NLRB Election Rules Near Test in Congress; Changes Said to ‘Streamline' Board Process

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By Lawrence E. Dubé

Feb. 27 -- Congress is about to take up proposals to block the National Labor Relations Board from implementing changes in its representation case rules and procedures set to take effect April 14.

Many of the changes (see box below) have met vocal opposition from business groups and Republican legislators since they were originally proposed in 2011. A final rule approved in December 2011 was blocked by a court's ruling that the board failed to properly assemble a quorum of members when it used an electronic voting room process to finalize the rule.

But the board approved a modified version of the regulatory action in December, and the Senate and House will now consider resolutions under the Congressional Review Act to disapprove and block the rule changes.

With Republican majorities in both chambers, the resolutions are likely to win approval, but a White House veto of congressional action could clear a path for the board to proceed with implementation of its changes.

Board Approved Rule Changes on 3-2 Vote

The board adopted the final rule changes on a 3-2 vote, with Chairman Mark Gaston Pearce (D) and Member Kent Y. Hirozawa (D) and then-Member Nancy J. Schiffer (D) voting in favor of the regulatory amendments and Members Philip A. Miscimarra (R) and Harry I. Johnson (R) dissenting (79 Fed. Reg. 74,308; 239 DLR A-1, 12/12/14).

An earlier proposal to change the board's rules, approved in December 2011 by Pearce and then-Member Craig Becker (D) (76 Fed. Reg. 80,138), was never implemented. A vote to disapprove the regulation under the Congressional Review Act failed in April 2012 on a procedural vote in the Senate (79 DLR AA-1, 4/24/12), which then had a Democratic majority.

But the U.S. District Court for the District of Columbia invalidated the NLRB rulemaking action, finding the board's records did not show that three members had approved the rule . The court did not comment on the substance of the rule, leaving open the possibility that a valid quorum of board members might decide to adopt the same rule.

The NLRB appealed the 2012 court ruling, but later dismissed the appeal and rescinded the rule changes.

In February 2014, the board issued a new notice of proposed rulemaking on changes that it called “in essence, a reissuance” of the earlier proposals (RIN 3142-AA08, 79 Fed. Reg. 7,318; 24 DLR AA-1, 2/5/14) and held a public hearing (70 DLR AA-1, 4/11/14). The board in December adopted the proposal with some modifications.

GOP Legislators Hope to Block NLRB Action

Republican lawmakers in the House and Senate Feb. 9 moved to halt the new rules, invoking the Congressional Review Act, 5 U.S.C. § 801 .

Senate Majority Leader Mitch McConnell (R-Ky.), Health, Education, Labor and Pensions Committee Chairman Lamar Alexander (R-Tenn.) and former HELP Committee chair Mike Enzi (R-Wyo.) filed in the Senate a joint resolution (S.J. Res. 8) disapproving of the rule changes, which are slated to take effect April 14 . All 54 Senate Republicans have signed on as sponsors or co-sponsors of the resolution.

In the House, Speaker John Boehner (R-Ohio), Rep. John Kline (R-Minn.), who chairs the Committee on Education and the Workforce, and committee member Rep. Phil Roe (R-Tenn.) introduced an identical resolution (H.J. Res. 29) on the same day.


National Labor Relations Board changes in representation case procedures will go into effect April 14 unless they are blocked by Congress or a federal court.

 


The text of the resolutions, dictated by the Congressional Review Act, is identical, stating 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.”

The Senate resolution was the subject of a Feb. 11 hearing before the HELP Committee (28 DLR AA-1, 2/11/15), and was discharged from the committee and placed on the Senate calendar Feb. 23

The House resolution will be considered at a March 4 hearing before the Health, Employment, Labor and Pensions subcommittee.

Congressional Resolution Could Face Veto

Under the Congressional Review Act, Congress can block a regulation from taking effect if a resolution of disapproval is passed by a majority vote in each chamber. If Congress passes the resolution, it goes to the president, who may veto it. Congress can override a veto of a resolution with a two-thirds vote of both houses.

Only one regulation has been blocked under the Congressional Review Act since it was enacted in 1996. In 2001, a Labor Department regulation on workplace ergonomics was blocked by a resolution that Congress approved and President George W. Bush signed .

President Barack Obama has not publicly stated his position on the resolutions presently under consideration by the Senate and House. However, when the Senate took up a resolution of disapproval of the original NLRB regulation in April 2012, the White House released a statement that the administration “strongly” opposed the resolution as an effort to overturn the NLRB's adoption of “commonsense measures.”

The White House said that if the 2012 measure reached the president's desk, “senior advisers” would have recommended that he veto it.

Court Challenges Offer Second Option

Even if the NLRB rulemaking effort is saved by a presidential veto, business groups are expected to continue pressing several court challenges to the NLRB rulemaking action.

The U.S. Chamber of Commerce and other business groups are challenging the regulations in federal district court (Chamber of Commerce v. NLRB, D.D.C., No. 15-cv-9). The organizations Feb. 5 asked a judge to grant them summary judgment on claims that the rule is arbitrary, inconsistent with the NLRA and violates employers' free speech rights.

In particular, the Chamber argued, Section 9(c)(1) of the statute, 29 U.S.C. § 159(c)(1), requires the NLRB to conduct an “appropriate hearing” before directing a representation election.

The board majority that approved the NLRB rule concluded that deferring action on some legal issues until after balloting would expedite elections while preserving the rights of employers, unions, and employees to file appropriate post-election appeals, but the Chamber argues the option chosen by the board is inconsistent with Section 9(c)(1).

The Chamber and other business groups challenging the board have also argued that the rule change is not needed by an agency that has repeatedly achieved a median interval of 38 days from the filing of a union representation to a secret ballot election. Accelerating elections may aid unions in their organizing efforts, the business groups argue, but it sacrifices the right of employers to express their views on unionization.

Without a reasonable period to campaign before an election on union representation, the First Amendment and NLRA protections for lawful employer expression can be rendered meaningless, the Chamber and opponents of the rule have argued.

The NLRB is scheduled to file a response to the Chamber's motion on or before March 6.

A second challenge to the rulemaking, filed Jan. 13, is pending in the U.S. District Court for the Western District of Texas (Associated Builders & Contractors of Texas, Inc. v. NLRB, No. 15-cv-26 (W.D. Tex.).

The plaintiffs in the Texas case, who are pressing arguments similar to the Chamber's, have not yet moved for summary judgment, and the NLRB has not yet answered the complaint in the lawsuit.

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

NLRB Lists Changes in Representation Case Processing.

The NLRB issued a fact sheet to accompany its announcement of the lengthy final rule. The board contends its final rule will “streamline Board procedures, increase transparency and uniformity across regions, eliminate or reduce unnecessary litigation, duplication and delay, and update the Board's rules on documents and communications in light of modern communications technology.”

The agency release cited the following changes in board regulations and representation case procedures:

Modernizing Board Procedures.

Electronic Filing/Communications -Parties may file documents, such as petitions, electronically, rather than by fax or mail. Parties and the NLRB’s regional offices can transmit documents electronically, rather than using slower or more expensive forms of communications, such as mail or express delivery services.

Election Voter List -The employer must include available personal email addresses and phone numbers of voters on the voter list in order to permit non-employer parties to communicate with prospective voters about the upcoming election using modern forms of communication.

Streamlining Board Procedures and Reducing Unnecessary Litigation.

Identifying Disputed Issues -The non-petitioning parties will be required to respond to the petition and state their positions generally the day before the pre-election hearing opens. The petitioner will be required to respond to the issues raised by the non-petitioning parties at the opening of the hearing. Litigation inconsistent with the positions taken by the parties will generally not be allowed.

Litigation of Eligibility and Inclusion Issues -Generally, only issues necessary to determine whether an election should be conducted will be litigated in a pre-election hearing. A regional director may defer litigation of eligibility and inclusion issues affecting a small percentage of the appropriate voting unit to the post-election stage if those issues do not have to be resolved in order to determine if an election should be held. In many cases, those issues will not need to be litigated because they have no impact on the results of the election.

Post Hearing Oral Argument and Briefs -All parties will be provided with an opportunity for oral argument before the close of the hearing. Written briefs will be allowed only if the regional director determines they are necessary.

Review of Regional Director Rulings -The parties may seek review of all regional representation-case rulings through a single post-election request, if the election results have not made those rulings moot. The election will no longer be stayed after the regional director issues a decision and direction of election, in the absence of an order from the Board.

Review Standard for Post-election Issues -The Board will have the discretion to deny review of regional director post-election rulings, under the same standard that has governed Board review of regional director pre-election rulings for many years.

Increasing Transparency and Standardizing Board Process.

Earlier and more complete information to the parties -When the petitioner files its petition, it will be required to simultaneously serve a copy of the petition, along with a more detailed Agency description of representation case procedures and an Agency Statement of Position form, on all parties identified in its petition in order to provide them with the earliest possible notice of the filing of the petition and Board procedures for processing those petitions. NLRB regional offices will serve a Notice of Hearing and a Notice of Petition for Election (along with a copy of the petition, description of representation case procedures and the Statement of Position form) on all parties. The non-petitioning parties will be required to respond to the petition (generally the day before the hearing opens) by filing with the regional director and serving on the other parties a Statement of Position identifying the issues they have with the petition. As part of its Statement of Position, the employer will be required to provide all other parties with a list of prospective voters, their job classifications, shifts and work locations.

Scheduling of Hearings -Except in cases presenting unusually complex issues, pre-election hearings will generally be set to open 8 days after a hearing notice is served on the parties. Postelection hearings will generally open 14 days after objections are filed.”