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U.S. Senate Passes Resolution to Halt NLRB ‘Ambush Election’ Rule

Press release from U.S. Sen. Lamar Alexander, R-Tenn.; March 4, 2015:

WASHINGTON, Mar. 4 – The Senate today passed a joint resolution offered by U.S. Senate Majority Leader Mitch McConnell(R-Ky.), Sen. Lamar Alexander (R-Tenn.) and Sen. Mike Enzi (R-Wyo.) to stop the National Labor Relations Board from implementing its “ambush election” rule. The rule was finalized in December to shorten the length of time in which a labor union certification election is held—currently a median 38 days—to as little as 11 days. The senators introduced the resolution under the Congressional Review Act last month, and it is the first step in halting implementation of this rule.

“The NLRB’s ‘ambush’ rule is aimed at enriching political bosses at the expense of middle class workers,” Senate Majority Leader Mitch McConnell said. “Republicans think workers should have the right to make an informed decision when casting their ballot in a union election. Among other things, the Administration’s ‘ambush’ rule would allow union bosses to access things like personal email addresses and cell numbers without a worker’s permission. Republicans refuse to stand by while the Administration attempts to strip away the most basic worker freedoms via regulation, which is why we are challenging this extreme and partisan rule.”

“The NLRB’s rule to shorten union elections to as little as 11 days allows a union to force an election before an employer has a chance to figure out what is going on,” said Alexander, chairman of the Senate labor committee. “Senate passage of this joint resolution is an important first step in stopping the NLRB’s harmful rule and preserving every employer’s right to free speech and every employee’s right to privacy.”

“The current process for union elections is fair and timely. The National Labor Relations Board’s rule would undermine that process, hurting employees and employers alike,” said Enzi, chairman of the Senate Budget Committee. “Congress needs to make it clear that unnecessary regulations that make it harder for small businesses to go through the union election process and deny employees the time they need to make informed decisions are non-starters.”

Under the Congressional Review Act, the House and Senate can vote on a joint resolution of disapproval to stop, with the full force of law, a federal agency from implementing a rule or regulation or issuing a substantially similar regulation without congressional authorization. The resolution, which has 51 cosponsors in the Senate, passed today by a vote of 53-46. House Education and the Workforce Committee Chairman John Kline (R-Minn.) and House Health, Employment, Labor and Pensions Subcommittee Chairman Phil Roe (R-Tenn.) have introduced a similar resolution, which will require a simple majority to pass the House before being sent to the president.

In December, the NLRB released its final rule to authorize “ambush elections,” in an attempt to speed up union elections, which could take place in as few as 11 days. The rule gives employers no time to communicate with their employees before a union election and undermines the ability of workers to make an informed decision. In addition, it will compromise worker privacy by forcing employers to provide employees’ personal email addresses, work schedules, personal cell phone numbers, and other personal information to union organizers without employees’ consent. The rule only gives employers seven days to find legal counsel and prepare for a pre-election hearing before an NLRB regional officer. During those seven days, employers will have to identify every legal concern or forfeit the ability to raise the concern at all. The ambush election rule will go into effect April 14, 2015.

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Alexander, Roe Join Effort to Halt NLRB ‘Ambush Election’ Rule

Press release from U.S. Sen. Lamar Alexander, R-Tenn.; February 9, 2015:

Senate, House Leaders Introduce Resolution to Stop NLRB Ambush Election Rule; Author joint resolution of Congress to halt rule through the Congressional Review Act

WASHINGTON, Feb. 9 –  Senate Majority Leader Mitch McConnell (R-Ky.), Speaker of the House John Boehner (R-Ohio), Sen. Lamar Alexander (R-Tenn.), Sen. Mike Enzi (R-Wyo.), Rep. John Kline (R-Minn.) and Rep. Phil Roe (R-Tenn.) today took the first step in stopping the National Labor Relations Board from implementing its “ambush election” rule, which was finalized in December to shorten the length of time in which a labor union certification election is held—currently a median 38 days—to as little as 11 days.

The Republican members authored a joint resolution of Congress that would halt implementation of the rule through the Congressional Review Act.

“This Administration’s appointees on the National Labor Relations Board released their so-called ‘ambush’ rule back in December,” said Senate Majority Leader Mitch McConnell. “It’s designed with one purpose in mind — to fatten the wallets of powerful political bosses by threatening the rights of middle-class workers to make informed decisions of their own. Republicans think an employee’s personal information is none of the business of powerful political bosses. But the Administration’s ‘ambush’ rule would allow these bosses to access things like personal email addresses and cell numbers — without permission from the employee.”

“The National Labor Relations Board is supposed to be a neutral arbiter of federal labor law,” said Speaker of the House John Boehner. “Yet under the president’s watch, it has pursued a culture of union favoritism that is detrimental to America’s workers and job creators. The recent ambush election rule will deny workers their right to make fully informed decisions in union elections. Congress will not stand idly by and let that happen.”

“This rule allows a union to force an election before an employee has a chance to figure out what is going on,” said Alexander, chairman of the Senate labor committee. “It also jeopardizes employees’ privacy by requiring employees to turn over personal information including email addresses, phone numbers, shift hours and locations to union organizers.”

“The National Labor Relations Board has lost its way. Instead of fairly enforcing the National Labor Relations Act, the board has made up a new rule out of thin air that only helps political organizations and special interests,” said Enzi, chairman of the Senate Budget Committee. “This ‘ambush election’ rule is an example. I’m pleased to join with my colleagues in this effort to make sure employees can have the information and time they need to make informed decisions.”

“The Obama labor board is moving forward with a radical plan that will stifle employer free speech, cripple worker free choice, and jeopardize the privacy of workers and their families,” said Kline, chairman of the House Education and the Workforce Committee. “Congress must use every available tool to stop this flawed regulatory scheme. I am pleased to join my House and Senate colleagues in authoring this resolution, and hope Congress will send it to the president as soon as possible.”

“It is prudent that Congress protect employees from this activist NLRB,” said Roe, chairman of the House Subcommittee on Health, Employment, Labor and Pensions. “For far too long, we’ve seen this out-of-control board violate the rights of American workers and employers by regulatory overreach, and I am proud to introduce this resolution with my colleagues.”

Under the Congressional Review Act, the House and Senate vote on a joint resolution of disapproval to stop, with the full force of law, a federal agency from implementing a rule or regulation or issuing a substantially similar regulation without congressional authorization. A resolution of disapproval only needs a simple majority to pass and cannot be filibustered or amended.

In December, the NLRB released its final rule to authorize “ambush elections,” in an attempt to speed up union elections, which could take place in as few as 11 days. The rule gives employers no time to communicate with their employees before a union election and undermines the ability of workers to make an informed decision. In addition, it will compromise worker privacy by forcing employers to provide employees’ personal email addresses, work schedules, personal cell phone numbers, and other personal information to union organizers without employees’ consent. The rule only gives employers seven days to find legal counsel and prepare for a pre-election hearing before an NLRB regional officer. During those seven days, employers will have to identify every legal concern or forfeit the ability to raise the concern at all.  The ambush election rule will go into effect April 14, 2015.

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Alexander: Pending NLRB Decision on Joint Employer Standard Could Harm Franchisees

Press release from U.S. Sen. Lamar Alexander, R-Tenn.; February 5, 2015:

Says “successfully operating a franchise business is today one of the most important ways to climb the ladder of success”

WASHINGTON, D.C., Feb. 5, 2015 – U.S. Sen. Lamar Alexander (R-Tenn.), Chairman of the Senate labor committee, today said the pending National Labor Relations Board decision to change the joint employer standard “could destroy a small business opportunity for more than 700,000 Americans.”

At a committee hearing on the consequences of a change in the standard, Alexander said: “These men and women are franchisees….They may work 12 hours a day serving customers, meeting a payroll, dealing with government regulations, paying taxes, and trying to make a profit.

“We live at a time when Democrats and Republicans bemoan the fact that it’s getting harder and harder to climb the economic ladder of success in our country. Successfully operating a franchise business is today one of the most important ways to do that.”

Excerpts of the senator’s opening statement follow:

This hearing this morning is about a pending National Labor Relations Board decision that could destroy a small business opportunity for more than 700,000 Americans.

These men and women are franchisees. They operate health clubs, barber shops, auto parts shops, child care centers, neighborhood restaurants, music stores, cleaning services, and much more.

They use the brand name of companies like Planet Fitness, Merry Maids or Panera Bread.

They may work 12 hours a day serving customers, meeting a payroll, dealing with government regulations, paying taxes, and trying to make a profit.

We live at a time when Democrats and Republicans bemoan the fact that it’s getting harder and harder to climb the economic ladder of success in our country.

Successfully operating a franchise business is today one of the most important ways to do that.

Why would the pending decision by the National Labor Relations Board threaten this very American way of life, knocking the ladder out from under hundreds of thousands of Americans?

The board and its General Counsel are pursuing a change to what is called the “joint employer” standard.  This standard, or test, has since 1984 required that for a business to be considered a joint employer, it must hold direct control over the terms and conditions of a worker’s employment—to decide that, the NLRB looks at who hires and fires, sets work hours, picks uniforms, issues directions to employees, determines compensation, handles day to day supervision, and conducts recordkeeping.

Under the changes the NLRB is now considering, it would take just indirect control over the employees’ terms and conditions of employment, or even unexercised potential to control working conditions, or where ‘industrial realities’ otherwise made it essential to meaningful collective bargaining,

So what could this mean for these more than 700,000 franchisees and employers?

These franchise companies will find it much more practical to own all their stores and restaurants and day care centers themselves. There will be many more company-owned outposts, rather than franchisee-owned small businesses.

Franchisees tell me they expect “franchisors would be compelled to try to establish control over staffing decisions and daily operations….franchisees would lose their independence and become de facto employees of the franchisor.”

This case doesn’t just affect franchisees, it will affect every business that uses a subcontractor or contracts out for any service.  That includes most of the 5.7 million businesses under NLRB jurisdiction in America – because most businesses contract for some service.

Consider a local bicycle shop that contracts out its cleaning service under a cost plus provision, in which the cleaner is paid for all of its expenses to a certain limit, plus a profit.

If this arrangement is interpreted to create “indirect control” or have “unexercised potential” over working conditions – they could trigger joint employer obligations.

Same thing with a local restaurant that outsources all of its baked goods under a contract that includes penalties for being late or delivering substandard goods—it could be considered a joint employer of the bakery employees.

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Alexander, McConnell File National Labor Relations Board Reform Bill

Press release from U.S. Sen. Lamar Alexander, R-Tenn.; January 28, 2015:

‘NLRB Reform Act’ Will Turn Board from Advocate into Umpire

Washington, D.C., January 28 – U.S. Senate Majority Leader Mitch McConnell (R-Ky.) and Sen. Lamar Alexander (R-Tenn.), chairman of the Senate labor committee, today introduced the NLRB Reform Act to turn the National Labor Relations Board (NLRB) from an advocate to an umpire and keep the general counsel from operating as an activist for one side or the other.

McConnell said: “The NLRB’s politically motivated decisions and controversial regulations threaten the jobs of hardworking Americans who just want to provide for their families.  So it’s time to restore balance and bipartisanship. The NLRB Reform Act  would help turn the board’s focus from ideological crusades that catch workers in the crossfire to the kind of common-sense, bipartisan solutions workers deserve.”

Alexander said: “This legislation will turn the National Labor Relations Board from a partisan advocate to the neutral umpire it ought to be, restoring stability to our nation’s workplaces. It would also rein in the freewheeling general counsel by allowing businesses and unions to challenge complaints in federal court, and it would encourage timely decisions by saying either party to a case may appeal to the court of appeals if the board fails to act within a year.”

The NLRB Reform Act addresses three problems with the board—its partisanship, its activist general counsel, and its slow decision-making—with three solutions. The legislation will:

  • End partisan advocacy: To put an end to the partisanship, this legislation would increase the number of board members from five to six, requiring an even split between Republicans and Democrats. All decisions would require the agreement of four board members, resulting in consensus from both sides. The five-year terms of the board members would be synched up over time so that a Republican and Democrat seat are up for nomination at the same time.
  • Rein in the general counsel: The board’s most recent general counsels have stretched federal labor law to its limits—and sometimes beyond. With this bill, parties will have 30 days to seek review of a general counsel’s complaint in federal district court and will have new discovery rights allowing them to obtain memoranda and other documents relevant to the complaint within 10 days.
  • Encourage timely decision-making:  The NLRB is taking too long to resolve cases. Under the NLRB Reform Act, either party in a case before the board may appeal to a Federal Court of Appeals if the board fails to reach a decision in their case within one year. To further incentivize speedy decision-making, funding for the entire NLRB would be reduced by 20 percent if the board is not able to decide 90 percent of its cases within one year over the first two-year period post-reform.