Congress to pass this much needed resolution. If left 
     unchecked, the actions of the NLRB will fuel economic 
     uncertainty and have serious negative ramifications for 
     millions of employers, U.S. workers they have hired or would 
     like to hire, and consumers.
       The Coalition for a Democratic Workplace and National 
     Organization (119): 60 Plus Association, Aeronautical Repair 
     Station Association, Agricultural Retailers Association, 
     AIADA, American International Automobile Dealers Association, 
     Air Conditioning Contractors of America, American Apparel & 
     Footwear Association, American Bakers Association, American 
     Concrete Pressure Pipe

[[Page 5317]]

     Association, American Council of Engineering Companies, 
     American Feed Industry Association, American Fire Sprinkler 
     Association, American Foundry Society, American Frozen Food 
     Institute, American Hospital Association, American Hotel and 
     Lodging Association, American Meat Institute, American 
     Nursery & Landscape Association, American Organization of 
     Nurse Executives, American Pipeline Contractors Association, 
     American Rental Association, American Seniors Housing 
     Association, American Society for Healthcare Human Resources 
     Administration, American Society of Employers, American 
     Staffing Association, American Supply Association.
       American Trucking Associations, American Wholesale 
     Marketers Association, AMT--The Association For Manufacturing 
     Technology, Assisted Living Federation of America, 
     Association of Millwork Distributors, Associated Builders and 
     Contractors, Associated Equipment Distributors, Associated 
     General Contractors of America, Association of Equipment 
     Manufacturers, Automotive Aftermarket Industry Association, 
     Brick Industry Association, Building Owners and Managers 
     Association (BOMA) International, Center for Individual 
     Freedom, Center for the Defense of Free Enterprise Action 
     Fund, Coalition of Franchisee Associations, College and 
     University Professional Association for Human Resources, 
     Consumer Electronics Association, Council for Employment Law 
     Equity, Custom Electronic Design & Installation Association, 
     Environmental Industry Associations, Fashion Accessories 
     Shippers Association, Federation of American Hospitals, Food 
     Marketing Institute, Forging Industry Association, Franchise 
     Management Advisory Council, Heating, Air-Conditioning and 
     Refrigeration Distributors International, HR Policy 
     Association, INDA, Association of the Nonwoven Fabrics 
     Industry, Independent Electrical Contractors, Industrial 
     Fasteners Institute, Institute for a Drug-Free Workplace.
       Interlocking Concrete Pavement Institute, International 
     Association of Refrigerated Warehouses, International Council 
     of Shopping Centers, International Foodservice Distributors 
     Association, International Franchise Association, 
     International Warehouse Logistics Association, Kitchen 
     Cabinet Manufacturers Association, Metals Service Center 
     Institute, Modular Building Institute, Motor & Equipment 
     Manufacturers Association, NAHAD--The Association for Hose & 
     Accessories Distribution, National Apartment Association, 
     National Armored Car Association, National Association of 
     Chemical Distributors, National Association of Convenience 
     Stores, National Association of Electrical Distributors, 
     National Association of Manufacturers, National Association 
     of Wholesaler-Distributors, National Automobile Dealers 
     Association, National Club Association, National Council of 
     Chain Restaurants, National Council of Farmer Cooperatives, 
     National Council of Investigators and Security, National 
     Council of Security and Security Services, National Council 
     of Textile Organizations, National Federation of Independent 
     Business, National Franchisee Association, National Grocers 
     Association, National Lumber and Building Material Dealers 
     Association, National Marine Distributors Association, Inc., 
     National Mining Association, National Multi Housing Council.
       National Pest Management Association, National Ready Mixed 
     Concrete Association, National Retail Federation, National 
     Roofing Contractors Association, National School 
     Transportation Association, National Small Business 
     Association, National Solid Wastes Management Association, 
     National Stone, Sand & Gravel Association, National Systems 
     Contractors Association, National Tank Truck Carriers, 
     National Tooling and Machining Association, National Utility 
     Contractors Association, North American Die Casting 
     Association, North American Equipment Dealers Association, 
     Northeastern Retail Lumber Association, Outdoor Power 
     Equipment and Engine Service Association, Inc., Plastics 
     Industry Trade Association, Precision Machined Products 
     Association, Precision Metalforming Association, Printing 
     Industries of America, Professional Beauty Association, 
     Retail Industry Leaders Association, Snack Food Association, 
     Society for Human Resource Management, SPI: The Plastics 
     Industry Trade Association, Textile Care Allied Trades 
     Association, Textile Rental Services Association, Truck 
     Renting & Leasing Association, U.S. Chamber of Commerce, 
     United Motorcoach Association, Western Growers Association.
       State and Local Organizations (60): Arkansas State Chamber 
     of Commerce, Associated Builders and Contractors, Inc. 
     Central Florida Chapter, Associated Builders and Contractors, 
     Inc. Central Pennsylvania Chapter. Associated Builders and 
     Contractors, Inc. Chesapeake Shores Chapter, Associated 
     Builders and Contractors, Inc. Connecticut Chapter, 
     Associated Builders and Contractors, Inc. Cumberland Valley 
     Chapter, Associated Builders and Contractors, Inc. Delaware 
     Chapter, Associated Builders and Contractors, Inc. Eastern 
     Pennsylvania Chapter, Associated Builders and Contractors, 
     Inc. Florida East Coast Chapter, Associated Builders and 
     Contractors, Inc. Florida Gulf Coast Chapter, Associated 
     Builders and Contractors, Inc. Georgia Chapter, Associated 
     Builders and Contractors, Inc. Greater Houston Chapter, 
     Associated Builders and Contractors, Inc. Hawaii Chapter, 
     Associated Builders and Contractors, Inc. Heart of America 
     Chapter, Associated Builders and Contractors, Inc. Indiana 
     Chapter, Associated Builders and Contractors, Inc. Inland 
     Pacific Chapter, Associated Builders and Contractors, Inc. 
     Iowa Chapter, Associated Builders and Contractors, Inc. 
     Keystone Chapter, Associated Builders and Contractors, Inc. 
     Massachusetts Chapter, Associated Builders and Contractors, 
     Inc. Michigan Chapter, Associated Builders and Contractors, 
     Inc. Mississippi Chapter, Associated Builders and 
     Contractors, Inc. Nevada Chapter, Associated Builders and 
     Contractors, Inc. New Orleans/Bayou Chapter, Associated 
     Builders and Contractors, Inc. Ohio Valley Chapter, 
     Associated Builders and Contractors, Inc. Oklahoma Chapter, 
     Associated Builders and Contractors, Inc. Pacific Northwest 
     Chapter, Associated Builders and Contractors, Inc. Pelican 
     Chapter, Associated Builders and Contractors, Inc. Rhode 
     Island Chapter, Associated Builders and Contractors, Inc. 
     Rocky Mountain Chapter, Associated Builders and Contractors, 
     Inc. South East Texas Chapter, Associated Builders and 
     Contractors, Inc. Virginia Chapter, Associated Builders and 
     Contractors, Inc. Western Michigan Chapter, Associated 
     Builders and Contractors, Inc. Western Washington Chapter, 
     Associated Builders and Contractors, Inc. North Alabama 
     Chapter.
       Associated Industries of Arkansas, Associated Industries of 
     Massachusetts, CA/NV/AZ Automotive Wholesalers Association 
     (CAWA), California Delivery Association, Capital Associated 
     Industries (NC), Employers Coalition of North Carolina, First 
     Priority Trailways (MD), Garden Grove Chamber of Commerce, 
     Georgia Chamber of Commerce, GO Riteway Transportation Group 
     (WI), Greater Columbia Chamber of Commerce (SC), Greater 
     Reading Chamber of Commerce & Industry (PA), Kansas Chamber 
     of Commerce, Little Rock Regional Chamber of Commerce (AR), 
     London Road Rental Center (MN), Long Beach Area Chamber of 
     Commerce, Minnesota Grocers Association, Montana Chamber of 
     Commerce, Nebraska Chamber of Commerce & Industry, Nevada 
     Manufacturers Association, New Jersey Food Council, New 
     Jersey Motor Truck Association, North Carolina Chamber, 
     Northern Liberty Alliance (MN), Ohio Chamber of Commerce, 
     Texas Hospital Association.
                                  ____

                                            National Federation of


                                         Independent Business,

                                Washington, DC, February 27, 2012.
     Hon. Michael Enzi,
     Ranking Member, U.S. Senate, Committee on Health, Education, 
         Labor and Pensions (HELP), Washington, DC.
       Dear Ranking Member Enzi: On behalf of the National 
     Federation of Independent Business (NFIB), the nation's 
     leading small business advocacy organization, I am writing in 
     support of S.J. Res. 36, a resolution of disapproval in 
     response to the National Labor Relation Board's (NLRB) rule 
     related to ``ambush'' elections. The ambush election rule 
     significantly alters the pre-election labor union process in 
     ways that would particularly harm small businesses, and we 
     appreciate your resolution of disapproval to nullify this 
     rule.
       Despite Congress refusing to pass card check legislation, 
     it seems clear that the NLRB is intent on implementing card 
     check by regulation. The Board's rule on ``ambush'' elections 
     will significantly undermine an employer's opportunity to 
     learn of and respond to union organization by reducing the 
     so-called ``critical period'' from petition-filing to 
     election, from the current average time of 31 days to as few 
     as 10-21 days. NFIB believes that employee informed choice 
     will be compromised because the shortened time frame will 
     have business owners scrambling to obtain legal counsel, and 
     they will have hardly any time to talk to their employees. 
     This shortened time frame will hit small businesses 
     particularly hard, since small employers usually lack labor 
     relations expertise and in-house legal departments.
       With the proposed ``ambush'' election rule, the NLRB has 
     demonstrated that it has little understanding or concern for 
     the unique demands that these actions would place on small 
     business. It is always a challenge for small business owners 
     to stay updated with new regulations and labor laws, 
     especially in the current economic environment. NFIB's 
     monthly economic surveys indicate that the small business 
     economy is still at recession levels, and nearly 20 percent 
     of small business owners surveyed indicate that economic and 
     political uncertainty is their number one concern. 
     Unfortunately, the pro-union actions of the NLRB will only 
     create more uncertainty for small business owners at a time 
     when the country needs them to be creating more jobs.
       Thank you for introducing this legislation to help 
     America's small businesses. I look forward to working with 
     you to protect small business as the 112th Congress moves 
     forward.
           Sincerely,
                                                    Susan Eckerly,
                             Senior Vice President, Public Policy.

  Mr. ENZI. I also ask unanimous consent to have printed in the Record 
an

[[Page 5318]]

article by Phil Kerpen in the Daily Caller entitled ``Will any Senate 
Democrat stand up to Obama's NLRB?''
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                 [From the Daily Caller, Apr. 19, 2012]

           Will Any Senate Democrat Stand Up to Obama's NLRB?

                            (By Phil Kerpen)

       With the spectacle of Senate Budget Chairman Kent Conrad 
     being forced to back down on actually offering a budget, it's 
     clearer than ever that Senate Democrats are pursuing a 
     deliberate strategy of doing nothing, blocking House-passed 
     bills and giving President Obama a free hand to use 
     regulators and bureaucrats to push his agenda forward. The 
     Senate has already failed to stand up to the EPA's back-door 
     cap-and-trade energy taxes and the FCC's self-created legally 
     dubious power to regulate the Internet. Next week we'll find 
     out if there are any Senate Democrats willing to stand up to 
     the NLRB bureaucrats who are imposing the failed card-check 
     legislation in bite-size pieces via bureaucratic decree.
       The NLRB is giving the EPA a run for our money in the race 
     to see which agency can cause the most damage to our free-
     market economy. Not only did the NLRB infamously sue Boeing 
     for opening a new plant in a right-to-work state, it is now 
     suing the state of Arizona to overturn the state's 
     constitutional guarantee of secret ballot protections in 
     union organizing elections. It has also pursued a dizzying 
     array of regulations and decisions designed to force workers 
     into unions against their will.
       The NLRB suffered a setback this week when a district court 
     struck down its rule forcing employers to display posters in 
     the workplace touting the benefits of unionization. Next week 
     it could be dealt an even bigger blow if just a handful of 
     Senate Democrats stand up for the economic interests of their 
     constituents and the basic constitutional principle that the 
     people's elected representatives should make the laws in this 
     country.
       The vote is on Senator Mike Enzi's (R-WY) Congressional 
     Review Act (CRA) resolution of disapproval, S.J. Res 36, 
     which would simply overturn the NLRB's ambush elections rule, 
     which allows union organizers to spring elections on 
     employers and workers. Because of the CRA's special 
     procedures, the resolution cannot be filibustered and 
     therefore needs just 51 votes to pass. All but two 
     Republicans--Lisa Murkowski (R-AK) and Scott Brown (R-MA)--
     are cosponsors, but not a single Democrat has signed onto the 
     resolution.
       The ambush rule at issue was forced through the NLRB on a 
     2-to-1 party-line vote late last year, just before infamous 
     union lawyer Craig Becker's recess appointment to the board 
     expired. It could be the last action of the NLRB that will 
     have legal force for some time, because after Becker expired 
     at the end of the year, the board lacked the quorum necessary 
     to make decisions and issue rules. (Obama tried to re-
     establish a quorum by non-recess-appointing another radical 
     union lawyer, Richard Griffin, among others, but those 
     appointments should be found invalid in court.)
       The ambush rule is a prime example of the NLRB advancing an 
     element of legislation already rejected by Congress and 
     putting the interests of labor bosses above those of workers. 
     After the first version of card check that eliminated private 
     ballot elections entirely crashed into a wall of public 
     opposition, a revamped version of the legislation retained 
     elections but allowed union organizers to catch workers and 
     employers by surprise with ambush elections. That version 
     also failed in Congress, but the NLRB is pretending it passed 
     and moving forward just the same.
       The current average period before an election after a union 
     files a petition is 38 days. This gives both the union and 
     management an opportunity to explain the facts and ensure 
     workers understand the high stakes in a representation 
     election. The new rule will shorten it to as little as 10 
     days and eliminate procedural safeguards employers currently 
     have to make sure union elections are duly authorized and 
     eligible workers are properly defined before an election 
     takes place.
       NLRB Chairman Mark Pearce has indicated that if the rule 
     stands he intends to go much further. ``We keep our eye on 
     the prize,'' Pearce said in January, promising to force 
     employers to make confidential employee information, 
     including phone numbers and email addresses, available to 
     union organizers. That would potentially expose workers to 
     harassment, intimidation or even violence.
       The vote on S.J. Res 36 will give the Senate an opportunity 
     to exercise its constitutional duty under Article I, Section 
     1 and stop the usurpation of legislative power by 
     unaccountable federal bureaucrats at the NLRB. Unfortunately, 
     it appears likely that once again Democratic senators will 
     find it more convenient to obstruct and allow the Obama 
     administration a free hand to govern by regulation.
       Voters should watch next week's vote with this question in 
     mind: If my senator will not do the job of legislating, 
     shouldn't I elect someone who will?

  Ms. COLLINS. Mr. President, I rise today to speak in favor of Senate 
Joint Resolution 36, which would reject the National Labor Relations 
Board's, NLRB, rule on representation procedures, the so-called 
``ambush election'' rule. I am pleased to be an original co-sponsor of 
this important legislation, introduced by Senator Enzi with 44 
cosponsors.
  On December 22, 2011, the NLRB finalized new regulations, which will 
become effective on April 30, 2012, significantly limiting the time for 
holding union representation elections. This change would result in 
employees making the critical decision about whether or not to form a 
union in as little as 10 days.
  Back in 1959, then-Senator John F. Kennedy explained that ``the 30-
day waiting period [before a union election] is an additional safeguard 
against rushing employees into an election where they are unfamiliar 
with the issues . . . there should be at least a 30-day interval 
between the request for an election and the holding of the election'' 
to provide ``at least 30 days in which both parties can present their 
viewpoints.'' I agree with our former President and Senator. An 
expedited timeframe would limit the opportunity of employers to express 
their views, and leave employees with insufficient information to make 
an informed decision.
  According to the NLRB, in 2011 union representation elections were 
held on average within 38 days. That is already below the NLRB's stated 
target of 42 days. Therefore, this begs the question of why yet another 
regulation is even necessary.
  Businesses, our nation's job creators and the engine of any lasting 
economic growth, have been saying for some time that the lack of jobs 
is largely due to a climate of uncertainty, most notably the 
uncertainty and cost created by new federal regulations.
  This ambush election rule will particularly negatively affect small 
businesses. Small business owners often lack the resources and legal 
expertise to navigate and understand complex labor processes within 
such a short time frame. In our current economy, it is critical that we 
do everything possible to advance policies that promote U.S. economic 
growth and jobs.
  The Joint Resolution of Disapproval will not change current law. It 
simply will protect employers and employees by allowing them to conduct 
representation elections in the same manner that has been done for 
decades.
  The NLRB's goal should be to ensure fair elections and a level 
playing field for all.
  Mr. ENZI. Unless there is further debate, I yield back the balance of 
our time for today.
  Mr. HARKIN. Mr. President, this side yields back the balance of our 
time for today as well.
  The PRESIDING OFFICER. All time has been yielded back.

                          ____________________