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

Mr. President, I yield myself such time as I may consume.

For more than 1 year, I have been working on a series of hearings, both in Washington, DC, and in Iowa, focusing on the state of the American middle class.

We have learned that the American middle class is disappearing, falling into the widening gulf between the haves and the have-nots. The people who do the real work in this country are being squeezed to the breaking point. Their paychecks aren't rising. Their benefits are disappearing. Their pensions are disappearing. Their jobs are being shipped overseas.

When we looked into the causes of this crisis, we found that the middle class is not disappearing due to some inevitable effect of forces beyond our control such as globalization and technology. In fact, the decline of the middle class is primarily due to policy failures. We have failed to respond to our changing economy, while at the same time we have allowed many of the underpinnings of a strong middle class, such as a fair minimum wage, strong overtime laws, and defined benefit pensions to disappear.

One of the biggest factors in this downward spiral has been the decline of American unions. As former Secretary of Labor Robert Reich explained when he testified before the HELP Committee last year, when unions were strong, the middle class thrived and our country prospered. In the mid-1950s, more than one-third of all American workers in the private sector were unionized and the unions demanded and received a fair slice of the American pie. Nonunionized companies, fearing their workers would otherwise want a union, offered similar deals. As employers boosted wages, the higher wages kept the machinery of our economy going by giving average workers more money to buy what they produced. That is what the former Secretary of Labor Robert Reich said.

But now, unfortunately, that productive cycle has broken down. Workers have lost their unions, and they don't have money in their pockets to spend and help grow the economy. That is costing us the jobs and holding back our economy.

There are lots of reasons for the decline in unions, but I think again this chart which I showed yesterday is instructive. If we look at the chart, from 1973 to 2010, we will see, first of all, in the green line is the number of workers

covered by collective bargaining agreements. Look how unionization has declined. Here is the union membership. These are the ones covered by collective bargaining agreements. Here is union membership going down the same way. The red line is the middle class share of national income. Look how it tracks it. So as union membership and collective bargaining has decreased, the middle class share of national income has decreased also, almost parallel. Again, lots of reasons, but I think a big one is the broken union election process. It has become so riddled with abuses that people are giving up on it altogether. As I mentioned in my remarks yesterday, the number of union representation elections has declined by an astounding 60 percent between 1997 and 2009. When workers do file for an NLRB election, 35 percent give up in the face of extreme employer intimidation and withdraw from the election before a vote is even held, and that is after they have already signed the card to petition for the NLRB to have an election, one-third of them never get to an election.

The rule we are discussing today cannot solve all of these problems, but as I said yesterday, it is a step in the right direction. It addresses some of the most abusive situations where unscrupulous companies are manipulating the process and creating delays so they can buy more time to intimidate workers.

The primary way management can cause delay is to raise challenges at the preelection hearing. Some of these disputes, such as challenging the eligibility of an individual voter, can certainly wait until after the election to be decided. That is what we do in elections across the country. If a voter's eligibility cannot be confirmed, they vote a provisional ballot until their eligibility can be verified. We don't stop an election from happening until every voter's eligibility can be confirmed. We don't do that. If there is a challenge, they vote a provisional ballot and after the election they see whether they were qualified to vote. Some of these challenges are downright silly, but they have their intended effect, and that is to delay.

In 2002, one employer raised a preelection challenge arguing that the International Association of Machinists was not a ``labor organization'' within the meaning of the statute. The NLRB actually held a hearing on this question and, of course, found that the machinists who had been representing workers since 1888 are indeed a labor union. But the election was delayed by a month to address that one issue.

Some anti-union consultants bragged openly about their ability to abuse the process and create delays. One union-busting law boasted on its Web site how a 27-day hearing contributed to a 5-month delay between filing of a petition and the election at a Massachusetts hospital organizing drive.

Why is delay so important to management who do not want to bargain in good faith with workers? Well, by delaying an NLRB election, they give themselves more time to conduct an anti-union campaign and make it more likely they will win.

One former anti-union consultant wrote a book that is very instructive. Everyone should read it. It is called ``Confessions of a Union Buster.'' He described his strategy as ``[c]hallenge everything . . . then take every challenge to a full hearing . . . then prolong each hearing'' as long as possible, then ``appeal every unfavorable decision.'' The consultant explained that ``if you make the union fight drag on long enough, workers . . . lose faith, lose interest, lose hope.'' Let me repeat that. This is from an anti-union consultant who wrote this book called ``Confessions of a Union Buster,'' and he said, ``if you make the union fight drag on long enough, workers . . . lose faith, lose interest, lose hope.''

The impact on workers is clear. In 2000, workers at Dillard's distribution center in Little Rock, AR, began efforts to organize a union with the Union of Needletrades Industrial and Textile Employees, UNITE for short. The campaign involved a unit of between 500 and 600 workers employed as pickers, packers, forklift drivers, loaders, other warehouse workers, many making just over the minimum wage.

Dillard's management began talking with workers about the union almost immediately after workers began signing cards--before the petition was even filed. Aware that the company was likely to quickly escalate its campaign, UNITE, the union, filed an election petition in the spring of 2000, a couple of weeks after it began meeting with workers. At the time it filed for the election, UNITE had signed union authorization cards from 65 to 70 percent of the workers to join a union.

Well, what happened? Soon after the union filed the election petition, the company began holding mandatory captive audience meetings and one-on-one meetings with all workers. Basically threats were made that if the union were to succeed, the distribution center might lose its competitiveness and be forced to shut down.

The employer also launched legal challenges to the workers' petition. Get this. The management claimed that all professional and white collar workers should be in the election unit--even those at the corporate headquarters in a separate building adjacent to the distribution center.

Well, the company forced a dispute that took months to resolve. The company didn't want the white collar workers in the union, but by challenging it and saying they should be in it, forced the NLRB to have a hearing that took months to resolve.

The company took advantage of this delay to continue its anti-union campaigning. It isolated union supporters by excluding them from captive audience meetings and changing their shifts or job locations. It distributed and posted anti-union literature and continued one-on- one meetings.

Support for the union began to wane as workers' fears grew. Workers felt they were under surveillance at work and could not discuss the union at the worksite or even outside the distribution center before or after their shifts. Workers grew too scared even to accept union materials that their fellow workers handed out outside of the plant gates. Attendance at general meetings and organizing committee meetings fell sharply over the months leading up to the election. After facing 2\1/2\ months of intense anti-union campaigning, workers voted against union representation by a margin of two to one. About 3 months before that, over 65 percent to 70 percent of the workers had signed a petition to form a union, but less than 3 months later, they voted two to one not to have a union.

The NLRB has put in place reasonable rules to limit the kind of game playing that the workers from Dillard's experienced. The NLRB hasn't tried to advantage or disadvantage workers or stop employers from spreading their message. All the board has done is send a clear message to employers. They cannot abuse the process to buy themselves more time to intimidate their workers. They get a fair period of time to convey the message, and then the workers deserve their day at the ballot box.

This is not the radical act of an out-of-control board. It won't even affect most employers, union or nonunion, one bit. As I pointed out yesterday, 90 percent of all of the petitions that are filed succeed without having NLRB input anyway. Management and workers get together and work things out. But it is in those 10 percent of companies that go on this massive campaign to intimidate and frighten workers, that is what this rule is aimed at.

Preventing abuses of our laws that keep workers from having a union is a small step in the right direction to help putting the middle class back on track.

When I talk about this, a lot of people say, well, isn't it against the law for management to fire workers for union activities? And I say, yes, it is. But what is the penalty? The penalty is basically nothing.

I pointed this out yesterday, and I will say it again. There was a young man in Iowa who had been organizing a union and was fired. He filed a petition with the NLRB and it took him about 3 years to settle the case. He found out that he had been fired because of union activities and the penalty for the company was to give him all of his back pay minus whatever he earned in between.

How many people can go for 2 or 3 years and not take care of their family and pay their mortgage and pay to put food on the table without having a job? So, of course, that intervening time this person had to work, all the wages were subtracted from whatever the

company had to pay him, and it turned out basically it was nothing. So there is no penalty. As I said, all the employer has to do is pay back wages minus an offset of whatever the worker made in between the time he was fired and the time the decision was made by the NLRB, so there is no penalty for the employers to do that.

So, again, allowing our labor laws to be abused is a policy choice. As I said in the beginning, a lot of the reason for the decline of the middle class in America is because of policy choices that are made here. We have tolerated these policy choices for far too long, these abuses. Working families have suffered as a result; union membership has declined. As I pointed out, the number of workers covered by collective bargaining agreements has declined, and the middle class has declined right along with it. There is much more we need to do to move these trends back in the right direction.

I recently introduced a comprehensive bill, the Rebuild America Act, that I think presents a bold agenda for restoring the American middle class. That agenda--everything from investing in the infrastructure to job retraining, better educational benefits, better pensions, raising the minimum wage--also has restoring the right to form a union to workers who have been unfairly denied this basic freedom. It would provide real penalties for employers who abuse and fire workers to bust unions and would try to restore real voice for the people who do the real work in this country.

I hope that once we vote today and uphold the NLRB's eminently sensible actions, we can move on and have a real debate about some of these important ideas about restoring the middle class in this country and building an economy that works for everyone.

I was listening to the comments made by my good friend from South Carolina, and he alluded to the recent situation with a complaint filed with the NLRB by the attorney for the NLRB. A year or so ago the general counsel's office filed a complaint with the NLRB that the Boeing company in Seattle had retaliated against its workers for union activity, that type of thing. The fact is the NLRB--the body my colleagues are attacking today--never acted on that. The company and the workers settled it. Isn't that what we want? But somehow to listen to my friend from South Carolina, he is saying he is even opposed to letting the general counsel file a complaint. Well, that takes away the basic right of anyone to have their grievances heard. So I hope that is not what my friend from South Carolina meant. I want to point out that I think there was a lot of abuse of the NLRB during that process even though the NLRB was doing exactly what we told them to do: Take into account all of the factors, look at all the evidence before you make a decision. That is what they were doing when it erupted here on the floor and a lot of political pressure was put on the NLRB. There were a lot of threats on the NLRB. And as it turned out, it all worked out because the union and Boeing got together, settled their differences and we moved ahead. That is the way it ought to be in our country.

We should not cut off the right of people to actually file a complaint if they have a complaint. The duty of the NLRB is to investigate and to take into account all of the factors before they issue any findings. But that never happened in that Boeing case because Boeing is a good business. Boeing is one of our great businesses in this country and does a lot for America. So you get the good businesses, and the Machinist Union is a great union, and they worked it out. That is the way things ought to be done, and 9 times out of 10 that is the way it happens.

What we are talking about here is the rules for NLRB to take care of those bad actors who are out there, and to give people who want to form a union at least a level playing field without having all of these abuses and delays and intimidations and things like that.

That is what the issue is about, and hopefully this afternoon we will have a good, affirmative vote to uphold the ability of the National Labor Relations Board to issue this ruling.

I yield the floor.

Mr. President, I yield whatever time he may consume to my good friend the Senator from Connecticut.

Mr. President, a couple things.

I keep hearing it stated that: ambush elections. I want to point out, there is no timetable set in these rules--none whatsoever. I keep hearing: 10 days and 7 days and all that. That is not set. There are no timetables at all. As I pointed out, 90 percent of NLRB elections are conducted under voluntary agreements between the parties, and those procedures are unchanged.

The current median time right now between when a petition is filed and when an election occurs is 37 to 38 days. Jackson Lewis, the Nation's biggest management-side law firm, said that--their attorney Michael Lotito told the Wall Street Journal he thinks the time under these rules would be shaved to between 19 and 23 days. Joe Trauger, vice president of the National Association of Manufacturers, says the elections would be held in 20 to 25 days under the new rules--hardly an ambush election.

The other issue I want to briefly mention has to do with the contacts--contacting and the right of privacy I heard here. Right now, the only way a union can contact people is at their homes--at their homes. The only information the union is allowed to get after the petition is filed is the addresses of the workers, their home addresses. What the Board is considering--but has not implemented--is allowing unions to have access to e-mail addresses and/or phone numbers. Well, it seems to me that is a lot less intrusive than going to someone's home.

Now, again, it is much harder, obviously, for a union organizer to go to a home. People go to their homes. They are with their families. They have their children. They are busy. That is more intrusive than e- mailing them, it seems to me. So I would hope we would look upon the possibility that they might say that having their e-mail addresses and phone numbers is less intrusive than going to their homes.

But that is not part of these rules whatsoever. They would still have to contact them at their home, and the only information the employer would have to give would be their home addresses.

Again, keeping in mind what these rules are--they are very modest rules. I keep hearing that: Well, there have only been three rules since the Board was comprised in 1938. Quite frankly, the Supreme Court and appeals courts have said, time and time again, they should do rulemaking because it is open, it is transparent, parties get to be heard. So I think this Board is being more open and more transparent than any Board before it.

This is not anything overwhelming, but it is a step in the right direction to make sure we level the playing field and we do not have these undue delays where the management can intimidate--intimidate--and I gave some examples of it, and I have a whole ream of examples of where management has delayed and delayed and delayed in order to intimidate workers so they would eventually vote not to form a union.

Again, an employer has the right to communicate to their employees all day long--in captive audiences, one-on-one meetings with supervisors. The union can only contact the worker at that worker's house, in the evening or on a weekend. So already the employer has much more opportunity to converse with and to get its views known to its workers than the union has--much more, all day long, at the job, on the job, through supervisors, one-on-one contacts, group meetings, over the loudspeaker, whatever it might be. So already there is much more ability for the management to weigh in on this than it is for the union.

The one thing we are trying to do with these rules is to say: Fine, you can continue to do that. There will still be that disparity between the ability of management to communicate to the workers and the union to communicate, but what these rules are saying is, fine, you can do that, but you cannot continue to do it month after month after month and wear the workers down and intimidate them, make them afraid of losing their jobs. And if you fire one person for union organizing, that sends a chill across everybody else. You say: Well, but that is illegal. Well, it may be illegal, but as I have pointed out, time and time again, there are no penalties for that. It may be illegal, but there are not much penalties for that. Management can always find some excuse--that they may have fired someone for something other than union activity, but everyone would know that person was fired because that person was trying to organize a union.

We are saying you cannot just continue to drag these things out month after month after month. The proposed rules simply say we will have elections, and if there are challenges, if there are challenges by the management as to who can vote in that election, then those challenges would be held until after the election and then see whether those individuals so challenged were really part of that unit and could vote or whether they could not and whether that would even make a difference.

Again, if there were 100, let's say, who signed a petition to form a union, and that was 50 percent of the workers out of 200, and the employer was challenging 5 of those, well, as it is now they could challenge those 5, have a hearing, appeal the hearing, appeal that, and just keep appealing it.

Well, the rules would say, OK, they can say those 5 are not part of it, their ballots would be set aside, and they would have the election. If the election was, let's say, 150 to 20 that they wanted to form a union, those 5 would not make a difference one way or the other. If, however, the election was very close and those 5 would make a difference, then the results would be held in abeyance until such time as it is determined whether those 5 so challenged were part of that bargaining unit or not.

To me, this is a much more fair and decisive way of moving ahead rather than these constant delays and intimidations that go on right now in some of the places--not all, not all, but in some of the places. It is like a lot of times we pass laws not because there are, let's say, broad-based incursions on a person's freedoms or certain things we want to address, but a lot of times we pass laws because there are a few bad actors out there one way or the other and we want to make sure those bad actors are not able to act unreasonably, kind of in violation of what was intended by the National Labor Relations Act.

So that is what they are all about. They are very modest and, I think, lend themselves to a much more reasonable path forward in union organizing and voting.

I ask unanimous consent if there is a quorum call that both sides be charged equally on the time.

Mr. President, how much time is remaining?

Mr. President, there are just a couple of things I wish to bring up in response to some of the statements that have been made on the floor.

First of all, I wish to make it very clear that the NLRB has scrupulously followed all legal and procedural requirements for rulemaking under the Administrative Procedure Act, and by increasing the use of rulemaking, it has been the most inclusive and transparent Board in history--in history. This process has given all sides abundant opportunity to provide input to the NLRB. There was opportunity for written comments, written responses to other comments, and even a public hearing.

I would like to point out again that there is no requirement in the Administrative Procedure Act to facilitate a dissent. Even though there isn't, the NLRB's traditional practice has given Member Hayes an opportunity to dissent. He was given that chance. But these practices do not allow him to filibuster or run out the clock to thwart the actions of his colleagues.

The Board filed a notice of proposed rulemaking on June 22, 2011, provided 60 days for filing public comments, and received over 65,000 comments, of which, I might note, all but around 200 were form letters. There were 65,000 comments, and all but around 200 were form letters. But still there were 200 comments, ensuring a wide range of views and stakeholder input. The Board arranged an opportunity for staff from Member Hayes's office to brief congressional staff on his dissent from the notice of proposed rulemaking, and, although not required to do so, the Board also provided an opportunity for oral public comments at a hearing conducted on July 18 and 19, 2011, in which over 60 labor and management lawyers, public interest groups, employer and labor organizations, workers, and other related constituents participated. The Board provided an additional 14 days following the 60-day comment period in which to file written reply comments. Again, this is not required by the APA--the Administrative Procedure Act--or any other law. Then the NLRB held a public vote on a final rule on November 30 and published the final rule in late December. So quite frankly, under the Administrative Procedure Act, which all other agencies follow, the NLRB bent over backward to be transparent and to allow dissent.

I have heard it said that Member Hayes was not allowed enough time. Well, he had his first dissent. But from June 22 until November, Mr. Hayes had all that time to file a dissent if he wanted to--to write a dissent. I mean, is that not enough time to write a dissent? It seems to me that is more than enough time. But that was not done. So I just want to make it clear that I think Mr. Hayes was given more than enough time to write his dissent if he wanted to. He did write one dissent over the proposed rules, but he had the additional opportunity from June 22 until November. Again, the APA, under rulemaking, doesn't entitle him to dissent, but the Board allowed him to

have a dissent if he wanted to. They had access to public comments on the proposed rules. They were given summaries and copies of specific comments the other members found informative. His office had months to incorporate those comments and write a second dissent but chose not to. That was his own choice. That was his own choice. He was not prevented from doing so. That was his own choice.

There are a lot of little items like that which I think are kind of being misinterpreted, but here is the essence of it, right here. Here is the essence of what this is all about. Stripped of all the falderal and all of this and all of that and which Board member was for card check and who wasn't and on and on and on, this is what it is about, right here, this statement. This is Martin Jay Levitt, who was an anti- union consultant who wrote a book called ``Confessions of a Union Buster,'' published in 1993. ``Confessions of a Union Buster.'' Here is what he said:

Challenge everything . . . then take every challenge to a

full hearing . . . then prolong each hearing . . . appeal

every unfavorable decision . . . if you make the union fight

drag on long enough, workers lose faith, lose interest, lose

hope.

That is what it is about. It is about denying people their right under the National Labor Relations Act to fairly and expeditiously have a vote on whether to form a union. This is not new. This has been going on since the 1940s and 1950s, since Taft-Hartley. There have been forces at work in this country since the adoption of the National Labor Relations Act in 1935 to break unions. They do not want to give workers a right to have a voice in collective bargaining. They will go to extreme limits to deny union members their rights. They will do everything they can to try to break up unions. Taft-Hartley was the first of that, and we have had several things since that time.

Our job is to try to make it a level playing field--as level as possible, anyway--and to give workers a right that is not just a right in name only or in words but a real, factual right to form a union and have the election without challenging everything, taking every challenge to a full hearing, prolonging each hearing, appealing every unfavorable decision. As I quoted earlier, if you make the union fight drag on long enough, workers lose faith, lose interest, and lose hope. And I might add, if you drag it on long enough, it gives the employer every opportunity to intimidate workers so they won't join a union or maybe fire people who were active in the union organization drive--to find some reason why they should be fired, anyway. That is what this is about.

What the NLRB has finally done, through an open process, through a rulemaking process, through perhaps one of the most open and transparent processes in the history of the NLRB, is to say: Let's have a system whereby certification votes can be held within a reasonable amount of time. There was no time limit put in there. There is no 7 or 10 days. That is what Mr. Hayes said in his dissent. He just plucked that out of thin air. But that is not in the ruling. That is not in the ruling at all. Most people who have looked at it have said: Well, it may shorten it to 20 to 30 days, somewhere in there. It seems to me that is fair enough. That is fair enough.

But that is really what this is all about, and I hope Senators, when they vote, will recognize that what the Board has done is to take the unfair process we have had for so long and made it more fair for everyone.

I will point out one last time that the procedures the NLRB has come up with, which are under fire right now from the other side, apply to certification votes as well as to decertification votes. If a company wants to decertify a union, then the union can't drag that out days and months at a time. They can't drag that out for decertification either. So it seems to me that on both sides--certification and decertification--we have a level playing field, and neither side can drag it out interminably to try to frustrate the real desires and wishes of the workers.

Mr. President, I yield the floor.

Mr. President, I make a motion to proceed to S.J. Res. 36.

Mr. President, I rise today to ask for disapproval to stop the National Labor Relations Board's ambush election rule. This rule I have been objecting to was put into place by an NLRB that is bound and determined to stack the odds against American employees and to put employers and employees in an unfair situation. Despite the fact that unemployment has remained above 8 percent for the past 3 years, and small business growth is the most important factor in reversing the lackluster trend, the National Labor Relations Board has chosen to impose new rules to aid big labor at the expense of employers, and particularly small business employers and the jobs they would create.

If the Senate does not act now to stop this rule by passing my resolution, it will go into effect on Monday, April 30, 10 months after it was first proposed. The changes that are being made are going to be a big surprise for the employers and employees who get

caught in this net, particularly, as I mentioned, the small employers who do not have the human resource departments or in-house counsel. I would expect that we elected representatives of the people are going to face a lot of questions about what we did to stop this blatant effort to stack the odds in big labor's favor--and we will be asked. This rule will shift the law significantly in favor of big labor.

Let me take a moment to explain. Under current practice, there is a 25-day waiting period between the setting of an election by a hearing officer and the actual secret ballot election. Employers could use this time to familiarize themselves with the requirements and restrictions of the law. This is very important because there are many ways that an unknowledgeable employer with the best intentions could make a misstep that would be heavily penalized by the NLRB. Employers also use the time to communicate with their employees about the decision they are making and correct misstatements and falsehoods that they may be hearing from union organizers.

Parties also use this time to seek review of a decision made by a hearing officer or an NLRB regional director. Under the new regulation, the 25-day waiting period is abolished and employers may face an election in as few as 10 days.

Is it fair to the employees to only have 10 days to learn how this will affect his or her life, and how much of his or her money this will cost?

Under current law, both parties are able to raise issues about the election at a preelection hearing, covering such issues as which employees should be included in the bargaining unit and whether particular employees are actually supervisors. Under the new regulation, parties will be barred from raising these questions until after the election. Employees will be forced to vote without knowing which other employees will actually be in the bargaining unit with them. This is important information that weighs heavily in most employees' vote.

Additionally, because of the NLRB's decision to allow micro-unions, such as specialty health care, unions will essentially be granted any bargaining unit they design and employers will have a very limited time to weigh in.

Under current law, when either party raises preelection issues, they are allowed to submit evidence and testimony and file posthearing briefs for the hearing officer to consider, and have 14 days in which to appeal decisions made with respect to that election.

Under the new regulation, the hearing officer is given the broad discretion to bar all evidence and testimony unrelated to the question of representation and all postelection briefs, and no appeals or requests for stays are allowed. This can be quite a disadvantage for employees as well.

What this all adds up to is an extremely small window of time from filing a petition to the actual election, little opportunity for employers to learn their rights or communicate with employees their rights, and less opportunity for employees to research the union and the ramifications of forming a union. The NLRB is ensuring that the odds are stacked against employees and businesses. This vote is an opportunity to tell the NLRB to reverse course.

If we pass this resolution, as I hope we will, the Senate will not be the only branch of government telling the NLRB it is off track. Last month, a District of Columbia Federal court told the NLRB that several provisions of its notice-posting regulation were well exceeding their authority and struck them down. This was a judge appointed by President Obama. Two weeks ago, another Federal court--this time in South Carolina--also ruled against the NLRB. It found that the entire notice- posting regulation violated congressional intent. Following up on these two rulings, the DC Court of Appeals stayed the entire rule until appeals are completed. The court in that case was frustrated that the NLRB did not postpone the rule itself, given the multiple negative treatments in the courts.

Unfortunately, that reckless sense of blind mission is consistent with this administration's NLRB. It is kind of like ``Thelma and Louise'' driving off a cliff. I, for one, don't want to see the NLRB drive our economy off a cliff. I hope this resolution will pull them back and encourage them to focus on their statutory mission.

The NLRB enforces the National Labor Relations Act, which is the carefully balanced law that protects the rights of employees to join or not join a union, and also protects the rights of employers to free speech and unrestricted flow of commerce. Since it was enacted in 1935, changes to this statute have been rare. When they have occurred, it has been the result of careful negotiations with stakeholders. This change is one-sided and super quick--an ambush to set up ambush elections.

The National Labor Relations Board is not an agency that typically issues regulations. Listen to this: In fact, in over 75 years the National Labor Relations Board has finalized only three regulations through formal rulemaking, two of which occurred last year. Let me repeat that. In over 75 years, the National Labor Relations Board has finalized three regulations through informal rulemaking, and two of them occurred just last year--under this current National Labor Relations Board. As I mentioned, one of those was already struck down by one court and stayed by another.

Most of the questions that come up under the law are handled through decisions of the board. Board decisions often do change the enforcement of the law significantly, but they are issued in response to an actual dispute and question of law. In contrast, the ambush election is not a response to a real problem because the current election process for certifying whether employees want to form a union is not broken. This rule was not carefully negotiated by stakeholders. Instead, it was finalized in just over 6 months despite the fact it drew over 65,000 comments in the 2-month period after it was first proposed.

Labor law history provides an interesting contrast to this rushed regulatory approach. In the late 1950s, Congress became concerned about undemocratic practices, labor racketeering, and mob influence in certain labor unions. To address this the Senate created a special committee--the Select Committee on Improper Activities in the Labor or Management Field. That operated for 3 years and heard more than 1,500 witnesses over 270 days of hearings.

Based upon their investigations, the Senate negotiated and passed legislation to protect the rights of rank-and-file union members and employers. The legislation is known as the Landrum Griffin Act.

The issue of how long a period of time there should be between the request for an election and the actual election came up during those negotiations. My colleagues may be surprised to learn it was Senator John F. Kennedy who argued vigorously for a 30-day waiting period prior to the election. As he said:

There should be at least a 30 day interval between the

request for an election and the holding of an election . . .

in which both parties can present their viewpoints. . . . .

The 30 day waiting period is an additional safeguard against

rushing employees into an election where they are unfamiliar

with the issues.

Again, that was a quote by Senator John F. Kennedy. Fairness to the employees--that is what Senator John F. Kennedy was talking about. The 30-day waiting period provision he supported did not ultimately become part of the law, and, obviously, it is not a law today. Instead, the NLRB adopted a practice of a 25-day waiting period in almost every case. But this caution about the need for employees to have a chance to become familiar with the issues is just as true today.

Employees who are not aware of the organizing activity at their worksite, and even those who are, need to have an opportunity to learn about the union they may join. They will want to research the union to ensure it has no signs of corruption. They will want to know how other work sites have fared with this union and whether they can believe the promises the union organizers may be extending. Employees should have every chance to understand the impact of unionization.

For example, they will no longer be able to negotiate a raise individually with their employer. Doing their jobs better than a fellow employee may no longer bring any benefit whatsoever. Union rules may even hinder sales.

I once had an opportunity to visit a shoe factory. I was in the retail shoe business, and we visited a shoe factory. As we went through it, I saw some boxes of some of the shoes we normally carry and was kind of interested in what the new fashion looked like. So I went over and opened a box, and the roof caved in. Not actually, but it seemed as if the roof caved in because it had to be somebody who had union authority to open that box. It couldn't be the supervisor. So I actually shut down the factory for about 30 minutes just by picking up a box to look at the shoes that were probably going to be coming to my store at one point in time.

Grievances cannot be brought straight to the employer but will, instead, have to go through the filter of union management. Once the union is certified, the National Labor Relations Board has instituted significant restrictions for when it may be decertified; in other words, when the employees can fire a union as their representative. Employees are barred from petitioning for decertification for a full year after the election and barred as well throughout the term of the collective bargaining agreement. So there is a very small window in which employees have any opportunity to get rid of a union they do not support. They are going to be rushed into judgment, and then they are stuck with it.

Four decades ago Senators recognized employees deserved the opportunity to gather this and all other relevant information before casting their votes. Unfortunately, the NLRB is choosing to ignore this caution, and rank-and-file employees will suffer. Fairness to the employee?

This situation is exactly what the Congressional Review Act was intended for. When an agency takes regulatory action that is not supported by the people and their representatives, the Congressional Review Act gives Congress the chance to repeal that regulation.

In this case those advocating for the rule are doing so because they cannot pass the bill they really want, which is card check. Card check is where you have people go in and stand over employees' shoulders while they check a box that says they want to be in a union. Then, with enough signatures or enough boxes checked, there is no secret ballot election. So many have referred to this as ``back-door card check''-- this particular NLRB regulation--and for good reason. Both proposals seek to restrict all communication with employees prior to a union election for union organizers only. Under both scenarios, employees are likely to hear only one side of the story, and employers can be cut out of the process altogether.

But the other side could not pass card check because once the American public found out about what they were trying to do, they objected. It took a little while because the card check legislation was deceptively named ``The Employee Free Choice Act.'' In reality it would have forced employees into the exact opposite of free choice. Any Senator who opposed this card check legislation should also be voting for this resolution to stop ambush elections.

Another reason the Congressional Review Act was designed for just this situation is there is simply no other way we would be allowed to have a vote on this issue in this Senate. Back in December, the House of Representatives passed Chairman Kline's legislation that would have effectively killed the ambush election regulation and codified a 35-day waiting period before an election. The Workforce Democracy and Fairness Act was passed with bipartisan support, but it has no chance of being called up for a vote in the Senate. So this vote is the one chance Senators will have to stand up for employees and small businesses that want fairness.

By any measure, the current law and certification system provides that fairness. The National Labor Relations Board keeps data on elections timing and sets up annual targets to process elections and decide complaints swiftly. Last year, they exceeded two of those targets and came within three-tenths of a percentage point of meeting the third. There is simply no justification for this regulation.

Last year, initial elections and union representation elections were conducted in a median of 38 days after the filing of the petition. Almost 92 percent of all initial elections were conducted within 56 days of the filing of the petition. Not only are the vast majority of elections occurring in a timely fashion, but unions are winning more than ever. Unions win more than 71 percent of elections--their highest win rate on record. The current system does not disadvantage labor unions at all, but it does ensure employees--whose right it is to make the decision of whether or not to form a union--have a full opportunity to hear from both sides about the ramifications of that decision.

This resolution will preserve the fairness and swift resolution of claims which occur under current law. It will not disadvantage unions or roll back any rights. Let me repeat that: This resolution will not disadvantage unions or roll back any rights. What it will do is prevent the small business employers in America from being ambushed and employees from being misled with insufficient information into union contracts they cannot get out of.

Under a successful Congressional Review Act disapproval, the agency in question is prohibited from issuing any substantially similar regulation. That means the National Labor Relations Board could not just reissue this regulation and could not finalize many of the other bad ideas they initially proposed. I will be speaking about some of those later on in this debate.

Let's not wait for the courts to strike down this rule, as they have the NLRB's other regulatory effort--which would make two out of three in the last 75 years. With the President's appointment of the National Labor Relations Board members when we were not in a Senate recess period, the Senate did not confirm the people pushing this effort-- though, mostly, this was done by previous board members. But with the President's recess appointments in place, the National Labor Relations Board is poised to push forward other bad ideas aimed at helping union bosses, not employees, and not job creators. It is time to stop this agency and level the odds.

I am pleased to have 44 fellow Senators cosponsoring this resolution. I will now yield time to other Members who would like to speak in favor of it, first allowing the Senator from Iowa, the chairman of the committee, an opportunity to speak, probably, against it.

I yield the floor.

Mr. President, most of the small businesspeople I know consider themselves to be part of the middle class. I appreciate the statistics the chairman provided about 90 percent of the elections arriving at agreement prior to the election. What this rule is going to do is change it so that only 10 percent make agreements beforehand because there is no incentive for the union to participate at all. They have the right to just take it over.

There are some statistics about unions and the middle class, and kind of a myth, that the current election procedures discourage unionization and are the main cause of private sector union decline. In the 1950s private sector union membership reached its height of 35 percent of the unionized workforce. Today it is less than 7 percent of the private sector workforce that is unionized, and the decline of unionization in the private sector can be attributed to several social, political, and economic factors, including present-day workplace laws at both the State and Federal level that have greatly improved working conditions; a decline in the manufacturing base; the new nature of employment, where people are more transient in their careers; and the desire for contemporary employees to have a more cooperative relationship with their employers, and vice versa. It is kind of a teamwork factor that most businesses operate on today.

I think it was also said that employers have unfair access to employees and regularly bombard employees with anti-union propaganda. I think it was said it could happen 24 hours a day. The fact is employers' speech regarding unionization is closely monitored and regulated. For example, employers are restricted from visiting employees at their homes, inviting employees into certain areas of the workforce to discuss unionization, and making promises or statements that could be construed as threatening, intimidating, or coercive. That is the current law. Employers are required to provide unions with a list of employee names and home addresses for representation election purposes.

I think it was also said changes are needed because current procedures discourage employees from forming unions. The fact is all employees have the guaranteed right to discuss their support of unionization and to persuade coworkers to do likewise at work. The only restriction is that they not neglect their own work or interfere with the work of others when doing so. Employees as well as unions have the unlimited right to campaign in favor of unionization away from the workplace.

The National Labor Relations Board election rule will postpone these legitimate questions after the representation election is held and could result in more post-election litigation. So there are a lot of factors that were mentioned. I am not going to go into all of them.

As I have stated throughout the debate, the National Labor Relations Board's ambush election rule is an attempt to stack the odds against American employers, particularly small businesses that do not have a specialist in that area or in-house counsel. Most small businesses today cannot afford either of those. They can be put into this situation of having to figure it all out in less than 10 days. That is just to figure out the rules so they do not get some heavy fines from the National Labor Relations Board.

Coupled with two other changes the administration is forcing, some employers will be caught in a perfect storm. Taken together, ambush elections, the National Labor Relations Board's micro-union decision, and the Department of Labor's proposed rule on persuader activity create a major shift in favor of organized labor.

The Supreme Court has expressly stated that an employer's free speech rights to communicate his views to his employees is firmly established and cannot be infringed by a union or the board under the National Labor Relations Act. Yet the overarching goal of the National Labor Relations Board and the Labor Department's efforts is to put up barriers that can have the effect of limiting employer free speech.

Under the specialty health care decision permitting micro-unions, unions can now gerrymander a bargaining unit so it is made up of a majority of employees who support the union. In this decision, the standard for whether a union's petition for a bargaining unit is appropriate was changed to make it very difficult for employers to prove it is not appropriate. The decision will lead to smaller units which will be easier to organize and cause fragmentation and discord in the workplace. Allowing micro-unions will increase the number of bargaining units in the workplace. The result means an employer could face multiple simultaneous organizing campaigns, all with shortened election periods, thanks to this ambush rule. Those two combined can be pretty dangerous.

Under the Department of Labor's proposed regulation to require increased reporting of persuader activity, an employer, especially a small employer, will rethink obtaining advice from lawyers or consultants on what to do when faced with a union organizing campaign. Taking away the ability to consult outside parties, combined with a shortened election period, makes it nearly impossible for an employer to not only educate his employees, but also to ensure his actions are within the law.

For over 50 years the Department of Labor has been exempted from reporting requirements advice provided to employers. The proposed rule will significantly affect that definition. The complexities of the National Labor Relations Act almost require an employer to seek advice on what he is permitted to do or say to employees during a union election, especially if the election period is as short as 10 days.

The proposed rule on persuader activity will chill employer speech to the point that employers will not seek, and attorneys will not provide, advice on any labor-related issue. So unions have turned to these regulatory initiatives after losing the public and political battle over the Employee Free Choice Act, otherwise known as card check. Organized labor's end game remains the same, making it easier to organize by taking away the employer's free speech right and the employee's right to fair information.

Supporters of organized labor have acknowledged the winning strategy is to gain voluntary recognition of the union from employers instead of allowing employees to vote in a secret ballot election, despite a 71- percent win rate. Ambush elections, increased reporting on persuader activity, and the decision to allow micro-unions will set the bar for an employer winning elections impossibly high, essentially coercing them into voluntarily recognizing the union.

I do thank the Senator for mentioning that in 90 percent of the elections there is an agreement before the election done in a relatively short period of time that takes care of all the disputes. I don't know if the purpose of Congress is to make sure 100 percent of situations never occur or 90 percent or 99 percent, but everything cannot be solved by doing a new rush to action regulation, particularly by an organization that doesn't do those regulations normally.

In 75 years there have only been three regulations. Two of them were done by the Labor Relations Board in the last year, and one of those has already been set aside by the courts. So this is a rush-to-action situation, and I hope my colleagues will join me in this resolution of disapproval of the Congressional Review Act.

It is a very difficult bar to reach because the Senate will have to pass the resolution of disapproval twice with a majority of votes. That gives the other side the opportunity to see who might support it the first time and see if they can talk them out of it the second time. But after that, it has to go through the House, and then this is the surprising part to me--if it passes both bodies where both bodies have said they do not think the agency correctly interpreted what we put in law, meaning Congress, who are the only ones with the right to pass a law--what we

put into law, they are trying to change, and that third step is that it requires the signature of the President in order for the Congressional Review Act to become effective. We are an equal branch of government to the administration. The administration writes the rule. We disapprove of the rule because we say it doesn't follow the laws we have already passed, and then the administration which wrote the law gets to say whether the votes of the people in the House and in the Senate had any effect at all.

The Congressional Review Act has a definite place, but it should have been done using the authority of Congress itself, not the authority of the Congress and the administration combined. We are at a point where there is a heavy hand in the administration, and that will have a drastic effect on business in this country. And if business fails, there will be less employees, not more.

Mr. President, we are having an interesting duel of statistics here, because to take care of the 10 percent that the Senator from Iowa says has a problem, we will turn the other 90 percent on their head. It also doesn't surprise me that the President has put out a Statement of Administration Policy, a SAP. I always thought those were pretty aptly named, but not surprised my resolution would be opposed.

As I explained, this is a regulation written by the administration so

Mr. President, I ask unanimous consent to have several letters of support printed in the Record, along with a list of 18 organizations that support the resolution.

I also ask unanimous consent to have printed in the Record an article by Phil Kerpen in the Daily Caller entitled ``Will any Senate Democrat stand up to Obama's NLRB?''

Unless there is further debate, I yield back the balance of our time for today.

Mr. President, I yield myself whatever time I may consume.

Mr. President, I also want to clear up one parliamentary question. The occupant of the chair stated we had 2 hours evenly divided. I believe that is today. But on the agreement for the entire debate on the Congressional Review Act, if I am not mistaken, it is 4 hours evenly divided.

I thank the Chair.

Mr. President, this Congressional Review Act challenge is the latest chapter in an unprecedented Republican assault on unions. The amount of time this Congress has wasted scrutinizing and bullying the National Labor Relations Board over the last 2 years is simply astonishing. This time the debate is about whether the NLRB acted appropriately when it streamlined its procedures for setting up a union election and eliminated unnecessary bureaucracy to make the agency more efficient.

This seems like a commonsense and logical step that if taken by any other agency my colleagues on both sides of the aisle would be applauding as a step forward for good government and efficiency. But because these reforms were put forward by the NLRB--an agency my Republican colleagues seem to do anything to undermine--we are all standing here today debating the merits of this eminently sensible action. It is a real shame.

At a time when we should be working together to rebuild our economy and addressing the real challenges facing working families across this Nation, instead Republicans are distracting this body with partisan attacks on the National Labor Relations Board and on unions.

I would welcome the opportunity to spend this time on the Senate floor debating how to make life better for middle-class families. I would even welcome the opportunity to have a real debate about unions and the important role they play in our country. What I deeply regret is that we are instead going to spend time discussing the wild misinformation that has been spread about National Labor Relations Board rules that were properly undertaken, well within the agency's authority and completely sensible. So let me take a moment to try to set the record straight.

In December, after receiving public input, the NLRB announced that some internal agency procedures governing union elections would be changed. These are modest changes that not only make the procedures more rational and efficient but also ensure that workers and employers alike will have an opportunity to make their voices heard in an environment free of intimidation. These changes, while modest, are desperately needed. They will address the rare but deeply troubling situation where an unscrupulous employer uses delay and frivolous litigation to try to keep workers from getting a fair election. Let me briefly explain how the process works and how the new rules will help.

Ever since the passage of the National Labor Relations Act in 1935, workers have had a Federally protected right to choose whether to form a union, and our national policy, as stated in that act, has been to encourage collective bargaining. Workers who are interested in forming a union can request an election if at least 30 percent of the workers in that workplace sign a petition and present that to the National Labor Relations Board. About 90 percent of the time, the employer and the union reach an agreement covering when the election will be held, the timing of it, and who is in the bargaining unit.

That is the ideal situation. That is what happens the majority of the time. Although we would never know it from the rhetoric surrounding these rules, the new procedures address only the roughly 10 percent of situations where these preelection issues are in dispute and the rules say nothing about 90 percent of the elections, where the two parties reach a voluntary agreement on election terms.

This chart shows us only a tiny fraction of election petitions will be affected by these rules. As I said, 90 percent of the time the proposed union and the employers reach an agreement when the election is going to be held, how it is going to be held and other procedures. They voluntarily agree on that. Only 10 percent of the time do we have employers, some that are highly unscrupulous that will do anything to prevent their workers from having any kind of a voice in the running of the facility, that go to extreme lengths to frustrate the will of those who want to form a union. Again, the rules we are talking about don't even affect 90 percent of the businesses.

This 10 percent of the time when the parties can't reach an agreement, the NLRB then holds a hearing to decide who should be in the bargaining unit. The NLRB's proposed rules deal with the mechanics of that hearing and they attempt to cut back on the frivolous litigation that has plagued the hearing process. That is the proposed rule. They deal with the mechanics of that and cut back on this frivolous litigation. Under the old rules, management could litigate every single issue they could imagine at the preelection hearing. They could file posthearing briefs over any issue no matter how minor, and they could appeal any decision to the NLRB here in Washington. In many cases, the election would be put on hold while the Board reviewed the case. The workers then had to wait for the resolution of this litigation before they could even vote.

When the management side took advantage of every opportunity for delay, the average time before workers could vote was 198 days. Again, we are talking about this 10 percent. When management took advantage of every opportunity, the average time before workers could even vote was 198 days. We have some cases where it has been as long as 13 years before employees were able to vote in a union election. While the election process drags on, workers are often subjected to harassment, threats, and, yes, firing.

A study by the Center for Economic and Policy Research found that, among workers who openly advocate for a union during an election campaign, one in five is fired. We know what kind of signal that sends to the rest of the workers. A Cornell University study found that workers were required to attend an average of ten anti-union meetings during worktime before the election. By law, workers have the right to organize. As I said, our official policy, as stated in the National Labor Relations Act, is to encourage collective bargaining, but in practice we allow delay and intimidation to make that right meaningless.

The current NLRB election reforms do not solve this problem entirely, but nevertheless they are an important step forward. They help clear the bureaucratic redtape that has wasted government resources and denied workers the right to a free choice. Under the new rules, employers and unions can still raise their concerns about the petition at a preelection hearing, but they can't play games to stall the election. For example, under the new rules, employers can't waste time before the election arguing over whether an individual worker is eligible to vote. That worker then can vote a provisional ballot, and the two sides can debate the issue after the election if it matters to the outcome. What we have had in the past is, let's say we had a proposed bargaining unit that was 200 people. Let's say they got 100 of them to sign a petition. They usually try to get about 50 percent. They present it to the NLRB. Management then says: Person A shouldn't be in that bargaining unit because they are a supervisor, and person B over here shouldn't be in here because that person is a clerk and not a handler--or whatever it might be that wouldn't correspond to the bargaining unit.

Let's say they raise that issue on five people. Under the present situation, they could then take this to the NLRB, have hearings on each one of those. If they didn't like the outcome, they could then take it to Washington, DC and drag it out.

Under the new rules, what they would say is: OK. If management is challenging those five people, we will set their ballots aside, and we will have an election. If the election was 150 to 20 that they form a union, then those 5 wouldn't make any difference one way or the other. But if the election were close and those five would, then the NLRB would step in and say: Wait a minute. The certification would be put on hold until they decided whether those people were rightfully in the bargaining unit to vote. Again, these are some of the games that have been going on.

Another example is appeals. All parties still have the right to appeal any decision they disagree with. But now, all appeals would be consolidated after the election, which allows the Board to conserve its resources and keep the election process moving forward.

These commonsense changes remove unnecessary delays from the process, they cut down on frivolous legal challenges, and give workers the right to a fair up-or-down vote in a reasonable period of time. The new rules don't encourage unionization and they don't discourage it. They just give workers the ability to say yes or no, without having to wait several months or even years to do so.

There is rampant misinformation about this rule. To be clear, the rule does not allow a so-called ambush election, where an employer is taken by surprise and has no ability or opportunity to communicate with workers about the pros and cons of a union. As anyone who has ever been around a workplace that is part of an organizing drive would know, employers always know what is going on, and they have ample opportunity to express their views. They can require their workers to listen to an anti-union message all day long every day, and that is perfectly legal, while the union isn't even allowed into the facility to talk to other workers.

This rule also does not change the content of what an employer can or cannot say to its workers. It doesn't restrict an employer's free speech rights in any way.

Finally--I wish to make this clear--the rule does not mandate that elections be held within any particular

timeframe. For anyone who has actually read the new rules, it is clear it does nothing of the sort.

What these rules do accomplish is to help ensure that employers and employees have a level playing field, where corporate executives and rank-and-file workers alike have an equal chance to make their case for or against a union. Some workplaces will choose a union, some will not. But protecting the right of workers to make that choice brings some balance and fairness to the system. Indeed, many employers have recognized that the new rules are fair and balanced. Catholic Health Care West, a health care company with 31,000 employees, filed comments stating:

Reforms proposed by the NLRB are not pro-union or pro-

business. They are pro-modernization.

Further, Catholic Health Care West said they will:

Modernize the representation election process by improving

the Board's current representation election procedures that

result in unnecessary delays, allow unnecessary litigation,

and fail to take advantage of modern communication

technologies.

Mr. Willie West, founder and owner of West Sheet Metal Company in Sterling, VA, wrote an article in the Hill newspaper stating that:

[t]hese seemingly minor changes certainly do not create

uncertainty for me and they will not affect my ability to

create jobs. In fact, if the NLRB standardizes the election

process, it seems to me this will reduce uncertainty and

turmoil in the workplace--especially for small businesses.

Mr. West is exactly right. The rules are an improvement for small businesses and for those who want a cooperative relationship with their employees. Again, keep in mind, 90 percent of the time they have no problems. We are only talking about this 10 percent of the time. That is what these rules are aimed at.

The new rules promote consistency among NLRB field offices. They simplify procedures for all parties, making it easier for businesses to plan. The old rules gave an advantage to the businesses with the most money and those most willing to manipulate the system to frustrate their employees' right to vote. Some of these businesses in that 10 percent could afford expensive lawyers to exploit the system and delay elections. The old rules worked well for anti-union law firms--I will grant you that--but not for small businesses on a budget.

By creating a fair, more transparent process, the NLRB is leveling the playing field for small businesses.

Most important, the rules also take a small step to level the playing field for ordinary Americans. The people who do the work in this country deserve a voice in the decisions that affect their families and their futures. Polls show that 53 percent of workers want representation in the workplace, but fewer than 7 percent of private sector workers are represented and one of the reasons is the broken NLRB election system. Even though more workers than ever are expressing an interest in having a voice on the job, the number of union representation elections conducted by the NLRB declined by an astounding 60 percent between 1997 and 2009.

When workers do file for NLRB elections, 35 percent give up in the face of extreme employer intimidation and withdraw from the election before a vote is even held. Let me repeat that. Workers have gone around, they have gotten signatures, they have gotten the requisite 30 percent. They usually get a lot more than that, 40 to 50 percent. They file with the NLRB. One out of every three of those give up in the face of extreme employer intimidation. Why? Because one out of every five is being fired because there is no real penalty against the employer for firing someone for union organizing. It is against the law to fire an employee because they were exercising their right to form a union, to be in union organizing. But it happens all the time. Why do employers not worry about it? Because there are no penalties. The penalty is backpay minus any offsets.

I had a young man in Iowa I remember very well up in Mason City. He had been involved in organizing a union at his workplace. He got fired. He filed with the NLRB saying he was wrongly dismissed because of his union-organizing activities.

They had a hearing. It dragged on for 3 years before the NLRB could reach a decision, and the decision was, yes, he was fired because of his union-organizing activities.

What was the penalty on the employer? They had to pay him 3 years' backpay minus whatever he earned in the meantime as a worker.

How many people can go through years without working? Of course, he had to work. He had to go to work, and he had to show how much money he made in the meantime that had to be deducted from what his employer had to pay him. Therefore, they had to pay practically nothing. Yet using that as an example, they were able to frustrate the organizing of a union. One-third give up in the face of extreme employer intimidation. These are the problems that need to be addressed.

It is not just a problem for unions either, but for our entire middle class and for the future of our economy. If we take a look at what is happening to the middle class in America, it is being decimated. The American people are insisting--even though we are not doing much of it in Washington, I can assure you the American people are insisting that we have a national dialog about the growing division between the haves and have-nots in this country, about the detrimental impact this is having on the standard of living of American middle-class families. This has led to important discussions about tax loopholes for corporations and millionaires. But as we learned from battles from Wisconsin to Ohio and beyond, it is very much a conversation about workers' rights.

Unions have always been the backbone of the American middle class since we started having a middle class. Since 1973, private sector unionization rates have declined from 34 percent of the labor force to 7 percent; from 1 out of every 3 workers in America belonging to a union to now only 7 percent, 1 in about 15. While unionization rates declined, so did the middle-class share of national income.

During some hearings we had last year--we had a number of hearings in our committee about this. When we track union membership--this, the blue line, from 1973 to today--and track the percent of workers covered by collective bargaining agreements, and then track the middle-class share of national income, look how they all go down the same. As unionization declined the number of workers in collective bargaining declined, and so did their share of the national income. That is what has happened to the middle class in America. Simply, the fate of America's unions parallels the fate of America's middle class.

Unions are not a relic of a bygone era, they are a vital element of a fair and successful 21st-century economy. If we want to strengthen our economy and rebuild the middle class, we should try to figure out how to make unions stronger, how to get more people in collective bargaining, not attack collective bargaining rights across the country. We should be fighting to ensure that every hard-working American has a right to be treated with dignity and respect on the job--and, yes, to have a voice on that job. The current NLRB election reforms may fall short of that lofty goal, but, as I said, they are an important step forward, and they deserve support.

I urge my colleagues to vote no on this Congressional Review Act challenge to NLRB's rules. Now that these rules are to go into effect-- and I am confident they will go into effect--it is time for this body to stop wasting time, using the NLRB as an election year political football.

I think these attacks on this modest rule go right after the intelligence of working Americans. These attacks urge this body to help prevent unions from being organized. But ordinary Americans and the middle class want us to stop this political posturing and move forward on building economic opportunity for the middle class--and, yes, to support the right of people who want to form a union, to get rid of all these delays, and to make sure we have rules in place which basically reflect 90 percent of the employers in this country.

Ninety percent of the employers reach agreements with their employees on having an election. It is that 10 percent that gets to be frustrating. This is the purpose of this rule, to make everybody sort of falls in the 90 percent, so

we have a fair and expeditious election process, one that is understandable, one that does not lead to all this frivolous litigation and delay.

We have another couple or 3 hours of debate on this matter. After this is over, I hope we can start focusing on ways to genuinely help the middle class in America.

I yield the floor.

Mr. President, how much time do have I remaining?

Mr. President, we are going to have a lot of time to flush out some of these arguments again tomorrow when the vote gets near, but I thought I might pick up on a couple of things here that my good friend from Wyoming said. We do a lot of work together, and he is a great Senator and a good friend of mine. He just happens to be wrong on this issue, but other than that, he is a good friend of mine. This is a good, healthy debate on policy.

There is a lot of talk about these ambush elections. Now we are going to have ambush elections. Well, that is not so. The current median time from when a petition is filed and when the election occurs is about 37 to 38 days. Again, I heard from my friend saying this could be ambush elections, and all that kind of stuff. Even one of the Nation's largest management-side law firm disagrees. One of the attorneys from Jackson Lewis told the Wall Street Journal that he thinks the time would be shaved between 19 and 23 days under the proposal.

Mr. Trauger, vice president of the National Association of Manufacturers, said the elections would be held in 20 to 25 days under the new rule. So that is not an ambush election at all. All this rule does is remove these extra legal hurdles that can cause excessive delays.

We keep hearing about rulemaking, and saying: Well, this board has only issued three of these rules in the past 75 years, two of these rules in the last couple of years. It makes it sound as though the NLRB has ridden off the range here in terms of reasonableness. But the fact is that when the board promulgated rules in the past, they did it through the adjudicative process, not through rulemaking.

The Supreme Court and the U.S. Courts of Appeal have criticized the board in the past for underutilizing its rulemaking authority. Courts have said the rulemaking process is more transparent and more inclusive. So through rulemaking this board has solicited broader public input in its decisions.

What the NLRB has done in the last couple of years is opened up the process for comment periods and rulemaking through the Administrative Procedures Act, something the courts have been asking and advising the NLRB that they should have been doing all along rather than relying on the adjudicative process.

So, yes, my friend may be right about two of the three last couple of years, but actually that is a move in the right direction. That is a move for transparency and openness and letting all different sides have their comments before they issue a final rule rather than doing it through adjudication.

There was this quote about John Kennedy about a 30-day waiting period. Well, I don't know, I have not looked at then-Senator Kennedy's entire record. I suppose there are some things I might agree with him on and some things I probably would not agree with him on. I don't know what his thought processes were. All I can tell you is that no matter what he said at that time as a Senator, the final bill did not have a waiting period. The Senate put it in, the House did not, and when it went to conference, they dropped it. So I think the rejection of that proposed amendment could be more reasonably understood as an indication that Congress did not believe a minimum time between petition and election is necessary.

Sure, you can quote Kennedy, and I guess I can quote President Dwight D. Eisenhower, and here is what he said:

Only a fool would try to deprive working men and women of

the right to join a union of their choice.

Well, we better not try to prevent them from joining a union of their choice.

I have also heard this charge that somehow these rules tilt this more in favor of the unions than management. No, they don't. Again, we have mostly been talking here about the certification process. When union organizers get the signatures, they file with NLRB and we have an NLRB process. Basically that is what we are talking about here. But I would point out to my friend on the other side of the aisle that these procedures we are talking about also apply to decertification elections as well. So since the same rules will apply to decertification elections, the proposed rule will ensure that employees who have union representation will be able to have a timely up-or-down vote to also get rid of the union. So, to me, it is both. It is both on the certification and the decertification side. It makes for things to be much more expeditious, much clearer, and more understandable. That is why I think many management firms and businesses see this as a reasonable rule because when they would try to decertify, they don't have to go through all of this frivolous litigation on the other side. It applies to both certification and decertification, so it doesn't tilt the playing field one way or the other.

Again, I applaud the National Labor Relations Board for moving in the direction of more rulemaking, making it more open, making it more transparent than what they have done in the past. But you know what it boils down to? As long as I have been here, since 1985 in this body, we have had ups and downs on the National Labor Relations Board. Let's face it, what happens is the National Labor Relations Board has three members from the President's political party and two from the other side. So when you have a Democratic President in, then NLRB gets attacked by Republicans. When a Republican President is in, it gets attacked by Democrats, and it becomes kind of a political football. I understand that, and we should all understand that is what this is too. That is what this is all about.

I was just notified that a Statement of Administration Policy, SAP, from the administration just came through. It said even if this vote were held and the other side won--if it was voted to overrule the NLRB--the President would veto it. And, surely, no one thinks there is a two-thirds vote here to override the President's veto on this issue. We are kind of wasting our time here. It is sort of another political shot when there are so many important things we should be talking about in terms of jobs, job creation, the economy, fair taxation, keeping our jobs from going overseas, education, job retraining, and yet we are spending our time talking about this. Well, be that as it may, the facts are on the side that this rule is eminently reasonable, fair, and I think will lead to a more predictable and less litigious and less conflicting process when people want to form a union in this country.

As I said, 90 percent of the time we don't have these problems. But for those 10 percent, it can be devastating, and it can thwart individual workers who want to form a union. So I am hopeful we can have a little bit more debate on this. I hope the vote tomorrow will be conclusive and that we will turn this down and move ahead with more important business confronting this country.

I yield the floor.

Mr. President, this side yields back the balance of our time for today as well.

Mr. President, I yield such time to the Senator from South Carolina as he may need.

Mr. President, I thank the Senator from South Carolina, particularly for the insight on the way that this particular Board abused his State and found out they were wrong and got it all taken care of. But his comments are particularly valuable in dealing with this shortening of the time as well.

I thank him for speaking and I yield the floor.

Mr. President, I yield myself such time as I may consume.

I wish to continue the debate a little bit on the Boeing situation because the company was creating 2,000 additional jobs--reducing none but creating 2,000 additional jobs--in South Carolina at a new plant. The NLRB general counsel, who was not confirmed by this body, went ahead and decided to investigate and work on a complaint and created a lot of concern for 2,000 employees who didn't know whether they would be able to work. The case actually wasn't settled.

I think the National Labor Relations Board realized they had made a mistake and, because of the national controversy it created, actually withdrew the case even though it could have taken about 3 or 4 years through the courts to take care of it, and we covered that situation in one of the hearings Senator Harkin asked for. I thought the company did an outstanding job.

What we are talking about today relates a little bit to that because the South Carolina folks decertified in the small window they had, which says they weren't pleased with what they had been handed.

So some of these discussions are extremely important, and the time to do those is extremely important. So today we are renewing this debate on S.J. Res. 36, the Congressional Review Act Resolution of Disapproval to stop the National Labor Relations Board's ambush elections rule. This rule is the second formal rulemaking the National Labor Relations Board has pushed through in the last year--their third in the past 75 years. There was only one before this Board decided they would take unusual action. As I mentioned, the first rule has been struck down already by Federal courts because it went far beyond the agency's authority. This ambush elections rule is also being challenged in the courts, but it is set to go into effect in less than a week--on Monday, April 30--and that is why the Senate must act today to stop the National Labor Relations Board from stacking the odds against America's employees and small businesses.

During yesterday's debate, both sides got to air their concerns. I wish to respond to some of what I heard.

There was much talk about the 90 percent of elections that go forward under mutual agreement. The argument was that because both sides were able to come to an agreement and because the wide majority of elections occur in a timely fashion, parties should not mind losing their rights to raise issues prior to the election. This argument is turning the concept of coming to agreement on its head. Yes, it is true that 90 percent of elections occur under mutual agreement and occur in 38 to 56 days, but that is precisely because both sides have the ability to raise issues of concern, such as which employees belong in the bargaining unit, and have them resolved. In other words, both sides have incentives to make fair requests because the other side has the leverage of exercising the right to contest. When all of these rights are taken away and an election is scheduled in as few as 10 days, the result will be that less mutual agreement occurs.

The National Labor Relations Board has taken a process that is working well and becoming swifter year after year and turning it into a contentious process where the small business employer side feels entirely ambushed. If the National Labor Relations Board were truly intending to address the small minority of cases where long delays do occur, they should have drafted a rule that addressed only those cases.

Yesterday both Chairman Harkin and I quoted Presidents from each other's parties. I quoted John F. Kennedy's statement during labor law debates in 1959 when he was a Senator here saying:

There should be at least a 30 day interval between the

request for an election and the holding of the election.

He went on to say:

The 30-day waiting period is an additional safeguard

against rushing employees into an election where they are

unfamiliar with the issues.

I agree that one of the most important reasons for a waiting period is for the employees to learn more about the union they may join. This is in fairness to the employee.

In many cases, the election petition is the first time some employees have ever heard about the union. They want to know what the union's reputation is for honesty, keeping their promises, treating members well, and working well with the employer to make sure the business stays in business. Once a union is certified, it is very difficult for employees to vote it out if they decide to. Employees are barred from petitioning for decertification for a full year after the election and barred as well throughout the term of the collective bargaining agreement.

Employees should have a chance to understand that once they unionize, they will no longer be able to negotiate a raise individually with their employer. Exceptional performance will not be rewarded, and grievances cannot be brought straight to the employer but will instead have to go through the filter of union officials.

Chairman Harkin quoted former President Dwight Eisenhower. I haven't had a chance to look up the quote's context, but the gist of it was that only a fool would oppose the right of an employee to join a union. My comment on that is that a vote for this resolution does absolutely nothing to diminish the right of any employee to form a union. This resolution will not change the law one bit. If we are able to stop the ambush elections rule, union elections will still occur in a median of 38 days, with nearly 92 percent occurring in 56 days, just as it is now. And I would even venture to guess that the unions will continue to win the majority of elections. Last year they set a new record by winning 71 percent of elections. That is under the old rule. So a vote for this resolution may please both those former Presidents, whom we all admire, and forcing a fast election--an ambush election--may irritate employees into a negative vote.

Now, I know the President issued a policy on this that says that if it comes to his desk, he will veto it, and that is his right. I checked the Constitution. The Constitution says we are an equal branch of government with the President. We do not serve for the President, we serve with the President. That could be a quote from Senator Byrd, who used to sit at that desk and pull out his copy of the Constitution and point out that the President gets to do what he wants to do, but we have a responsibility to do what we need to do.

In this case, one of the administrative branches is overreacting-- doing something it should not do--and we need to say no. If it gets to the President's desk and he vetoes it, that is his part of the process, although I think that when the law was written, it should have been that if Congress, which passes the law and grants rulemaking authority, disagrees in the Senate and the House, that ought to be the end of it. It ought to be the end of a rule or regulation. It shouldn't be the beginning of the process where the President can veto it, because he is in charge of the side that created the rule. But our job should be to take a look at these things, decide if they are right or wrong, and if they are wrong, to vote against them as part of the process.

So I think many will be joining me on this resolution of disapproval--at least I hope they will. That is our job and our right.

I yield the floor and reserve the remainder of my time.

Mr. President, I yield myself such time as I might consume.

Mr. President, one of the things I have been checking on here is the statement that was made earlier that one in five people get fired for working on organizing. That statement is based on a phone survey of union activists for their estimate if an employee is terminated during an organizing drive. It is not based on fact. The fact is, unions only filed objections in approximately 1.5 percent of the elections, and that number includes objections based on many issues other than employee terminations.

Under the current law, it is illegal to terminate or discriminate in any way against an employee for their union activities. If this occurs during an organizing campaign, the National Labor Relations Board is required to rerun the election since it created an unfair election. This occurs in about 1 percent of all elections and has been decreasing in recent years. I would expect that to increase in succeeding years if this rule passes because this is an attack on small businesses and the small businesses will not have the necessary information to know what is legal and illegal, especially if they only have 10 days to get their act together.

The National Labor Relations Board can go even further if they believe a fair election is not possible. They can certify the union, regardless of the vote, and order the employer to bargain.

I have information on some of the studies that have been done on this, and the number does not come out nearly that high. Of course it is terrible if there is even one person who is fired for organizing activities but there is recourse that can be done.

I want to raise an important privacy issue that has come up as part of the National Labor Relations Board's ambush elections rule. One section of the initial proposed regulation concerned the private information of employees. It raised so much concern that it was dropped from the final rule. However, the National Labor Relations Board Chairman has publicly stated that he plans to push this and other dropped provisions into law later this year, now that President Obama's so-called recess appointments have created a full board.

Under the current law, employers are required to provide employees' names and addresses within 7 days once an election is set. The proposed rule would not only expand the type of personal information that an employer must turn over, but would require that information to be turned over within 2 days of an election being set. Of course, if we are moving it from 38 days down to 10 days, I can see where they would want it in 2 days instead of the 7 that has been normal. The expanded information that the National Labor Relations Board wants employers to give to unions includes all personal home phone numbers, cell phone numbers, e-mail addresses that the employer has for each employee. It also would demand work location, shift information, and employment classification.

Let's consider this for a moment. The National Labor Relations Board wants to give employers 48 hours to turn over information of employees who are eligible to vote, despite the fact that the employee's eligibility may not even be determined at that point because of the ambush elections rule, the elimination of this preelection hearing so those sorts of things can be worked out as to who is exactly going to be covered. In essence, an employer will be forced to turn over personal information of employees who may not even be in the bargaining unit. The rule even would have required that the employer alphabetize the lists.

The threat of this new invasion of privacy is very alarming to most people. The purpose of the information is so the union organizers can come to your home, call you, e-mail you, find you outside your work location and catch you before and after shifts. There is no prohibition on how many times the organizers can contact you or at what times. There is no ``opt out'' for those employees who simply do not want to be contacted. And there are no protections in place to ensure that the information does not go astray.

While a large part of this debate circles around the shortened election time and what that means for employers, with good reason, I do not want us to forget what this new rule could mean to the privacy of employees. Supporters of expanding the information provided to the unions claim the National Labor Relations Board is merely modernizing this standard. In this time of Internet scams, identity theft, online security breaches, and cyber bullying, protecting personal information is not something to be taken lightly. Union elections can be a very intense and emotional experience for employees and employers alike. The last thing we want is for an individual's personal information, such as an e-mail address, to be used as a harassment or bullying tool by an angered party.

I want my colleagues to know what is at stake in this debate. A successful Congressional Review Act petition also prohibits an agency from proposing any ``substantially similar'' regulation unless authorized by Congress. Therefore, by supporting my joint resolution, we could put a stop to the Board's future attempt to force employers to hand over more personal employee information.

I urge all my colleagues to support this resolution of disapproval. This is one of the most important votes we will have on labor issues this Congress. We need to let the National Labor Relations Board know that their duty as a Federal agency is to be the referee and decide what is fair for the parties involved based on the clear facts of the case. Their job is not to tip the scale in favor of one party or another. Tipping the scale is exactly what the National Labor Relations Board is doing with the ambush elections rule. Congress needs to step up and say ``no'' to the overbearing and burdensome nature of these regulations coming out of so-called independent agencies. You can do that by voting for my joint resolution, S.J. Res. 36.

Mr. President, I yield the floor and reserve the remainder of my time.

Mr. President, I yield myself such time as I may use.

Mr. President, I do want to talk about this open and fair, transparent process that was just referred to. Much has been said about the flawed policy behind ambush elections we are discussing on the Senate floor. But I want to spend a few minutes discussing the rulemaking process that was followed or not followed for that matter by the National Labor Relations Board.

While the other side portrays the changes as moderate, make no mistake about it, this new rule greatly alters the election system, especially should Chairman Pearce be able to finalize the more controversial provisions that were previously proposed. This entire rule took under 1 year to complete. The National Labor Relations Board introduced the proposed rule on June 22, 2011, and published the final rule only 6 months later on December 22, 2011.

Considering the scope of the rule and how much attention it garnered from stakeholders, it is absurd to think that a Federal agency could promulgate a rule that would have such a major effect on all employers, in only 6 months. As evidence of how critical this rule's impact will be on stakeholders, the Board received 65,957 comments. Let me repeat that. The Board received 65,957 comments during the 60-day comment period. That is an astounding number.

To compare, the Board's previous rulemaking on its notice posting requirements garnered a little more than 6,000 comments. On November 30, 2011, the Board voted to move toward finalizing a new amended proposed rule. The reason for this new amended rule was clear: The Board was going to lose its quorum at the end of the congressional session in late December 2011.

What continues to astonish me is that the Chairman claimed his staff read each of the 65,957 comments, twice, in such a short period of time. In rushing to finalize the ambush elections rule, the Board discarded several well-established internal procedural precedents as well. For example, until the ambush election rule, the Board did not advance a major policy change without three affirmative votes. This was a major policy change.

They never did it without three affirmative votes, whether through rulemaking or a case decision. This was not the case in the ambush elections rule where only two members voted in favor of finalizing the rule. Further, the Board rejected the tradition of providing any dissenting member at least 90 days to produce an opinion. Instead, Chairman Pearce offered to publish a dissent after the final rule was published. The process the Board used to promulgate the ambush elections rule was rushed through for no good reason. Yet in the process it decided to discard years of Board precedent.

I should also mention one of these people, one of the two who voted for it, not three--one of the two who voted for the rule, and there were two who voted for it--was a recess appointment because they knew this body would not stand for that person with the radical views he held, actually claiming before his appointment that he would cause this sort of a thing to happen; that he would even be able to institute, through Board procedures, card check.

Now, that is a pretty radical statement, and that alone was keeping him opposed by both sides of the aisle. There were people on both sides of the aisle who opposed card check.

So two people voted for it; one person voted against it. That person was not allowed the right to put in a dissent opinion. That is wrong. That is not open and transparent.

Now I would like to talk a little bit about the targeting of small business

this regulation does as well. All of our States have a lot of small business. Small business is the backbone of job creation in this country. We need to make sure that process can still follow. Once a petition for representation is submitted, the current median timeframe for a union election to be held is 38 days. That is the median time. The ambush election rule would shorten that timeframe to as few as 10 days.

For small business owners, with the range of company responsibilities and limited resources, this puts them at a severe disadvantage. Most small business owners are not familiar with complex labor laws they have to adhere to during the representation election process. For example, they may not be aware that certain statements and actions could result in the National Labor Relations Board imposing a bargaining obligation without a secret ballot election. They can declare the election over. Furthermore, most small businesses do not have the resources to employ in-house counsel or human resource professionals familiar with these laws.

So holding an ambush election in as few as 10 days does not provide small business owners with enough time to retain a competent labor attorney, consult with them, and then adequately prepare for an election. I have given the reasons before why it is unfair to the employees. But it is also very unfair to a small business owner because their day-to-day responsibilities range from sustaining a competitive product, to managing personnel, to balancing the books at the end of the day. I know. I have been there. I had a shoe store. They have to do all of those things.

The definition by the Federal Government for a small business is 500 or less employees. In Wyoming that would be a big business. My definition of a small business is where the owner of the business has to sweep the sidewalks, clean the toilets, do the accounting, and wait on customers--and definitely not in that order. So those day-to-day responsibilities to keep the business competitive take a lot of time, and given such a demanding schedule, it takes time for a small business owner to fully understand the pros and cons of unionization. It takes even longer for a small business owner to communicate these points to their employees.

Ambush elections make it logistically impossible for small business owners to fully discuss the effects of unionization with their employees, partly because they will not even know what those effects are, and neither will their employees.

A union organizing campaign does not begin on the day an employer receives a petition for representation. It typically starts months or even years before, when professional union organizers start conveying their side of the story to targeted small business employees. They work on it for months. By unjustly curtailing an employer's ability to convey their point of view, ambush elections deny employees the opportunity to hear both sides of the argument on unionization.

The small business employer is also at a disadvantage because the union organizer will be in a position to set up the election to his best advantage, essentially cherry-picking union supporters before the election process begins. The organizers will have had limitless amounts of time to analyze which employees could be argued to belong in the bargaining unit, which may qualify as supervisors, and who is most likely to support a union.

With ambush elections, the National Labor Relations Board will impose the election before the employer has an opportunity to even question those assumptions, especially since we have significantly restricted the one tool--the preelection hearing--that the small businessman would have to question who is in and who is out.

According to a recent Bloomberg study, unions win 87 percent of secret ballot elections held 11 to 15 days, compared to a 58-percent rate when elections are held 36 to 40 days. By shortening the election timeframe, labor unions will undoubtedly win more representation elections--perhaps. The perhaps is that they may really irritate the employees and win less of them. The way that it is held in 11 to 15 days is when the employer and the employees agree on all of the issues and get the election to move forward. So it can happen in a short period of time right now. Otherwise, the median time would not be 38 days.

But I think this rule will alienate those people who have been getting together and arriving at these agreements. So for small business owners, the surge of union bargaining obligations means a less flexible workforce, increased labor costs, and fewer opportunities for job creation. And they are the job creators.

The National Labor Relations Board is only creating more uncertainty for small business at a time when the country needs them to focus on creating jobs. Small businesses account for over half of the jobs in the private sector and produce roughly one-half of the privately generated GDP in the country. In 2010, small businesses outpaced gross job gains of large businesses by 3 to 1.

As the National Labor Relations Board has publicly indicated, ambush elections are only the beginning of a round of regulations aimed at making it easier for unions to win representation elections in American workplaces. Proposed regulations, such as requiring small businesses to compile a list of employee phone numbers and e-mails and then handing them over to union organizers before an election are time consuming. They are costly. They are extremely invasive. Furthermore, they are indicative of how this administration is more concerned about boosting labor union membership than creating jobs.

We have to create jobs. We cannot continue to pick on the small businessman and put him at a disadvantage. This is a rule that is looking for a place to act. It is not one that was needed or requested other than by labor organizers. I think it will have repercussions. So I would ask everyone to vote for the resolution of disapproval so this does not go into effect, although we have been promised, of course, a Presidential veto if it makes it to his desk.

But that is Congress. We have the right to say we do not think the rule is right. The President has the right to say his administration is right and veto the law. But we have to make that statement, and we have to make it on behalf of small businesses and employees.

A lot of this has to do with employee fairness and giving them the time to figure out what the union will do with them and for them and to them.

I yield 3 minutes to the Senator from Alabama for morning business, as I understand it.

Mr. President, I ask unanimous consent to have printed in the Record three additional letters of support from the Motor and Equipment Manufacturers Association and National Council of Textile Organizers and the Building Owners and Managers Association International.

Also, there will be key vote alerts from the Associated Builders and Contractors, Associated General Contractors, Brick Industry Association, Competitive Enterprise Institute, Heritage Action for America, International Franchise Association, International Warehouse Logistics Association, National Grocers Association, National Association of Manufacturers, National Federation of Independent Business, National Restaurant Association, National Roofing Contractors Association, National Taxpayers Union, the Retail Industry Leaders Association, and the U.S. Chamber of Commerce.

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

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

Mr. President, I yield up to 10 minutes to the Senator from Georgia, Mr. Isakson.

Mr. President, I yield 8 minutes to the Senator from South Dakota.

I thank the chairman.

Mr. President, we are going to resume debate today on the postal reform legislation our committee, on which the Presiding Officer serves, has worked very hard to produce and to do so in a bipartisan way. As Chairman Lieberman has indicated, last week, we labored very hard to produce a list of amendments that will allow Members to work their will on this legislation.

There are many different viewpoints on the path forward for the Postal Service, but there can be no doubt about one fact: The Postal Service has lost more than $13 billion in the last 2 years. Despite being relieved from a payment that is required under law toward the health benefits of future retirees, it still lost billions of dollars. If we fail to act, if we turn down this bill, the Postal Service will not survive as we know it today, and that is a fact. The Postal Service, later this year, will have great difficulty even meeting its payroll if we do not act. The Postal Service will max out on its credit that it can borrow from the Treasury if we do not act. The Postal Service will be forced to resort to dramatic and Draconian service cuts that will drive still more customers from the system if we do not act. So just closing our eyes and pretending somehow the Postal Service will find a way through this, without our legislation, is not a realistic option.

As I have indicated, there are a variety of views on both sides of the aisle on what the appropriate path forward should be, and we will have a vigorous debate today--we started it last week--on what the best option is for the Postal Service. For me, the bottom line is this: The Postal Service will not survive if it pursues a course that risks alienating the remaining customers it does have. So resorting to widespread closures of postal processing plants, which would essentially do away with overnight delivery of mail, and raising prices so big mailers pursue alternatives to using the Postal Service for delivery are not the solutions to the Postal Service's woes.

On the other hand, the Postal Service clearly cannot continue to do business as usual. It has to innovate. It has to look for new sources of revenue, and we have given some very specific ideas in our bill by allowing, for example, the Postal Service to provide services and share space with Federal, State, and local governments and to also ship beer and wine with a signature from the customer, just as its competitors, FedEx and UPS--United Parcel Service--are able to do. We also do not prohibit the closure of all post offices, nor do we mandate a certain number be closed; instead, we set standards. We set service standards, and those service standards would govern the decisions the Postal Service would make. I think that is the appropriate way to approach the very difficult issue of how to reduce the infrastructure of the Postal Service.

But the fact remains--and it is a painful fact--that 80 percent of the Postal Service's budget is workforce related. It is always difficult to recognize when a workforce, particularly one as dedicated as the American Postal Service workforce, is simply too big

for the volume of work the Postal Service now has. But there are compassionate ways to deal with this workforce problem, and our bill allows for a refund of an $11 billion overpayment the Postal Service has made to the Federal Employees Retirement System--known as the FERS system. This is an overpayment that has been verified by an independent board of private actuaries the Office of Personnel Management relies upon. It has also been verified by the Government Accountability Office. This overpayment, in part, can be used and would be directed to be used by the Postmaster General to offer retirement incentives and buyouts up to and capped at $25,000, the exact same number that is used in buyouts in Federal agencies to reduce the workforce.

More than one-third of the Postal Service's employees are eligible for retirement today. That is why the Postmaster General believes, if he provides a bit of an incentive, he can reduce the size of the Postal Service workforce by more than 100,000 workers. That is about 18 percent of the entire workforce. That approach of using retirement incentives, buyouts, and incentives such as that is very similar to the approach the private sector uses, that large corporations use when they are faced with the painful task of having to downsize their workforce.

The rest of the overpayment refund would be used to pay down debt, something the Postal Service desperately needs to do as it approaches that $15 billion line-of-credit cap.

I wish to stress--because there is going to be a lot of discussion about this, perhaps very shortly--these are not tax dollars being refunded to the Postal Service. I read from a letter from the inspector general on the floor last week that verifies the revenues for the FERS payment come from two sources: They come from the postal employees themselves who contribute to the FERS system, and the revenues come from the Postal Service's own revenues, which are from selling stamps, mailing packages, and the other services the Postal Service provides.

This is not a taxpayer bailout. It is not a refund of taxpayer dollars. This is a refund of a substantial overpayment of money from the Postal Service's employees and the Postal Service itself, from revenues it generated, to the FERS system that never should have occurred. That is another whole issue--of how it occurred. This overpayment has been confirmed by the GAO and by an independent board of actuaries hired by the Office of Personnel Management.

That is a very important part of this bill. If the Postmaster General is successful--as I believe he will be if he aggressively implements these provisions in compassionately reducing the size of the workforce--the estimates are that provision alone would save about $8 billion a year, and it would allow the Postmaster General to right size many of the processing plants. Some of the processing plants are too big for the volume they now have.

But the answer is not to close them altogether because that has such a detrimental impact on the delivery of mail, and that leaves rural America behind. That would result in there no longer being overnight delivery for first-class mail.

Let me give an example from my State, where the Postmaster General has unwisely proposed closing one of only two processing plants we have in a State as large as the State of Maine. He would keep the one in the southernmost tip of the State but close the one in Hampden, ME, which serves northern, central and eastern and parts of western Maine. It serves about two-thirds of the geography of the State. If that postal processing plant were to close, mail from northern Maine--being sent from one community in northern Maine to another--would have to undergo a more than 600-mile round trip to the one remaining processing plant in Maine. I can't imagine how many days that would take, but I am certain it would cause people to stop using the mail, and, thus, revenue would decline still further because there would be no possibility of overnight delivery of bill payments, for example, or bill delivery.

This is not the answer. So what is the answer? That plant could be downsized, not closed. We need to preserve the service.

If the plant is too large now for the volume of mail that goes through the plant, why doesn't the Postal Service rent out part of the plant? I am sure a mailer in the area--perhaps several mailers in the area--would welcome the opportunity to rent space in that building and be right next to the postal processing plant. That would work very well.

There are so many options, but the Postmaster General, in my view, has not pursued those options. When it comes to rural post offices, there are so many options. For example, a post office could be open in a rural community, say, from 7:00 to 9:00 in the morning and 5:00 to 7:00 at night so that individuals going to and from work could stop and do their business, but the Postal Service would still be able to save funds by not having the post office open the entire day. A small post office could be colocated in a retail facility--the local pharmacy, perhaps, or the local grocery store.

There are possibilities which need to be explored--and which our bill directs the Postmaster General to explore--in order to avoid the widespread closure of post offices in rural America that will have a detrimental impact on the individuals and the businesses located there. Our bill in essence forces more creativity on the Postal Service by again setting standards with the Postal Regulatory Commission, which is the regulator in this case, and then ensuring that the actions of the Postal Service with regard to infrastructure meet those standards.

This bill has many other provisions that we discussed at length last week, so I am not going to repeat them now, but let me reiterate the point I made at the beginning of my remarks.

We have been able to negotiate, with the cooperation of both the majority leader and the Republican leader and with a lot of hard work by the members of the committee and the floor staff and our staff, a very fair process that will allow many amendments to be offered, expressing a wide variety of philosophies and views on the proper road ahead. But what we cannot do is fail to act. If we do not act, that will be a death sentence for the Postal Service--an American institution enshrined in our Constitution that is the linchpin of a $1 trillion mailing industry that employs 8.7 million Americans.

This debate is not just about rural post offices, important though they are. It is about our economy and not delivering a death blow to an institution that is the center of much of our economy. I hope Members keep that in mind as they come to the floor with proposals, for example, to essentially privatize the Postal Service or to do away with most of its infrastructure because if those amendments prevail, they will deliver a crushing blow to our economy at a time when we can least afford it, and they will jeopardize that trillion-dollar mailing industry that includes everything from paper manufacturers, to magazine publishers, to newspapers, to financial services--all of these industries that are so dependent on the U.S. Postal Service--and that is an outcome we must avoid.

Mr. President, I suggest the absence of a quorum, but I will be responding.

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

Mr. President, let me start by responding to the ranking member of the Budget Committee by saying that I could not agree with him

more that it is absolutely unacceptable that we have not had a budget passed in the Senate for more than 1,000 days. That is totally unacceptable. It is one of the reasons we are in such a financial crisis in this country. So I completely agree with Senator Sessions that we should be doing a budget resolution on the Senate floor, and I wholeheartedly agree with his comments that it is absolutely irresponsible for us to be proceeding without a budget resolution. And as a member of the Appropriations Committee, I would say to my colleagues that it makes it very difficult for us to carry out our work. Due to the cooperation of the chairman and ranking member of that committee, we are operating under allocations for each subcommittee, but it would be far preferable if there were a budget resolution that passed, and it should have passed last year, the year before, and it should be passed this year. So we are in complete agreement on that point, and I know that has been a great source of frustration for the Senator from Alabama as the ranking member of the Budget Committee.

Having said that, let me explain a few facts. First of all, there are no tax dollars being authorized by this reform bill. There is no transfer of taxpayer money to the Postal Service. What we have here is a very strange and unusual budget situation. And the score CBO has is incredibly misleading because the Postal Service, oddly enough, is part of the unified budget of the United States even though most of its accounts are off-budget, but it participates in Federal employee retirement systems and the health benefits systems and the workers' compensation systems, where postal dollars that come from postal employees and from postal ratepayers are commingled, if you will, with tax dollars that come from other Federal agencies into the retirement system, the workers' comp system, and the health benefits system. And that creates this odd situation, which makes it very difficult for CBO to score this bill correctly.

The inspector general of the Postal Service puts it far more bluntly. In a February 22 report from this year called ``Budget Enforcement Procedures and the Postal Service,'' the inspector general said:

. . . the Postal Service's off-budget status . . . expose[s]

the Postal Service to an inappropriate and illogical

application of the scoring process that threatens its ability

to reform and heal its financial condition. Scoring and

budget enforcement were created for a good purpose, but they

are undermined when the scoring process assumes that unlikely

or inappropriate inflows to the Treasury must occur.

Let me give you a couple of examples because it is incredibly important that we walk through the score so that our colleagues can understand the unique on-budget/off-budget status of the Postal Service, particularly in the area of reducing payments to retiree health benefits or recovering overpayments to the FERS system and how the CBO scoring method obscures the true savings achieved by refunding the FERS payments.

Again, let me repeat that since 1971 the Postal Service has received no Federal subsidy to operate other than some very minor appropriated dollars for functions that the Postal Service is legislatively mandated to do, such as mail for the blind and overseas ballots for our troops. That is it. Prior to 1971 there was a taxpayer subsidy year after year to the Postal Service, but that ended with the Postal Reform Act in that year. So from the sale of stamps, the cost of shipping packages, and the rates mailers and magazine publishers and newspaper publishers pay to get the print versions delivered comes the revenue for the Postal Service. And even the money the Postal Service uses for retiree benefits comes from a combination of the contributions the postal workers make and the money the Postal Service invests.

As I mentioned earlier, there is a significant overpayment into the Federal Employees Retirement System, and we, along with the administration, the GAO, the independent actuaries, and the Postal Service inspector general, have all proposed that overpayment be returned to the Postal Service, and it would be used in part to finance these buyouts and retirement incentives to reduce the size of the postal workforce.

Let's look at how CBO scores this particular part of the bill.

First of all, CBO gives this bill no credit whatsoever for the buyouts, and here is why: CBO argues that the Postal Service already has buyout authority, but as the Presiding Officer knows better than anybody in this Chamber, our bill changes the status quo in two critical ways. First of all, the Postal Service has no cash right now to do these buyouts. That is one of the reasons we are so eager to get the money from the overpayment of FERS refunded to the Postal Service. Second, in our substitute bill, we specifically direct the Postmaster General to use a portion of this money to entice 18 percent of the current postal workers to accept this offer. That is a big difference. So there is a mandatory direction to the Postmaster General to reduce the workforce by about 18 percent and there is the cash that will allow him to offer buyouts to do that. Why CBO doesn't score that as a savings to the Postal Service is beyond me.

There is another way to reduce the workforce and, again, the funds for this would come from the FERS refund. Our bill provides new authority to the Postal Service to offer 1 or 2 years of credited service toward a pension annuity so that for a worker who is just lacking a year or two to reach the number of years necessary for retirement could be credited with that extra year or two of service, depending on which retirement system the worker is in. Unfortunately, the CBO makes an assumption that only several thousand employees would take advantage of that offer and credits the bill with savings of only $643 million over 10 years. Since these kinds of service credits have never been offered before, it is not clear how the CBO came up with this assumption. There is no precedent for it. There is no data for the CBO to use. Again, our original bill did not include the hard requirement for the 18-percent reduction, but our substitute does. Yet CBO does not recognize that change.

The Postal Service has told us, as the Presiding Officer would attest, these requirements and this new authority and the funds for the buyouts and the service credit would allow them to reduce their workforce in the neighborhood of 100,000 employees and save some $8 billion a year. That is not reflected in the estimate. I use that example because it shows how strange the scoring is. This is a quirk of the budget-scoring rules because when there is a transfer of Postal Service money--not taxpayer money, Postal Service money--from one account in the Treasury, such as the retirement account, into an off- budget postal operations account, the CBO makes this assumption that savings are not going to occur. So when we transfer the $11 billion overpayment--the refund--from the pension account, to which the Postal Service has been overcharged, into a postal operating account, it gets credited as $5.5 billion instead of $11 billion. That means an on- budget account loses $11 billion, as CBO looks at it, and the off- budget account only gains $5.5 billion. This is very complex because it is so obscure and because, frankly, it is so illogical. The result is the net score in the unified budget of $5.5 billion as a cost to the Treasury, and that simply is not the reality. Again, these are not taxpayer dollars that went into the overpayment in the first place. So here we have a provision that is being scored as the $5.5 billion cost to the Treasury when, in fact, they aren't tax dollars, and it is only because this is a unified budget, where some of the accounts are on- budget and some of the accounts are off-budget, that we have this anomalous result. It doesn't make sense.

Let me give my colleagues another example. The CBO acknowledges that our reforms of the Federal Workers' Compensation Program would save $1.2 billion, but CBO doesn't count this reduction as a savings because of the way the Department of Labor charges agencies for participation in the workers' compensation program. Again, that doesn't make any sense, when the CBO itself acknowledges that these are real reforms that are going to save $1.2 billion. Yet we only get credit for $200 million of the reforms.

There is another issue. The CBO does not account for what would happen if the Postal Service allows service to continue to deteriorate because the CBO doesn't recognize the reality that all the big mailers and small mailers tell us, which is that revenue will be driven out of the system if the service

cuts associated with plant closures and wholesale closures of post offices are allowed to proceed. The bottom line is that were it not for 50-percent discounts being applied over and over to the savings we achieve for 5-day delivery, retiree health care, the pension refund, on the basis of these strange behavioral assumptions and reflecting the odd combination of off-budget and on-budget accounts being brought together in a unified budget, the bill would have scored approximately $24.6 billion more in off-budget savings, making the bill a net saver of $14.8 billion.

This is so frustrating because it is so complex, but I think if our colleagues look at the example of the FERS overpayment, it becomes very clear because there are no taxpayer dollars involved. Yet it is scored as a cost to the Treasury of $5.5 billion. How can a refund of an overpayment that involves no tax dollars end up being scored as a cost to the Treasury of $5.5 billion? That is how illogical and quirky this estimate is, and it is because of the unique status of the Postal Service and how its various accounts are reflected in the budget.

In addition to my absolute conviction that this score is very misleading, let me make another point. If we do not proceed with this bill--if this budget point of order brings down this bill--the Postal Service will not survive as we know it. Again, we are not providing a taxpayer subsidy in this bill. In fact, I would argue we are preventing a taxpayer bailout in this bill because later this year, if the Postal Service cannot meet its payroll and thus is unable to deliver mail, I think the pressure for the taxpayer bailout will increase substantially, and I do not want to see us return to the pre-1971 era, where the taxpayers were on the hook for the Postal Service. Our bill would avoid that outcome.

Thank you. I suggest the absence of a quorum.

Mr. President, I too wish to commend the Senator from Virginia for offering this amendment in conjunction with the Senator from Maryland. I wrote to OPM in July of last year about this very issue. I was very concerned about reports in my own State and from the Washington Post about the tremendous backlog at OPM in processing the retirement applications of Federal and postal workers, and this is just wrong.

As the Senator's statement shows, it has caused some real hardship to individuals. So I was pleased the chairman and I could work with the Senator to modify his amendment so it would be germane to this bill. I look forward, at the appropriate time, to working with the chairman to accept the amendment.