NLRB Rule Challenge Advances in Senate, But White House Likely to Block Resolution

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By Chris Opfer

March 3 — A resolution (S.J. Res. 8) to block the National Labor Relations Board from implementing revised representation election rules advanced in the Senate March 3 in a 53-45 preliminary vote.

Although President Barack Obama is widely expected to veto the resolution if it reaches his desk, sponsor Sen. Lamar Alexander (R-Tenn.) said the measure is intended to inform the public about the impact of changes to the representation election process that are set to take effect April 14.

“We want the American people to understand why the ambush election rule is such a bad idea,” Alexander said in remarks on the Senate floor following the vote.

Adopted by the board in a 3-2 vote in December, the new rules (RIN 3142-AA08) are intended to streamline the representation election process, increase transparency and reduce litigation. Among other changes, the rules would permit union election petitions to be transmitted electronically, require a preelection hearing to be held within seven days of the filing of a petition in most cases, and postpone certain voter eligibility disputes and other appeals until after the election takes place.

Congressional Republicans and the business community have strongly opposed the rules since similar changes were proposed in 2011. They say the rule would give unions the upper hand by allowing them to spring “quickie” elections on employers as early as 11 days after the filing of a petition and impede employee privacy rights by requiring employers to provide workers' personal e-mail addresses and cell phone numbers as well as job, schedule and other information.

“This ambush election rule is part of a general trend that has caused the NLRB to shift dramatically toward union advocacy,” Alexander said. He pointed in particular to NLRB General Counsel Richard F. Griffin's recent effort to expand joint employer liability under the National Labor Relations Act and board decisions recognizing a “micro-unit” within a business for bargaining purposes as other examples of such advocacy.

Shortly before the Senate vote, the White House Office of Management and Budget issued a statement of administrative policy condemning the resolution as an attack on workers. The OMB said Obama's senior advisers will recommend that he veto the measure if it passes both chambers of Congress.

“Instead of seeking to undermine a streamlined democratic process for American workers to vote on whether or not they want to be represented, the Congress should join the President in strengthening protections for American workers and giving them more of a voice in the workplace and the economy,” the OMB said. “Growing and sustaining the middle class requires strong and vital labor unions, which helped to build this Nation's middle class and have been critical to raising workers' wages and putting in place worker protections that we enjoy today.”

Congressional Review Act's Reach Limited

The Congressional Review Act allows Congress to block a regulation from taking effect by passing a disapproval resolution with a simple majority vote in each chamber. 

The law has been used sparingly in the two decades since it was enacted, however, because of the rather imposing hurdle posed by the threat of a veto. Congress would have to convince Obama to sign a resolution disapproving regulations developed by one of his own executive agencies in order to stop the NLRB election rules from going forward, or muster the support of two-thirds of lawmakers in each chamber to override a veto.

Only one regulation has been disapproved by both chambers since 1996, a Labor Department rule on ergonomics issued under the Clinton administration. The resolution blocking that rule was signed into law by President George W. Bush in 2001.

Still, supporters of the resolution said the preliminary vote will allow lawmakers to go on the record against the NLRB rule.

“We need to remind the National Labor Relations Board and other boards and agencies that its duty is to consider the facts of specific cases, to treat parties in those cases fairly and to make impartial decisions according to the law,” Sen. Mike Enzi (R-Wyo.) said. “The Board’s role is not to try to stack the system against one side or tip the scales in favor of the other, which is what this rule does.”

A House Education and the Workforce subcommittee is scheduled to consider the House version of the resolution in a hearing March 4. Speaker John Boehner (R-Ohio) and Education and the Workforce Committee Chairman John Kline (R-Minn.) sponsored the measure in the House, while Majority Leader Mitch McConnell (R-Ky.) joined Alexander and Enzi in sponsoring the resolution in the Senate.

Court Challenges Pending

The rules are also being challenged by the employer community in the federal courts, where separate lawsuits led by the U.S. Chamber of Commerce (Chamber of Commerce v. NLRB, D.D.C., No. 15-cv-9) and Associated Builders & Contractors of Texas (Associated Builders & Contractors of Texas, Inc. v. NLRB, No. 15-cv-26 (W.D. Tex.) are pending.

The Chamber alleges in its suit that the NLRB violated the Administrative Procedure Act in issuing the rules because they are arbitrary and capricious, and that the rules impinge on employees' free speech rights under the First Amendment and the NLRA. The U.S. District Court for the District of Columbia has yet to rule on the Chamber's motion for summary judgment in the litigation.

Associated Builders & Contractors of Texas has advanced similar arguments in its case, including that the board adopted the new rule without adequate justification.

To contact the reporter on this story: Chris Opfer in Washington at copfer@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Text of the resolution is available at http://op.bna.com/dlrcases.nsf/r?Open=ldue-9u5pmn.