Ultra vires. No, it’s not some dangerous infectious disease like Ebola. But, in a democracy it signals one of the most dangerous trends that threaten to disturb the delicate balance of powers crafted by our founding fathers.
“Ultra vires” is another of those Latin expressions lawyers use so frequently in lieu of plain English. It means “beyond the authority.” And, in this administration, there are all too many examples of federal agencies that have acted or attempted to act beyond the authority Congress has given them.
The NLRB’s proposed new rule for expedited union elections is just the latest example. The 733-page rule was finalized in December and will take effect on April 14. NLRB Chairman Mark Gaston Pearce said the rule is designed to ensure that the “representation process remains a model of fairness and efficiency for all.” The board’s two Republican members voted against it, calling it “the Mount Everest of regulations: massive in scale and unforgiving in its effect.”
While the final rule didn’t establish a specific time frame in which union elections would occur, some legal experts have said the rule could shorten the time between a formal call for a union-organizing vote and the election itself to 25 days or less—almost two weeks short of the 2013 median of 38 days, or 59 days in contested cases. Some experts say the rule would allow elections to be held in as little as 14 days after the employer is first notified of the election petition.
The U.S. Chamber of Commerce and several other business organizations have sued in federal court to block the Labor Board’s action, claiming the rule violates the National Labor Relations Act and the Administrative Procedure Act, as well as employers’ free speech and due process constitutional rights.
In particular, the Chamber’s lawsuit challenges the Board’s rule as impermissibly limiting employers’ rights to communicate with employees about unionization by dramatically shortening the period between the filing of a union election petition and the holding of the election itself.
“The NLRB’s rule drastically accelerates the union election process, depriving employers of their right to explain to employees the impacts of unionizing,” said Randy Johnson, the Chamber’s senior vice president of Labor, Immigration, and Employee Benefits. “Furthermore, we question the need for the regulation given that 95 percent of all elections are now conducted within two months and that unions win more than two-thirds of them.”
The NLRB’s new union election rule clearly exceeds the agency’s authority under the statute. It is ultra vires action pure and simple. The rule overturns decades of legal precedent and the well-established procedures that have governed tens of thousands of union elections over the years.
Clearly, this unprecedented power grab by the NLRB is a thinly veiled substitute for the failed effort in Congress to pass the Employee Free Choice Act, which would have overturned almost 80 years of labor relations precedent and eviscerated traditional democratic principles by effectively taking away an employee’s right to vote by secret ballot in union elections.
But the parade of ultra vires actions by federal agencies certainly doesn’t stop with the NLRB. The federal Equal Employment Opportunity Commission is engaged in an ultra vires power grab as well. In a major case pending before the U.S. Supreme Court, Mach Mining v. EEOC, Case No. 13-1019, the EEOC seeks to avoid the statutory obligation to conciliate discrimination claims before suing in federal court. It seeks the court’s approval to engage in conduct that is manifestly ultra vires the statute.
That EEOC’s position has far-reaching, real world significance to the employment community, for it means the Commission is virtually immune from review in terms of the settlement positions it takes — “pay millions or we will sue and announce it in a media release” — prior to suing employers. Congress clearly intended no such thing.
A keystone provision of Title VII of the Civil Rights Act of 1964 is centered on the phrase “conference, persuasion and conciliation.” This language was intended by Congress to require the EEOC to make genuine efforts to settle employment discrimination claims before dragging employers into court. The legislative intent of the conciliation language of the statute clearly was to favor voluntary compliance with the equal employment opportunity law over protracted wasteful litigation.
Despite this clear congressional mandate, the EEOC has increasingly disregarded the conciliation requirement altogether by making take it or leave it demands and then filing suit with no further discussion. Take it or leave it negotiations simply are not what Congress intended by the word conciliation.
In its brief before the Supreme Court the EEOC brazenly argues that it alone, not the courts, should decide what conciliation means. Specifically, the government agency argues that Congress left it to the Commission “to decide which informal methods of conference, conciliation, and persuasion would be appropriate.”
The EEOC goes on to argue that since Congress entrusted the Commission with exclusive authority over whether to enter into pre-lawsuit settlements, this demonstrates that the process “is committed to the agency’s discretion.” Further, since any such settlements — by way of a conciliation agreement — are confidential and cannot be made public, the EEOC contends, this entire statutory scheme is fundamentally “incompatible with judicial review of the conciliation process.”
The EEOC’s position that only it, not the courts, should decide the meaning of conciliation is totally contrary to what Congress intended. Accepting the EEOC’s flawed argument would severely undermine, if not completely eviscerate, Title VII’s integrated, multistep enforcement
procedure, expand the power of the EEOC far beyond what Congress intended, and greatly increase litigation costs. To accept the EEOC’s view of its own authority would also impose an untenable burden upon the federal courts.
Hopefully, the courts will act to rein in this power grab by the NLRB and the EEOC and preserve the integrity of the balance of power envisioned in the Constitution.
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