Thursday, September 23, 2010

U.S. Senator Johnny Isakson (R-GA)
Floor Statement on Administration Attempts to Ease Path to Unionization
Remarks as Delivered on the Senate Floor

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

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

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

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

There is no sound legal or policy basis for hastily changing a rule that has been in place and upheld repeatedly for 75 years. Throughout this time, the majority rule has furthered the primary purpose of the Railway Labor Act, which is "to avoid any interruption to commerce or to the operation of any carrier engaged therein."

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

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

For 70 years, the Board has required, when there is no representative and just one organization is seeking to be representative, a majority of the workers in the craft or class to vote for that organization.

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

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

She continued:

Regardless of the composition of the board or the inhabitant of the White House, this independent agency has never been in the business of making controversial, one-sided rule changes at the behest of only labor or management.

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

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

Quoting the Obama administration's Labor Department again:

Unlike the National Labor Relations Act, the Railway Labor Act does not provide for a decertification process.

"Does not provide for a decertification process."

Therefore, the union's certification continues until another union makes a showing of interest to represent the respective class or craft. ..... Consequently, it is of utmost importance that a certified union has the support of the workers it is certified to represent.

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

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

Employees who no longer wish to be represented by a union must select an individual to stand for election (the so-called "straw man"), convince a majority of the eligible voters in the craft or class to sign authorization cards for that individual (while attempting to explain that this individual is not actually going to represent them), and then file an application with the Board. If the requisite showing of interest is met, an election is authorized, and the employees must either vote for the "straw man," with the hope that he will later disclaim interest in representing the craft or class, or abstain from voting.

What a ridiculous process that is.

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

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

It is inconceivable that the right to reject collective representation vanishes entirely if the employees of a unit once choose collective representation. On its face, that is a most unlikely rule, especially taking into account the inevitability of substantial turnover of personnel within the unit.

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

Quoting Chairman Dougherty again:

Apparently, employee choice only matters to the Majority when it relates to changing the status quo from no representation to representation and not the other way around.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Chairman Dougherty is correct when she writes:

Independent agencies have an obligation to avoid even the appearance of impropriety. The Board's failure to do so in this instance has damaged the Board's reputation irreparably.

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

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

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

Last week, President Obama said:

What we've done instead [of getting EFCA passed in the Senate] is try to do as much as we can administratively to make sure that it's easier for unions to operate.

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

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

Employees were given the right under the (Railway Labor) Act not only to vote for collective bargaining, but to reject it as well.

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

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

On Monday, when this vote was scheduled, we launched an email address, airlines@isakson.senate.gov, and we asked the real experts--the workers affected by this rule change--to write us and offer their thoughts.

The response has been overwhelming. As of this morning, we've received over 100 individual letters in three days, not form letters or postcards, but carefully crafted letters decrying the unfairness of the NMB's rule change.

One of my constituents, a proud Delta flight attendant named Debi Shaw from Gainesville, Georgia contacted dozens of her friends and colleagues. Ms. Shaw collected over three dozen letters by herself.

I wish I could read all these letters into the record, but I wanted to share just a sample with my colleagues in the time I have.

One such letter came from Susan Powell of Buford, Georgia. She writes, "I have invested 31 years into a fabulous career at Delta and I feel so blessed to have been able to work for such a wonderful company all these years. The intentions of the NMB are totally transparent and should not be tolerated by Congress--or any other body or individual (including President Obama) who claims to embrace honesty, fairness and ethics. It is abundantly clear to me that motivation of the newest Obama appointees to the NMB is to pave the way for the AFA to gain entry into Delta Air Lines--I see no other justification for imposing voting rules on Delta flight attendants contrary to the voting rules applied to union elections at all other carriers. I have loved my career at Delta and I am so proud of the monumental efforts my company and my fellow employees have made to emerge from bankruptcy and return to profitability. I watched in horror years ago as the unions at Eastern Airlines single-handedly brought their own company to its knees--and I was forever grateful that I had chosen to work for Delta, as opposed to Eastern. It is my belief that an election in favor of the AFA will be the ruination of my company and the end of the blissful career I have enjoyed at Delta."

Another eloquent letter came from Karla Kelsey. "I am a 32 year Delta flight attendant. I do not understand why the NMB would change a rule that has been in place for 75 years. It is, obviously, a decision partial to the unions, not the employees. ..... I am not interested in union representation and I resent how this situation has been handled. The impact on my life would be hugely negative if the AFA is voted in. What is fair about a union being able to come into my company with only a majority of those who vote as opposed to a majority of all flight attendants who would be represented?"

I didn't just hear from pre-merger Delta employees. I heard from Avery C. Parker, who had been with Northwest Airlines for 31 years. She writes, "The NMB's decision to change the 75 plus year's old law concerning labor elections is very disturbing to me to say the least. ..... Is this how a government agency that has thousands of employees, counting on them to have an un-bias opinion, should act?"

Several workers contacted me complaining about the harassment they experience by union organizers. A flight attendant from Greensboro, Georgia, Toni Holman complains that "pro-union activists are spreading really nasty and un-true rumors; are using intimidation tactics; and are also sabotaging the luggage, hotel rooms, etc of many flight attendants who are vocal anti-union or have 'No Way AFA' bag tags on their suitcases. We are being targeted and persecuted. I also feel harassed by the bombardment of un-requested mail/e-mail/and telephone calls."

Again, I received dozens of letters from across the country. I will be including a sampling in the record of this debate, so these workers know they have a voice in their Congress.

***

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

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

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

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

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

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

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

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

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

***

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

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

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

I will quote from her answer to question 15:

Unlike the National Labor Relations Act (NLRA), the [Railway Labor Act] does not provide for a decertification process.

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

Therefore, the union's certification continues until another union makes a showing of interest to represent the respective class or craft. In this circumstance, as this showing requires authorization from at least a majority of the class or craft, the alleged disadvantage of NMB certifying method works to the advantage of the incumbent union.

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

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

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

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

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

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

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

I have invested 31 years into a fabulous career at Delta [Air Lines] and I feel so blessed to have been able to work for such a wonderful company all these years. The intentions of the National Mediation Board are totally transparent and should not be tolerated by Congress--or any other body or individual (including President Obama) who claims to embrace honesty, fairness and ethics. It is abundantly clear to me that motivation of the newest ..... appointees to the National Mediation Board is to pave the way for an Association of Flight Attendants to gain entry into Delta Air Lines--I see no other justification for imposing voting rules on Delta flight attendants contrary to the voting rules applied to union elections at all other carriers.

That is a key point.

I have loved my career at Delta and I am so proud of the monumental efforts my company and my fellow employees have made to emerge from bankruptcy and return to profitability. I watched in horror years ago as the unions at Eastern Airlines single-handedly brought their own company to its knees--and I was forever grateful that I had chosen to work for Delta, as opposed to Eastern. It is my belief that an election in favor of the AFA will be the ruination of my company and the end of the blissful career I have enjoyed at Delta.

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

***

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

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

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

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

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

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

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

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

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

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

I respectfully urge my colleagues to do that.