By Nelson Cary and George Stevens
Regular readers of this blog are already aware of the uproar over the NLRB’s release of its “quickie” or “ambush” union election rule and the litigation it has spawned in both D.C. and Texas federal courts. The rule will bring a major overhaul to the manner and timeframe in which union elections are held.
As litigation has heated up, so has the political infighting: the NLRB and the Obama administration face resistance in both houses of Congress. On March 4, the Senate passed a Congressional Review Act resolution that would stop the NLRB from implementing their rule by a 53 to 46 vote, split largely down party lines. Just yesterday, the House passed the same measure by a vote of 232 to 186. The only break from party line voting were three Republican representatives who joined all Democrats to oppose the resolution. The President is expected to veto the resolution, which Congress is unlikely to have the votes to overturn.
Meanwhile, back in court, the parties in both lawsuits have filed motions for summary judgment and/or dismissal. The NLRB argues that its rulemaking is entitled to extraordinary deference, that its rules need only be rational and well-explained, and that all of the new rule’s changes are lawful. Representatives of employers in both cases argue the opposite, saying that the rule exceeds the NLRB’s statutory authority and calling it “arbitrary and capricious” and “an abuse of agency discretion.”
Lawyers representing management-side interests in both cases are particularly incensed by the NLRB’s requests for extensions of time to answer their summary judgment motions, calling it nothing more than a stalling tactic designed to delay any decision on the merits of the rule until after its April 14 effective date. The NLRB has in the past voluntarily delayed the effective date of a rule when faced with a substantive court challenge. But here, it chose not to. Both courts granted these extensions in mid-February.
Finally, at the NLRB, it remains full steam ahead with the rule. Training of regional office staff is or soon will be underway. Various regional offices are offering sessions to labor professionals as well. For those of you in Ohio, Region 9 is holding its information meeting on April 8 in Cincinnati and Region 8’s meeting will take place on April 6 in Cleveland.
Suffice it to say, this issue will be coming to a head sometime very soon. The political opposition will likely go nowhere, given the President’s expected veto. The litigation may not yield the same victory that employers saw with the rejection of the NLRB’s prior effort to revise its election rule. Thus, labor professionals should consider continuing to prepare for April 14. Stay tuned to vorysonlabor.com for further developments on this issue.