[Congressional Record (Bound Edition), Volume 158 (2012), Part 4]
[Senate]
[Pages 5368-5379]
[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

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will resume consideration of the motion to proceed to S.J. Res. 
36, which the clerk will report.
  The 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 ACTING PRESIDENT pro tempore. Under the previous order, there 
will be 2 hours of debate, equally divided, between the leaders or 
their designees on the motion to proceed.
  The Senator from Wyoming.
  Mr. ENZI. Mr. President, I yield such time to the Senator from South 
Carolina as he may need.
  The ACTING PRESIDENT pro tempore. The Senator from South Carolina.
  Mr. GRAHAM. Mr. President, I would like to thank the Senator from 
Wyoming for yielding but, more importantly, for his leadership on the 
subject that brings us all to the floor.
  The National Labor Relations Board has gotten a lot of attention 
lately and for reasons I don't think are too helpful to the cause. 
Obviously, being from South Carolina, their decision to entertain a 
complaint against the Boeing Company for moving to South Carolina, a 
complaint filed by the machinists union that sat on their desk for 1 
year and then finally was brought forward by the NLRB to potentially 
close down the South Carolina site and move the facility back to 
Washington, thank God, is behind us now.
  But at the end of the day, this organization, the National Labor 
Relations Board, seems to be hell bent on changing processes across the 
board more for political reason than a substantive reason.

[[Page 5369]]

  What brings us here today is the rulemaking proposal to change the 
time for union elections for employees to vote on whether they want to 
be part of a union. It does away with the preelection consultation, the 
idea of the employer and the people wanting to represent the employees 
sitting down and seeing if they can work out a proposal or a 
compromise; it shortens the election time to as little as 10 days. So 
if you are in the company in question, you have a 10-day period before 
the election. The current mean average is 38 days.
  I would argue this is being done not to make things more efficient 
but to change outcomes. Quite frankly, the outcome being desired is to 
make the union position stronger, not to make the system more 
efficient. That is what happens.
  I expect a Republican President to nominate people to a board such as 
the NLRB with a business background. I expect a Democratic President to 
nominate people to the NLRB and like boards with maybe a more union 
background. But I expect the Board not to take the agency and turn it 
into a political organization and try to create by rulemaking what we 
can't create by legislating. That is what brings us here today.
  The whole complaint filed by the machinists union in Washington, 
taking that complaint up that the move to South Carolina was somehow in 
retaliation against the union in Washington when no one lost their job 
in the State of Washington and no one's pay was reduced I think was 
taking the NLRB into an area it has never gone before.
  This is just a continuation of that pattern and this is not good 
because the unelected aspect of our government, the NLRB and similar 
agencies, has a lot of sway over our economy. At a time when we are 
trying to make sure we create jobs in America and make it easier for 
people to locate their companies here, proposals such as this are 
undercutting what we need to be doing.
  This is an unprecedented move. This kind of breathtaking change in 
the rules has only happened, I think, two or three times, and this was 
proposed as Mr. Becker was on the way out. Congress, under the 
Administrative Review Act, has an opportunity to stop this before it is 
too late. What this is being called on our side is sort of an ambush 
election.
  The point we are trying to make is that by changing this rule to a 
10-day period and doing away with preelection negotiations basically 
creates an environment where people are having to cast votes and not 
understanding who is going to be representing them or the nature of 
their decision. Why do we want to shorten an election? Why do we want 
to do away with the ability to negotiate between the employer and 
people who want to represent the employees?
  I don't see this is addressing a problem that exists. I think this is 
more motivated by getting at an outcome rather than reforming a 
process. I hope some of our Democratic colleagues will say this is 
excessive and unnecessary.
  If the Congress doesn't stand in the way between the American people 
and unelected bureaucrats, who will? This is your chance as a Member of 
Congress to do something about the unelected side of government that is 
growing more powerful by the day. We have a chance here to say no to a 
rule that makes no sense, that is going to skew the playing field and, 
quite frankly, I think represents the worst of special interest 
politics.
  I hope Senators will take an opportunity to exercise their authority 
as a Member of Congress and say: Whoa. Time out. We don't need to go 
down this road. Let's let people understand who will be representing 
them, let the people who are going to vote in an election regarding 
unionization of the workplace to have a meaningful understanding of 
what they are about to vote on. There is no reason to shorten the 
process to 10 days. I doubt most of us would like our elections to be 
shortened to 10 days.
  This is not about reforming an election process that is broken. It is 
about trying to change the outcome and skew it to the benefit of one 
side versus the other. Again, the rulemaking is not necessary. This is 
a chance for a Member of Congress to stand and say no to the unelected 
side of government at a time when somebody needs to say no to them.
  I just hope and pray we can get some bipartisan support for this 
because Senator Enzi has done a very good job of trying to explain to 
the Senate and to our conference as a whole about what awaits the 
American workforce if this rule is changed, why it is unnecessary. It 
is not about reforming a broken process; it is trying to get an outcome 
where one side benefits versus the other.
  I just hope my colleagues on the other side of the aisle will look at 
this as an opportunity for Congress to speak against the excessive 
rulemaking and what I think is an abuse of a process.
  With that, I yield, and I appreciate very much the leadership of 
Senator Enzi.
  The ACTING PRESIDENT pro tempore. The Senator from Wyoming.
  Mr. ENZI. Mr. President, I thank the Senator from South Carolina, 
particularly for the insight on the way that this particular Board 
abused his State and found out they were wrong and got it all taken 
care of. But his comments are particularly valuable in dealing with 
this shortening of the time as well.
  I thank him for speaking and I yield the floor.
  Mr. HARKIN. Mr. President, I yield myself such time as I may consume.
  For more than 1 year, I have been working on a series of hearings, 
both in Washington, DC, and in Iowa, focusing on the state of the 
American middle class.
  We have learned that the American middle class is disappearing, 
falling into the widening gulf between the haves and the have-nots. The 
people who do the real work in this country are being squeezed to the 
breaking point. Their paychecks aren't rising. Their benefits are 
disappearing. Their pensions are disappearing. Their jobs are being 
shipped overseas.
  When we looked into the causes of this crisis, we found that the 
middle class is not disappearing due to some inevitable effect of 
forces beyond our control such as globalization and technology. In 
fact, the decline of the middle class is primarily due to policy 
failures. We have failed to respond to our changing economy, while at 
the same time we have allowed many of the underpinnings of a strong 
middle class, such as a fair minimum wage, strong overtime laws, and 
defined benefit pensions to disappear.
  One of the biggest factors in this downward spiral has been the 
decline of American unions. As former Secretary of Labor Robert Reich 
explained when he testified before the HELP Committee last year, when 
unions were strong, the middle class thrived and our country prospered. 
In the mid-1950s, more than one-third of all American workers in the 
private sector were unionized and the unions demanded and received a 
fair slice of the American pie. Nonunionized companies, fearing their 
workers would otherwise want a union, offered similar deals. As 
employers boosted wages, the higher wages kept the machinery of our 
economy going by giving average workers more money to buy what they 
produced. That is what the former Secretary of Labor Robert Reich said.
  But now, unfortunately, that productive cycle has broken down. 
Workers have lost their unions, and they don't have money in their 
pockets to spend and help grow the economy. That is costing us the jobs 
and holding back our economy.
  There are lots of reasons for the decline in unions, but I think 
again this chart which I showed yesterday is instructive. If we look at 
the chart, from 1973 to 2010, we will see, first of all, in the green 
line is the number of workers covered by collective bargaining 
agreements. Look how unionization has declined. Here is the union 
membership. These are the ones covered by collective bargaining 
agreements. Here is union membership going down the same way. The red 
line is the middle class share of national income. Look

[[Page 5370]]

how it tracks it. So as union membership and collective bargaining has 
decreased, the middle class share of national income has decreased 
also, almost parallel. Again, lots of reasons, but I think a big one is 
the broken union election process. It has become so riddled with abuses 
that people are giving up on it altogether. As I mentioned in my 
remarks yesterday, the number of union representation elections has 
declined by an astounding 60 percent between 1997 and 2009. When 
workers do file for an NLRB election, 35 percent give up in the face of 
extreme employer intimidation and withdraw from the election before a 
vote is even held, and that is after they have already signed the card 
to petition for the NLRB to have an election, one-third of them never 
get to an election.
  The rule we are discussing today cannot solve all of these problems, 
but as I said yesterday, it is a step in the right direction. It 
addresses some of the most abusive situations where unscrupulous 
companies are manipulating the process and creating delays so they can 
buy more time to intimidate workers.
  The primary way management can cause delay is to raise challenges at 
the preelection hearing. Some of these disputes, such as challenging 
the eligibility of an individual voter, can certainly wait until after 
the election to be decided. That is what we do in elections across the 
country. If a voter's eligibility cannot be confirmed, they vote a 
provisional ballot until their eligibility can be verified. We don't 
stop an election from happening until every voter's eligibility can be 
confirmed. We don't do that. If there is a challenge, they vote a 
provisional ballot and after the election they see whether they were 
qualified to vote. Some of these challenges are downright silly, but 
they have their intended effect, and that is to delay.
  In 2002, one employer raised a preelection challenge arguing that the 
International Association of Machinists was not a ``labor 
organization'' within the meaning of the statute. The NLRB actually 
held a hearing on this question and, of course, found that the 
machinists who had been representing workers since 1888 are indeed a 
labor union. But the election was delayed by a month to address that 
one issue.
  Some anti-union consultants bragged openly about their ability to 
abuse the process and create delays. One union-busting law boasted on 
its Web site how a 27-day hearing contributed to a 5-month delay 
between filing of a petition and the election at a Massachusetts 
hospital organizing drive.
  Why is delay so important to management who do not want to bargain in 
good faith with workers? Well, by delaying an NLRB election, they give 
themselves more time to conduct an anti-union campaign and make it more 
likely they will win.
  One former anti-union consultant wrote a book that is very 
instructive. Everyone should read it. It is called ``Confessions of a 
Union Buster.'' He described his strategy as ``[c]hallenge everything . 
. . then take every challenge to a full hearing . . . then prolong each 
hearing'' as long as possible, then ``appeal every unfavorable 
decision.'' The consultant explained that ``if you make the union fight 
drag on long enough, workers . . . lose faith, lose interest, lose 
hope.'' Let me repeat that. This is from an anti-union consultant who 
wrote this book called ``Confessions of a Union Buster,'' and he said, 
``if you make the union fight drag on long enough, workers . . . lose 
faith, lose interest, lose hope.''
  The impact on workers is clear. In 2000, workers at Dillard's 
distribution center in Little Rock, AR, began efforts to organize a 
union with the Union of Needletrades Industrial and Textile Employees, 
UNITE for short. The campaign involved a unit of between 500 and 600 
workers employed as pickers, packers, forklift drivers, loaders, other 
warehouse workers, many making just over the minimum wage.
  Dillard's management began talking with workers about the union 
almost immediately after workers began signing cards--before the 
petition was even filed. Aware that the company was likely to quickly 
escalate its campaign, UNITE, the union, filed an election petition in 
the spring of 2000, a couple of weeks after it began meeting with 
workers. At the time it filed for the election, UNITE had signed union 
authorization cards from 65 to 70 percent of the workers to join a 
union.
  Well, what happened? Soon after the union filed the election 
petition, the company began holding mandatory captive audience meetings 
and one-on-one meetings with all workers. Basically threats were made 
that if the union were to succeed, the distribution center might lose 
its competitiveness and be forced to shut down.
  The employer also launched legal challenges to the workers' petition. 
Get this. The management claimed that all professional and white collar 
workers should be in the election unit--even those at the corporate 
headquarters in a separate building adjacent to the distribution 
center.
  Well, the company forced a dispute that took months to resolve. The 
company didn't want the white collar workers in the union, but by 
challenging it and saying they should be in it, forced the NLRB to have 
a hearing that took months to resolve.
  The company took advantage of this delay to continue its anti-union 
campaigning. It isolated union supporters by excluding them from 
captive audience meetings and changing their shifts or job locations. 
It distributed and posted anti-union literature and continued one-on-
one meetings.
  Support for the union began to wane as workers' fears grew. Workers 
felt they were under surveillance at work and could not discuss the 
union at the work site or even outside the distribution center before 
or after their shifts. Workers grew too scared even to accept union 
materials that their fellow workers handed out outside of the plant 
gates. Attendance at general meetings and organizing committee meetings 
fell sharply over the months leading up to the election. After facing 
2\1/2\ months of intense anti-union campaigning, workers voted against 
union representation by a margin of two to one. About 3 months before 
that, over 65 percent to 70 percent of the workers had signed a 
petition to form a union, but less than 3 months later, they voted two 
to one not to have a union.
  The NLRB has put in place reasonable rules to limit the kind of game 
playing that the workers from Dillard's experienced. The NLRB hasn't 
tried to advantage or disadvantage workers or stop employers from 
spreading their message. All the board has done is send a clear message 
to employers. They cannot abuse the process to buy themselves more time 
to intimidate their workers. They get a fair period of time to convey 
the message, and then the workers deserve their day at the ballot box.
  This is not the radical act of an out-of-control board. It won't even 
affect most employers, union or nonunion, one bit. As I pointed out 
yesterday, 90 percent of all of the petitions that are filed succeed 
without having NLRB input anyway. Management and workers get together 
and work things out. But it is in those 10 percent of companies that go 
on this massive campaign to intimidate and frighten workers, that is 
what this rule is aimed at.
  Preventing abuses of our laws that keep workers from having a union 
is a small step in the right direction to help putting the middle class 
back on track.
  When I talk about this, a lot of people say, well, isn't it against 
the law for management to fire workers for union activities? And I say, 
yes, it is. But what is the penalty? The penalty is basically nothing.
  I pointed this out yesterday, and I will say it again. There was a 
young man in Iowa who had been organizing a union and was fired. He 
filed a petition with the NLRB and it took him about 3 years to settle 
the case. He found out that he had been fired because of union 
activities and the penalty for the company was to give him all of his 
back pay minus whatever he earned in between.
  How many people can go for 2 or 3 years and not take care of their 
family and pay their mortgage and pay to put food on the table without 
having a job? So, of course, that intervening time this person had to 
work, all the wages

[[Page 5371]]

were subtracted from whatever the company had to pay him, and it turned 
out basically it was nothing. So there is no penalty. As I said, all 
the employer has to do is pay back wages minus an offset of whatever 
the worker made in between the time he was fired and the time the 
decision was made by the NLRB, so there is no penalty for the employers 
to do that.
  So, again, allowing our labor laws to be abused is a policy choice. 
As I said in the beginning, a lot of the reason for the decline of the 
middle class in America is because of policy choices that are made 
here. We have tolerated these policy choices for far too long, these 
abuses. Working families have suffered as a result; union membership 
has declined. As I pointed out, the number of workers covered by 
collective bargaining agreements has declined, and the middle class has 
declined right along with it. There is much more we need to do to move 
these trends back in the right direction.
  I recently introduced a comprehensive bill, the Rebuild America Act, 
that I think presents a bold agenda for restoring the American middle 
class. That agenda--everything from investing in the infrastructure to 
job retraining, better educational benefits, better pensions, raising 
the minimum wage--also has restoring the right to form a union to 
workers who have been unfairly denied this basic freedom. It would 
provide real penalties for employers who abuse and fire workers to bust 
unions and would try to restore real voice for the people who do the 
real work in this country.
  I hope that once we vote today and uphold the NLRB's eminently 
sensible actions, we can move on and have a real debate about some of 
these important ideas about restoring the middle class in this country 
and building an economy that works for everyone.
  I was listening to the comments made by my good friend from South 
Carolina, and he alluded to the recent situation with a complaint filed 
with the NLRB by the attorney for the NLRB. A year or so ago the 
general counsel's office filed a complaint with the NLRB that the 
Boeing company in Seattle had retaliated against its workers for union 
activity, that type of thing. The fact is the NLRB--the body my 
colleagues are attacking today--never acted on that. The company and 
the workers settled it. Isn't that what we want? But somehow to listen 
to my friend from South Carolina, he is saying he is even opposed to 
letting the general counsel file a complaint. Well, that takes away the 
basic right of anyone to have their grievances heard. So I hope that is 
not what my friend from South Carolina meant. I want to point out that 
I think there was a lot of abuse of the NLRB during that process even 
though the NLRB was doing exactly what we told them to do: Take into 
account all of the factors, look at all the evidence before you make a 
decision. That is what they were doing when it erupted here on the 
floor and a lot of political pressure was put on the NLRB. There were a 
lot of threats on the NLRB. And as it turned out, it all worked out 
because the union and Boeing got together, settled their differences 
and we moved ahead. That is the way it ought to be in our country.
  We should not cut off the right of people to actually file a 
complaint if they have a complaint. The duty of the NLRB is to 
investigate and to take into account all of the factors before they 
issue any findings. But that never happened in that Boeing case because 
Boeing is a good business. Boeing is one of our great businesses in 
this country and does a lot for America. So you get the good 
businesses, and the Machinist Union is a great union, and they worked 
it out. That is the way things ought to be done, and 9 times out of 10 
that is the way it happens.
  What we are talking about here is the rules for NLRB to take care of 
those bad actors who are out there, and to give people who want to form 
a union at least a level playing field without having all of these 
abuses and delays and intimidations and things like that.
  That is what the issue is about, and hopefully this afternoon we will 
have a good, affirmative vote to uphold the ability of the National 
Labor Relations Board to issue this ruling.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Manchin). The Senator from Wyoming.
  Mr. ENZI. Mr. President, I yield myself such time as I may consume.
  I wish to continue the debate a little bit on the Boeing situation 
because the company was creating 2,000 additional jobs--reducing none 
but creating 2,000 additional jobs--in South Carolina at a new plant. 
The NLRB general counsel, who was not confirmed by this body, went 
ahead and decided to investigate and work on a complaint and created a 
lot of concern for 2,000 employees who didn't know whether they would 
be able to work. The case actually wasn't settled.
  I think the National Labor Relations Board realized they had made a 
mistake and, because of the national controversy it created, actually 
withdrew the case even though it could have taken about 3 or 4 years 
through the courts to take care of it, and we covered that situation in 
one of the hearings Senator Harkin asked for. I thought the company did 
an outstanding job.
  What we are talking about today relates a little bit to that because 
the South Carolina folks decertified in the small window they had, 
which says they weren't pleased with what they had been handed.
  So some of these discussions are extremely important, and the time to 
do those is extremely important. So today we are renewing this debate 
on S.J. Res. 36, the Congressional Review Act Resolution of Disapproval 
to stop the National Labor Relations Board's ambush elections rule. 
This rule is the second formal rulemaking the National Labor Relations 
Board has pushed through in the last year--their third in the past 75 
years. There was only one before this Board decided they would take 
unusual action. As I mentioned, the first rule has been struck down 
already by Federal courts because it went far beyond the agency's 
authority. This ambush elections rule is also being challenged in the 
courts, but it is set to go into effect in less than a week--on Monday, 
April 30--and that is why the Senate must act today to stop the 
National Labor Relations Board from stacking the odds against America's 
employees and small businesses.
  During yesterday's debate, both sides got to air their concerns. I 
wish to respond to some of what I heard.
  There was much talk about the 90 percent of elections that go forward 
under mutual agreement. The argument was that because both sides were 
able to come to an agreement and because the wide majority of elections 
occur in a timely fashion, parties should not mind losing their rights 
to raise issues prior to the election. This argument is turning the 
concept of coming to agreement on its head. Yes, it is true that 90 
percent of elections occur under mutual agreement and occur in 38 to 56 
days, but that is precisely because both sides have the ability to 
raise issues of concern, such as which employees belong in the 
bargaining unit, and have them resolved. In other words, both sides 
have incentives to make fair requests because the other side has the 
leverage of exercising the right to contest. When all of these rights 
are taken away and an election is scheduled in as few as 10 days, the 
result will be that less mutual agreement occurs.
  The National Labor Relations Board has taken a process that is 
working well and becoming swifter year after year and turning it into a 
contentious process where the small business employer side feels 
entirely ambushed. If the National Labor Relations Board were truly 
intending to address the small minority of cases where long delays do 
occur, they should have drafted a rule that addressed only those cases.
  Yesterday both Chairman Harkin and I quoted Presidents from each 
other's parties. I quoted John F. Kennedy's statement during labor law 
debates in 1959 when he was a Senator here saying:

       There should be at least a 30 day interval between the 
     request for an election and the holding of the election.


[[Page 5372]]


  He went on to say:

       The 30-day waiting period is an additional safeguard 
     against rushing employees into an election where they are 
     unfamiliar with the issues.

  I agree that one of the most important reasons for a waiting period 
is for the employees to learn more about the union they may join. This 
is in fairness to the employee.
  In many cases, the election petition is the first time some employees 
have ever heard about the union. They want to know what the union's 
reputation is for honesty, keeping their promises, treating members 
well, and working well with the employer to make sure the business 
stays in business. Once a union is certified, it is very difficult for 
employees to vote it out if they decide to. 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.
  Employees should have a chance to understand that once they unionize, 
they will no longer be able to negotiate a raise individually with 
their employer. Exceptional performance will not be rewarded, and 
grievances cannot be brought straight to the employer but will instead 
have to go through the filter of union officials.
  Chairman Harkin quoted former President Dwight Eisenhower. I haven't 
had a chance to look up the quote's context, but the gist of it was 
that only a fool would oppose the right of an employee to join a union. 
My comment on that is that a vote for this resolution does absolutely 
nothing to diminish the right of any employee to form a union. This 
resolution will not change the law one bit. If we are able to stop the 
ambush elections rule, union elections will still occur in a median of 
38 days, with nearly 92 percent occurring in 56 days, just as it is 
now. And I would even venture to guess that the unions will continue to 
win the majority of elections. Last year they set a new record by 
winning 71 percent of elections. That is under the old rule. So a vote 
for this resolution may please both those former Presidents, whom we 
all admire, and forcing a fast election--an ambush election--may 
irritate employees into a negative vote.
  Now, I know the President issued a policy on this that says that if 
it comes to his desk, he will veto it, and that is his right. I checked 
the Constitution. The Constitution says we are an equal branch of 
government with the President. We do not serve for the President, we 
serve with the President. That could be a quote from Senator Byrd, who 
used to sit at that desk and pull out his copy of the Constitution and 
point out that the President gets to do what he wants to do, but we 
have a responsibility to do what we need to do.
  In this case, one of the administrative branches is overreacting--
doing something it should not do--and we need to say no. If it gets to 
the President's desk and he vetoes it, that is his part of the process, 
although I think that when the law was written, it should have been 
that if Congress, which passes the law and grants rulemaking authority, 
disagrees in the Senate and the House, that ought to be the end of it. 
It ought to be the end of a rule or regulation. It shouldn't be the 
beginning of the process where the President can veto it, because he is 
in charge of the side that created the rule. But our job should be to 
take a look at these things, decide if they are right or wrong, and if 
they are wrong, to vote against them as part of the process.
  So I think many will be joining me on this resolution of 
disapproval--at least I hope they will. That is our job and our right.
  I yield the floor and reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. HARKIN. Mr. President, I yield whatever time he may consume to my 
good friend the Senator from Connecticut.
  Mr. BLUMENTHAL. Mr. President, I join the distinguished leader of the 
committee on Health, Education, Labor, and Pensions in opposing S.J. 
Res. 36 and supporting the National Labor Relations Board rule that 
would very simply modernize the process that workers use to decide 
whether they want to form a union.
  Right from the start, let's be very clear about what is at stake. It 
is a rule that the National Labor Relations Board has formulated 
pursuant to the Administrative Procedure Act set by the Congress of the 
United States after comment that was solicited from all of the relevant 
stakeholders and people who would be affected by it, and they are rules 
that are long overdue because of the inconsistency and delays that are 
endemic to the current process.
  As I travel around the State of Connecticut and I hear from people 
around the country, I consistently hear about problems that exist under 
the present process for choosing a union. This rule does not determine 
the outcome; rather, it simply modernizes and improves the process, and 
it does it by a rulemaking process that is consistent with and pursuant 
to the Administrative Procedure Act, which is the way the Congress has 
said it should be done. In fact, it adopts the rulemaking procedure 
rather than doing it by individual cases, which is the way the U.S. 
Supreme Court and the courts of appeal have said to the Board it should 
do more often. So, far from raising constitutional questions or issues 
of procedural lack of process, the NLRB has acted in accordance with 
the will of the Congress and the Constitution in formulating this rule.
  Why is it necessary? Well, for one thing, there are 34 regional 
offices of the National Labor Relations Board, and each of them has 
different policies and practices for processing election petitions. We 
are talking about petitions that are submitted by workers who want to 
form a union and can do so by election when at least 30 percent of 
those employees send the petition to the NLRB. The gap in time is an 
opportunity for intimidation by unscrupulous employers. Fortunately, 
they are a small minority of employers--but they exist--who wish to 
discourage or deter workers from forming a union. That intimidation is 
unacceptable. We should do everything we can to stop it.
  Second, the delays themselves are intolerable. Some of those delays 
are years--as long as 13 years in some instances--and the gap in time 
discourages or deters the exercise of rights that are guaranteed under 
the law.
  So this new rule is simply to modernize the process, end 
intimidation, and make sure that rights are made real, in real time, so 
that employees can exercise those rights without any discouragement 
from employers.
  Are the employers free to communicate with workers? Of course they 
are. The rights of communication on the part of the employers are not 
eliminated by any means. Are they still part of the process? Yes, 
indeed, employers remain a part of the process if they wish to be. The 
effort here--in fact, as one of the employers who submitted comments to 
the NLRB said quite pointedly--from Catholic Healthcare West, a health 
care company with 31,000 employees, in its comments: ``Reforms proposed 
by the NLRB are not pro union or pro business, they are pro 
modernization'' and 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.''
  That quote from an employer really says it all.
  Some of the litigation is not only against the interests of 
employees, it also is costly to the employers, especially when it fails 
to succeed. It creates uncertainties for other employers, and it can 
block representation and lead again to unnecessary delays.
  This rule has an impact on real people in Connecticut and around the 
country. To give you a couple of examples, registered nurses who are at 
a number of the hospitals in Connecticut have come to me about the need 
to reform this process. Members of the employee workforce at T-Mobile, 
for example--Chris Cozza, a technician at T-Mobile USA in Connecticut, 
joined with 14 colleagues, came to me to recount his experience. He 
filed for union representation with the support of the

[[Page 5373]]

Communications Workers of America, the CWA. He experienced problems of 
exactly this kind because his rights were delayed and thereby almost 
denied. When T-Mobile USA filed a claim that officially challenged the 
status of the CWA as a labor organization, he could see--Chris Cozza 
and all of us could see--that clearly CWA is a labor organization. This 
tactic was simply a delaying one, and the NLRB rule would prevent the 
kind of frivolous challenges and frivolous litigation that occurred 
there.
  Let me conclude by saying, as has been said already, this rule is 
neither prounion or proemployer. It is simply profairness. It is 
antidelay, antifrivolous litigation, and it is profairness in the 
workplace.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Wyoming.
  Mr. ENZI. Mr. President, I yield myself such time as I might consume.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. ENZI. Mr. President, one of the things I have been checking on 
here is the statement that was made earlier that one in five people get 
fired for working on organizing. That statement is based on a phone 
survey of union activists for their estimate if an employee is 
terminated during an organizing drive. It is not based on fact. The 
fact is, unions only filed objections in approximately 1.5 percent of 
the elections, and that number includes objections based on many issues 
other than employee terminations.
  Under the current law, it is illegal to terminate or discriminate in 
any way against an employee for their union activities. If this occurs 
during an organizing campaign, the National Labor Relations Board is 
required to rerun the election since it created an unfair election. 
This occurs in about 1 percent of all elections and has been decreasing 
in recent years. I would expect that to increase in succeeding years if 
this rule passes because this is an attack on small businesses and the 
small businesses will not have the necessary information to know what 
is legal and illegal, especially if they only have 10 days to get their 
act together.
  The National Labor Relations Board can go even further if they 
believe a fair election is not possible. They can certify the union, 
regardless of the vote, and order the employer to bargain.
  I have information on some of the studies that have been done on 
this, and the number does not come out nearly that high. Of course it 
is terrible if there is even one person who is fired for organizing 
activities but there is recourse that can be done.
  I want to raise an important privacy issue that has come up as part 
of the National Labor Relations Board's ambush elections rule. One 
section of the initial proposed regulation concerned the private 
information of employees. It raised so much concern that it was dropped 
from the final rule. However, the National Labor Relations Board 
Chairman has publicly stated that he plans to push this and other 
dropped provisions into law later this year, now that President Obama's 
so-called recess appointments have created a full board.
  Under the current law, employers are required to provide employees' 
names and addresses within 7 days once an election is set. The proposed 
rule would not only expand the type of personal information that an 
employer must turn over, but would require that information to be 
turned over within 2 days of an election being set. Of course, if we 
are moving it from 38 days down to 10 days, I can see where they would 
want it in 2 days instead of the 7 that has been normal. The expanded 
information that the National Labor Relations Board wants employers to 
give to unions includes all personal home phone numbers, cell phone 
numbers, e-mail addresses that the employer has for each employee. It 
also would demand work location, shift information, and employment 
classification.
  Let's consider this for a moment. The National Labor Relations Board 
wants to give employers 48 hours to turn over information of employees 
who are eligible to vote, despite the fact that the employee's 
eligibility may not even be determined at that point because of the 
ambush elections rule, the elimination of this preelection hearing so 
those sorts of things can be worked out as to who is exactly going to 
be covered. In essence, an employer will be forced to turn over 
personal information of employees who may not even be in the bargaining 
unit. The rule even would have required that the employer alphabetize 
the lists.
  The threat of this new invasion of privacy is very alarming to most 
people. The purpose of the information is so the union organizers can 
come to your home, call you, e-mail you, find you outside your work 
location and catch you before and after shifts. There is no prohibition 
on how many times the organizers can contact you or at what times. 
There is no ``opt out'' for those employees who simply do not want to 
be contacted. And there are no protections in place to ensure that the 
information does not go astray.
  While a large part of this debate circles around the shortened 
election time and what that means for employers, with good reason, I do 
not want us to forget what this new rule could mean to the privacy of 
employees. Supporters of expanding the information provided to the 
unions claim the National Labor Relations Board is merely modernizing 
this standard. In this time of Internet scams, identity theft, online 
security breaches, and cyber bullying, protecting personal information 
is not something to be taken lightly. Union elections can be a very 
intense and emotional experience for employees and employers alike. The 
last thing we want is for an individual's personal information, such as 
an e-mail address, to be used as a harassment or bullying tool by an 
angered party.
  I want my colleagues to know what is at stake in this debate. A 
successful Congressional Review Act petition also prohibits an agency 
from proposing any ``substantially similar'' regulation unless 
authorized by Congress. Therefore, by supporting my joint resolution, 
we could put a stop to the Board's future attempt to force employers to 
hand over more personal employee information.
  I urge all my colleagues to support this resolution of disapproval. 
This is one of the most important votes we will have on labor issues 
this Congress. We need to let the National Labor Relations Board know 
that their duty as a Federal agency is to be the referee and decide 
what is fair for the parties involved based on the clear facts of the 
case. Their job is not to tip the scale in favor of one party or 
another. Tipping the scale is exactly what the National Labor Relations 
Board is doing with the ambush elections rule. Congress needs to step 
up and say ``no'' to the overbearing and burdensome nature of these 
regulations coming out of so-called independent agencies. You can do 
that by voting for my joint resolution, S.J. Res. 36.
  Mr. President, I yield the floor and reserve the remainder of my 
time.
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. HARKIN. Mr. President, a couple things.
  I keep hearing it stated that: ambush elections. I want to point out, 
there is no timetable set in these rules--none whatsoever. I keep 
hearing: 10 days and 7 days and all that. That is not set. There are no 
timetables at all. As I pointed out, 90 percent of NLRB elections are 
conducted under voluntary agreements between the parties, and those 
procedures are unchanged.
  The current median time right now between when a petition is filed 
and when an election occurs is 37 to 38 days. Jackson Lewis, the 
Nation's biggest management-side law firm, said that--their attorney 
Michael Lotito told the Wall Street Journal he thinks the time under 
these rules would be shaved to between 19 and 23 days. Joe Trauger, 
vice president of the National Association of Manufacturers, says the 
elections would be held in 20 to 25 days under the new rules--hardly an 
ambush election.
  The other issue I want to briefly mention has to do with the 
contacts--contacting and the right of privacy I heard here. Right now, 
the only way a

[[Page 5374]]

union can contact people is at their homes--at their homes. The only 
information the union is allowed to get after the petition is filed is 
the addresses of the workers, their home addresses. What the Board is 
considering--but has not implemented--is allowing unions to have access 
to e-mail addresses and/or phone numbers. Well, it seems to me that is 
a lot less intrusive than going to someone's home.
  Now, again, it is much harder, obviously, for a union organizer to go 
to a home. People go to their homes. They are with their families. They 
have their children. They are busy. That is more intrusive than e-
mailing them, it seems to me. So I would hope we would look upon the 
possibility that they might say that having their e-mail addresses and 
phone numbers is less intrusive than going to their homes.
  But that is not part of these rules whatsoever. They would still have 
to contact them at their home, and the only information the employer 
would have to give would be their home addresses.
  Again, keeping in mind what these rules are--they are very modest 
rules. I keep hearing that: Well, there have only been three rules 
since the Board was comprised in 1938. Quite frankly, the Supreme Court 
and appeals courts have said, time and time again, they should do 
rulemaking because it is open, it is transparent, parties get to be 
heard. So I think this Board is being more open and more transparent 
than any Board before it.
  This is not anything overwhelming, but it is a step in the right 
direction to make sure we level the playing field and we do not have 
these undue delays where the management can intimidate--intimidate--and 
I gave some examples of it, and I have a whole ream of examples of 
where management has delayed and delayed and delayed in order to 
intimidate workers so they would eventually vote not to form a union.
  Again, an employer has the right to communicate to their employees 
all day long--in captive audiences, one-on-one meetings with 
supervisors. The union can only contact the worker at that worker's 
house, in the evening or on a weekend. So already the employer has much 
more opportunity to converse with and to get its views known to its 
workers than the union has--much more, all day long, at the job, on the 
job, through supervisors, one-on-one contacts, group meetings, over the 
loudspeaker, whatever it might be. So already there is much more 
ability for the management to weigh in on this than it is for the 
union.
  The one thing we are trying to do with these rules is to say: Fine, 
you can continue to do that. There will still be that disparity between 
the ability of management to communicate to the workers and the union 
to communicate, but what these rules are saying is, fine, you can do 
that, but you cannot continue to do it month after month after month 
and wear the workers down and intimidate them, make them afraid of 
losing their jobs. And if you fire one person for union organizing, 
that sends a chill across everybody else. You say: Well, but that is 
illegal. Well, it may be illegal, but as I have pointed out, time and 
time again, there are no penalties for that. It may be illegal, but 
there are not much penalties for that. Management can always find some 
excuse--that they may have fired someone for something other than union 
activity, but everyone would know that person was fired because that 
person was trying to organize a union.
  We are saying you cannot just continue to drag these things out month 
after month after month. The proposed rules simply say we will have 
elections, and if there are challenges, if there are challenges by the 
management as to who can vote in that election, then those challenges 
would be held until after the election and then see whether those 
individuals so challenged were really part of that unit and could vote 
or whether they could not and whether that would even make a 
difference.
  Again, if there were 100, let's say, who signed a petition to form a 
union, and that was 50 percent of the workers out of 200, and the 
employer was challenging 5 of those, well, as it is now they could 
challenge those 5, have a hearing, appeal the hearing, appeal that, and 
just keep appealing it.
  Well, the rules would say, OK, they can say those 5 are not part of 
it, their ballots would be set aside, and they would have the election. 
If the election was, let's say, 150 to 20 that they wanted to form a 
union, those 5 would not make a difference one way or the other. If, 
however, the election was very close and those 5 would make a 
difference, then the results would be held in abeyance until such time 
as it is determined whether those 5 so challenged were part of that 
bargaining unit or not.
  To me, this is a much more fair and decisive way of moving ahead 
rather than these constant delays and intimidations that go on right 
now in some of the places--not all, not all, but in some of the places. 
It is like a lot of times we pass laws not because there are, let's 
say, broad-based incursions on a person's freedoms or certain things we 
want to address, but a lot of times we pass laws because there are a 
few bad actors out there one way or the other and we want to make sure 
those bad actors are not able to act unreasonably, kind of in violation 
of what was intended by the National Labor Relations Act.
  So that is what they are all about. They are very modest and, I 
think, lend themselves to a much more reasonable path forward in union 
organizing and voting.
  I ask unanimous consent if there is a quorum call that both sides be 
charged equally on the time.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Wyoming.
  Mr. ENZI. Mr. President, I yield myself such time as I may use.
  The PRESIDING OFFICER (Mr. Tester). Without objection, it is so 
ordered.
  Mr. ENZI. Mr. President, I do want to talk about this open and fair, 
transparent process that was just referred to. Much has been said about 
the flawed policy behind ambush elections we are discussing on the 
Senate floor. But I want to spend a few minutes discussing the 
rulemaking process that was followed or not followed for that matter by 
the National Labor Relations Board.
  While the other side portrays the changes as moderate, make no 
mistake about it, this new rule greatly alters the election system, 
especially should Chairman Pearce be able to finalize the more 
controversial provisions that were previously proposed. This entire 
rule took under 1 year to complete. The National Labor Relations Board 
introduced the proposed rule on June 22, 2011, and published the final 
rule only 6 months later on December 22, 2011.
  Considering the scope of the rule and how much attention it garnered 
from stakeholders, it is absurd to think that a Federal agency could 
promulgate a rule that would have such a major effect on all employers, 
in only 6 months. As evidence of how critical this rule's impact will 
be on stakeholders, the Board received 65,957 comments. Let me repeat 
that. The Board received 65,957 comments during the 60-day comment 
period. That is an astounding number.
  To compare, the Board's previous rulemaking on its notice posting 
requirements garnered a little more than 6,000 comments. On November 
30, 2011, the Board voted to move toward finalizing a new amended 
proposed rule. The reason for this new amended rule was clear: The 
Board was going to lose its quorum at the end of the congressional 
session in late December 2011.
  What continues to astonish me is that the Chairman claimed his staff 
read each of the 65,957 comments, twice, in such a short period of 
time. In rushing to finalize the ambush elections rule, the Board 
discarded several well-established internal procedural precedents as 
well. For example, until the ambush election rule, the Board did not 
advance a major policy change without three affirmative votes. This was 
a major policy change.
  They never did it without three affirmative votes, whether through 
rulemaking or a case decision. This was

[[Page 5375]]

not the case in the ambush elections rule where only two members voted 
in favor of finalizing the rule. Further, the Board rejected the 
tradition of providing any dissenting member at least 90 days to 
produce an opinion. Instead, Chairman Pearce offered to publish a 
dissent after the final rule was published. The process the Board used 
to promulgate the ambush elections rule was rushed through for no good 
reason. Yet in the process it decided to discard years of Board 
precedent.
  I should also mention one of these people, one of the two who voted 
for it, not three--one of the two who voted for the rule, and there 
were two who voted for it--was a recess appointment because they knew 
this body would not stand for that person with the radical views he 
held, actually claiming before his appointment that he would cause this 
sort of a thing to happen; that he would even be able to institute, 
through Board procedures, card check.
  Now, that is a pretty radical statement, and that alone was keeping 
him opposed by both sides of the aisle. There were people on both sides 
of the aisle who opposed card check.
  So two people voted for it; one person voted against it. That person 
was not allowed the right to put in a dissent opinion. That is wrong. 
That is not open and transparent.
  Now I would like to talk a little bit about the targeting of small 
business this regulation does as well. All of our States have a lot of 
small business. Small business is the backbone of job creation in this 
country. We need to make sure that process can still follow. Once a 
petition for representation is submitted, the current median timeframe 
for a union election to be held is 38 days. That is the median time. 
The ambush election rule would shorten that timeframe to as few as 10 
days.
  For small business owners, with the range of company responsibilities 
and limited resources, this puts them at a severe disadvantage. Most 
small business owners are not familiar with complex labor laws they 
have to adhere to during the representation election process. For 
example, they may not be aware that certain statements and actions 
could result in the National Labor Relations Board imposing a 
bargaining obligation without a secret ballot election. They can 
declare the election over. Furthermore, most small businesses do not 
have the resources to employ in-house counsel or human resource 
professionals familiar with these laws.
  So holding an ambush election in as few as 10 days does not provide 
small business owners with enough time to retain a competent labor 
attorney, consult with them, and then adequately prepare for an 
election. I have given the reasons before why it is unfair to the 
employees. But it is also very unfair to a small business owner because 
their day-to-day responsibilities range from sustaining a competitive 
product, to managing personnel, to balancing the books at the end of 
the day. I know. I have been there. I had a shoe store. They have to do 
all of those things.
  The definition by the Federal Government for a small business is 500 
or less employees. In Wyoming that would be a big business. My 
definition of a small business is where the owner of the business has 
to sweep the sidewalks, clean the toilets, do the accounting, and wait 
on customers--and definitely not in that order. So those day-to-day 
responsibilities to keep the business competitive take a lot of time, 
and given such a demanding schedule, it takes time for a small business 
owner to fully understand the pros and cons of unionization. It takes 
even longer for a small business owner to communicate these points to 
their employees.
  Ambush elections make it logistically impossible for small business 
owners to fully discuss the effects of unionization with their 
employees, partly because they will not even know what those effects 
are, and neither will their employees.
  A union organizing campaign does not begin on the day an employer 
receives a petition for representation. It typically starts months or 
even years before, when professional union organizers start conveying 
their side of the story to targeted small business employees. They work 
on it for months. By unjustly curtailing an employer's ability to 
convey their point of view, ambush elections deny employees the 
opportunity to hear both sides of the argument on unionization.
  The small business employer is also at a disadvantage because the 
union organizer will be in a position to set up the election to his 
best advantage, essentially cherry-picking union supporters before the 
election process begins. The organizers will have had limitless amounts 
of time to analyze which employees could be argued to belong in the 
bargaining unit, which may qualify as supervisors, and who is most 
likely to support a union.
  With ambush elections, the National Labor Relations Board will impose 
the election before the employer has an opportunity to even question 
those assumptions, especially since we have significantly restricted 
the one tool--the preelection hearing--that the small businessman would 
have to question who is in and who is out.
  According to a recent Bloomberg study, unions win 87 percent of 
secret ballot elections held 11 to 15 days, compared to a 58-percent 
rate when elections are held 36 to 40 days. By shortening the election 
timeframe, labor unions will undoubtedly win more representation 
elections--perhaps. The perhaps is that they may really irritate the 
employees and win less of them. The way that it is held in 11 to 15 
days is when the employer and the employees agree on all of the issues 
and get the election to move forward. So it can happen in a short 
period of time right now. Otherwise, the median time would not be 38 
days.
  But I think this rule will alienate those people who have been 
getting together and arriving at these agreements. So for small 
business owners, the surge of union bargaining obligations means a less 
flexible workforce, increased labor costs, and fewer opportunities for 
job creation. And they are the job creators.
  The National Labor Relations Board is only creating more uncertainty 
for small business at a time when the country needs them to focus on 
creating jobs. Small businesses account for over half of the jobs in 
the private sector and produce roughly one-half of the privately 
generated GDP in the country. In 2010, small businesses outpaced gross 
job gains of large businesses by 3 to 1.
  As the National Labor Relations Board has publicly indicated, ambush 
elections are only the beginning of a round of regulations aimed at 
making it easier for unions to win representation elections in American 
workplaces. Proposed regulations, such as requiring small businesses to 
compile a list of employee phone numbers and e-mails and then handing 
them over to union organizers before an election are time consuming. 
They are costly. They are extremely invasive. Furthermore, they are 
indicative of how this administration is more concerned about boosting 
labor union membership than creating jobs.
  We have to create jobs. We cannot continue to pick on the small 
businessman and put him at a disadvantage. This is a rule that is 
looking for a place to act. It is not one that was needed or requested 
other than by labor organizers. I think it will have repercussions. So 
I would ask everyone to vote for the resolution of disapproval so this 
does not go into effect, although we have been promised, of course, a 
Presidential veto if it makes it to his desk.
  But that is Congress. We have the right to say we do not think the 
rule is right. The President has the right to say his administration is 
right and veto the law. But we have to make that statement, and we have 
to make it on behalf of small businesses and employees.
  A lot of this has to do with employee fairness and giving them the 
time to figure out what the union will do with them and for them and to 
them.
  I yield 3 minutes to the Senator from Alabama for morning business, 
as I understand it.
  The PRESIDING OFFICER. The Senator from Alabama is recognized.

[[Page 5376]]




                             Postal Reform

  Mr. SESSIONS. Mr. President, I thank the Senator from Wyoming for his 
thoughtful remarks on this important subject. I hope our colleagues are 
listening.
  Later today, I will offer a budget point of order on the postal bill. 
It adds $34 billion to the debt. It violates the agreement we reached 
last August, in which we said there would be limits to how much debt we 
would increase and how much spending we would increase.
  The first big bill coming down the pike adds $34 billion. Every penny 
of the new spending is added to the debt. There is no offset to it. 
Those of us who supported the concept of a limitation on spending--and 
I didn't think it limited it enough last summer, but many thought it 
did, but agreed to that limit--have to know this. When I raise that 
budget point of order, somebody will probably rise and ask for a vote 
to waive the budget, waive the limitations on spending and debt that we 
just passed last August.
  We need not kill reform of the Postal Service. We need to send this 
bill back to the committee and let them produce legislation that either 
spends not so much or doesn't spend money or, if they do spend money, 
pay for it through cuts in spending that are perfectly available.
  GAO has said there is over $400 billion spent each year in 
duplicative and wasteful programs. We have GSA off in Las Vegas in hot 
tubs on taxpayers' money. We could pay for this bill if it is so 
important that we have to do it; if we don't, that is what the vote 
would be.
  I urge my colleagues to understand the importance of it. Our Members 
who believed it was important to have a limit on spending in order to 
gain a debt increase last summer, increase the debt ceiling, should 
vote against the motion to waive because to do so--to vote for waiving 
the budget would undermine, in the first real opportunity, the 
agreement we reached.
  I thank the Chair and reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from Wyoming.
  Mr. ENZI. Mr. President, I ask unanimous consent to have printed in 
the Record three additional letters of support from the Motor and 
Equipment Manufacturers Association and National Council of Textile 
Organizers and the Building Owners and Managers Association 
International.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

       The Motor & Equipment Manufacturers Association (MEMA) 
     represents over 700 companies that manufacture motor vehicle 
     parts for use in the light vehicle and heavy-duty original 
     equipment and aftermarket industries. Motor vehicle parts 
     suppliers are the nation's largest manufacturing sector, 
     directly employing over 685,000 U.S. workers and contributing 
     to over 3.2 million jobs across the country.
       MEMA urges your boss to support S.J. Res. 36 and help 
     overturn the ``ambush election'' rule, which is part of the 
     NLRB's aggressive and unchecked regulatory agenda. Parts 
     manufacturers are very concerned by recent unnecessary and 
     unwarranted actions by the NLRB that threaten employer-
     employee relations as well as job growth and productivity. 
     MEMA members strongly oppose the NLRB's ambush election rule 
     which would shorten the time frame during which union 
     elections may be held, limiting an employer's ability to 
     prepare for an election and an employee's opportunity to make 
     an informed decision about joining a union.
       Please contact Ann McCulloch at [email protected] or 202-
     312-9241 with any questions. Thank you for your 
     consideration.
           Sincerely,
     Ann Wilson,
       Senior Vice President, Government Affairs, Motor & 
     Equipment Manufacturers Association.
                                  ____

                                      Building Owners and Managers


                                    Association International,

                                   Washington, DC, April 24, 2012.
     Hon. Mike Enzi,
     U.S. Senate, Hart Senate Office Building, Washington, DC.
       Dear Ranking Member Enzi: The Building Owners and Managers 
     Association (BOMA) International urges you to support S.J. 
     Res. 36, which will prevent the National Labor Relations 
     Board (NLRB) from moving forward with its ``ambush'' election 
     rule. The rule is an attempt by the NLRB to enact the 
     Employee Free Choice Act through regulation. The NLRB's 
     actions are detrimental to workers, businesses and our 
     economy and must be stopped.
       Under the rule, building owners and managers and the 
     companies they do business with could face an election held 
     to determine whether or not the employees want union 
     representation in as few as 14 days after the union files a 
     petition. This would leave little or no opportunity to talk 
     to employees about union representation or respond to any 
     promises by union organizers--no matter how unrealistic. 
     Union organizers lobby employees for months outside the 
     workplace without an employer's knowledge, so these 
     ``ambush'' elections would result in employees receiving only 
     half the story. In an effort to rush the election, the rule 
     also robs employers of free speech and due process rights. In 
     fact, under the rule, the NLRB could even conduct elections 
     before it settles which employees would be in the union. How 
     is a worker supposed to make an informed choice about unions 
     in these circumstances?
       The median time from petition to election without this rule 
     is a far more reasonable 31 days. The legislative record 
     shows Congress intended an election period of at least 30 
     days in order to ``safeguard against rushing employees into 
     an election where they are unfamiliar with the issues.''
       The Building Owners and Managers Association (BOMA) 
     International is an international federation of more than 100 
     local associations and affiliated organizations. Founded in 
     1907, its 16,500-plus members own or manage more than nine 
     billion square feet of commercial properties. BOMA 
     International's mission is to enhance the human, intellectual 
     and physical assets of the commercial real estate industry 
     through advocacy, education, research, standards and 
     information. On the Web at www.boma.org.
       Again, on behalf of building owners and managers across the 
     country, I urge you to support S.J. Res. 36 and help rein in 
     this out-of-control agency.
           Regards,
                                                Karen W. Penafiel,
     Vice President, Advocacy.
                                  ____

                                                  National Council


                                     of Textile Organizations,

                                   Washington, DC, April 24, 2012.
       Dear Senator: I am writing on behalf of the U.S. textile 
     industry and the nearly 400,000 workers the industry employs. 
     I am the president of the National Council of Textile 
     Organizations and I urge you to support S.J. Res. 36 when it 
     comes to a vote today. S.J. Res. 36 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 enact the 
     Employee Free Choice Act through the regulatory process and 
     to deny employees and workers access to critical information 
     about unions. In addition, the ``ambush'' election rule 
     strips employers of their rights to free speech and due 
     process. The rule poses a threat to employers and workers 
     alike and needlessly interrupts an employer's day to day 
     business operation.
       The National Council of Textile Organizations (NCTO) is a 
     unique association representing the entire spectrum of the 
     textile industry. From fibers to finished products, machinery 
     manufacturers to power suppliers, NCTO is the voice of the 
     U.S. textile industry. There are four separate councils that 
     comprise the NCTO leadership structure, and each council 
     represents a segment of the textile industry and elects its 
     own officers who make up NCTO's Board of Directors.
       NLRB statistics note that the average time from petition to 
     election is 31 days, noting that over 90 percent of elections 
     take place within 56 days. NCTO strongly believes that the 
     current election time frames are reasonable, and permit 
     workers time to hear from the union and the employer. The 
     ability to take into account the perspectives of management 
     and the unions allows workers to make informed decisions, 
     which would not be possible under the new ambush election 
     rule if allowed to go into effect. NCTO is particularly 
     concerned about how our small and medium manufacturers would 
     be affected by the rule's time frames; employers will not 
     have the appropriate time to retain legal counsel, or to 
     speak with workers about union representation. The reality is 
     that union organizers are persuading workers for months 
     outside the workplace without an employer's knowledge; these 
     ``ambush'' elections would often result in workers'' hearing 
     only one perspective on union membership. Workers would be 
     made unrealistic promises that can't be kept and be offered 
     guarantees of benefits that unions have no way of attaining. 
     If the employer does not have an opportunity to explain their 
     position and any possible inaccuracies that could be levied 
     by the union, how can a worker make an informed and objective 
     decision regarding representation?
       For these reasons, NCTO urges you to vote yes on S.J. Res. 
     36 when the Senate votes today. If left unchecked, the 
     actions of the NLRB will fuel economic uncertainty and

[[Page 5377]]

     have serious negative ramifications for millions of 
     employers, U.S. workers, and consumers.
           Sincerely,
                                                     Cass Johnson,
                                                        President.

  Mr. ENZI. Also, there will be key vote alerts from the Associated 
Builders and Contractors, Associated General Contractors, Brick 
Industry Association, Competitive Enterprise Institute, Heritage Action 
for America, International Franchise Association, International 
Warehouse Logistics Association, National Grocers Association, National 
Association of Manufacturers, National Federation of Independent 
Business, National Restaurant Association, National Roofing Contractors 
Association, National Taxpayers Union, the Retail Industry Leaders 
Association, and the U.S. Chamber of Commerce.
  I yield the floor and reserve the remainder of my time. I suggest the 
absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. ENZI. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. ENZI. Mr. President, I yield up to 10 minutes to the Senator from 
Georgia, Mr. Isakson.
  The PRESIDING OFFICER. The Senator from Georgia is recognized.
  Mr. ISAKSON. Mr. President, I haven't been able to hear all the 
speeches, but I commend Senator Enzi on his detailed and eloquent 
explanation on how we arrived where we are today.
  I wish to add a history lesson of my own to tell you my journey in 
terms of where we are. As a student in college in the 1960s, in 
business management, I learned a lot about the Industrial Revolution, 
the labor revolution, the development of labor unions and labor/
management practices as they developed from the 1920s until the 1960s 
and now up until today.
  It is absolutely correct that the playing field was unlevel in the 
1920s and 1930s. It is absolutely true that we had poor working 
conditions, safety risks were high, and wage-an-hour issues were 
debated. There was a place and an appropriate nature for us to level 
the playing field so management and labor could go together, head-to-
head, and negotiate and arbitrate and have binding agreements upon 
themselves to protect the safety of workers and also improve the 
environment of the workers in the United States.
  For 75 years those laws served us well. All of a sudden, it seems 
there is a perfect storm. From every corner, the NLRB seems to be 
making proposals to try to tilt the playing field away from fairness 
and equity and it is not right.
  Last year, 70 percent of the elections for unionization in the United 
States of America were successful. There is not a problem in terms of 
people being able to organize and negotiate collectively. The problem 
is that the regulatory bodies are attempting to circumvent the 
legislative branch of government and to rule and regulate what they 
cannot pass on the floor of the Senate.
  When Mr. Becker was appointed to the NLRB last year by the President, 
over the objection of the Senate and during the recess--it was an 
example of where the President used a recess appointment to go around 
the lack of approval, and advice and consent of the Senate.
  This particular legislation we are talking about is similar to the 
specialty health care decision. The specialty health care decision 
allowed unions to create micro unions within the same working body, 
where there could be a plethora of unions in one store, all to fracture 
and fragment the ability of a business to cross-train and compete 
effectively. It is an attack on the free enterprise system and 
circumvents what our Founding Fathers intended us to do.
  We have a legislative branch with the House and Senate; an executive 
branch with the President, the Vice President, the Cabinet and his 
appointees; and we have a court system. The President makes initiatives 
that go through the legislature. The legislative body takes initiatives 
and passes laws. Ultimately, the courts are the arbiters if either one 
or both ever challenges the ruling of one or the executive order of 
another. That is the way it should be. But right now we have a two-
legged stool in America. Instead of legislative, executive, and 
judicial branches, we have a judicial and executive branch trying to 
run the country. We all know what happens to a two-legged stool. It 
falls over.
  I talked with some businesspeople this morning who talked about the 
uncertainty of doing business in America. It didn't all have to do with 
ambush elections or specialty health care movements or special posters 
to promote unionization in the workplace, but they were part of it. The 
regulations that come from the administration through the Department of 
Labor, the National Labor Relations Board, the National Mediation 
Board, and a plethora of other organizations, are making it difficult 
for America to do business in a time where it is essential that we do 
business.
  When the stimulus passed 18 to 24 months ago--maybe 30 now--it was 
designed to bring unemployment down to 6 percent. Unemployment remains 
above 8 percent, and one of the reasons it does is that the deployment 
of capital by businesses is not taking place because of the uncertainty 
of the workplace and what lies ahead, whether it is health care, 
whether it is ambush elections, card check, or whatever it might be.
  So I come to the floor to commend the Senator from Wyoming for taking 
an initiative that is available to the Senate to bring a resolution of 
disapproval forward for a resolution of an executive branch body that 
circumvents the legislature itself. I hope he is successful in sending 
the message that it is time for us to take American politics and 
American justice and American legislation back to what our Founding 
Fathers intended.
  Let's stop trying to take a playing field--one that has been level 
for 75 years, where we have had the greatest labor-management relations 
in the history of any country in the world--and tear it up or put us 
into a situation where we are adversaries, as we were 75 years ago. 
Let's stop the ambush election. Let's stop the arbitrary posting. Let's 
stop the specialized unionization. Let's stop all of this and return to 
the laws that have worked for three-quarters of a century. Three-
quarters of a century is a great test of time. There is no reason now, 
through appointments to a regulatory body, to change the history of the 
Senate and the history of the court system.
  I will end by quoting a President of the United States--a Democratic 
President of the United States--who, on April 21, 1959, was U.S. 
Senator John Fitzgerald Kennedy. In his campaign for the Presidency, he 
declared that elections should have at least 30 days between their call 
and the vote so employees can be fully informed on their choices from 
both sides of the issue. If it was right for John F. Kennedy on April 
21, 1959, it is right for the Senate today, on April 24, 2012.
  I commend the Senator from Wyoming on his presentation, his 
intensity, and his ability to bring this issue before the American 
people and to the floor of the Senate.
  I yield the floor.
  Mr. HARKIN. Mr. President, how much time is remaining?
  The PRESIDING OFFICER. The Senator from Iowa has 20 minutes, and the 
Senator from Wyoming has 12 minutes.
  Mr. HARKIN. Mr. President, there are just a couple of things I wish 
to bring up in response to some of the statements that have been made 
on the floor.
  First of all, I wish to make it very clear that the NLRB has 
scrupulously followed all legal and procedural requirements for 
rulemaking under the Administrative Procedure Act, and by increasing 
the use of rulemaking, it has been the most inclusive and transparent 
Board in history--in history. This process has given all sides abundant 
opportunity to provide input to the NLRB. There was opportunity for 
written comments, written responses to other comments, and even a 
public hearing.

[[Page 5378]]

  I would like to point out again that there is no requirement in the 
Administrative Procedure Act to facilitate a dissent. Even though there 
isn't, the NLRB's traditional practice has given Member Hayes an 
opportunity to dissent. He was given that chance. But these practices 
do not allow him to filibuster or run out the clock to thwart the 
actions of his colleagues.
  The Board filed a notice of proposed rulemaking on June 22, 2011, 
provided 60 days for filing public comments, and received over 65,000 
comments, of which, I might note, all but around 200 were form letters. 
There were 65,000 comments, and all but around 200 were form letters. 
But still there were 200 comments, ensuring a wide range of views and 
stakeholder input. The Board arranged an opportunity for staff from 
Member Hayes's office to brief congressional staff on his dissent from 
the notice of proposed rulemaking, and, although not required to do so, 
the Board also provided an opportunity for oral public comments at a 
hearing conducted on July 18 and 19, 2011, in which over 60 labor and 
management lawyers, public interest groups, employer and labor 
organizations, workers, and other related constituents participated. 
The Board provided an additional 14 days following the 60-day comment 
period in which to file written reply comments. Again, this is not 
required by the APA--the Administrative Procedure Act--or any other 
law. Then the NLRB held a public vote on a final rule on November 30 
and published the final rule in late December. So quite frankly, under 
the Administrative Procedure Act, which all other agencies follow, the 
NLRB bent over backward to be transparent and to allow dissent.
  I have heard it said that Member Hayes was not allowed enough time. 
Well, he had his first dissent. But from June 22 until November, Mr. 
Hayes had all that time to file a dissent if he wanted to--to write a 
dissent. I mean, is that not enough time to write a dissent? It seems 
to me that is more than enough time. But that was not done. So I just 
want to make it clear that I think Mr. Hayes was given more than enough 
time to write his dissent if he wanted to. He did write one dissent 
over the proposed rules, but he had the additional opportunity from 
June 22 until November. Again, the APA, under rulemaking, doesn't 
entitle him to dissent, but the Board allowed him to have a dissent if 
he wanted to. They had access to public comments on the proposed rules. 
They were given summaries and copies of specific comments the other 
members found informative. His office had months to incorporate those 
comments and write a second dissent but chose not to. That was his own 
choice. That was his own choice. He was not prevented from doing so. 
That was his own choice.
  There are a lot of little items like that which I think are kind of 
being misinterpreted, but here is the essence of it, right here. Here 
is the essence of what this is all about. Stripped of all the falderal 
and all of this and all of that and which Board member was for card 
check and who wasn't and on and on and on, this is what it is about, 
right here, this statement. This is Martin Jay Levitt, who was an anti-
union consultant who wrote a book called ``Confessions of a Union 
Buster,'' published in 1993. ``Confessions of a Union Buster.'' Here is 
what he said:

       Challenge everything . . . then take every challenge to a 
     full hearing . . . then prolong each hearing . . . appeal 
     every unfavorable decision . . . if you make the union fight 
     drag on long enough, workers lose faith, lose interest, lose 
     hope.

  That is what it is about. It is about denying people their right 
under the National Labor Relations Act to fairly and expeditiously have 
a vote on whether to form a union. This is not new. This has been going 
on since the 1940s and 1950s, since Taft-Hartley. There have been 
forces at work in this country since the adoption of the National Labor 
Relations Act in 1935 to break unions. They do not want to give workers 
a right to have a voice in collective bargaining. They will go to 
extreme limits to deny union members their rights. They will do 
everything they can to try to break up unions. Taft-Hartley was the 
first of that, and we have had several things since that time.
  Our job is to try to make it a level playing field--as level as 
possible, anyway--and to give workers a right that is not just a right 
in name only or in words but a real, factual right to form a union and 
have the election without challenging everything, taking every 
challenge to a full hearing, prolonging each hearing, appealing every 
unfavorable decision. As I quoted earlier, if you make the union fight 
drag on long enough, workers lose faith, lose interest, and lose hope. 
And I might add, if you drag it on long enough, it gives the employer 
every opportunity to intimidate workers so they won't join a union or 
maybe fire people who were active in the union organization drive--to 
find some reason why they should be fired, anyway. That is what this is 
about.
  What the NLRB has finally done, through an open process, through a 
rulemaking process, through perhaps one of the most open and 
transparent processes in the history of the NLRB, is to say: Let's have 
a system whereby certification votes can be held within a reasonable 
amount of time. There was no time limit put in there. There is no 7 or 
10 days. That is what Mr. Hayes said in his dissent. He just plucked 
that out of thin air. But that is not in the ruling. That is not in the 
ruling at all. Most people who have looked at it have said: Well, it 
may shorten it to 20 to 30 days, somewhere in there. It seems to me 
that is fair enough. That is fair enough.
  But that is really what this is all about, and I hope Senators, when 
they vote, will recognize that what the Board has done is to take the 
unfair process we have had for so long and made it more fair for 
everyone.
  I will point out one last time that the procedures the NLRB has come 
up with, which are under fire right now from the other side, apply to 
certification votes as well as to decertification votes. If a company 
wants to decertify a union, then the union can't drag that out days and 
months at a time. They can't drag that out for decertification either. 
So it seems to me that on both sides--certification and 
decertification--we have a level playing field, and neither side can 
drag it out interminably to try to frustrate the real desires and 
wishes of the workers.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Wyoming.
  Mr. ENZI. Mr. President, I yield 8 minutes to the Senator from South 
Dakota.
  The PRESIDING OFFICER. The Senator from South Dakota.
  Mr. THUNE. Mr. President, I wish to commend the Senator from Wyoming 
for his great work on the subject.
  As Americans know firsthand, we continue to struggle with an economy 
that is not performing well or meeting the needs of workers. The 
unemployment rate remains at about 8 percent, as has been the case for 
the last 28 months. Much of this can be attributed to a lack of 
certainty on the part of employers.
  One need look no further than the regulatory policies being pushed by 
this administration to understand why job creators are not creating 
jobs. Back on December 22 of 2011, the technically independent National 
Labor Relations Board published the final rule on representation-case 
procedures, better known as the ``ambush elections'' rule. This new 
rule could allow a union to organize an election in as little as 10 
days. This new rule is the most drastic and sweeping modification to 
the union election process in more than 60 years.
  According to the National Labor Relations Board, the median time in 
which an election is held is 38 days, and 92 percent of all elections 
occur within 56 days. In fiscal year 2011 the NLRB reports that 71.4 
percent of unions won their elections, which is up 3\1/2\ percent from 
fiscal year 2010. It is hard for one to claim that union elections are 
being held up unnecessarily with these sorts of track records.
  The changes put forth by the NLRB will radically change the process 
of union organizations and will limit an employer's ability to respond 
to union claims before an election, thereby stifling debate and 
ambushing an employer and employees. Employers use

[[Page 5379]]

the time after an election petition has been received to ensure 
compliance with the National Labor Relations Act, to consult with human 
resource professionals, and to inform--to inform--their employees about 
the benefits and shortcomings of unionizing. It is nearly impossible 
for a small business owner to navigate the regulations of the National 
Labor Relations Act without the assistance of outside counsel, which 
will be hard to find in 10 days or less.
  On April 21, 1959, then-Senator John F. Kennedy stated, and I quote:

       The 30-day waiting period is an additional safeguard 
     against rushing employees into an election where they are 
     unfamiliar with the issues.

  It appears that rushing elections is exactly what the NLRB and big 
labor are hoping for. After all, unions win 87 percent of elections 
held 11 to 15 days after an election request is made. The rate falls to 
58 percent when the vote take place after 36 to 40 days.
  On a decision as important as whether to form a union, workers should 
have the opportunity to hear from both sides, free from any pressure 
one way or the other, an opportunity that the NLRB's recent decision 
would take away.
  In addition to ambushing employers with union elections, the NLRB has 
now decided to recognize micro-unions. The NLRB ruled that so long as a 
union's petitioned-for unit consists of an identifiable group of 
employees, the NLRB will presume it is appropriate.
  What does this mean for America's small businesses? This means that 
at your local grocery store there could be a cashiers union, a produce 
union, a bakers union, the list goes on and on. Micro-unions, coupled 
with ambush elections, can cause one small business to deal with 
several bargaining units in the workplace and little time to no time to 
raise concerns against such actions.
  The Supreme Court has expressly stated:

       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 NLRB.

  The recent actions of the NLRB have all but silenced any freedom of 
speech once enjoyed by employers. For the State of South Dakota, 
increased unionization will mean higher costs for the health care 
industry, driving up health costs for hospitals and consumers. It will 
also mean higher costs for hotels, tourism, small businesses, and other 
service industries. The Federal Government should not be acting to slow 
or hinder job growth in our current economy but should instead be 
looking for ways to foster job growth.
  In addition to radically changing the way in which union elections 
are organized, the NLRB promulgated a rule requiring most private 
sector employers to post a notice informing employees of their rights 
under the National Labor Relations Act. I believe this is yet another 
example of Federal overreach by this administration that benefits their 
special interest allies at the expense of American businesses that are 
currently struggling to create jobs, which is why I introduced the 
Employer Free Speech Act last year.
  If enacted, this legislation would prohibit the NLRB from requiring 
employers to post a notice about how to establish a union. I am happy 
to report that on April 17, 2012, the DC Circuit Court of Appeals 
agreed with me and has stopped the NLRB from enforcing this unnecessary 
and burdensome rule.
  This administration is making a habit of using regulatory policies to 
strengthen unions and harm the economy. In these difficult times, the 
last thing government should be doing is putting roadblocks in front of 
American businesses as they attempt to do their part to turn our 
economy around and to create jobs.
  In the 74 years of the NLRB's existence prior to 2009, the Board had 
promulgated just one substantive rule. It is time that the NLRB return 
to its main function, which is to act as a quasi-judicial agency. These 
actions by the NLRB further push our government down a dangerous path, 
one in which decisions no longer lie in the hands of those elected by 
the people but by unaccountable bureaucrats sitting in Washington 
disconnected from people.
  For these reasons and many others, I am supporting S.J. Res. 36, and 
I want to encourage my colleagues on both sides of the aisle to stand 
with American employees and employers and to vote to stop the NLRB from 
moving forward with what is a misguided and deeply flawed ambush 
election rule.
  I congratulate the Senator from Wyoming for getting this matter on 
the Senate floor and giving us an opportunity to debate it. This is yet 
another example of an administration that seems to be bent upon 
creating more excessive overreaching regulations, making it more 
difficult and more expensive for American small businesses to create 
jobs and to get the economy growing again. I hope my colleagues will 
join me in voting to stop this from happening.

                          ____________________