Statements On Introduced Bills And Joint Resolutions
Floor Speech
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Mr. ENZI. Mr. President, I thank the Senator from Tennessee, Mr. Alexander, for his comments.
I don't think I have ever heard it put quite as concisely or the timeline explained quite as well as he did. I hope people are paying attention. I hope people take a look at the journal and see exactly how short a timeframe that is for both the employer and the employees.
So I rise to support the resolution of disapproval that would repeal the National Labor Relations Board's ambush election rule.
I again thank my friend Senator Alexander for his leadership as the chairman of the Health, Education, Labor and Pensions Committee and for leading this effort to prevent yet more misguided Federal regulation that will hurt American businesses and employees.
Unfortunately this isn't the first time we have had to fight this rule from the NLRB. When I led the Congressional Review Act resolution to stop this rule in 2012, I truly appreciated Senator Alexander's support and am proud to support him now. I didn't have the votes to pass the resolution in 2012, but we have had some elections and some changes in the Senate since then.
The rule the National Labor Relations Board has proposed would be a tremendous burden on employers, especially small businesses. If this rule goes into effect, it will mean employers will barely have time to meet their preelection legal obligations. It will mean employees will be rushed into an election without time to study and consider what the unionization would mean for them, for their workplace, and for their community. Also, Big Labor will be able to force elections through in order to boost revenue from union dues and increase the influence of Big Labor.
Our economy is already grappling with Federal rules and regulations that hold back businesses. This rule from the National Labor Relations Board will be yet another break, slowing down our economy at a time when we need to encourage employers and businesses to grow. It would be especially harmful to small businesses, which are the backbone of our economy and the most important factor in maintaining our fragile economic growth.
Small businesses that don't have human resource departments and more particularly don't have in-house legal counsel already face a significant burden when they have to navigate union elections. This rule would only make it harder. This rule would hurt businesses for the sole purpose of helping unions that don't need it.
Union elections are supposed to be held in a timely and fair manner, which is what the current system achieves. The average time between filing an election petition, as has been mentioned, and holding the vote is 38 days, and nearly all elections happen within 2 months.
That process allows employers to understand their rights and meet their legal obligations. It allows employees to educate themselves about what unionization means for them personally and for their work, and it ensures that union elections will be a fair opportunity for workers to decide whether to organize.
Under the current system there is a 25-day waiting period between the setting of an election and the actual secret ballot election. That window of time is crucial. Employers use that time to understand their rights and restrictions in the process and to meet their legal obligations.
The union election process is not simple, nor is it straightforward for employees. There are numerous places where a well-meaning employer working to meet their obligations could misstep and face heavy penalties from the National Labor Relations Board.
Employers also use this time to communicate with their employees about the decision they are making and to clear up misstatements, rumors or falsehoods that have been going around.
The time between petitioning for election and voting is also used for parties to study decisions by hearing officers or the National Labor Relations Board's regional director and ask for clarification or review.
Under the National Labor Relations Board's rule, all the opportunities for anyone involved with the process to understand their legal obligations, to exercise their rights, to study or debate the arguments for or against unionization or even to learn about the issue would be squeezed into as little as 14 days.
Is it fair for an employee to only have 10 days to learn how his or her vote will affect the rest of their time with that employer--we have to remember they are going to be working during that time probably--or how much money membership in a union is going to cost them or what it means for their ability to negotiate directly with their employer for raises or other benefits or concerns or any of the countless other issues an employee might want to approach his or her employer about?
Under current law, both parties are able to raise issues about the election at a preelection hearing, covering such issues as which employees should be included in the bargaining unit and whether particular employees are actually supervisors.
Under the new regulation, parties will be barred from raising these questions until after the election. Employees will be forced to vote without knowing which other employees will actually be in the bargaining unit with them. This is important information that weighs heavily in most employees' votes.
Under current law, when either party raises preelection issues, they are allowed to submit evidence and testimony, and file post-hearing briefs for the hearing officer to consider, and then they have 14 days in which to appeal decisions made with respect to that election.
Under the new regulation, the hearing officer is given the broad discretion to bar all evidence and testimony unrelated to the question of representation and all post-election briefs and no appeals or requests for stays are allowed. This could be quite a disadvantage for employees as well as employers.
What this all adds up to is an extremely small window of time for filing the petition to the actual election, little opportunity for employers to learn their rights or communicate with their employees their rights, and less opportunities for employees to research the union and the ramifications of forming the union.
The NLRB is ensuring that the odds are stacked against the employees and the businesses. This vote is an opportunity to tell the National Labor Relations Board to reverse course.
I hope this resolution will convince the National Labor Relations Board to pull back from this disastrous rule and encourage them to focus on their statutory mission rather than overturning decades of settled practice that ensures that this process is held in a timely manner and that there is a fair opportunity for all sides to understand, to participate, and to exercise their rights.
The NLRB's purpose is to enforce the National Labor Relations Act, which is a carefully balanced law that has only rarely been changed. When changes have occurred, they have been the result of careful negotiations, with input from stakeholders and thoughtful debate.
The NLRB is attempting a sneak attack through the rulemaking process. This is an ambush on the National Labor Relations Act to set up ambush elections.
The National Labor Relations Board is an agency that has historically issued very few regulations. Most of the questions that come up under the law are handled through the decisions of the Board. Board decisions often do change the enforcement of the law significantly, but they are issued in response to an actual dispute and a question of law.
In contrast, the ambush election is not a response to a real problem because the current election process for certifying whether employees want to form a union is not broken. The rule was not carefully negotiated by stakeholders, it was not made with careful debate, and there was no attempt to reach a consensus.
In the late 1950s Congress worked to pass the Landrieu-Griffin Act, which protected the rights of both rank-and-file union members and their employees. This was a carefully constructed piece of legislation that came out of a special committee to study the issue, that heard from more than 1,500 witnesses over 3 years.
And Congress debated the issue of how long a period of time there should be between the request for an election and the actual election coming up during those negotiations.
My colleagues may be surprised to learn--although they wouldn't if they were listening to the previous two speeches--that it was Senator John F. Kennedy who argued vigorously for a 30-day waiting period prior to the election. He said:
There should be at least a 30 day interval between a request for an election and the holding of an election ..... in which both parties can present their viewpoints. ..... The 30 day waiting period is an additional safeguard against rushing employees into an election where they are unfamiliar with the issues.
Again, that was a quote by Senator John F. Kennedy, speaking directly to the need for fairness to employees. The 30-day waiting period provision he supported did not ultimately become part of the law, and obviously it is not a law today. Instead, the NLRB adopted the practice of a 25-day waiting period in almost every case.
This caution about the need for employees to have a chance to become familiar with the issues is just as true today. Employees who are not aware of the organizing activity at their worksites and even those who are need to have an opportunity to learn about the union they may join. They will want to research the union to ensure it has no signs of corruption. They will want to know how other worksites have fared with this union and whether they can believe the promises the union organizers may be extending. Employees should have every chance to understand the impact of unionization. Four decades ago Senators recognized that employees deserved the opportunity to gather this and all other relevant information before casting their votes. Unfortunately, the NLRB is choosing to ignore this caution, and rank-and-file employees will suffer.
This situation is exactly what the Congressional Review Act was intended for. When an agency goes too far and tries to impose rules and regulations that are unnecessary or harmful--in this case, both--the Congressional Review Act gives Congress an expedited process for repealing that regulation. It is a process that cannot be held up and cannot be stalled or put off to ensure that Congress can act when it needs to stop an out-of-control agency.
By any measure, the current law and certification system for union elections ensures that the process is fair for all parties and that all parties have the opportunity to exercise their rights and to fully understand the implications. The National Labor Relations Board has not made the case that elections are being held up or stalled. They cannot make the case because the data doesn't support it. I want to repeat. The National Labor Relations Board has not made the case that elections are being held up or stalled. They cannot make that case because the data doesn't support it. There is no need for this rule, which is just a handout to Big Labor, which relies on pushing unions forward before businesses and employees have a chance to study and understand the full effects.
This resolution will preserve the fairness and swift resolution of claims which occur under current law. It will not disadvantage unions or roll back any rights. It is important to say that again because there is going to be a lot of misinformation about what this resolution does. This resolution does not disadvantage unions or roll back any union rights. What it does is it ensures that small business employers and employees in America are not unfairly disadvantaged by a burdensome process and that employees are not misled with insufficient or incorrect information during the union election process.
The PRESIDING OFFICER. The Senator's time has expired.
Mr. ENZI. Mr. President, I ask unanimous consent for 1 additional minute.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. ENZI. Under a successful Congressional Review Act disapproval, the agency in question is prohibited from issuing any substantially similar regulation. That means the National Labor Relations Board could not just reissue this regulation again and again, as they have currently done.
I encourage my colleagues to support this resolution to ensure that the National Labor Relations Board understands that this rule is a no-go and that we will stand up to ensure a fair process.
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