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. 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 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.

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