President Vetoes Congressional Resolution Overturning NLRB Election Rule

Author: Marta Moakley, XpertHR Legal Editor

April 1, 2015

President Obama has pocket vetoed a congressional resolution that would have overturned a new rule governing union representation election procedures issued by the National Labor Relations Board (NLRB). Employers should prepare for the imminent procedural changes that will likely be implemented by the NLRB on April 14, 2015.

Under the Congressional Review Act, the House and Senate can vote on a joint resolution to stop an agency rule from being implemented. Senator Lamar Alexander of Tennessee had introduced Senate Joint Resolution 8, a measure providing for congressional disapproval and nullification of the NLRB rule relating to representation case procedures, which was issued on December 18, 2014. The measure passed both houses of Congress without amendment on March 19.

President Obama issued a Memorandum of Disapproval regarding the resolution, calling the new rules "modest but overdue reforms to simplify and streamline private sector union elections."

However, Senate Republicans do not support the President's assessment. In a joint statement, Senate and House leaders denounced the President's veto. Senate Majority Leader Mitch McConnell stated that the President's veto "will further empower powerful political bosses at the expense of the rights of middle-class workers." House Speaker John Boehner called the new rule "an assault on the rights and privacy protections of American workers."

The new NLRB rule, often called the "ambush election" rule, streamlines current election procedures, shortens the timeframe in which a union representation election is held (to perhaps as short as an 11-day timeframe) and includes additional burdens for employers. In addition, the new rule allows for electronic filing of petitions and documents and consolidates appeals into a single process.

It is unlikely that the veto will be overridden by a two-thirds vote of the Senate: the support for the measure has fallen largely across party lines and the resolution's sponsors do not hold the requisite amount of seats.