Providing for Congressional Disapproval of the Rule Submitted by the NLRB Relating to Representation Election Procedures -- Motion to Proceed

Floor Speech

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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 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 worksite 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 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.

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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 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.

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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.

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.

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