Court Slaps NLRB — Again
In yet another victory for workers and job creators, a federal district court has struck down the National Labor Relations Board’s (NLRB) ambush election rule. The ruling is the latest in a series of cases where the courts have overturned the NLRB. This time U.S. District Judge James Boasberg threw out the NLRB’s rule because the board rushed through the rule without the requisite three member quorum.
U.S. District Judge James Boasberg struck the regulation down, saying the labor board only had two members when it voted on the final rule in December 2011. Boasberg said the agency needed at least three members to have a quorum for action on the rule.
“According to Woody Allen, 80 percent of life is just showing up. When it comes to satisfying a quorum requirement, though, showing up is even more important than that. Indeed, it is the only thing that matters — even when the quorum is constituted electronically. In this case, because no quorum ever existed for the pivotal vote in question, the Court must hold that the challenged rule is invalid,” Boasberg wrote.
In February I detailed how the rule favored unions in a Washington Times op-ed coauthored with Rep. Phil Gingrey (R-GA)
Imagine a presidential election in which one candidate may campaign for a year and the other is told he is running only one week before Election Day, blindsiding him. There is no time to organize a team or respond to attacks. The candidate is left scrambling, unable to effectively use resources he may have at his disposal.
This is similar to what the National Labor Relations Board (NLRB) is attempting to impose on America’s job creators and workers. In December, the board published a regulation that would allow “ambush” or “quickie” elections when unions try to organize new employees.
The ambush election rule allows union bosses to spring elections on employers and workers before either has a fair chance to learn their rights. Job creators are left with little time to explain their views to employees. The new rule reduces the time between filing a petition for unionization and the subsequent election from around 42 days to as few as 10 days.
The shortened period will mean that an employer will have only about 10 days to respond to an organizing drive, including hiring a lawyer and making his case to employees about what unionization will mean for the company. Workers will get only one side of the story – the union’s. During typical union organizing drives, a union can campaign for months or even more than a year, quietly telling employees its side of what unionization could do for them. In many cases, employers only learn of the organizing effort when the union files for an election with the NLRB.
The ambush election rule will hit small businesses especially hard. Small businesses do not have the legal or human-resources infrastructure that large corporations have, nor are they equipped to navigate the burdensome legal regulations imposed by the NLRB in such a short time. This is especially harmful as our country attempts to pull itself from recession.
Unfortunately, the ruling was on procedural grounds and the NLRB could still issue a new rule that would expedite the election process. If they have enough members….
There still may be quorum problems at the NLRB. In January, President Obama “recess appointed” three members to the NLRB while the Senate was still in recess. If the appointments are deemed invalid the number of members on the NLRB fall back to two meaning once again there is no quorum. The U.S. Chamber of Commerce, several senators, and others have filed suit against the NLRB saying the appointments were invalid.