Labor officials long have sought to severely limit the ability of employers to mount a challenge to organizing campaigns. Recently, that quest was fulfilled – for two weeks. On May 14, the U.S. District Court for the District of Columbia struck down the final “quickie” or “ambush” election rule issued by the National Labor Relations Board (NLRB). This regulation, which had gone into effect on April 30, shortened the normal allowable duration between the filing of an election petition and the holding of a vote from 42 days to as few as 10 days. U.S. District Judge James Boasberg, on procedural grounds, held that the rule was developed by only two board members, and thus lacked a necessary quorum. Suspending the regulation indefinitely, Boasberg declared: “Representative elections will have to continue under the old procedures.”
Union Corruption Update twice examined this issue at length in 2011. Last June 22, and to the great pleasure of organized labor, the National Labor Relations Board published a preliminary rule in the Federal Register to reduce the maximum time elapse for a private-sector employer to respond to a union’s filing of a petition for a secret-ballot election to represent worksite employees. The typical window of opportunity for an employer response long had been 42 days. The normally five-member NLRB, then operating with a 3-1 Democratic majority, proposed to reduce the standard elapse from 42 days to between 14 and 21 days, and potentially just 10 days. The board justified the regulation as an overdue streamlining of an inefficient system and an attempt to discourage unnecessary litigation. Yet it’s hard to imagine the rule change as benefiting anyone but the unions. Workplace organizing is anything but impartial. Union organizers can be expected to explain to workers the pros of belonging. Bringing up the cons is the employer’s job. A union seeking representation as a collective bargaining agent logically has every reason to limit the employer time to state any objections. The setting of those limits is the NLRB’s job.
The rule triggered plenty of written responses, pro and con, during the 60-day comment period – more than 65,000, in fact. In response, NLRB Chairman Mark Pearce in 2011 proposed that the board draft a scaled-down version. The NLRB did just that in short order, approving it on December 16. This is the version that the federal court temporarily invalidated on May 14. In addition to shortening the response time, the new rule, like the previous version, limited the issues employers could raise during the pre-election process, such as determining which employees are considered supervisors and which employees constitute an appropriate bargaining unit. It also substantially reduced an employer’s ability to appeal an unfavorable NLRB local office decision.
This wasn’t the kind of regulation, in other words, that reflected input from board members likely to side with employers. And therein lay the problem. Immediately following the NLRB’s adoption of the revised quickie election rule, the U.S. Chamber of Commerce and an allied ad hoc nonprofit group, the Coalition for a Democratic Workplace, filed a legal challenge. Each argued in amicus briefs that Chairman Pearce and another (and now departed) Democratic board member, Craig Becker, without statutory authority, excluded the board’s lone Republican, Brian Hayes, from participation. Down at the time to only three members, argued the plaintiffs, the board needed input from all three; two was insufficient. The NLRB countered that it had made an effort to count Hayes as part of the quorum. Additionally, the suit claimed the rule was in conflict with Sections 9(c)(1) and 3(b) of the National Labor Relations Act, in that it authorized board hearing officers to exclude evidence regarding issues of voter eligibility and inclusion, while preventing an employer from seeking an NLRB pre-election review for the purpose of staying an election.
The decision by the District Court (U.S. Chamber of Commerce at. al. v. NLRB) now has been made. And in the end, it hinged on the quorum issue. In ruling for the U.S. Chamber of Commerce, Judge Boasberg wrote: “At the end of the day, while the Court’s decision may seem unduly technical, the quorum requirement, as the Supreme Court has made clear, is no trifle.” Boasberg found wanting the NLRB Democrats’ claim of inclusion of Hayes in the drafting and issuing of the rule. Hayes, he argued, was not present for the December 16 vote. “The NLRB’s suggestion that the quorum requirement was satisfied on the ground that three members held office when the rule was approved contradicts the clear pronouncements of the Supreme Court as well as common practice (and common sense),” read the decision. “Something more than mere membership is necessary.” In point of fact, Hayes didn’t cast a vote because Pearce and Becker hadn’t notified him of the opportunity prior to forwarding the revised regulation to the Federal Register for publication, by any measure a break with standard NLRB practice.
The NLRB, pursuant to the May 14 court decision, quickly suspended the new election rule. But it’s almost certain the NLRB will reissue it. First, the ruling was strictly procedural, not substantive. Second, the board, currently at full strength, soon will be down to four members again; Terence Flynn, a Republican, recently announced his resignation, effective July. The unions know that the interim period, with the NLRB having a 3-1 Democrat majority, represents a major window of opportunity. Third, lawmakers have gotten into the act. On April 24, the Senate, on substantive issues, voted on a resolution (S.J. Res. 36) on whether to override the new rule. The measure, led by Sen. Mike Enzi, R-Wyo., failed by 45-54, but not without convincing rhetoric in support, especially from Sen. Rand Paul, R-Ky. Last November, the House of Representatives by 235-188 passed the Workforce Democracy and Fairness Act (H.R. 3094), part of which would undo the original rule of last June. Fourth and finally, the board has a large workload. By mid-May, about 150 union election petitions were pending under the new rule. If a federal court does revisit the case on substantive grounds, it should consider why limiting opportunities for an employer response to a union election campaign isn’t in the tradition of workplace democracy.