Mr. President, I rise today to encourage my colleagues to support the Congressional Review Act resolution of disapproval of the National Labor Relations Board’s ambush elections rule. I’d like to again thank my friend Senator Alexander, the Chairman of the Health, Education, Labor, and Pensions Committee, for leading this resolution. Oversight of federal agencies is one of the most important duties for a committee chair, and I appreciate his work.
The National Labor Relations Board has proposed a rule that would drastically alter the way union elections are held. A union election is one of the most significant decisions that employees will have to decide at their workplace. It fundamentally alters their relationship with their employer, with the men and women they work with every day, and with their community. A union election means that employers have to meet unfamiliar and complicated legal obligations, with serious consequences for failing to meet deadlines, file specific documents, or assert their rights in the process.
The current process for holding union elections is both fair and timely. It ensures that businesses and employers have the necessary time to fully meet their legal requirements. It gives employees time to educate themselves about what unionization will mean for them and their families, and to investigate the union that would be representing them to ensure that it is consistent with their values and priorities. Under the current process, the average time between when an election petition is filed and ballots are cast is 38 days. That’s under six weeks. And more than 95 percent of union elections are held within two months of an election petition.
The rule that the National Labor Relations Board is pushing would squeeze union elections into as few as eleven days. That’s just eleven days for employees to learn about the union that would have overwhelming influence on the future of their work conditions, and to learn about what unionization would mean for their workplace. That’s eleven days for employers to learn about their rights and requirements during the election, to collect information about employees that must be submitted, to draw up and file documents, to ensure that they haven’t missed anything, and to make their position clear to their employees. All that while running their business. It’s not enough time.
But it’s important to point out that a union that wants to organize in a workplace isn’t subject to that timeline. A union can start its campaign months in advance, maybe even years. Professional union organizers can start making their pitch long before they intend to petition for an election. Organizers have plenty of time to figure out which employees are union supporters, and which employees might be on the fence but could be convinced. A union can take its time to create a narrative and build its case to workers, and it can do so without the business ever knowing. And then when the union decides the time is right, it can petition for the election when it is most advantageous for the union.
This is why we call it the ambush election rule. Because if this rule goes into effect, after a union has had months to build a case in its favor, a business will only have days to respond. That’s only a few days to figure out what union officials have told employees, to determine if there are any misstatements, falsehoods, or misconceptions that need to be addressed in what employees have been told, to make the employer’s position clear and answer any questions that employees might have, and to meet all of their legal obligations under the union election process. But it’s not so simple, because under the rules, employers must follow specific guidelines about what they can and cannot say, and even who can say it.
I don’t know any entrepreneurs who started a business because they were excited to understand the ins and outs of the National Labor Relations Act. That’s why it’s important to maintain the current system, which includes sufficient time for employers to study election procedures, understand their legal requirements, and ensure that they are meeting their obligations to their employees.
The NLRB’s rule will deny employers the necessary time to do their due diligence. This will be especially true for small businesses that don’t have in-house lawyers or human resources departments. Small businesses are the backbone of our economy, and staying competitive means that small business owners have to take on a whole range of responsibilities. They have to be accountants, they have to be salesmen, they have to be managers, they have to be janitors, they have to play dozens of different roles every day to keep their business going. The rule we’re debating today would mean that they would suddenly have to be labor lawyers, too.
Most small business owners are not familiar with the complex labor laws that determine what they can and cannot do during a union election. They might not know that if they make certain statements or take certain actions, the NLRB can impose a bargaining obligation on them without a secret ballot election. They might not know that they have certain rights, but that they have to exercise those rights at a certain point in the process or forfeit them. But under the current system, they have time to learn.
More importantly, they have time to work with their employees and even with union organizers. One of the ways that the current system succeeds is that it allows businesses, employees, and unions that want to hold an election to work together through the election process. Many of the union elections that happen in less than the 38-day average are able to move forward so quickly because all sides can come to an agreement on the issues, efficiently resolve any disagreements, and hold an election without any holdup. Businesses have enough time to understand the process, and that allows them to work cooperatively. If a business can be confident that it doesn’t need to file unnecessary paperwork or hold unnecessary meetings, it can move forward without unnecessary delays.
That won’t be the case under the new rule where businesses, especially small businesses, don’t have the time to get comfortable enough with the process, and I predict that the number of elections where unions and businesses can work cooperatively to hold elections more efficiently will fall significantly. Under the new rule, a small business is going to have to have two options: either to go into an election blind and hope that they don’t make any mistakes, and hope that everything comes out okay; or to take every precaution, hold every hearing, and fully exercise every right to make sure that they don’t miss anything important. I believe that small business owners want to work in good faith with unions through this process, but the ambush election rule is going to make it harder for them to do that. Efficient elections are better for everyone—businesses can get back to work faster, unions can hold an election sooner, and employees get a fair and timely vote—but this rule is going to make it harder for that to be the case.
The National Labor Relations Board says that it is making this rule because the process needs to be streamlined and updated. But what the Board is doing simply doesn’t make sense in light of the fact that the average time for union elections is 38 days, which means that many elections happen sooner than that, and that nearly all elections are completed in less than two months. The Board says that these rules are meant to address problems with some elections that have been held up for months or years. But if that’s the case, why did they write a rule that is going to undermine a system that already provides for timely elections and gives businesses the time they need to work cooperatively with unions? When an agency makes a rule, it is supposed to be solving a specific problem, and the rule is supposed to be targeted at fixing that problem. In this case, the NLRB’s rule is not targeted at the problem they want to fix, and what’s worse, this rule is going to undermine a system that meets the needs of businesses, unions, and employees in all but a handful of cases.
This rule doesn’t make sense, and the way that the Board is pushing this rule through doesn’t fit with how labor laws should be updated and improved. The National Labor Relations Act is a carefully balanced law that hasn’t been changed very often. When changes have been made, it has been the result of careful negotiation, input from stakeholders, and thoughtful debate. Unfortunately, it looks like the only stakeholders in the room when the Board wrote their ambush elections rule were the unions.
The Board also says that its rule is intended to update the elections process to account for new technology like email and cellphones. Unfortunately, the rule fails to take into account the key concerns about data privacy and security that we face today. It undermines employees’ privacy at a time when identity theft, computer crimes, and cybersecurity are serious issues. Under current law, an employer is required to turn over 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 must be turned over, but would require that information to be handed over to the union within two days. The expanded information that the Board wants employers to give to unions includes all personal home phone numbers, cell phone numbers, and e-mail addresses that the employer has on file. It would also require work location, shift information, and employment classification. However, keep in mind that under the new rule, the question about which workers are eligible to unionize or to participate in the vote isn’t determined until after the election. The ambush election rule would require employers to hand over personal information on their employees to unions without confirming which employees should and should not be on that list.
The purpose of requiring the information is so that union organizers can come to your home, call you, email you, find you outside your work, and intercept you before and after your shifts. There is no limit on how many times union organizers can contact you or at what times. There is no opt-out for employees who simply don’t want to be contacted. That can turn into a serious invasion of privacy for any employee, but for an employee who isn’t eligible to participate in the election, but had his or her personal information turned over to a union anyway, that is a serious breach of privacy.
I think it’s important to point out how this rule undermines employee privacy, particularly at a time when we frequently hear news of data breaches, stolen credit card numbers, and identity theft. Protecting personal information is not something can be taken lightly. Union elections can be a very intense and emotional experience for employees, employers, and union organizers alike, and the last thing this rule should do is create a situation where an employee’s personal information is used as a tool for harassment or intimidation.
The National Labor Relations Board is supposed to be an impartial body that hears cases, weighs the facts, and makes fair, unbiased decisions according to the law. Although the Board’s decisions set precedents that determine how labor laws are applied going forward, it has not traditionally been a rulemaking agency. It has issued only a small number of rules, especially compared to other federal departments and agencies. Unfortunately, the Board has gone too far with the ambush elections rule. It has taken it upon itself to impose new regulations that would hurt businesses, undermine a sensitive process that is already providing fair and timely elections, and bend carefully balanced labor laws in favor of unions. Congress needs to tell the NLRB that this rule is out of bounds.
The Congressional Review Act gives Congress an important tool to rein in agencies that use the federal rulemaking process in ways that Congress never intended. When an agency goes beyond what Congress has authorized, or tries to issue regulations that would be harmful, the Congressional Review Act ensures that Congress can intervene and prevent that rule from going into effect. Congressional Review Act resolutions can’t be held up by the usual procedural delay tactics, and at the end of the day the Senate has to vote. That’s important because it means that Congress’s oversight responsibilities over the executive branch have a real and immediate effect when we use the Congressional Review Act. But it goes further than that, because the Congressional Review Act also says that once Congress has disapproved a rule, it cannot be reissued by the agency. That’s important in this case, because this isn’t the first time the National Labor Relations Board has issued this rule. The rule that we are debating today is nearly identical to a rule that the Board proposed in 2012, which was overturned by the courts because the Board failed to follow its own procedures when it issued the rule. We need to pass this Congressional Review Act resolution not just to roll back the NLRB’s unnecessary and harmful rule, but also to make it clear to the Board that Congress has given the final word on this rule, and that the issue is closed. The Board has already issued this rule twice, and we should make sure this is the last time. Congress should make it clear that unnecessary regulations that hurt small businesses and undermine the fair and timely elections process are non-starters.
I urge all my colleagues to support this resolution of disapproval. We need to remind the National Labor Relations Board that its duty is to consider the facts of specific cases, to treat parties in those cases fairly, and to make impartial decisions according to the law. The Board’s role is not to try to stack the system against one side, or tip the scales in favor of the other, which is what this rule does. This rule makes it harder for businesses to meet their obligations in good faith, it denies employees the time they need to be able to make informed decisions, and it undermines the fair and timely process for union elections that is currently in place. This is one of the most important votes on labor issues that we will have this year, and I hope my colleagues will join me to put a stop to this overbearing and burdensome rule.
Mr. President, I yield the floor.