Speeches & Floor Statements
Posted on September 16, 2014
Today, I am introducing the NLRB Reform Act with Senator McConnell. Our legislation is very simple. It will change the NLRB from an advocate to an umpire. That is the role the National Labor Relations Board was always supposed to have. The Board was created 79 years ago to act as an impartial umpire in labor disputes that threaten the free flow of commerce.
The Board's decisions affect millions of private sector workers. But over time the Board has become an advocate for one interest group or the other, changing positions with each new administration.
There are three significant problems the Board faces today:
Number 1: The biggest problem is partisan advocacy. Today the majority of the five-member Board is made up of appointees who follow President Obama's political leanings. President Obama has appointed three labor union leaders to the Board.
Number 2: The Board also has a freewheeling advocate for its general counsel. The Board's most recent general counsels have been exceeding their statutory authority and bringing questionable cases that threaten American jobs and threaten sending overseas manufacturing jobs that we need to keep here.
Number 3: The National Labor Relations Board has been slow to resolve disputes. Last year 109 cases – that is 30 percent of the Board's caseload – were pending for more than a year.
Occasionally someone will say to me, “If Republicans were to win the Senate, what would Republicans do?”
What we would do is try to come up with sensible proposals that lead us in the right direction, proposals that have so much commonsense that they attract the support of enough Democrats and the House of Representatives and the President to become law. This is one such proposal.
Our bill provides three solutions to the problems I identified:
Number 1: It would end partisan advocacy on the National Labor Relations Board. The Board would become a six-member board of three Republicans and three Democrats, and a required majority of four will force both sides to find a middle ground.
Number 2: It reins in the general counsel. Businesses and unions would be able to challenge complaints filed by the general counsel by taking them to the federal district court, and they will have greater transparency about the basis and legal reasoning for the charges brought by the general counsel.
Number 3: Our legislation would encourage timely decisions. First, either party in a case before the Board may appeal to a federal court of appeals if the Board fails to reach a decision in 1 year.
Second, funding for the entire NLRB would be reduced by 20 percent if the Board is not able to decide 90 percent of its cases within one year over the first 2-year period following reform.
Our bill would offer these solutions without taking away one single right, one single remedy from any employee, business, or union.
With each new administration, the pendulum at the NLRB has swung further from the middle, further away from being an umpire. The result is that labor policy whipsaws back and forth, taking employees and employers for a wild ride. This has happened under most administrations, but it has been worse under the current administration. The minority leader mentioned several of those examples.
Under the partisan advocacy of today's National Labor Relations Board, workers are losing their right to privacy. The Board is embarking on a regulatory effort to expand requirements that employers give employees’ names and addresses to union organizers. The Board wants more personal information about these employees to be given to the organizing union, including telephone numbers, email addresses, the employee's work location, the employee's shift, the job classifications. They propose doing everything but attaching a GPS to the lapel of each employee.
In my state of Tennessee, for example, we have had an ongoing organizing effort in the Volkswagen plant in Chattanooga. In a secret ballot election last February, employees at the Volkswagen plant said, “We don't want a union; we don't need a union.” So 712 to 626 they rejected the United Auto Workers' bid to unionize the plant. Imagine if you were one of those 712 employees who voted against unionizing. Now organizers can get your private email address and all of this other personal information.
Here is another example. Factions of employees within single stores now have a path to forming their own unions. In 2011, the Board suddenly adopted a new way to define what makes a local union bargaining unit. The Board changed the law so that any group of employees with an overwhelming community of interest could become a bargaining unit and therefore a union. At the same time, the Board is moving a regulation to limit the employer's ability to question which employees should be in a bargaining unit. This allows a union to cherry-pick employees who will be most likely to support forming a union.
How has this worked in the real world? Here is an example. The Board just approved a bargaining unit for cosmetic and fragrance employees in a Macy's department store – not the shoe salespeople, not the lady's fashion employees, not the junior's department, just cosmetic and fragrance. Imagine if every department of Macy's decided to form a union. The employer would have dozens of different groups to negotiate with, and the different unions would be fighting each other over who got the better raises and break rooms in terms of employment.
During this administration the NLRB has ruled that common employment policies are unfair labor practices, such as – and Senator Scott brought this up at a hearing the other day – the NLRB has said that an employer may not have a policy that requires employees to be courteous to customers and fellow employees, or prohibiting employees from making negative comments about the business that employs them on social media or selecting arbitration for employment disputes.
Our solution: Senator McConnell and I would solve this by requiring a six-member board of three Republicans and three Democrats. Like the Federal Election Commission, a majority of four will require both sides to find a middle ground.
Here is the second problem: The Board's general counsel is acting like a freewheeling advocate, stretching labor law to its limits and sometimes beyond its limits. For example, in 2011, the general counsel moved to stop Boeing from building new airplanes at a nonunion plant in South Carolina. The general counsel to the NLRB jeopardized a $1 billion factory and hundreds of jobs with this move, but even worse, he tried to make the case that a unionized American company can't expand its operations into one of the 24 states, such as Tennessee, with right-to-work laws which protect a worker's right to join or not to join a union. The general counsel eventually withdrew this outrageous complaint against Boeing, but if it had set a precedent, jobs would have fled overseas as manufacturers look to find a competitive environment in which to make and sell cars around the world.
We want to make sure manufacturers such as Boeing, Nissan, and General Motors can have a competitive environment in the United States in which they can make airplanes and cars and other goods and sell them around the world. We do not want them making them in Mexico or Japan or Europe or somewhere else because we have undermined right-to-work laws. Our solution would allow employers and unions to challenge complaints filed against them by the general counsel in federal court and give employers and unions new rights to learn the basis and legal reasoning of charges filed against them by the general counsel.
Finally, the NLRB is taking too long to resolve cases. For example, one case has been pending at the Board for more than seven years. The case involves the question of whether an employer has to allow labor union organizers access to private property.
Our solution: Senator McConnell and I encourage a timely resolution of cases, first, by allowing either party to appeal to a federal court of appeals for a de novo, or fresh, review if the Board fails to reach a decision on the case within one year. To further incentivize timely resolution, we include the threat of a 20-percent budget cut with the Board if 90 percent of the cases are not decided within a year.
In conclusion, while the increasing partisanship of the Board has appeared in Republican administrations as well as Democratic administrations, it has reached a climax in this administration. Three of this president's recent nominees came from major labor unions' leadership. One law professor at a major university said she can't use the most recent labor law textbook. The decisions changing the law are coming out so rapidly and the NLRB is venturing into new territory with these efforts at rulemaking. This is no way to maintain a national labor law policy.
Our plan, the NLRB Reform Act, will, first, end partisan advocacy; second, rein in the general counsel; third, it will encourage timely decisions. Our bill would offer these solutions without taking away one right or one remedy from one employee, one business, or one union. I hope my colleagues will carefully review this proposal and consider cosponsoring the NLRB Reform Act.
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