After legislative failure, NLRB critics look to courts to end union election rule

Failure on Capitol Hill to overturn the National Labor Relations Board’s (NLRB) union election rule has given greater weight to litigation challenging the agency.

Business groups mounted an extensive lobbying effort geared toward the Senate this week to void a NLRB rule that would speed up union elections. That campaign fell short in a 45-54 vote Tuesday where Republican senators sought to void the regulation under the Congressional Review Act.

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With the rule is set to go in effect on Monday, April 30, business lobbyists told The Hill that congressional action to overturn the regulation has been only part of a multi-pronged strategy to challenge the NLRB.

“That was one front we had to pursue and we did,” said Joe Trauger, National Association of Manufacturers’ (NAM) vice president of human resources policy. “That has run its course now so the court challenge becomes the central front.”

The Coalition for a Democratic Workplace, of which NAM is a member, is a party to a lawsuit against the union election rule. The group is still waiting on D.C.'s District Court to rule on the coalition’s motion for summary judgment in the legal challenge.

“The hope was that the court would have issued a decision before the April 30 deadline,” said Josh Ulman, legal counsel for the coalition. “We expect that decision will be appealed by the losing party, whoever that is.”

Also a party to that lawsuit is the U.S. Chamber of Commerce. Randy Johnson, the Chamber’s senior vice president of labor, immigration and employee benefits, said legislation is a “direct frontal attack” on NLRB but there are other options to stop the agency.

“That's failed, but we continue with the strategy we have, which is litigation, appropriations riders and oversight hearings,” Johnson said. “Those are the arrows in the quiver.”

Labor has backed the union election rule, saying it can cut back on delays for workers who want to form a union. The AFL-CIO lobbied against the joint resolution in the Senate that would have overturned the rule.

In turn, GOP lawmakers and trade associations have been up in arms about the labor board. Heading to the courts has become part of the process to challenge the NLRB, leading to some success for business groups.

Earlier this month, the U.S. Court of Appeals for the D.C. Circuit ordered an injunction against a different NLRB rule — one that would require businesses to post notices explaining workers’ collective bargaining rights.

That ruling came from an earlier court decision in a lawsuit the Chamber and the South Carolina Chamber of Commerce that ruled the NLRB did not have the legal authority to issue the notice rule.

NAM, later joined by other business groups, also sued to stop the notice rule. Their lawsuit was dismissed but they are now appealing that decision.

Further, business groups are challenging the outright authority of the labor board due to the controversial recess appointments made to the NLRB by President Obama this past January.

Critics argue that the president’s recess appointments were unconstitutional because they were made when the Senate was not in recess. The White House has countered that the Senate was not truly in recess when the appointments were made since no Senate business is conducted during its pro forma sessions.

The Chamber, along with the Coalition, has joined in with a challenge to the recess appointments. Last month, they filed a motion for leave to intervene in the U.S. Court of Appeals for the D.C. Circuit in a NLRB case against a Washington state contract canning and bottling company.

Ulman said they are still waiting to hear on a ruling for that motion.

Others are challenging the recess appointments in court. On Thursday, the National Right to Work Foundation filed two appeals with the U.S. Appeals Court for the Seventh Circuit in Chicago to challenge the recess appointments.

Patrick Semmens, legal information director for the foundation, said it was a possibility that the Supreme Court could take on the challenge to the recess appointments.

“I think we are going to see multiple cases and different circuits split on this and it wouldn't be surprising for the Supreme Court to take this on,” Semmens said.

Lobbyists are now waiting for the various legal challenges to move through the courts.

“It's really subject to the timing of the courts. We really don't have too much control over that,” said Trauger with NAM.

In the meantime, the NLRB has moved forward with its union election rule. On Thursday, Lafe Solomon, NLRB’s acting general counsel, issued guidance to regional offices on how to implement the rule when goes into effect on Monday.