Floor Updates

Blumenthal, Enzi, Harkin

NLRB Ambush Union Elections Rule Resolution of Disapproval (S. J. Res. 36)

Apr 24 2012

11:48 AM

Senator Blumenthal: (11:10 AM)
  • Spoke on the NLRB Ambush Union Elections Rule Resolution of Disapproval.
    • SUMMARY "I consistently hear about problems that exist under the present process for choosing a union. This rule does not determine the outcome. It simply modernizes and improves the process. And it does it by a rule making process that is - rule-making process that is consistent with and pursuant to the administrative procedure act, which is the way that the congress has said it should be done. And in fact, it adopts the rule-making procedure rather than doing it by individual cases, which is the way that the United States Supreme Court and the Courts of Appeals 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're talking about petitions that are submitted by workers who want to form a union and can do so by election when at least 30% 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 minority, small minority of employers, but they exist, that 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, make sure that rights are made real in real-time so 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 part of the process if they wish to do."

Senator Enzi: (11:18 AM)
  • Spoke on the NLRB Ambush Union Elections Rule Resolution of Disapproval.
    • SUMMARY "One of the things I've been checking on here is the statement earlier, one in five people get fired from working on organizing. Checking on it, that's based on a phone survey of union activists for their estimate of employees terminated during an organizing drive. It's not based on fact. And the fact is that unions only filed objections in approximately 1.5% of the elections and that number includes objections based on many issues other than employee terminations. Under the current law, it's 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 - this occurs in about 1% of all elections and has been decreasing in recent years. I would expect that to increase in succeeding years in 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 ten 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. So I have information on some of the studies that have been done on this, and the number doesn't come out nearly that high. Of course it's terrible if there's even one person that's fired for organizing activities. But there is recourse that can be done. I want to raise an important privacy issue that's come up as part of the National Labor Relations Board 's ambush election 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, President Obama's so-called recess appoints have created a full board. Under the current law, employers are required to provide employees' names and addresses within seven 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 two days of an election being set. Of course if we're moving it from 36 days down to 10 days, I would see why they'd want it in 2 days instead of the 7 that's been normal. The information includes all personal phone numbers, cell 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 of information to turn over information. Despite the employee's eligibility may not even be determined at that point. In essence, an employer will be forced to turn over personal information of employees who may not even be in the bargaining unit The threat of this new invasion of privacy is very alarming. The purpose of the information, if so - is so that the union organizers can come to your home, call you, e-mail you, find you outside your work location, catch you before and after a shift. There's no prohibition on how many times the organizers can contact you or at what times. There's no opt out for those employees who do not want to be contacted. 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."

Senator Harkin: (11:25 AM)
  • Responded.
    • SUMMARY SUMMARY "I keep hearing it stated that ambush elections. I want to point out that there is no timetable set in these rules, none whatsoever. So I keep hearing ten days and seven days and all that. just not set. There are no timetables at all. 90% 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 law firm said their attorney told the Wall Street Journal that he thinks the time under these rules would be shaved to between 19 and 23 days. The Vice President of the National Association of Manufacturers said the elections would be held in 20 to 25 days under the new rules. Hardly an ambush election. I want to briefly mention what has to do with the contacting and right of privacy act. Right know the only way that a union can contact people is at their homes, at their homes. The only information that the union is allowed to get after the petition filed is the addresses of the workers, their home addresses. What the board was considered but has not yet implemented is allowing access to e-mail addresses. It seems to me that's a lot less intrusive than going to someone's home. Now, again, it's much harder obviously for a union organizer to go to a home. People are with their children, they're busy. That's more intrusive than e-mailing them. So I would hope that we would look upon a possibility that they might say that they should have their e-mail addresses as less intrusive as going to their home. But that is not part of these rules. They would still have to contact them at their home and the only information that the employer would have to give would be their home addresses. Again, just to keep in mind that what these rules are, they're very modest rules The proposed rules just simply say that we'll have elections and if there is challenges, if there are challenges by the management to who can vote in that election, then those challenges would be held until after the election, and then you see whether or not those individuals so challenged were really part of that unit and could vote or whether they couldn't and whether or not that would even make a difference. Again, if you had 100 people, let's say, that sign a petition to form a union and that was, let's say, 50% of the workers out of 200 and the employer was challenging five of those, well, as it is now, you could challenge those five, have a hearing, appeal the hearing, appeal that and just keep appealing it. Well, what the rules would say is okay, you can say that those five are not part of it. Their balance would be set aside. You have the election. If the election was, let's say, 150-20 that they wanted to form a union, then those five wouldn't make a difference one way or the other. If, however, the election was very close and those five would make a difference, then the election is held in abeyance until such time as it's determined whether or not those five 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."
Senator Enzi: (11:34 AM)
  • Responded.
    • SUMMARY "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 Pierce be able to finalize the more controversial provisions that were previously proposed. This entire rule took under one rule to complete. The National Labor Relations Board introduced the proposed rule on June 22, 2011, and published the final rule only six months later on December 22, 2011. Considering the scope of the rule and how much attention it garnered from stakeholders, it's absurd to think that a federal agency could promulgate a rule that would have such a major effect on all employers in only six months. As evidence of how critical this rules 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's an astounding number. To compare, the board's previous rule making on its notice posting requirements garnered little more than 6,000 comments. On November 30, 2011, the board voted to 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 didn't advance a major policy change without three affirmative votes. This was a major policy change. Never did it without three affirmative votes, whether through rule making or on a case decision. This was 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 Pierce only 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 decided to discard years of board precedent."