Senator Threatens to Defeat NLRB's Election Rule

The same day the National Labor Relations Board (NLRB) released its final rule that radically alters union representation election procedures, Senator Mike Enzi (R-WY), Ranking Member on the Senate Health, Education, Labor and Pensions (HELP) Committee, announced his intention to challenge the rule under the Congressional Review Act (CRA). Pursuant to this law, the House or Senate can introduce a joint resolution of disapproval to prevent an agency from enforcing a rule.

According to Enzi:

The rule issued today by the NLRB will allow union bosses to ambush employers with union elections before employers have a fair chance to learn their rights and explain their views to employees, as required by law. I plan to lead the fight against this onerous rule by introducing a resolution of disapproval under the Congressional Review Act. It is disappointing that union advocates believe their best chance to succeed, when it comes to union elections, is to ensure that only one side of the story is able to get out. Instead of using backdoor political maneuvers to boost anemic union memberships and smother our nation’s struggling economy, this Administration should help America regain its strong financial footing.

Although the CRA provides expedited procedures to consider the joint resolution in the Senate and requires a simple majority vote in both Chambers, the resolution faces likely defeat in the Senate. Moreover, the President likely would veto any such measure, so the effort may be largely symbolic.

In addition to this potential challenge, on December 20, the National Chamber Litigation Center along with the Coalition for a Democratic Workplace (CDW) filed a lawsuit (pdf) to contest the rule on the grounds that it violates the National Labor Relations Act, the Administrative Procedure Act, the Regulatory Flexibility Act, and free speech and due process constitutional rights.

The changes made by the new rule include:

  • Expressly construing Section 9(c) of the National Labor Relations Act (NLRA) to state that the statutory purpose of a pre-election hearing is to determine if a question of representation exists.
  • Providing hearing officers presiding over pre-election hearings the authority to limit the presentation of evidence to that which supports a party’s contentions and is relevant to the existence of a question concerning representation.
  • Giving hearing officers presiding over pre-election hearings discretion over the filing of post-hearing briefs, including over the subjects to be addressed and the time for filing.
  • Eliminating the parties’ right to file a pre-election request for review of a regional director’s decision and direction of election and instead deferring all requests for Board review until after the election, when any such request can be consolidated with a request for review of any post-election rulings.
  • Eliminating the recommendation that the regional director should ordinarily not schedule an election sooner than 25 days after the decision and direction of election in order to give the Board an opportunity to rule on a pre-election request for review.
  • Making explicit and narrow the circumstances under which a request for special permission to appeal to the Board will be granted.
  • Creating a uniform procedure for resolving election objections and potentially outcome-determinative challenges in stipulated and directed election cases and providing that Board review of regional directors’ resolution of such disputes is discretionary.

A summary of the changes made by the new rule can be found here. See also Littler’s ASAP: Two-Member NLRB Majority Adopts Unprecedented Resolution to Move Forward With Subset of Election Rule Amendments by David Kadela. For more information on the initial election rule proposal, see NLRB Proposed Rules Would Make it Easier for Unions to Organize by Alan I. Model.

Photo credit: ericsphotography

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.