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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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Press Releases

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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Press Releases

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.
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Press Releases

Ball: Attacks Show Alexander ‘Out of Touch’ with Tennesseans

Press release from the Gordon Ball Campaign for U.S. Senate; September 23, 2014:

It’s now clearer than ever. Senator Lamar Alexander is truly out-of-touch with the people of his own state.

The Tennessee GOP recently came out swinging at Gordon Ball, Senator Alexander’s opponent in the November election. The party alleges that Gordon will simply be another vote for “Obama’s agenda.”

However, that statement couldn’t be further from the truth.

“Gordon is focused on his own extensive agenda, which includes protecting working families in our state,” said TN AFL-CIO President Gary Moore. “Senator Alexander and members of his party are beginning to become concerned as they realize that Gordon is a very viable and strong candidate for U.S. Senate.”

This comes just as Senator Alexander introduced the “National Labor Relations Board Reform Act” last week. The truth of the matter, however, is that his ultimate goal is to eventually do away with the NLRB.

“These changes are being introduced by the same person who wanted to do away with the minimum wage and is a strong advocate of Tennessee’s right-to-work laws,” said President Moore. “At the end of the day, Senator Alexander will never have the interests of middle class Tennesseans in mind.”

“Once again, Senator Lamar Alexander proves he is out of touch with working Tennesseans,” said Ball. “He is so busy focusing on attacking me that he has forgotten the people who put him in office the first place. Wall Street did not put him in office, Main Street did.”

As Election Day gets closer, more and more Tennesseans are ready for a much-needed change in Washington.

“As we’ve said before, Gordon has made it very clear that he will represent every citizen of this great state,” said President Moore. “We are committed to helping him ensure that the truths are told about his goals and agenda, rather than false assumptions or generalizations.”

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Business and Economy Liberty and Justice NewsTracker

Labor Complaint Against Boeing Opposed by Haslam

Gov. Bill Haslam is among 16 Republican governors to sign a letter to the National Labor Relations Board asking it to dismiss its complaint against aircraft maker Boeing, which plans to operate a plant in South Carolina.

Like Tennessee, South Carolina is a right-to-work state. The NLRB claims Boeing chose to establish an assembly plant in North Charleston, S.C., as retaliation for past labor problems the company has experienced in the state of Washington.

The NLRB formally issued a complaint against Boeing in April.

Republican Gov. Nikki Haley of South Carolina has written to Lafe Solomon, acting general counsel of the NLRB, taking issue with the agency’s action. The letter was dated June 16, and Haslam is among the signers.

The letter says that although South Carolina is a right-to-work state and Washington isn’t, the aircraft maker continues to invest and create jobs in both states regardless of their different policies on labor. The letter begins by saying the best announcement a governor can make during the recovery from recession is one about new jobs.

“When a company chooses to come to a state, it does so because the state has a low cost of doing business, a trained workforce and a favorable regulatory climate,” the letter said. “If the company chooses to locate in a right-to-work state, that is an added bonus.”

Haslam has repeatedly listed the fact that Tennessee is a right-to-work state as being among the state’s top selling points in attracting new jobs. Haslam has said his top priority is to make Tennessee the No. 1 state in the Southeast for jobs.

The letter initiated by Haley says the NLRB has “overstepped its mandate” to protect workers and has instead chosen to protect only “the interests of organized labor.”

“This undermines the principles of free market capitalism upon which this nation is built,” the letter said. “It is clear that if the NLRB can charge Boeing and punish South Carolina, then it can do so to other companies and other states.”

The letter further states, “When we, as governors, are fighting to improve the economic interests of our states, the federal government should not stand in our way. While governors are trying to break the ties that bind free enterprises from doing business, the federal government should not tell Boeing where it can build airplanes.”

A hearing on the charge opened in Seattle on June 14 before an administrative judge.

On April 28, eight state attorneys general wrote to Solomon, calling on him to withdraw the complaint. Earlier this month, 16 attorneys general filed an amicus brief opposing the NLRB’s action. Tennessee’s attorney general, Bob Cooper, has not been among those signing onto the opposition.

Boeing selected Charleston in 2009 for an assembly line for the company’s 787 Dreamliner.

Tennessee recently found itself in a controversial jobs issue similar to one in South Carolina. Tennessee has struck a deal with Amazon.com to build two distribution centers, with the agreement that Amazon will not have to collect sales taxes in Tennessee on its transactions. The decision was made by former Gov. Phil Bredesen’s administration, and Haslam has agreed to abide by the agreement. South Carolina lawmakers balked at a similar arrangement with Amazon on collecting taxes, before reversing their decision after Amazon threatened to pull out of the state.

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