On Thursday, the Senate, by a 43 to 56 vote, failed to approve the resolution (S. J. Res. 30) introduced by Sen. Johnny Isakson (R-GA) that sought to reverse the new National Mediation Board (NMB) election rule (pdf) that upended more than 75 years of established procedure. Such a resolution of disapproval, submitted under the Congressional Review Act, allows Congress to overturn rules issued by administrative agencies. Had the Senate approved the resolution, it would still have required the President’s signature or veto.

The NMB’s decision to change its election rule has been highly contentious. Under the NMB’s prior long-standing election approach, the outcome was determined by a majority of employees eligible to vote in representation elections. As a result, employees choosing not to participate are effectively viewed as “no union” votes. The NMB’s new rule, which took effect on July 1 despite an ongoing legal challenge, changes this policy by basing the voting outcome on the majority of those who actually vote, which is closer to the practice in non NMB-governed industries. Sen. Isakson pointed out during the debate on the resolution, however, that unlike similar situations governed by the National Labor Relations Act (NLRA), the NMB does not provide for union decertification.

Critics of the rule have additionally argued that the election change was done without legitimate justification, was predetermined, and did not take into consideration the concerns raised by the industry and by NMB Chair Elizabeth Dougherty, who herself deemed the rule to be “the most dramatic policy shift in the history of the agency.” Moreover, in a letter to senators, (pdf) the National Association of Manufacturers (NAM) explained that:

[t]he failure of a union to receive a true majority support among the employees it seeks to represent is disruptive to employee-employer relations and puts the stability of interstate commerce in question. Labor unions covered by the RLA must be able to have the support of the majority of employees to provide effective representation in labor negotiations.

The NAM – as well as the U.S. Chamber of Commerce and other business advocates – had urged support of Sen. Isakson’s resolution, claiming that failure to do so “would harm positive employee relations and sets a disturbing precedent for other federal labor boards like the National Labor Relations Board,” adding that the NMB’s actions have “circumvent[ed] the proper role of Congress in setting our nation’s labor laws on a level playing field to protect the rights of those who wish to be represented by a labor union and those who do not.”

Due to timeliness restrictions, bringing the resolution to the Senate floor after the mid-term elections was not an option.

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