Obama Vetoes Congressional Resolution, Backs NLRB Adoption of ‘Overdue Reforms'

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By Lawrence E. Dubé

March 31 — President Barack Obama March 31 vetoed a joint resolution under the Congressional Review Act that sought to block implementation of the National Labor Relations Board's controversial amendments to its regulations for processing union representation cases.

The Senate adopted the disapproval resolution of the NLRB regulatory action (S.J. Res. 8) by a 53-46 vote March 4, and the House passed the same measure by a 232-186 vote March 19.

Obama signed a presidential “memorandum of disapproval” stating that he was withholding his approval of the Congressional Review Act resolution. The president said he wouldn't approve congressional action to overturn NLRB rule changes that he considers “modest but overdue reforms to simplify and streamline private sector union elections.”

In remarks at the White House March 31, Obama called the joint resolution of Congress a “bad idea.” The president said “one of the freedoms of folks here in the United States is that if they choose to join a union, they should be able to do so. And we shouldn’t be making it impossible for that to happen.”

The NLRB rules are set to take effect April 14.

NLRB Adopted Changes in December

The board adopted the changes in December on a 3-2 vote. 

The new rules (RIN 3142-AA08) will, among other things, limit the preelection litigation of some voter eligibility and unit inclusion issues, allowing the board to resolve disputes without delaying balloting by employees.

The rule changes also adopt other measures the board has identified as needed for “modernizing” and “streamlining” representation case procedures, including a requirement that employers release workers' personal e-mail addresses and telephone numbers prior to secret-ballot representation elections conducted by the NLRB.

Critics Called Changes Unfair, Unreasonable

Opponents charged that the regulatory changes would disadvantage both employers and employees in union representation cases.

Sen. Lamar Alexander (R-Tenn.), chairman of the Senate Health, Education, Labor and Pensions committee, sponsored the Senate resolution and said in a statement after the Senate vote that the NLRB rule changes would “allow a union to force an election before an employer has a chance to figure out what's going on”.

Rep. John Kline (R-Minn.), chairman of the House Education and the Workforce Committee, who sponsored the resolution in the House, charged during a floor debate the new “draconian” rules would rush elections and would make it harder for employers and employees to discuss and consider the important question of whether workers should choose union representation.

After the NLRB gave final approval to the rules, Republican lawmakers in the House and Senate invoked the Congressional Review Act, 5 U.S.C. § 801.

Both chambers of Congress passed identical resolutions that “Congress disapproves the rule submitted by the National Labor Relations Board relating to representation case procedures (published at 79 Fed. Reg. 74308 (December 15, 2014)), and such rule shall have no force or effect.”

Obama Cites Need for Streamlined NLRB Process

However, the president said in his memorandum disapproving the congressional resolution that American workers “need a strong voice in the workplace.” Stating that “[u]nions have played a vital role in giving workers that voice,” Obama said giving workers a “level playing field” for making their voices heard “requires fair and streamlined procedures for determining whether to have unions as their bargaining representative.”

Obama said that in the fall the White House will host “a summit on increasing the voice and the rights of workers here in the United States.”

Commenting that “folks at the very top” of the American economy “are doing very well,” the president said middle-class families and individuals “still have some big difficulties.” Obama said he looks forward to hearing from businesses, academics, workers, and organizers about ensuring that “everybody is benefitting just as everybody is contributing.”

Asserting the Congressional Review Act resolution “seeks to undermine a streamlined democratic process that allows American workers to freely choose to make their voices heard,” the president said, “I cannot support it.”

Congress is on a break that will end when the Senate and House return April 13. “To leave no doubt that the resolution is being vetoed, in addition to withholding my signature, I am returning S.J. Res. 8 to the Secretary of the Senate, along with this Memorandum of Disapproval,” Obama said.

Reaction Divided, Follows Earlier Split Over Rules 

Several Senate and House leaders March 31 issued a joint statement with Alexander and Kline that was critical of the NLRB rule changes and expressed their dissatisfaction with the president's action.

“The President’s partisan veto will further empower powerful political bosses at the expense of the rights of middle-class workers,” said Senate Majority Leader Mitch McConnell (R-Ky.). “We’ll continue to stand strong against Obama Administration attempts to weaken workers’ rights in order to enrich its powerful political friends.”

House Speaker John Boehner (R-Ohio) described the NLRB regulatory change as an “ambush election rule” that infringes on the “rights and privacy protections of American workers.”

Sen. Mike Enzi (R-Wyo.), chairman of the Senate Budget Committee, said “the National Labor Relations Board has taken it upon itself to impose new regulations that would hurt businesses and undermine a process that is already providing fair and timely elections.”

Rep. Phil Roe (R-Tenn.), chairman of the House Subcommittee on Health, Employment, Labor and Pensions, charged that the NLRB change in representation case procedures “is nothing more than an attempt to speed up union elections, violating the rights of workers to make an informed decision and employers to communicate openly with their employees during a union organizing campaign.”

But the International Brotherhood of Teamsters issued a March 31 statement that the union “applauded” the president's decision to veto “a destructive resolution backed by Republicans in Congress.”

IBT General President James P. Hoffa said in the statement that “President Obama has stood strong on the side of working people today by sending a clear message to those interests that would seek to discourage and suppress those seeking union representation.”

Calling the NLRB changes no more than an improvement and modernization of the agency's representation case procedures, Hoffa said, “There is no acceptable reason for anyone to stand in the way of this progress.”

Court Challenges Remain Open

Business groups have filed two lawsuits challenging the NLRB rule changes.

The U.S. Chamber of Commerce and other business groups filed a lawsuit in the U.S. District Court for the District of Columbia (Chamber of Commerce v. NLRB, D.D.C., No. 15-cv-9).

Several Texas groups filed a second challenge in the U.S. District Court for the Western District of Texas (Associated Builders & Contractors of Texas, Inc. v. NLRB, W.D. Tex., No. 15-cv-26).

Neither court has scheduled a hearing or announced a date or timetable for ruling in either case.

To contact the reporter on this story: Lawrence E. Dubé in Washington at ldube@bna.com

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

Text of the president's memorandum of disapproval of S. J. Res. 8 is available at http://op.bna.com/dlrcases.nsf/r?Open=ldue-9v5n6x.