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Mar 5, 2015

By Michael J. Lotito

The same day the Senate advanced a joint resolution (S.J. Res. 8) seeking to block implementation of the National Labor Relations Board’s expedited (aka, “Quickie”) union election rule, the House Subcommittee on Health, Employment, Labor, and Pensions, held a hearing to discuss a companion measure (H.J. Res. 29).

Both resolutions are attempts to use the Congressional Review Act (CRA) to void the Board’s rule. As previously discussed, the CRA permits Congress to vote in favor of nullifying federal agency rules by a simple majority vote.

Expecting a presidential veto

While such attempts rarely succeed, in 2001 Congress did approve a joint resolution voiding the U.S. Department of Labor’s ergonomics rule.

On Wednesday, the Senate voted 53-46 in favor of the resolution. The House is also expected to approve its measure, although President  Obama will almost certainly veto any efforts to block the NLRB rule from taking effect on April 14, 2015.

The move by congressional Republicans is a way to confer “ownership” of the rule to the President, allowing him to publicly take a position on the measure. During Wednesday’s hearing, Rep. Bradley Byrne, R-AL, explained that “the President will have to decide whether he stands with big labor, or with this nation’s workers and job creators.”

Many of the arguments made for and against the rule were rehashed from earlier hearings on this issue, including the hearing conducted last month by the Senate Committee on Health, Education, Labor and Pensions. Byrne said what many testifying at these hearings have said time and again, which is that the rule’s “real goal is to dramatically tilt the outcome of elections” in favor of unions.

Glenn M. Taubman, testifying on behalf of the National Right to Work Legal Defense and Education Foundation, pointed out what he considers the hypocrisy of the Board “continuing the odious process of blocking decertification elections” while “speeding up certification elections.” The new rule, he said, skews the process “to wholly favor unionization while invading employee privacy.”

“Many negative aspects of the rule”

Rep. Byrne agreed, saying “there is absolutely no reason” why union organizers need employee phone numbers, email addresses, work schedules and home addresses, as mandated by the rule. “Union intimidation and coercion is real,” he said.

Roger King, testifying on behalf of the Retail Industry Leaders Association, said “there are many negative aspects of the rule that are being glossed over.” He discussed a few of these aspects, including his position that the rule “is fundamentally unfair to employees and is an unprecedented policy initiative by this regulatory agency.”

He mentioned that he knew of no other election process allowing one side to have months if not years to campaign, and then be able to have an election petition processed in so short a period of time. King pointed out that “even union officers have a minimum period of candidacy and campaigning” before an election. “This is a raw agency political move. Nothing more. Nothing less.”

King also testified that union elections have lasting consequences, and that the new rule, spanning 733 pages, “is a legal and procedural land mine for employees and employers.”

Finally, he emphasized that the new rule is not consistent with the legislative history of the National Labor Relations Act. He said that in 1959, Congress considered the concept of election first, hearing later, but that the Senate rejected this proposed policy change.

Democrats predict congressional review will fail

Ranking Member Jared Polis, D-CO, however, said because the Congressional Review Act effort will ultimately fail, the hearing constituted “sound and fury, signifying nothing.”

A complete list of panelists and links to their testimony can be found here.

This was originally published on Littler Mendelson’s Workplace Policy Update blog© 2015 Littler Mendelson. All Rights Reserved. Littler®, Employment & Labor Law Solutions Worldwide® and ASAP® are registered trademarks of Littler Mendelson, P.C.

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