Although early in its first session, the new Republican-controlled Congress is living up to the expectation that it will force numerous showdowns between the legislative and executive branches of our federal government. Included in the many items upon which the new Congress and President Obama will likely disagree are certain National Labor Relations Board (“NLRB”) rules.
Congress’s first obvious showing that it is willing to challenge NLRB rulings occurred on February 9, 2015 when Republican House and Senate leaders exercised a rarely‑used mechanism—the Congressional Review Act—to introduce a measure to overturn a recent NLRB rule. The NLRB rule, set to take effect in April, will shorten the time period between a union’s request for representation and the actual union election. The new rule would allow this downtime period to be as few as 11 days—the previous rule required a 25-day waiting period, and the average amount of time from the filing of a petition to the union election is 38 days.
Congressional Republicans argue that this shortened waiting period allows for “ambush elections,” which would be fundamentally unfair to both business and workers. The NLRB Chairman, on the other hand, has stated that, “both businesses and workers deserve a process that is effective, fair, and free of unnecessary delays, which is exactly what this rule strives to accomplish.” Should both chambers approve the resolution to overturn the NLRB rule, it will go before President Obama. If President Obama vetoes the measure, it can be overridden by a two-thirds vote in the House and Senate.
“Joint Employer Standard”:
Also occurring at this time is a review by Congressional Republicans of the NLRB’s recent expansion of the definition of the “joint employer standard,” which would allow corporate companies to be held responsible for labor violations committed at franchise locations. A pending case in which the NLRB has brought employment complaints against a major corporate defendant—McDonald’s—will be closely watched in the coming months. In the meantime, Congressional Republicans are vocalizing their opposition to this expanded definition and are working with business owners and franchisee coalitions to pressure the NLRB to reconsider its definition.
Needless to say, these issues are far from resolved, and we will provide updates as they unfold. Additionally, it is unlikely that these will be the only NLRB issues which will receive pushback from the new Congress—stay tuned!