A joint resolution providing for congressional disapproval under chapter 8 of title 5, United States Code, of the rule submitted by the National Mediation Board relating to representation election procedures.

Madam President, I strongly oppose the resolution of disapproval offered by my good friend, the Senator from Georgia. I tried to listen to all my friend said, but let's just keep in mind what this is all about. The resolution we have before us would keep in place outdated and undemocratic election procedures that undermine workers' fundamental rights.

Hard-working Americans deserve better, and I encourage my colleagues to vote down this resolution.

By way of background, the Railway Labor Act governs labor-management relations for the rail and air industries. As the Supreme Court has noted, the Railway Labor Act was expressly passed to ``encourage collective bargaining.'' Under the act, a majority of employees have the right to decide if they wish to be represented by a union, and they use elections to make that choice. Unfortunately, for many years, the National Mediation Board, which implements the Railway Labor Act, has had antiquated elections procedures that place huge obstacles in the way of workers who are trying to exercise their basic right.

Under these archaic rules, a union did not win an election if it won a majority of the votes cast. Let me repeat that. Under these archaic rules, a union did not win an election even though they may have won a majority of the votes cast. How can that be? Well, because, instead, a majority of all eligible voters, or all those who voted, a majority-- instead of just counting all of those who voted, it said it had to be all eligible voters had to cast a vote for the union. What that meant was that anyone who didn't vote was automatically counted as a ``no'' vote. So all nonvoters were automatically and arbitrarily treated as a ``no'' vote or a vote against unionization. So if you didn't vote, that equaled a ``no'' vote. Doesn't that strike you as kind of odd?

This procedure is not only contrary to the election rules governing workers under the National Labor Relations Act, but it is contrary to basic principles of democracy underlying elections held throughout the United States, from student council elections to elections for United States Senators. Think about this. In virtually every election in this country, except those involving rail and aviation workers, a voter has a right to vote one way or the other or not to vote at all. However, under the archaic rules of the National Mediation Board, there is no right not to vote because if you don't vote you are counted as a ``no'' vote, whether you wanted to be a ``no'' vote or not. Maybe a lot of people don't vote for one reason or another.

As Senators, it would be apparent to all of us that this current rule makes no sense. For example, in the Senate, we cast hundreds of votes in each Congress. Inevitably, with one or two exceptions, most of us miss a vote or two, whether there is something going on in our State that we have to attend to or a family illness or whatever. We would be outraged if we missed a vote because of those circumstances and our vote was counted as a ``no'' vote when maybe we didn't want to vote no, but it would be automatically counted as a ``no'' vote if we didn't vote. We would be outraged at that.

In addition, in our contests for reelection, we would be outraged if every eligible voter who chooses not to vote is presumed to be a vote for our opponent; in other words, a ``no'' vote on us. That is pretty interesting, isn't it?

If you choose not to vote, you are counted as no. Well, it is no less outrageous to arbitrarily assign a position to nonvoters in a union election.

Again, there are many reasons a person might not vote. As I mentioned, they might be ill, forgot, or maybe they are just disinterested in the result, don't care one way or the other. That is why a basic principle of elections is that a voter's decision not to vote has no impact on an election's outcome. Again, I will repeat: A basic principle of elections in our country is that a voter's decision not to vote has no impact on the outcome of that election.

Indeed, in 1937, the Supreme Court, in Virginian Railway Company v. Systems Federation No. 40, in interpreting the very statute at issue-- the Railway Labor Act--expressly said:

Election laws providing for approval of a proposal by a

specified majority of an electorate have been generally

construed as requiring only the consent of the specified

majority of those participating in the election. Those who do

not participate are presumed to assent to the expressed will

of those who vote.

It makes sense. If you don't vote, what you are saying is, for one reason or another, whichever side wins, they win. Whatever the expressed will is of the yes or the no, I give my assent to that by not voting. That is what the Supreme Court said.

This basic system of conducting elections works for school boards. It works for State legislatures. It works for Congress. It works for all businesses governed by the National Labor Relations Act, and it certainly will work for rail and aviation workers.

Now, given the antidemocratic nature of its union election procedures, in May the National Mediation Board issued a long overdue rule change. Under the new rules, a majority of those who actually vote in the election is required for the union to prevail. Under this procedure, an employee, a worker, can choose to vote for a union, they can choose to vote against unionization, or they can choose not to vote at all. The rule, very simply, recognizes that in an election, the side with the most votes wins.

Well, I think the National Mediation Board should be commended for its new, more democratic rule. It is consistent with the procedure used in other elections in our country and will ensure fairness and equal treatment for rail and aviation workers.

Nevertheless, my friend from Georgia and others wish to overturn the application of these basic democratic principles to air and rail workers. First, as I understand it, they argue that because the National Mediation Board's old rules are 75 years old, they should remain unchanged. Well, just because something is old doesn't mean it should remain forever. A rule's age is irrelevant in evaluating its fairness. Our country has rightly eliminated many flawed election rules when circumstances changed. It is time to discard this one too.

The justification for the original rule is long outdated. Rail and aviation workers, like workers at many other businesses, are spread throughout the country. Seventy-five years ago, with often poor communications, there was a legitimate concern that many employees would not learn that a union campaign was taking place or that a vote was scheduled. The National Mediation Board feared that a small but informed minority of workers could dominate the election process and dictate a result for a majority of employees, many of whom may not even have known an election was occurring. That is not true today. Given today's modern technology--the Internet, e-mail, cell phones--these concerns are simply no longer relevant and should not dictate the Board's current election procedures.

Secondly, I believe the Senator from Georgia is wrong when he claims that the National Mediation Board has exceeded or does not have authority to implement this rule change. On June 25, a Federal court rejected this argument, finding that the change was well within the agency's authority. The Railway Labor Act does not specify any particular election procedures and leaves the means of conducting elections up to the Board.

The process the Board used to adopt their new rule was fair, open, and allowed all parties an opportunity to comment, using the same notice and comment process under the Administrative Procedures Act as used by other Federal agencies.

The National Mediation Board published a notice of proposed rulemaking in the Federal Register on November 3, 2009, that included a detailed explanation of why the Board was considering this change. It allowed parties 60 days to comment and provided a detailed rationale for the proposal. The Board considered nearly 25,000 public comments and held a public meeting where over 34 members of the public testified. Federal agencies issue new regulations every day following the same notice and comment procedures employed by the Board in this procedure, and nothing untoward happened here. It was fully open, fully aboveboard, and in compliance, as I said, with the Administrative Procedures Act.

My friend from Georgia and others have argued that one of the National Mediation Board members, Linda Puchala, may have somehow misled Congress during her confirmation hearings and failed to consider the new rule with a fair and open mind. There is simply no evidence to support this claim. On May 12, 2009, Ms. Puchala answered a written question from the Senator from Georgia. He asked:

Please state your views regarding the importance of

honoring the Board's 60-year history of precedents in matters

involving representation and mediation.

That was the question. Ms. Puchala responded:

The board has a long history of precedents in matters

involving representation and mediation. I think it is

important to review each case on its merits and to

consider all applicable precedents when making decisions.

Sounds logical to me. It is important to review each case on its merits. I would hope all individuals who have appointed positions in the Federal Government would take cases on their individual merits. Consider precedents, of course, if they are applicable, but to consider it on its merits.

As I understand it, that is precisely what Ms. Puchala did in this instance. In the almost 6 months between her confirmation and the publication of the notice of proposed rulemaking on November 3, 2009, she had ample time to carefully consider all points of view about the proposed change and implemented what she considered to be a fair rule. As a Federal judge wrote in rejecting these challenges:

The level of detail with which the agency considered and

discussed negative comments in the Final Rule belies

allegations that the Board rushed its consideration of the

new rule. . . .

That is a Federal judge.

Opponents have also argued--and I just heard this--that the Republican National Mediation Board member Elizabeth Dougherty was unfairly excluded from the consideration of the new rule. While I believe the internal deliberative processes of agencies should appropriately be kept confidential, I am reassured by the district court's finding on this point that there was no evidence that the majority board members violated any procedural rule or acted in bad faith. That was the finding of the district court.

Finally, throughout the course of the public debate over this rule change, opponents of the new rule have claimed that the National Mediation Board is trying to ``do card check by running around the backdoor.''

This is just pure nonsense. The National Mediation Board rule has nothing to do with the Employee Free Choice Act or card check. It does not modify in any way the way rail and aviation workers vote. Rather, it simply makes clear that a decision not to vote will not arbitrarily be treated as a ``no'' vote.

While this debate has nothing substantive to do with the Employee Free Choice Act or card check, there is one common thread. At the heart of opposition to this rule, and also at the heart of opposition to the Employee Free Choice Act, is a fear on the part of some people that, yes, workers will exercise their fundamental right to organize.

I want to make it very clear. I happen to be a supporter of the Employee Free Choice Act. I keep asking: Why is it that workers are compelled to walk across broken glass, to go through some kind of a boot camp harassment to exercise what is their legal right in this country: to join a legal organization? Why should they have to go through all that? That is why I have supported the Employee Free Choice Act.

Let's be clear what we are talking about today. Let's be clear what this means with this new rule. It means that rail and aviation workers have a voice in the workplace. Some people may consider that awful. I do not. It means fair wages and benefits. It means better and safer working conditions. It means workers have the right to be heard. They have the right to organize. They have the right to be heard in collective bargaining.

Indeed--I repeat--the Railway Labor Act, as the Supreme Court noted, was expressly passed to ``encourage collective bargaining.'' Maybe there are some who do not want to encourage collective bargaining. I think we are better off when we do have collective bargaining and we respect the rights of workers in this country.

These are the goals I hope every Member of the body could support. I applaud the National Mediation Board's decision to discard an outdated, antidemocratic rule, and to ensure fundamental fairness to rail and aviation workers in this country. Why should they be the only ones, among all the workers in this country, all those covered by the National Labor Relations Act, why should these two be the only ones where if they do not vote, it is counted as a ``no'' vote. It does not happen anywhere else. It is an arcane, outdated rule. It should be brought into the spirit of democracy we have in this country. You can vote yes, you can vote no, or you do not have to vote. If you do not want to vote, you should not be assigned a ``yes'' vote or ``no'' vote to the fact you did not vote. It should not be counted at all in the outcome of the election.

I strongly encourage my colleagues to oppose this resolution of disapproval.

Madam President, I yield the floor.

If the Senator will withhold the request for the quorum call.

Madam President, how much time do we have on our side?

On the opposite side?

We have 35 minutes left on our side. I yield 10 minutes or however much he needs, up to 10 minutes to my friend, the Senator from Minnesota.

Madam President, I do not have any more speakers on our side. I wanted to respond on a couple of issues that have come up here in the remarks in the last several minutes, last hour and a half, I guess, since we have been here.

First, having to deal with the idea that somehow under the National Mediation Board when there is an election for a union that it is permanent. Now, right. I mean, my friend from Georgia is right. You cannot kind of compare it to Senators, because we have to run every 6 years. I understand that.

I think it is still holds, though, that should someone who does not vote be counted as a no or a yes either way--I would ask my friend from Georgia to think about this in terms of not elections for Senators but how about ballot initiatives? We have school bond issues, and school bond issues get, maybe, what, 30 percent of the vote out. Should all of the people who do not vote be counted no against a bond issue?

I do not know about my friend's State of Georgia, but I know in Iowa we have retention ballot initiatives for our judges. We have a very good nonpartisan, nonpolitical way of getting judges. But then the judges come up on the ballot every so often. Yes or no, should they be retained? They do not have to run against anybody and no one runs for a judgeship. But should they be retained?

Well, obviously not too many people vote on that. Should people who do not vote be counted automatically as a no vote? I do not think people would like that. A lot of people do not vote because they may not have enough information to vote one way or the other, so they leave it go and say, well, maybe other people who know better could have their votes counted yes or no.

We have had ballot initiatives for minimum wages. Should all of those who do not vote be counted as no? I think it is a very fundamental principle of our system of government, as the Supreme Court has said many times in the past, that a ballot not cast should not in any way influence the outcome of the election, of any election.

The outcome of the election is determined by the yes and no votes, not by people who do not vote, a very basic principle. So that is one point I wanted to clarify.

This old rule of the National Mediation Board that people keep talking about, saying it is been the same for 75 years, I could quite frankly argue that it should not have been that way in the first place, although as I said in my opening statement I understand some of the rationale for it, that 75 years ago, where you did not have rapid communications and things such as that, you would not want a small group that maybe had voted a union in, and other people did not even know about it. But that is hardly the case today. Hardly. Everyone knows about it with instant communications and everything else. That is hardly the case today.

It is time to get rid of old, archaic rules that govern certain kinds of elections. Gosh knows, we have had a lot of old archaic rules in elections in this country going back to Jim Crow laws and things such as that. But we have moved beyond that, and those old kinds of rules should not apply any longer. So we move on and we recognize that people ought to have the right to vote, and that if you do not vote, it should not be counted as a no or a yes vote one way or the other.

Regarding the issue of when the union is voted in, it is as though they are forever, it is permanent. I have heard that argument made. Well, that is not necessarily true. But that is under the National Labor Relations Act the same thing. If a union is voted in, it is not voted in for 1 year or 3 years or 5 years. It exists until such time as the union is decertified.

There are two processes. There is a process under the National Labor Relations Act for decertification, and there is a process under the National Mediation Board for decertification. Essentially, with the exception of how they start, they both rely upon an election by secret ballot as to whether the union will continue to represent the workers of that plant or that industry or that association or whatever.

Under the National Mediation Board, if a union was voted in, the employees could at some point say, look, I do not think enough people want to maintain a union here. What they do is they put up a person to run in a union election, a straw man. People know if they vote for that person, they are voting to get rid of the union, because if that person wins, that person will not represent the workers.

This is done. There is nothing wrong with that. It is fine. So workers know if they vote for this person, it ends the union. If they vote against this person, it continues the union. It is all by secret ballot. The National Labor Relations Act is basically the same way. If an employer or employees want to decertify a union, they file a petition with the NLRB, and then there is an election, as to whether the union will continue to represent the workers.

There may be a little bit of difference in structure between the National Labor Relations Act and the National Mediation Board, but, in essence, they are the same thing. You have a secret ballot as to whether the union continues. So it is not that the union is there in perpetuity, it is there as long as the workers want to continue to be represented by a union.

Lastly, I will digress a little bit from the point at hand; that is, the issue at hand on the matter before us on overturning this rule, to say a couple of things about unionization and workers who belong to unions in our country. It is a shame that union workers are somehow almost degraded as not even being worthy of being citizens in this country; that somehow a union has dark overtones, that somehow unions are destructive or not in keeping with American society or who we are as a people.

If we look at the history of the country, it was unions that built the middle class in America. I defy anyone to refute what I just said, that it was unions that built the middle class. It was unions that instituted things such as the minimum wage, such as safe working conditions, such as making sure they had a fair share in terms of wages, that they had an 8-hour workday and a 40-hour workweek and time and a half overtime--all these things were brought by unionization, people collectively bargaining for wages, hours, and conditions of employment. Maybe there are some who would like to undo the Wagner Act. If they do, fine. I suppose some people believe we shouldn't have any unions at all.

China doesn't have any independent unions. Do we want to be like that? Unions built the middle class in America.

Unions today do a very good job of representing workers, both in the public and private sectors. Today, we have too few people in America who actually belong to unions. We should have more, but we have made it more and more difficult for people to freely exercise their right to actually join a union. I just looked at a list of countries in the G8. With the exception of Russia, which I can't get figures for, the United States basically is at the bottom. Canada, 27 percent of their workforce is unionized; Japan, 18 percent; Italy, 33 percent; Germany, 19 percent. Look at the economy of Germany. The United Kingdom is 27 percent, and the United States is 11.9 percent. We are down there at the bottom. One cannot say that somehow if we have unions and we are highly organized, that our economy is going to be bad. Quite frankly, these other economies are doing as well or better than we are, and they have pretty strong unions.

I digress because it seems that time after time we hear people in a subtle way hinting or implying that unions, by their very nature, are somehow destructive of American free enterprise and our capitalist system. I don't think anything could be further from the truth. If it were not for unions, our economy would have gone down the tubes a long time ago.

Quite frankly, I believe one of the reasons we have seen in the last few years a widening gap between the rich and the poor--and it is happening; no one can refute that. The gap between the very wealthy and those at the bottom is growing rapidly and has grown rapidly just over the last 10, 15, 20 years--is coincidental with the fact that fewer and fewer people belong to unions, and more and more unions are being decertified or it is more difficult for people to join unions. Unions are

being busted through by one means or another.

I often tell the story of my brother Frank. He is now deceased. He went to work for a plant in west Des Moines, IA, back in the early 1950s. It was unionized by the United Auto Workers. My brother was disabled, but the owner of the plant--it was privately held--Mr. Delavan, owned the plant and hired a lot of people with disabilities. They had good jobs, good wages and hours. It was a great place to work. He worked there for 23 years. He worked there for 10 years one time, his first 10 years, and they gave him a gold watch because in 10 years he never missed 1 day of work and was not late once. In fact, in 23 years, he only missed 5 days of work because of a blizzard. In all those years, they never had one labor strike, not one labor problem, no strikes, nothing. They would have their bargaining agreement. They would bargain with the owner. They would move on. They never had a work stoppage, never had any problems, until Mr. Delavan got old and sold the plant to a group of investors.

The investors came in and openly bragged--and I have the newspaper to prove it--if you want to see how to get rid of a union, come to Delavan's. That was in the Des Moines Register.

When the contract came up for negotiation, the employer refused to negotiate. They would sit down and talk for a little bit, but nothing could be agreed upon. It went on and on. Finally, the union had to call a strike, the first time ever. The new owners, the investors, brought in what the striking workers called the scabs, the replacement workers, brought them in, kept them there. One year later, they had a vote to decertify the union because the new people there didn't want to lose their jobs. They decertified the union, busted the union.

Why did they want to do that? Because a lot of the people, such as my brother who had worked there for 23 years, had established seniority. They were getting paid a good hourly wage. But the new investors figured out they could get rid of all those people, hire younger people, pay them a lot less, and they would make more profit. That is exactly what happened. Investors made more profit. But they got rid of a lot of people and destroyed a lot of lives. People who had worked there for a long time and had families basically were told they were used up, burned out, out on the trash heap out in back.

I often think about that. I think about what happened. There was no reason to break that union other than to have more profits for the investors and less for the workers.

That has been going on in this country at least for the last 25 to 30 years. So is it any surprise that fewer and fewer people are getting more and more wealth and more and more people are getting less?

I hear people talking about unions and they don't want to strengthen unions, don't want to help unions. I want to make sure the playing field is open and level and that the secret ballot is fairly used, that people should have a better chance at joining a union than what they have in the United States today. That is why I am for the Employee Free Choice Act. It will strengthen the right of people to actually freely and openly join a collective bargaining unit. That would be better for the country. I state that unequivocally. The more and more we denigrate workers in terms of their ability to collectively bargain, we will hurt the economy. When we strengthen unions, when we strengthen people and give them better rights and better chances to organize and bargain collectively, then more and more of our money, our national economy, more of that will go to the workers, maybe less to capital. I think that is the way it should be. Too much of our money is going to capital and not enough to labor. We need a better balance there. About the only way that will happen is through collective bargaining.

Count me as a person who is strongly in favor of collective bargaining and strongly opposed to this effort to overturn a rule made by the National Mediation Board which I believe rights an injustice, rights a wrong, and says that: In the future, if you have an election, if you don't vote, your vote is not counted one way or the other. The outcome of the election will be decided by those who vote yes or no in a secret ballot.

Madam President, I ask unanimous consent that at 12:20 p.m., there be 10 minutes of debate remaining on the joint resolution; that it be equally divided and controlled between Senators Isakson and Harkin; further, that at 12:30 p.m., the Senate immediately proceed to a vote on the motion to proceed to S.J. Res. 30, the joint resolution of disapproval.

How much time is on our side?

And on the other side?

Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

Madam President, are we at 12:20 p.m., the time where we have 10 minutes divided?

I will take 3 minutes.

First of all, in response to my friend from Georgia--and he is my friend; he is a great guy--this person, Ms. Polaski, Under Secretary of Labor, may have written a letter, but as Under Secretary of Labor she does not work for the National Mediation Board. She does not necessarily have the experience of interpreting its laws or procedures. That is the job of the National Mediation Board itself and of Federal judges, which, I have to remind you, upheld the Board's actions 100 percent in this matter.

Secondly, on the matter of decertification, I strongly disagree with my friend from Georgia. There is a procedure under the National Mediation Board, as under the National Labor Relations Act. If a person wants to get rid of the union under the NMB, they can file a petition, if they can get 50 percent plus one person to show an interest--quite similar to the National Labor Relations Act. If they can get 50 percent, they can file a petition with the NMB. The NMB then has an election. If that person wins, that person is not represented by any union, so the union is gone. There is just a little bit of a difference from the National Labor Relations Act, but the outcome is basically the same.

So there is a way. The Senator is right. I would say my friend is right; it is not a formal decertification. But it is a way of getting rid of the union, one way or the other. It may not be formal decertification, but it is a way that the union can be gotten rid of under the NMB.

I yield the floor.

Madam President, how much time now is remaining?

Madam President, as an agreement between the Senator from Georgia and myself, we have agreed that since he is the author of this joint resolution, he will close out the debate. I think that is proper.

I will just take a little bit of the remaining time on this side again to reiterate why this resolution of disapproval should be defeated.

No. 1, as has been adequately stated many times, it is time to get rid of antiquated, outdated rules that say if you do not vote, it is counted as a ``no'' vote. That does not make any sense.

Again, this idea that it is in perpetuity--it is not. There are ways for people to get rid of unions under the NMB, as under the NLRB. So it is not in perpetuity at all. It is just, again: How should ballots be counted? Should a person who does not vote be counted as a ``no''? That should not be so.

Even if you accept the argument that it is in perpetuity, why should someone who does not vote be counted as a ``no'' vote? On the judges, we say that every 4 years they are up. That is true; they are not kind of in for perpetuity. But why should someone who does not vote be counted as a ``no'' vote? It does not make sense in any system. I do not care what the length of time is or whether it is in perpetuity or for 2 months or 2 days; those who do not vote should not be counted no or yes, one way or the other.

Secondly, the National Mediation Board went through proper procedures in giving notice and comment in rulemaking. As I said, they published it on November 3 of last year, a detailed explanation of why they were considering it. They had 60 days of comment, 25,000 public comments, a public hearing. Thirty-four members of the public testified.

Well, this is what Federal agencies do. They follow the Administrative Procedures Act in doing this, and that is exactly what the Board did.

So no one was misled. No one was kept out of it. There was no evidence to support any claims that one member somehow was excluded or did not have an opportunity to have input into this process.

Again, I understand why this resolution has come up. I understand that for whatever reason, Delta Air Lines does not wish to be unionized. Well, that is fine. That is their right. But there ought to be a process whereby the workers have a fair, open chance to organize, if they want to. It is not illegal in this country to belong to a union--perfectly legal. The National Mediation Board has set up rules and procedures under which workers who work for Delta or for Northwest--the combined group now--can decide whether they want to have a union. To me, that is the American way.

So why should we now say: Well, no, we want that old rule that if you do not vote, it is counted as a ``no'' vote? That is what this is all about. Stripped to its essence, if you vote for the resolution introduced by my friend from Georgia, what you are saying is, if a person does not vote, it is counted as a ``no'' vote. You are also voting to override the National Mediation Board's decision, which has already been upheld by Federal courts.

But, in essence, that is what it is. If you believe a person who does not vote

should have their vote counted as a ``no'' vote, you probably ought to vote for my friend's resolution. I do not think we should.

I think we should uphold good democratic principles, principles by which, I say, bond issues or other ballot initiatives are always done. You do not count someone if they do not vote. We do not do it here. We do not do it anywhere in this country, and it should not apply here any longer. So I ask for a ``no'' vote on the resolution of disapproval so we can have free, fair, and open elections.

Madam President, I move to proceed to the consideration of S.J. Res. 30.

Madam President, I yield myself up to 15 minutes of the time.

Madam President, on May 11, 2010, the National Mediation Board, the board that oversees labor relations in transportation--in the railroad and airlines industries--finalized a regulation repealing the 75-year-old majority rule. Under the majority rule, a majority of the organizing unit was required to affirmatively vote yes to unionize. The repeal of this rule means that now a minority in the bargaining unit can organize, essentially permanently, the entire organization of the unit.

Today, I am asking this body to pass S.J. Res. 30 to undo this rule change under the procedures created by the Congressional Review Act of 1996. This law allows Congress to disapprove regulatory rules issued by Federal agencies by enacting a joint resolution of disapproval. This resolution will revoke a recent regulation promulgated by the National Mediation Board eliminating the old majority rule that had been in place for 75 years under 12 Presidential administrations.

Under the old rules, a majority of the workers in the organizing unit were required to affirmatively vote yes in order to organize. Under the new rules, however, only a majority of those voting are required to vote yes to organize a union.

Let me give you an example. If an organizing unit had 10,000 employees, under the 75-year-old rule, 5,001 would have had to vote affirmatively for a union. Under the new rule, if only 4,000 turned out to vote, only 2,001 would have had to vote affirmatively to be able to unionize. In fact, in large measure, it seems to me, it is kind of ``card check lite.''

There is no sound legal or policy basis for hastily

changing a rule that has been in

place and upheld repeatedly for 75 years. Throughout this

time, the majority rule has furthered the primary purpose of

the Railway Labor Act, which is ``to avoid any interruption

to commerce or to the operation of any carrier engaged

therein.''

The Supreme Court of the United States has upheld the rule not once but twice. The National Mediation Board, under both Democratic and Republican administrations, previously rejected changes to the majority rule on four separate occasions. In fact, the National Mediation Board, under former President Jimmy Carter of Georgia, concluded that only Congress could make such a decision.

Even the Obama administration's own Labor Department defended the soundness of the majority rule, writing on October 8, 2009:

For 70 years, the Board has required, when there is no

representative and just one organization is seeking to be

representative, a majority of the workers in the craft or

class to vote for that organization.

In so doing, President Obama's own Labor Department argued that all past boards ``reasonably construed'' the Railway Labor Act.

As former National Mediation Board Chairman Elizabeth Dougherty wrote in her strong dissent of the repeal of the majority rule, making this change ``would be an unprecedented event in the history of the National Mediation Board.''

She continued:

Regardless of the composition of the board or the

inhabitant of the White House, this independent agency has

never been in the business of making controversial, one-sided

rule changes at the behest of only labor or management.

The majority rule is not unfair to organizing efforts, as over two- thirds of the 1,850 reported elections since 1935 have resulted in a union. Moreover, an average of 72 percent of airline and railroad employees are represented by unions, while only 8 percent of private- sector workers are union represented.

One of the reasons the majority rule was approved is because recognition of a union under the Railway Labor Act is essentially permanent, and I reiterate that. The decision is essentially permanent and irrevocable. Thus, to reference my example earlier, the minority of 2,001 in an employee group of 10,000 could irrevocably unionize an organization and make it permanent.

Quoting the Obama administration's Labor Department again:

Unlike the National Labor Relations Act, the Railway Labor

Act does not provide for a decertification process.

``Does not provide for a decertification process.''

Therefore, the union's certification continues until

another union makes a showing of interest to represent the

respective class or craft. . . . Consequently, it is of

utmost importance that a certified union has the support of

the workers it is certified to represent.

While existing practice allows for a cumbersome and slow ``straw man'' union disillusion process, the Railway Labor Act has no decertification process as there is under the National Labor Relations Act.

The current ``straw man'' union disillusion process is Byzantine and nearly impossible for workers to use. This is how National Mediation Board Chairman Dougherty described the process:

Employees who no longer wish to be represented by a union

must select an individual to stand for election (the so-

called ``straw man''), convince a majority of the eligible

voters in the craft or class to sign authorization cards for

that individual (while attempting to explain that this

individual is not actually going to represent them), and then

file an application with the Board. If the requisite showing

of interest is met, an election is authorized, and the

employees must either vote for the ``straw man,'' with the

hope that he will later disclaim interest in representing the

craft or class, or abstain from voting.

What a ridiculous process that is.

Unfortunately, the new rule allows no corollary process by which employees can choose to opt out of unionization. Thus, the Obama administration greatly lowers the bar for unionization, while continuing to ensure that it is nearly impossible to decertify a union.

In Teamsters v. BRAC, the DC Circuit Court wrote:

It is inconceivable that the right to reject collective

representation vanishes entirely if the employees of a unit

once choose collective representation. On its face, that is a

most unlikely rule, especially taking into account the

inevitability of substantial turnover of personnel within the

unit.

If the Obama administration truly sought to ``more accurately measure employee choice,'' they would have provided a parallel process by which employees could vote out a union in an election conducted in the same manner as the election which resulted in certification of the union in the first place. Of course, they did not do that.

Quoting Chairman Dougherty again:

Apparently, employee choice only matters to the Majority

when it relates to changing the status quo from no

representation to representation and not the other way

around.

The impact of this is dramatic in my State, and it has a dramatic impact on Delta Air Lines, which is headquartered in my State.

On April 14, 2008, Delta and Northwest Airlines announced a merger. Before the merger, Delta was a predominantly nonunion organization. Its pilots were unionized, but flight attendants and ground personnel were nonunion. Delta employees--many of whom reside in Georgia--were and still are some of the most dedicated employees of any company in the United States, and some of the best paid employees in the airline industry, which explains why Delta employees have voted down six unionization drives since 2000 alone.

Some of the former employees of Northwest, which was a much smaller operation than Delta, wish the new Delta to adopt their old labor agreements. Those old labor agreements at Northwest led to a long history of labor strife, lower pay, and burdensome work rules.

I say, leave that decision up to the workers. If the benefits of union representation are so great, then why the need to change the rule? This administration simply refuses to obey the will of the majority of the class and has chosen to side with the union in the passing of this rule.

As National Mediation Board Chairman Dougherty has written, the board's actions are targeted at ``40,000 employees at two major airlines--the largest group of elections in the history of the National Mediation Board. I believe it is harmful to the reputation and credibility of the [National Mediation] Board for it to take a position in favor of a change to our election rules during these elections.''

In short, we are here today for one reason and one reason only: The Obama administration has chosen to tilt the outcome of unionization elections at Delta Air Lines in favor of the transit unions.

Let me discuss the integrity of this process that took place at the Board.

Once confirmed by the Senate, revoking the majority rule was clearly job one for Members Puchala and Hoglander. Only 5 weeks after Mr. Hoglander was confirmed on July 24, 2009, the AFL-CIO requested the rule change on September 2, 2009.

Two months later, on November 2, the National Mediation Board issued the proposed rule. Not coincidentally, the transit unions immediately withdrew their applications to organize Delta, giving Hoglander and Puchala more time to stack the deck in their favor. Public remarks of union leaders from the Association of Flight Attendants have since confirmed their insider knowledge of the proposed rule.

On November 6, the Democratic members of the National Mediation Board told Chairman Dougherty they had prepared a ``final'' version of the proposed rule and she had only 1\1/2\ hours to consider their proposal.

Further, the Democratic majority told her she would not be permitted to publish a dissent in the Federal Register. Of course, publication of a dissent is not prohibited by any agency.

Finally, on May 11, 2010, the Democratic majority issued their final rule, having prevented an honest and forthright debate and comment--all of this from an administration that prides itself on transparency.

Throughout their effort to repeal the majority rule, the Democratic majority and the National Mediation Board intentionally left Chairman Dougherty out of the process. As she wrote in her stinging dissent: ``This rule was drafted without my input or participation.''

I am concerned this course of conduct by two former union leaders plainly reflects a predetermination to proceed with a course of action beneficial to transit unions at the expense of fairness and sound public policy.

Chairman Dougherty is correct when she writes:

Independent agencies have an obligation to avoid even the

appearance of impropriety. The Board's failure to do so in

this instance has damaged the Board's reputation irreparably.

Clearly, this administration is afraid that the Employee Free Choice Act, which it promotes, will not pass the Senate in the near future. As a result, President Obama has repeatedly assured union bosses in Washington that his administration will use the Federal regulatory agencies and Executive orders to implement their radical agenda on behalf of labor bosses in Washington.

We are just beginning to see the impact that former union boss Craig Becker is having as a member of the NLRB. Mr. Becker was rejected by this body on a bipartisan vote. The President responded by thwarting the will of the Senate and extending to Mr. Becker a recess appointment.

Since assuming his position, Mr. Becker has been anything but impartial to the unions. He has refused to recuse himself in cases involving his old employer, the SEIU, and is doggedly attempting to foster card check campaigns at businesses throughout the country.

Last week, President Obama said:

What we've done instead [of getting EFCA passed in the

Senate] is try to do as much as we can administratively to

make sure that it's easier for unions to operate.

The repeal of the majority rule fits into this pattern. It is yet another attempt by the Obama administration to circumvent the Congress of the United States and vilify American businesses.

As the Supreme Court wrote in Russell v. National Mediation Board in 1985:

Employees were given the right under the (Railway Labor)

Act not only to vote for collective bargaining, but to reject

it as well.

Unfortunately, the Obama administration's two Democratic nominees to the National Mediation Board, in repealing a 75-year-old rule without congressional approval or adequate reasoning, have recklessly tossed aside fairness and impartiality to benefit their former labor bosses in the labor movement. In so doing, they have eviscerated the right the Supreme Court articulated.

The Congressional Review Act is the appropriate legislative vehicle for Congress to undo this assault on workers' rights. I urge my colleagues to support this resolution of disapproval.

I ask unanimous consent that letters supporting this resolution from the U.S. Chamber of Commerce, the National Association of Manufacturers, the Alliance for Worker Freedom, Americans for Limited Government, and Associated Builders and Contractors be printed in the Record.

I also ask unanimous consent to have printed in the Record a document entitled ``Letters from Workers.''

Madam President, I reserve the remainder of my time.

Madam President, let me take a moment to share a few alternative ideas to the distinguished Senator's representation.

First of all, with regard to Ms. Puchala's response to my question in the confirmation hearing that all rules ought to be judged on their merit, I think that is a very good response. But it is coincidental or ironic that in one of the largest union votes in the history of America--the vote that will take place between Delta and Northwest employees on whether to unionize flight attendants--that when they were sworn in as board members, the previous application by the union for an election was postponed to give enough time for the rule change to take place in the first place.

I do not know if that was judgment on merit or whether it happened to be just coincidental timing. I will say it was probably not based solely on the merit of the decision.

Secondly--and I love the Senator from Iowa. He and I are dear friends--if you follow his thought process on not counting ``no'' votes, you have to look at this. Past practice at the National Mediation Board dictated that an absolute majority of workers in the class be required to vote to unionize, and once that union takes place it is a permanent decision. Yes, there is an archaic straw-man alternative. However, if you follow the thought of the Senator from Iowa in its entirety, once we are elected to the Senate, we would not have to run for reelection again. That is because the National Mediation Board has no decertification process. This is essentially a permanent decision by the workers. I do not think it should be a permanent decision when one of us is elected to Congress. That is why we have elections in Congress every 2 years or in the Senate every 6 years.

Let's remember this is a decision. When we change this rule, we are allowing a minority to make a permanent decision for a class of workers. That is a very high threshold. I think requiring a majority vote of all those affected not only makes sense, but the reason it was done was to protect the National Mediation Board's intent in the first place in terms of interstate commerce in the United States of America. Another point Congress had no say in this process, even though Article 1 of the Constitution of the United States allows only us to regulate commerce.

I wanted to add those two points. On the case of merit, I think it is obvious there were some considerations specifically because of one vote, i.e, the vote of the AFA and IAM. That is why the unions withdrew their applications and postponed the vote, to give the National Mediation Board an opportunity to pass the rule and affect a pending vote to organize.

I wanted to make a point with regard to current policy not allowing people to be represented. Under the Railway Labor Act, 72 percent of the employees are unionized versus the 8 percent for all American workers. Nobody is talking about a rule preventing organization. We are only talking about requiring a threshold because of the permanency of the decision. That is very important.

We are not trying to skew the balance between labor and management. We are trying to equalize that balance. To change this rule, given the threshold that has been in place for 75 years, is to skew the process in favor of union bosses over workers' rights. That should not be the intent of the Congress of the United States. That is why the National Mediation Board rules are what they are, and that is why the Supreme Court of the United States has twice upheld it.

Madam President, I am happy to yield 10 minutes of my time to the distinguished Senator from Utah, Mr. Hatch.

Madam President, I suggest the absence of a quorum, and I ask unanimous consent that the time during the quorum be equally divided between the majority and the minority.

Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

Madam President, I yield up to 6 minutes to the distinguished Senator from Nevada, Mr. Ensign.

Madam President, I yield up to 5 minutes to the distinguished Senator from Georgia, Mr. Chambliss.

Madam President, I suggest the absence of a quorum.

Madam President, I ask unanimous consent the order for the quorum call be rescinded.

I ask unanimous consent to reinstate the quorum call providing the additional time used is equally divided between the majority and minority.

Before I introduce Senator Enzi, the distinguished Senator from Minnesota asked a rhetorical question regarding this election being similar to an election to the Senate. I would note one remarkable difference. National Mediation Board elections are unionized under current law as a permanent decision. Senators are elected every 6 years and then stand before the voters once again, so there is a significant difference between those two standards.

Madam President, I will recognize for up to 10 minutes the distinguished Senator from Wyoming.

Madam President, I wish to address the remarks of the distinguished chairman which in many ways validate the reason we should all vote for S.J. Res. 30. I wish to tell my colleagues why.

The chairman said unionization is permanent, but it is kind of not permanent if you make a decision under the National Mediation Board. I wish to clear that up.

I ask unanimous consent to print in the Record the October 8, 2009, letter from Sandra Polaski, Deputy Under Secretary of Labor for the Obama administration, sent to Cleopatra Doumbia-Henry, Director of International Labor Standards Department, International Labor Office in Geneva, Switzerland, who was asked a number of questions regarding U.S. labor law as it affects aviation and transportation.

I will quote from her answer to question 15.

Unlike the National Labor Relations Act (NLRA), the

[Railway Labor Act] does not provide for a decertification

process.

This is the Under Secretary of Labor for the Obama administration.

Therefore, the union's certification continues until

another union makes a showing of interest to represent the

respective class or craft. In this circumstance, as this

showing requires authorization from at least a majority of

the class or craft, the alleged disadvantage of NMB

certifying method works to the advantage of the incumbent

union.

I didn't say that; the Under Secretary of Labor said that.

With regard to the examples the distinguished chairman used with regard to bond issues and the Missouri plan and things of that nature, I wish to make a few points.

When you do vote for a bond issue, you vote it up or down. Most government bond issues are 20- to 30-year terms, which means in 20, 30 years, they are over. Organization under the National Mediation Board is in perpetuity. Then the distinguished chairman talked about what I think is called the Missouri plan, which is judges, where you can vote up or down on whether to continue a judge. You do that about every 4 years in the State of Iowa; right? Whatever the judicial term is, it is not in perpetuity. This is in perpetuity, with the narrow exception stated.

Then, the chairman talked about the minimum wage. The minimum wage has risen from $1 to its current level because we periodically had elections to change it. This is permanent.

So when we take the arguments he made about being anti-union or not in favor of unions, the National Mediation Board organization essentially guarantees the organization of a union remain in perpetuity, which is why it ought to require a majority of all people covered.

The chairman talked about an Iowa union that had been decertified. Those employees work under the NLRA. We can't have it both ways. The Railway Labor Act should be like the National Labor Relations Act, under which the decertification process is parallel to the organization process.

I am honored and privileged to represent the State that is home to Delta Airlines. I know what kind of an employer they are, and they do not deserve to be vilified by the Obama Administration. I have a letter I have already asked to be printed in the Record, but I would like to read a part of this letter from a Delta employee by the name of Susan Powell of Buford, GA. She writes:

I have invested 31 years into a fabulous career at Delta

[Air Lines] and I feel so blessed to have been able to work

for such a wonderful company all these years. The intentions

of the National Mediation Board are totally transparent and

should not be tolerated by Congress--or any other body or

individual (including President Obama) who claims to embrace

honesty, fairness and ethics. It is abundantly clear to me

that motivation of the newest . . . appointees to the

National Mediation Board is to pave the way for an

Association of Flight Attendants to gain entry into Delta Air

Lines--I see no other justification for imposing voting rules

on Delta flight attendants contrary to the voting rules

applied to union elections at all other carriers.

That is a key point.

I have loved my career at Delta and I am so proud of the

monumental efforts my company and my fellow employees have

made to emerge from bankruptcy and return to profitability. I

watched in horror years ago as the unions at Eastern Airlines

single-handedly brought their own company to its knees--and I

was forever grateful that I had chosen to work for Delta, as

opposed to Eastern. It is my belief that an election in favor

of the AFA will be the ruination of my company and the end of

the blissful career I have enjoyed at Delta.

I have tons of letters from Delta employees--including from many who were employed by NMA before the merger--that are just like the remarks made by Susan Powell. This is a great company, a company where, on one of its anniversaries, its employees raised the money internally to buy the company an anniversary jet for their fleet. Delta Air Lines is a great company that has operated under the National Mediation Board's regulations since it was incorporated as an airline carrier in the United States of America. Those regulations should continue without this pro-union change by the Obama Administration, as they should for everybody else in the 75-year history who has been granted their rights under a National Mediation Board regulation, which has served the industry well, served commerce in the United States of America well, and served transportation well. We should not allow two members of an appointed board to overturn 75 years of history and 75 years of precedent.

I reserve the remainder of my time and suggest the absence of a quorum.

Madam President, I keep hearing the argument that you should not count a ``no'' vote; it is undemocratic. Today, at 2:15, the Senate will vote on a cloture motion, and everyone who does not vote is counted as a ``no'' vote as it requires 60 votes out of 100 to get cloture. So we have to make that point from the outset, No. 1.

No. 2, this is not about being antiunion or against unions or promanagement. This is about a 75-year-old history in the United States of America for the essential service of commerce in terms of railroads and airlines. We have historically had the National Mediation Board rule that required a majority of the people who would be affected in the class rather than just a simple majority of those voting for a very precise reason: because it is a permanent decision, as referenced by the quotes in letters from the Under Secretary of Labor.

While I understand the chairman's remark that the Under Secretary of Labor is just the Under Secretary of Labor, she is the Under Secretary of Labor appointed by the President of the United States.

While the chairman says the courts have ruled in favor of this particular ruling of the National Mediation Board, the Supreme Court has twice said they are wrong. Granted, those were in other cases. But twice the National Mediation Board authority has gone to the U.S. Supreme Court, and twice the U.S. Supreme Court has upheld it.

Even all the way back to 1976, President Jimmy Carter, from the State of Georgia, spoke eloquently about the importance of National Mediation Board rules and what it takes to unionize under that versus the NLRB.

So I appreciate very much the arguments the Senator has made, but the facts are quite clear that it is better for the United States of America, it is better for workers in the transportation industry, and it has been historically upheld by the highest Court in the land that the rules of the National Mediation Board serve the people of the United States of America better than any other alternative that was presented.

So with all due respect, I would quote that letter, once again, from the Delta flight attendant who talked about their 31-year experience. Why would you, in the cause of a merger, have a union request for an election pulled out to give a board enough time to change the rules under which that election would take place? It is not fair.

I wish to also say the 1996 Congressional Review Act is very important. Congress ought to have a say-so in the action of boards of the executive branch. We do have a system of three branches of government. We do have a system of checks and balances. But it has obviously been, apparently--as in this case and in others--that this administration has attempted, where it can, to go around the authority of the Senate in advice and consent, by appointing czars or, in this case, to go around the Senate of the United States by using the National Mediation Board.

I would respectfully submit this is a legitimate question--not of whether you are for a union or against one or prefer management and do not prefer a union--this is a debate about extending a 75-year-old precedent which has served the United States of America well and has been upheld in 12 administrations and by the Supreme Court twice. It has been argued favorably by those 12 administrations every time it has been challenged and by the current administration's documentation, which I submitted, which has shown this is a permanent decision at the National Mediation Board.

I would submit, the right thing for us to do is to join together today and vote yes in favor of the motion to proceed to S.J. Res. 30. I respectfully urge my colleagues to do that.

I yield back the remainder of the time.

Madam President, I ask for the yeas and nays.

Madam President, I rise today to urge my colleagues to join me in supporting this joint resolution disapproving the National Mediation Board rule that will deprive railway and airline employees of a voice in their representation elections.

For 75 years, the Board's procedure for voting on union representation properly reflected the geographically broad workforce of the rail and airline

industries. Under this time-tested procedure, the workforce would become unionized if the majority of all the workers in a class voted to join a union.

The new rule has changed the way employees' votes are counted in order to favor the union. For 75 years, not voting at all has counted as a no vote. Now, employees who do not vote or cannot vote will lose any chance to weigh in on the question of union representation. In fact, a minority of workers in a class could determine the fate of the entire workforce. This new rule conflicts with the plain language of the statute. The method for selecting a union is expressly described in the Railway Labor Act: ``The majority of any craft or class of employees shall have the right to determine who shall be the representatives of the craft or class for the purposes of this Act.'' No matter what the Board's policy justifications for this rule are, the law is clear. Supporting this resolution will send a message to those who want to change this 75-year-old rule to favor unions in an industry that is already majority unionized. The only appropriate manner to create new policy here is to amend the statute.

Proponents of the new rule say the election procedure under the Railway Labor Act should mirror the procedure used under the National Labor Relations Act. While this procedure may work fine with smaller units of workers, typically working within the same workplace, it is not an equitable method for workers in the railway or airline industries. The classes of railway and airline workers were intentionally created to be systemwide in order to allow uniform workplace rules and prevent the shutdown of an entire carrier should there be a strike in one local.

With workers geographically spread out across the country and working on different shifts, it is difficult for transportation industry employees to communicate their views with coworkers and voice their opinions during a union election. For 75 years, abstaining has been a way of saying ``not sure'' or ``need more information,'' as well as ``no.'' In many companies, unions try year after year to gain the backing of a majority of employees through elections. This rule change silences those who do not vote because they don't feel like they have gotten enough information to decide. Instead of requiring a union to convince the workforce to support the union, the Board is seeking to allow unions to force their way in. This is a matter of deep concern because once a union is certified, there is no way to decertify it.

Currently, the Board does not have a specific decertification process. This makes it nearly impossible for employees unhappy with their union to organize their fellow employees and vote the union out of their workplace. It seems logical that since the Board acted to make it easier for employees to join a union, it would have also simplified the process for employees to get rid of their union. But, despite requests to do so during the notice and comment period for the rule, they did not. In fact, employees stuck in unions they do not support because of this rule will also not have the benefit of State right to work laws, which would allow an employee to opt out of full union membership and dues obligations. The Railway Labor Act preempts the 22 States that have adopted right to work laws.

The Board has acknowledged that its primary duty in resolving representative disputes is ``to determine the clear, uncoerced choice of the affected employees.'' I could not agree more. But that important duty needs to apply equally when employees seek to vote a union out of their workplace. The fact that the new rule fails to include a decertification process based on the majority of votes cast, is not only troubling, but evidences the true intent of the Board and this administration to tilt the playing field to favor unions over individual workers' rights.

Last year this body unanimously confirmed two nominees to the National Mediation Board. Several members of the HELP Committee, including my office, specifically asked each of them about their position on changing the way a majority in a unionization election is measured. In reply these nominees stated that they had no preconceived agenda to alter election rules that have been in place for 75 years. Yet, practically before the ink had dried on their confirmations, these two nominees began pushing through this regulation which is a wholesale reversal of those rules to the benefit of labor unions. It is not as uncommon as it should be for nominees to say one thing in their confirmation hearings and act differently once in office, but this example may be one of the most concerning because of the way it was done.

In their haste, the majority NMB members thoroughly disregarded the rights of the single minority member. The minority member was given no notice about the other Board members' plans, including even the fact that there was a rulemaking effort underway. Instead, she was presented with the proposed rule to be published and given 1\1/2\ hours to review and determine if she would support it. They even tried to stop her from publishing a dissent to the rule proposal. Silencing dissenting views appears to be an alarming trend at the Board. And unfortunately, it has gone beyond the National Mediations Board.

Over at the National Labor Relations Board, workers' rights and freedoms are similarly at risk. Just recently, at the end of August, the NLRB chose to revisit a 2007 ruling known as Dana Corp. that protected workers' rights to a secret ballot vote. In that 2007 ruling, the Board held that card check was inferior to the use of secret ballot voting in union elections. The Board concluded that when an employer recognized a union in the workplace by card check, employees had the right to request a secret ballot vote to show whether they actually wanted union representation. This was an important ruling to protect workers from union coercion and intimidation that can occur in the card check process. The ruling gave employees a voice in whether they actually wanted union representation, instead of having their employer and a union decide for them.

Now fast forward to August 2010. The NLRB has just decided to revisit that 2007 ruling. Why? There has not been a major shift in management- labor relations that warrants such a change. In fact, the 2007 ruling has served as an important oversight mechanism. According, to the Wall Street Journal, since the 2007 ruling, 1,111 workplaces have become union by the card check process, of which 54 of those have demanded a vote. Only 15 of the 54, voted against the union. So clearly, the 2007 ruling has not led to huge losses for the unions. But it did give employees a say in their workplace.

This Congress should be very concerned about the current state of these administrative boards that were intended to be independent. Concealed agendas cannot become the norm for Senate confirmed positions. If it is then we will have difficulty confirming anyone whose former employer would fall under the nominee's jurisdiction.

I thank the Senator from Georgia, Mr. Isakson, for offering this resolution to send a message to the National Mediation Board that when they seek a change in policy, they must do so within their constitutional and legal authority.

I also note that every member of our caucus has cosponsored Senator Isakson's resolution and joins him in sending this message. I urge all of my colleagues to vote for this resolution.

Madam President, I thank both my colleagues.

It has become customary to expect pendulum swings in labor law each time the White House changes hands and appoints new government officials to lead the Federal executive branch and independent agencies. Sometimes the law changes every 4 years, depending on who is sitting at the NLRB, Department of Labor, OSHA, EEOC, and so on. One year a particular issue might favor labor, and 4 years later the very same issue might favor management.

By analogy, at the NLRB, for example, 1 year graduate school teaching assistants are students not covered by the National Labor Relations Act. The next year they are deemed to be employees covered by the act. Then shortly thereafter, they are once again deemed to be students. Soon we may learn they will once again be employees.

The same is true with regard to the definition of ``supervisors'' excluded from the National Labor Relations Act. One would think that after 75 years, the NLRB would be able to define who is and who is not a supervisor. Instead, the law changes as the political pendulum swings.

What has actually changed other than the people confirmed by the Senate to make the decisions, to call the shots? Without any evidence of changed circumstances in the workplace or relieving the agency's own administrative burden--in fact, without any evident rationale--the only apparent reason for the changes in the NMB's representation election process is in the people who call the shots.

Obviously, this is not the way to promote stability in labor relations and employment law. It makes it difficult for employers, employees, unions, and the lawyers counseling them to ever be assured what the law is in any given area or any given time.

Mercifully, for some issues and at some agencies, it does not work that way. Until recently, that could be said for the National Mediation Board and the process by which it conducted union representation elections.

For 75 years, the procedure which has been applied consistently by the NMB for conducting union representation elections has been the same.

Boards appointed by Democratic Presidents Roosevelt, Truman, Johnson, Carter, and Clinton have agreed that the process through which labor organizations obtain certification as the representative of a majority of the craft or class is the cornerstone of stable labor relations in the air and rail industries. That has been the law for 75 years.

In fact, the NMB appointed by President Carter unanimously ruled that it did not have authority to administratively change the form of the NMB's ballot used in representation elections and that such a change, if appropriate, could only be made by Congress. That is until now.

The new members of the NMB, after assuring this Senate under oath at their confirmation hearings that they had no plans to reverse precedent, after only months on the job, reversed the NMB's longest standing precedent.

By rule, the NMB now certifies representatives elected by a minority of the craft or class so long as they constitute a majority of those voting. This is not just a minor change, this change destabilizes the cornerstone of stable labor relations under the Railway Labor Act and 75 years of NMB precedent which was consistent with the plain statutory language and congressional intent.

Here is how it is destabilizing. First, the former law which required election of a representative by a majority of the craft or class quelled any doubts about the authority of the selected representative. The new procedure will do nothing but foment dissent.

Second, the former certification procedure facilitated the process for employees and their representative to work cohesively toward negotiating and maintaining agreements with an air or rail carrier. The carrier knew the majority of the entire craft or class supported the union, not simply a majority of those voting. This gave the representative more standing. The new procedure will undermine the representative's authority.

Third, the former certification procedure discouraged raids by rival unions and interunion conflicts. The new procedure will encourage such raids.

Fourth, the former certification process recognized the reality in the air and rail industries that, unlike the National Labor Relations Act, negotiations for collective bargaining agreements cover a broad craft or class of employees spread over multiple, geographic locations. Therefore, there is a strong need to demonstrate majority support across those geographic locations, not as the current procedure, smaller units of employees.

So, if anything, the new rules are destabilizing rather than promoting greater stability. The result ignores the clear congressional statutory mandate to maintain stability in the air and rail industries.

I repeat, after assuring us they would not do so, the new NMB members overruled 75 years of precedent which had been consistent through both Democratic and Republican administrations. And how did they do it? It certainly speaks volumes that the rule was developed without the input or participation of the sole Republican member of the three-member NMB, former Chair Elizabeth Dougherty, who was notified of the existence of a proposed rule late one morning and given 24 hours to review the rule and draft a dissent--24 hours to comment on a rule that scraps a precedent which had existed for 75 years and which is likely to discombobulate two great industries. I thought this form of arrogant, rushed, exclusionary rulemaking only exists in Congress when the majority wants to steamroll legislation.

Finally, while changing the rules for certification of a labor representative, the NMB flatly refused to even consider the democratic procedure of decertifying the labor representative should the employees so freely and independently choose. Now, I have heard of ``one man, one vote,'' but ignoring the right of the employees to decertify a union is more like ``one man, one vote, one time.'' How can you have a democratic process where a minority of employees can vote a union in without having a mirror process allowing the majority of employees to be able to vote the union out if a majority of employees become dissatisfied with their representation?

Today, we should stand up and say no--no, you cannot tell us one thing in confirmation hearings and courtesy visits and then do exactly the opposite on the job. We should exercise our voting rights in the Senate under the Congressional Review Act to review this outrageous NMB rule which benefits only one group--labor unions--not employees, certainly not employers, and not the public.

Madam President, I yield the floor.

Madam President, I rise today to discuss the resolution before us--a resolution of disapproval to prevent the implementation of the recent National Mediation Board regulations. Many Americans are likely unaware of the vote we are about to have today, let alone the controversial rule it concerns.

Last May, the National Mediation Board finalized a new regulation that would turn 75 years of union voting precedent on its head. I believe a vote to support this resolution of disapproval is a vote to protect our Nation's workers. Specifically, the National Mediation Board has changed

the voting rules under the Railway Labor Act. The Railway Labor Act is the law that sets labor union rules for railways and airline employees. For the past 75 years, under this act, a majority of employees in an ``organizing unit'' have had to vote yes to form a union. Under this new change, only a majority of employees who actually vote are needed to form a union.

How does this new rule work in practice? For example, if an airline has 1,000 employees who are nonunion today, currently 501 must vote yes to unionize. But under this new union rule, if only 300 of those employees vote, then it would require only 151 of those employees to unionize and speak for the entire 1,000 employees. Since there is no procedure to deunionize under the Railway Labor Act, once this union is formed, these 1,000 employees would be permanently unionized. There is simply no way to vote out a certified union in this part of the law even if a majority is unhappy with the union leadership. This doesn't make sense given that the National Labor Relations Act--the law that governs most labor unions in this country--does allow workers to deunionize.

It is also concerning that the National Mediation Board effectively blocked out the input of its sole Republican member, Chairman Elizabeth Dougherty, during the rulemaking process. Chairman Dougherty stated:

The proposal was completed without my input or

participation, and I was excluded from any discussions

regarding the timing of the proposed rule.

That sounds like what has been going on here lately.

It certainly doesn't sound like the transparency on which the other side of the aisle campaigned.

The American people listening to this debate may be thinking this rule change sounds like nothing more than a political payback to labor, and in my opinion, they are right. The American people listening today may also be thinking this whole debate sounds vaguely familiar, and they would be right again. A proposal called card check may ring a bell. Recall that under the Democrats' card check litigation, American workers would be deprived of the right to a secret ballot when voting on whether to form a union. And while card check and the National Mediation Board rule change may not be one in the same, they both lead to an identical outcome: undermining the fundamental rights of American workers.

You may be asking whether this rule will help workers in the airline and railway industries unionize. Perhaps this rule is needed because the employers have stacked the deck of cards against unionization efforts. But let's look at the facts. An average of 72 percent of airline and railway employees today are unionized, compared to only 8 percent in the rest of the private sector. I repeat: 72 percent in airlines and railways, only 8 percent in the rest of the private sector. So it can't be the case that this new policy is in response to the failure of 75 years of voting precedent or employers blocking the ability for employees to unionize. In fact, workers at Delta have voted down six organizing drives over the past 10 years.

This Nation is facing unprecedented economic difficulties. I speak from experience. The unemployment rate in my State of Nevada is 14.4 percent. We lead the country, unfortunately. The Federal bureaucracy should be working to strengthen our economy, not create an environment for American businesses that leads to an uneven playing field and, at the end of the day, more uncertainty. Uncertainty does not help create jobs.

To conclude, the members of the National Mediation Board have not provided Congress with any substantial evidence that a change in union voting procedures is needed. I believe this rule change is a sign of a dangerous trend--a trend that runs counter to the core principles of American democracy and the ability to choose freely through a fair voting process. As such, I urge my colleagues to support Senator Isakson's resolution, S.J. Res. 30, and vote down the National Mediation Board rule.

Madam President, I yield the floor, and I suggest the absence of a quorum.