Speeches & Floor Statements

Floor Remarks of U.S. Sen. Lamar Alexander (R-Tenn.) -- Job Protection Act, the NLRB, and Electric Vehicles

Posted on May 26, 2011

Mr.?President, last month the Acting General Counsel of the National Labor Relations Board (NLRB) filed a complaint against the nation's largest exporter, the Boeing company -- a company with 170,000-some employees, 150,000 of which in the United States, who sells airplanes around the world and makes them in the United States. The complaint basically said there was prima facie evidence of illegal discrimination because Boeing has decided to expand and build a production plant in South Carolina. Boeing's main operation is in Washington State, a State without a right-to-work law. In contrast, South Carolina is a State with a right-to-work law. This is notwithstanding the fact that Boeing has already added 2,000 employees in Washington State since announcing its expansion. At the same time, it has nearly finished this new plant in South Carolina, spending $1 billion, hiring 1,500 construction workers and over 500 employees to work in the facility. Then, all of a sudden, here comes this complaint.

This is not just a South Carolina matter. It affects the entire country and many of us have spoken out about it. I want to review it just for a moment.

This complaint against Boeing is just one indication of the Administration's anti-business, anti-growth, and anti-jobs agenda. That is why Senators Graham, DeMint, and I -- actually there are 35 Senators who are cosponsoring this bill -- have introduced the Job Protection Act, to protect right-to-work states and employers from an independent government body run amok.

Our bill preserves the Federal law's current protection of state right-to-work laws in the National Labor Relations Act and provides necessary clarity to prevent the NLRB from moving forward in its case against Boeing or attempting a similar strategy against other companies.

Now it seems the NLRB wants to change the rules governing how and when a company can relocate from one State to another. According to a May 10 internal memorandum from the NLRB General Counsel's Office, they want to give unions power over major business decisions and require companies, such as Boeing, to collectively bargain if it wants to relocate a facility.

As was explained by James Sherk, a senior policy analyst in labor economics, and Hans A. Von Spakovsky, a senior legal fellow at the Heritage Foundation, in a recent article in National Review Online:

NLRB wants to force companies to provide detailed economic justifications (including underlying cost or benefit considerations) for relocation decisions to allow unions to bargain over them -- or lose the right to make those decisions without bargaining over them....Either way, businesses would have to negotiate their investment plans with union bosses.

Sherk and von Spakovsky describe this as a "heads I win, tails you lose" scenario for unions. These decisions belong in the corporate boardroom, not at the collective bargaining table.

The goal of this NLRB is to place the interests of organized labor over those of business, shareholders, and economic growth. Their means is to change well-established law governing business decisions under the National Labor Relations Act.

The Supreme Court has reasoned that "an employer must have some degree of certainty beforehand as to when it may proceed to reach decisions without fear of later evaluations labeling its conduct an unfair labor practice. Under the Dubuque Packing case and subsequent NLRB jurisprudence, a company may make a major business decision, such as relocation, outside of collective bargaining. Accordingly, the burden is initially on the NLRB's General Counsel to establish that an employer's decision to relocate work is unaccompanied by a basic change in the nature of the employer's operation, such as being part of an overarching restructuring plan.

The Dubuque test was most recently applied by the NLRB in holding that an employer, Embarq Corporation, did not violate the law by refusing to provide information about or bargain over a planned relocation of its Nevada call center to Florida. Both of those happen to be right-to-work States, as Tennessee is.

In a concurring opinion, NLRB Chairman Lieberman expressed her desire to change the rules governing relocation decisions and collective bargaining. The Chairman noted her displeasure that, in her words, "the law does not compel the production of" information fully explaining the underlying cost or benefit considerations of a company's relocation decision. The Chairman then suggested requiring employers to provide unions with economic justification wherever there was a "reasonable likelihood" that labor-cost concessions might affect an impending decision to relocate.

In practice, the burden would shift to the employer, before making its relocation, to advise and explain to its union the basis for its decision, supported by detailed economic justification. Then, if it does turn on labor costs, the employer would be required to provide the union with information supporting the labor cost/savings underlying its decision. If the employer failed to provide such information and labor costs were a factor, it would be precluded from making those decisions without collective bargaining.

Following this decision against Embarq Corporation, the NLRB Associate General Counsel issued an internal memorandum on May 10 suggesting that Chairman Lieberman's new test should now be examined and considered in all cases concerning relocations that come before the board.

Now, I am all for requiring employers to provide advance notice to their labor organizations and offering the economic reasons for a proposed relocation, a shutdown, or a transfer of existing or future work. Providing notice and reasoning is already required under existing law and jurisprudence. We included this in our Job Protection Act to make sure the spirit of the law was maintained. But, what the NLRB and Associate General Counsel are now proposing goes much further, changes understood law, and places an unreasonable burden on employers.

As was observed by Sherk and Spakovsky, this new test would raise the costs to businesses by dragging on collective bargaining, by preventing them from legally executing a decision that is in the best interests of their shareholders until bargaining hits an impasse, and by forcing them to provide detailed economic justification and negotiate their investment plans with union bosses before having the right to execute a relocation plan. Effectively, it would give a union a seat at the board of directors through the force of law and tip the scales of justice in their favor. If employers do not comply, then they will lose the right to later claim their relocation decision did not have to be collectively bargained under the National Labor Relations Act.

So as with the NLRB Acting General Counsel's action against Boeing, this potential new posture by the Office of the General Counsel represents a departure from well-established law. They do not like the outcome, so they want to change the rules and give unions greater leverage over their employers, who provide the jobs in the first place. They are more concerned about producing outcomes that facilitate the collective bargaining process, rather than those that foster economic growth, exports, and jobs.

Those decisions are best left to the owners, officers, shareholders, and directors of businesses, not organized labor or the Federal Government. This potential change in well-established law would be another blow to manufacturing growth and expansion in the United States and further incentive for manufacturers to expand or open a new facility in Mexico, in China, or in India to meet their growing need.

Republicans are not the only ones who are outraged by the direction the NLRB seems to be headed. William Gould, who chaired the NLRB during the Clinton administration, was recently quoted in Slate magazine expressing his unease with the board's action. Specifically, he said, "The Boeing case is unprecedented," and he "doesn't agree with what the [Acting] General Counsel has done [by]...trying to equate an employer's concern with strikes that disrupt production and make it difficult to meet deadlines...with hostility toward trade unionism." That is the Clinton Administration’s NLRB General Counsel.

Coming back to the Boeing issue, which is set to be heard by an administrative judge on June 14, recent comments in the press from an NLRB spokeswoman shed further light on how the board’s agenda flies in the face of the very concept of capitalism.

On May 19, various press outlets quoted this spokeswoman suggesting that the NLRB Acting General Counsel would drop his case against Boeing if the company agreed to build 10 planes in Washington, rather than 7. Specifically she said:

We are not telling Boeing they can't build planes in South Carolina. We are talking about one specific piece of work: three planes a month. If they keep those three planes a month in Washington, there is no problem.

So they can build planes in South Carolina, just not the three they had planned. So now the Federal Government or the NLRB is sitting on Boeing's board and determining the means of production for American industry while the economy continues to struggle. In Tennessee, we have had 24 months of 9 percent unemployment.

Our job is to make it easier and cheaper for the private sector to create jobs. The NLRB is not acting in the best interests of American workers through its continued attempts to depart from well-established law and dictate integral business decisions to companies.

I ask unanimous consent to have printed in the Record a memorandum from the Associate General Counsel of NLRB, dated May 10, as well as an article from National Review Online, dated May 16.

Mr. President, Senator Corker and I had the privilege of being in Chattanooga, Tennessee on Monday for the opening of Volkswagen's North American plant. It was a great day for our country. Here is a major global manufacturer making in the United States what it plans to sell in the United States. We salute Volkswagen. I salute Chattanooga and Tennessee. One-third of the manufacturing jobs in our State are auto jobs. There was a new Volkswagen Passat that gets 43 miles a gallon. That is good news for Americans who are paying $4 or more a gallon for gasoline.

But as I was there at that celebration for these new fuel-efficient cars, and earlier this week at a hearing of the Energy Committee, I was thinking: What if I were to say to you or to anyone I might see, while you are worrying about $4 gasoline: Did you know that we have enough unused fuel sitting over here, that is not oil, to power 40 percent of our light cars and trucks at a lower cost?

That is right. We have enough unused power every night to power 40 percent of our light cars and trucks. Every night. We can do that by simply plugging them into the wall. I am talking about electric cars and light trucks that almost every major manufacturer is now beginning to make, and we do not have to build one new powerplant to do it.

Last week Senator Merkley and I appeared before the Energy Committee to talk about our legislation, the

Promoting Electric Vehicles Act. I said to the Committee: The main differences between the bill this year and the one the Committee reported last year by a vote of 19 to 4, a good bipartisan vote, is that the price of gasoline is higher than it was last year and our bill costs less than it did last year.

Encouraging electric vehicles is an appropriate short-term role for the Federal Government. Our legislation establishes short-term incentives for the wide adoption of vehicles in 8 to 15 pilot communities. Our legislation advances battery research. The $1 billion that we save relative to last year’s bill, we save by avoiding duplicating other research programs.

Finally, if you believe that the solution to $4 gasoline and high energy prices is finding more American energy and using less of it, as I do, electric cars and trucks are the best way to use less.

Electrifying half our cars and trucks can reduce the use of our foreign oil by one-third, saving money on how we fuel our transportation system and cutting into the billions of dollars we send overseas for foreign oil. So instead of making the speech for the rest of my time, let me tell a short story. It is a story of Ross Perot, the famous Texan, and how he made his money.

Back in the sixties, he noticed that the big banks down in Dallas were locking their doors at 5 o'clock, and the banks had all of these big computers in the back room, and they were locking them up too. They were not using them at night.

So Mr. Perot made a deal with the banks. He said: Sell me your unused computer time. And they did at cheap rates. Then he went to the States and talked to the Governors -- this is before I was a Governor -- and he made a deal with the States to use that cheap computer time to manage Medicaid data. He made $1 billion.

In the same way, we have an enormous amount of unused electricity at night. A conservative estimate is that we have an amount of energy that is unused at night that is equal to the output of 65 to 70 nuclear power plants between 6 p.m. and 6 a.m. If we were to use that resource to plug in cars and trucks at night, we could electrify 43 percent of our cars and trucks without building one new powerplant. It is a very ambitious goal, to imagine electrifying half our cars and trucks. It would take a long time to do it, but it is the best way to reduce our use of foreign oil.

I suspect that is the greatest unused resource in the United States. What if someone proposed building 60 or 65 nuclear powerplants. Actually, I proposed building 100. But if we tried to build 60 or 65 more, it would take us 30 or 40 years and cost us $1/2 trillion. That is if we could even do it.

Another reason I think this will work is because it is easy for consumers, and I am one. For 2 years, I drove a Toyota Prius, and it had an A123 battery in it. I increased my mileage to about 80 or 90 miles a gallon. I just plugged it in at night at home. Very simple. I now have a Nissan Leaf. It is all electric. I have an apartment nearby the Capitol. I just plug it in at night. I don’t even have a charger. I just plug it into the wall, and I can drive it about 2 hours every day and plug it in at night. I have not bought any gas since January, since I got my Leaf in Washington, DC.

I have had no problems, either with the modified Toyota Prius that I drove for 2 years, or with the Nissan Leaf that I have driven now for about half a year. Almost every car company is making electric cars today or will soon have them on the market.

So if the extra electricity is available -- and electric vehicles are easy to use, and car companies are making them, then why do we need for the government to be involved? That is a good question. For one thing, it is the urgency of the problem: $4 gasoline is killing our economy. It is throwing a big wet blanket over it.

The only solution is find more, use less. This is the best way to use less. To my Republican colleagues, I have said before our Committee, and I would say today what we have been saying for 3 years in our caucus: Find more and use less.

We have criticized Democrats for wanting to use less without really wanting to find more, and we are subject to the same criticism if we want to find more -- which I think we should -- offshore, on Federal lands, and in Alaska, and then we do not have a credible way to use less. Electric cars and trucks are the best way to use less.

Another criticism is that our bill interferes with the marketplace. It does, but in a short-term and limited way. Short-term incentives for new technologies -- to jump-start nuclear energy, to jump-start natural gas truck fleets, to jump-start electric cars and trucks in 4 to 5 years -- I think are appropriate, given the urgency of the problem. If I am here in 5 years, I will be the first to say this should be the end of it. If I am not, I will come back and argue for its repeal.

Finally, conservative groups across the country have said national security demands that we do this.

Gary Bauer, president of American Values, as well as Richard Land, president of the Ethics and Religious Liberty Commission, endorsed our bill last year, saying that national security concerns overwhelm any opposition to it, and it is the best way to displace our use of oil. That was them talking.

Can we afford it? Well, our proposal is $1 billion cheaper, it’s an authorization bill, and we should be setting priorities.

There’s some suggestion that this committee should also appropriate the money. I would respectfully suggest that we’re in a two-year period where we have no earmarks because authorizers didn’t like appropriators authorizing. Well, let’s be consistent and say to authorizers, ‘You shouldn’t be appropriating.’ Let’s just do the job of authorizing. Senator Merkley and I have agreed that we will not try to pass this bill when it comes to the floor unless we can agree to do it in a way that does not add to the debt.

So, in summary, I would say it is time to address $4 gasoline and high energy prices. To do that, we need to find more American energy -- offshore, on Federal lands, and in Alaska -- but we also need to use less. The single best way to use less is to jump-start the use of electric cars and trucks. Electricity is just a delivery system. The fuel comes from a whole variety of things: natural gas, coal, and other things.

So we jump-start the use of that huge resource that we have just sitting there unused every single night. Our committee approved this bill once before. The problem is worse today than it was when they approved it last year. The bill costs less than it did when they approved it last year. It is an appropriate role for the Federal Government. We will work to make sure if this body were to pass it that it does not increase the debt.

I urge my colleagues to report the bill to the floor and to consider encouraging electric cars and trucks as the single best way to use less energy and reduce the use and reduce the cost of gasoline.

I thank the Senator from Alabama for his courtesy and for listening to my remarks.