Speeches & Floor Statements

Floor Speech: NLRB Ambush Election Vote

Posted on March 3, 2015

I have come to the floor today to discuss the Congressional Review Act resolution that Senator McConnell, the Republican leader, Senator Enzi, the senator from Wyoming, and I have filed to stop a new National Labor Relations Board rule. Last December, the National Labor Relations Board issued a final rule that shortened the time between when pro-union organizers ask an employer for a secret ballot election and when that election actually takes place.

I refer to this as the “ambush election rule,” because it forces a union election before an employer has the chance to figure out what is going on. Even worse, it jeopardizes employees’ privacy by requiring employers to turn over employees’ personal information, including email addresses, phone numbers, shift hours, and locations to union organizers.

This action by the National Labor Relations Board, which increasingly has become a union advocate instead of umpiring disputes between employees and employers, has attracted enormous attention across this country. I have letters from the U.S. Chamber of Commerce, the Coalition for a Democratic Workplace, the National Council of Chain Restaurants, the National Retail Federation, the Retail Industry Leaders Association, Associated Builders and Contractors, the American Lodging and Hotel Association, HR Policy Association, the National Association of Manufacturers, the Society for Human Resource Management, the Associated General Contractors of America – 173 total organizations that have registered their deep concern about this ambush election rule.

Senator Enzi is already on the floor. He has for many years fought this battle. We want the American people to understand why the ambush election rule is such a bad idea, why it is so unfair to employers, forcing them to have a union election before they can figure out what is going on. For the same reason, it is unfair to employees. Employees have to vote in a union election before they have a chance to hear both sides.

Here is how the procedure will work. If a majority of the Senate approves this resolution, it will then go to the House for a vote. If it passes both chambers, the president can veto the resolution. It will take two-thirds of the Senate to override that veto.

If the NLRB’s new rule is disapproved, the Board cannot issue a substantially similar rule without congressional approval. The question I would ask is: What is the rush? What is the problem here? Today, more than 95 percent of union elections occur within 56 days of the petition filing. But under this new rule, elections could take place in as few as 11 days. This rule will harm employers and employees alike. If you are an employer that is ambushed by that 11-day election, here is how it works:

On day one, you get a faxed copy of an election petition that has been filed at your local NLRB regional office stating that 30 percent of your employees support a union. The union may have already been quietly trying to organize for months without your knowledge. Your employees have only been able to hear the union’s point of view. By day two or three, you must publicly post an election notice in your workplace. If you communicate to your employees electronically, you have to publish the notice online as well. By noon on day seven you must file with the NLRB what is called a statement of position. This is a comprehensive document in which an employer sets out legal positions and claims in writing. Under the NLRB’s new rule, you waive your rights to use any legal arguments not raised in this document. So it should be pretty obvious that by day seven you will have to have a lawyer on hand. You probably need that lawyer on hand on day two, and hopefully on day one, because if you make any mistakes in the lead-up to the election, the NLRB might set aside the result and order a rerun election. Worse, if a bigger mistake is made, it could require an employer to automatically bargain with the union.

Now think about the real world. At our hearing before the Health, Education, Labor, and Pensions Committee, a representative of the National Federation of Independent Businesses testified. She said there are 350,000 independent business owners in the NFIB, with an average of 10 employees. So you have small businesses all over America. They do not sit around with labor lawyers; they do not have money to hire labor lawyers. They are expected to know in a day or two exactly what to do about a complicated petition before the NLRB because of this ambush election rule that could cause the election to happen within 11 days.

On day seven, you must also present the union and the NLRB with a list of prospective voters as well as their job classifications, shifts, and work locations.

Now if you are a business with five, six, seven, eight employees, you are going to be spending your time working on this union matter. Your customers might want your services. They might want on-time deliveries. All of a sudden, you are running around trying to find a labor lawyer, trying to avoid making mistakes, so you can deal with this ambush election.

On day eight, a pre-election hearing is held at the NLRB regional office and an election day is set. By day ten, the employer must present the union with a list of employee names, personal email addresses, personal cell phone numbers, and home addresses. You have to hand this information over, even if the employees object.

Day 11 is the earliest day on which the NLRB can conduct the election under the new rule. The union has the power to postpone an election by an additional ten days, but the employer has no corresponding power. The union has ambushed the employer and has the power to postpone the election, but the employer has no similar right.

Under this new NLRB rule, before the hearing on day eight, an employer will have less than one week to do the following things:

Figure out what an election petition is. For most of those hundreds of thousands of small businesses with five, six, eight employees, they might have no idea what it is.

Find legal representation. Finding a lawyer is not just a matter of looking in a phone book, it is a matter of finding a lawyer with whom you are comfortable, whom you trust, and whom you know has some ability. That may take a while, particularly if you are not a large company and you are not accustomed to labor relations litigation.

Determine legal positions on the relevant issues – learning what statements and actions the law permits and prohibits.

Communicate with employees about the decision they are making.

Correct any misstatements and falsehoods that employees may be hearing from union organizers. As I mentioned earlier, making even the slightest mistake in the lead-up to an election can result in the NLRB setting aside the results and ordering a rerun election, or worse, when a bigger mistake is made, the Board could require an employer to automatically bargain with the union.

But it is the employees who stand to lose the most under the new rule. First, some of the employees may know what is going on before the union files its notice of an election. But all of the employees do not have a chance to hear both sides of the issue in an ambush election. Second, because of the ambush, employees may have only heard half the story. Only 4.3 percent of union elections occur more than 56 days after the petition is filed. The current median number of days between the filing of an election is 38 days. These figures are well within the NLRB’s own goals for timely elections.

The unions won 64 percent of elections in 2013. In recent years the union win rate has actually been going up. What is the rush? Why is 38 days too long? It is well within the NLRB’s own goals and unions are winning more elections than they lose.

Let’s turn to 1959, when a former member of this body, Senator John F. Kennedy, warned against rushing employees into elections in a debate over amendments to the National Labor Relations Act. This is what he said:

There should be at least a 30-day interval between the request for an election and the holding of the election in which both parties can present their viewpoints – Senator John F. Kennedy, April 21, 1959.

If Senator Kennedy thought 30 days was approximately right, if 38 days is the mean today, and if that is within the NLRB’s own goals, why the rush? Why the push for an ambush election? Why have an election that can be set in 11 days before employers and employees know what is going on?

When a workplace is unionized, especially in a state that has no right-to-work law, employees have dues money taken out of every paycheck whether they like it or not. They lose the ability to deal directly with their employers to address concerns or ask for a promotion or a raise. Instead, employees have to work through the union. Important considerations, such as which of their fellow employees will be included in a bargaining unit, will no longer be determined before the election. As the two dissenting members of the NLRB put it when this rule was decided: Employees will be asked to “vote now, understand later.”

I wish to emphasize what the employees are losing, in addition to the opportunity to fully understand the election before them. Employees are losing their privacy, because the rule requires employers to hand over employees’ personal email addresses, cell phone numbers, shift hours and locations, job classifications, even if the employees have made clear they do not want to be contacted by union organizers.

Some on the other side say, “It is the modern age.” But I would say that in the modern age our privacy is assaulted from every side. We should be even more careful about rushing an election and releasing personal information. Employers should not have to hand over employees’ personal email address, cell phone numbers, shift locations, and job classifications just because a petition is filed by 30 percent of the employees. Many employees may have no interest in creating a union.

This rule appears to be a solution in search of a problem. It is clear to see it is wrong, and that is why Senators Enzi, McConnell, and I are asking the Senate to disapprove it today and prohibit the NLRB from issuing any similar rule.

I will come back to the floor during our debate time to talk about how this rule is part of the National Labor Relations Board’s attempt to become more advocate than umpire. That is the reason Senator McConnell and I have introduced legislation that would change the National Labor Relations Board back from an advocate to an umpire by doing three things. First, it would end partisan advocacy by creating a six-member board of three Republicans and three Democrats where a majority would require both sides to find middle ground. Second, the legislation would rein in the general counsel. Businesses and unions would be able to challenge complaints filed by the general counsel in Federal district court. Third, it would encourage timely decisions. Either party in a case before the Board may appeal to the federal court of appeals if the Board fails to reach a decision within one year.

When I come back to the floor I will also talk about the joint employer standard and the NLRB’s decision to destroy more than 700,000 American franchise businesses. These men and women operate health clubs, barbershops, auto parts shops, childcare centers, neighborhood restaurants, music stores, cleaning services, and much more.

Combine the attack on franchises with the ambush election rule and an NLRB decision allowing micro-unions—where unions target small units in a large company—and we see there is a consistent trend by unions and their friends in the NLRB to tip the balance in ways never intended by the creators of the National Labor Relations Act.

The National Labor Relations Board is supposed to be an umpire, not an advocate. If there ever was an example of unfairness and tipping the balance in a single direction, it would be the ambush election rule. The rule allows union organizers to ambush an unsuspecting company and force an election in 11 days – before the employer and its employees have time to figure out what is going on.

In conclusion, I think Senator Kennedy's advice is good advice to follow. Much has changed since 1959, but fairness, balance, and giving everyone a chance to have an opportunity to know what is going on have not. Senator Kennedy thought 30 days was about right, and 38 days is the mean today. This ambush election rule would reduce it to 11.

That is the wrong thing to do, and I hope the majority in the Senate agrees with me on that. I hope the House agrees with us on that. I hope the president will agree with us on that. If he vetoes it, as he has said today he will, then I hope a majority of both parties will speak up for employers and employees in the United States and say no ambush elections for us.

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My good friend from New York just spoke. We have worked together on a number of things. He talked about the middle class. I think he is right to talk about the middle class and the effect of the National Labor Relations Board on the middle class.

Let me give a little bit different perspective on it. My problem with this NLRB is that it is not acting like an umpire between employers and employees, it is acting like an advocate for the unions. It did so in 2011 with the micro-union decision. It is doing so with the ambush elections rule, going against the advice of Senator John F. Kennedy in 1959, who said 30 days seemed like a fair time to give employees to consider whether to have a union.

They are ambushing employers – it’s like riding through a canyon and suddenly people start shooting at you. In just 11 days – we have hundreds of thousands of small businesses across the country that are trying to work, sell their goods, make a living, improve their status. That is the middle class we talked about.

Say you have five employees, say you are down in Maryville, Tenn., or Wichita, Kan., the last thing on your mind is a labor lawyer. Here comes an election in 11 days. Suddenly small businesses have to find and pay a labor lawyer. They need legal advice at every step because in as few as 11 days they might have an election. There is no need to rush into an election that rapidly other than to give union organizers an opportunity to force a union election before the employer and its employees know what is going on.

Let me give one more example of the assault on the middle class that I see from this NLRB and our friends on the other side. In every community in America, there are lots of franchisees. These are the men and woman who operate health clubs, barber shops, auto parts shops, childcare centers, neighborhood restaurants, music stores, cleaning services, and much more.

We had some franchisees testify before the labor committee the other day. These franchisees could have worked for a big corporation, but they said: I would like to run my own business. Franchisees can own a Ruby Tuesday's, a Rainbow Station, or an auto parts franchise. They own that business. They run that business.

They use that brand name to help it succeed. They use brand names like Planet Fitness, Merry Maids, or Panera Bread. They might work 12 hours a day serving customers, meeting a payroll, or cleaning. This is hard work, but 700,000 Americans do it because it is their way up the economic ladder. It is their way to say: I have my own business. I do not work for the big guys. I am a little guy working my way up.

Successful franchisees are one of the most important ways to climb the economic ladder of success. Yet this NLRB, the same one that wants to have ambush elections, has a pending decision that would threaten franchisees’ very way of life. It is called the joint employer standard, which since 1984 has required a business to hold direct control over the terms and conditions of a worker’s employment.

Through broad language, the NLRB is saying to McDonald’s or Ruby Tuesday’s that they are part of the parent company, and anything they do at their store has to be accepted by the parent company.

What are the consequences if that happens? The parent companies are going to say: We are not going to take that risk. We are going to own all of our stores. So we will own all of the Rainbow Stations. The parent company will own all of the McDonald’s stores, or all of the Ruby Tuesday’s.

What will that do? That might protect the parent company because it can hire a team of labor lawyers. It can instruct its employees what to do and what not to do to avoid problems. But it takes away the middle-class opportunity of moving up the economic ladder from these 700,000 franchisees. That is what this NLRB is doing.

The ambush election rule is nothing more than speeding up the time that it takes between when pro-union organizers ask an employer for a secret ballot election, and when that election actually takes place.

Every step you take has to be perfect according or else you might have to have a rerun election or be ordered to negotiate with the union. That jeopardizes the fairness in our system. The National Labor Relations Act was intended to create an environment of balance and fairness among employers and employees. Senator Kennedy said in 1959 that 30 days would be a reasonable amount of time between when a union organizer files a petition and when an election is held.

Senator McConnell and I have another bill to restore the balance in the National Labor Relations Board. It is absolutely fair. The Board would be three Democrats, three Republicans. If the general counsel's complaint is outside the law, the aggrieved party can take it to federal court. If the NLRB takes longer than 1 year to decide a case, either party can take it to federal court. That is fair. That is the kind of umpire we need in labor relations today. So this is about the middle class. This is about moving up the economic ladder. This is about the kind of actions that give 700,000 Americans their franchise business. This is about the hundreds of thousands of Americans, with four, five, six, ten, fifteen employees, who do not need to be ambushed as they try to earn a living, pay their bills, sweep the floor, make a profit, pay employees, and create the American dream.

The stakes are high. We are right to say let’s return the National Labor Relations Board to an umpire. Let us hope the House agrees. Let us hope the president agrees. It’s time to return fairness and balance to labor-management relations in this country.

 

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