Sources: Associated Builders & Contractors (ABC), AFL-CIO, Washington, D.C.; CP staff
Responding to Coalition for a Democratic Workplace and U.S. Chamber of Commerce challenges, the U.S. District Court for the District of Columbia has overturned a National Labor Relations Board rule expediting union representation elections, citing the measure’s adoption absent a quorum of the five-member agency.
“This is a great victory for employers and employees across the country,” said ABC Vice President of Federal Affairs Geoffrey Burr. “The new procedures, which went into effect April 30, made it more difficult for employees to make a fully informed decision concerning union representation. We said all along that the ‘ambush’ elections rule was made in haste without regard or consideration to the proper procedures, and would have a negative impact on the nation’s small businesses.”
“We think the judge’s ruling is flat-out wrong,” counters AFL-CIO General Counsel Lynn Rhinehart. “While in our view incorrect, [it] is solely based on technical issues that speak to the procedure of the board and not the rule itself.”
The NLRB had three members when the “Representation—Case Procedures” rule was approved late last year, two favoring it, a third taking no action. (President Barack Obama filled the Board shortly after with two recess appointments.) Had a quorum participated, the court writes, “The final rule would have been found perfectly lawful … Nothing appears to prevent a properly constituted quorum of the Board from voting to adopt the rule if it has the desire to do so. In the meantime, representation elections will have to continue under the old procedures.”
Representation—Case Procedures opponents cited its potential to a) reduce from 45–60 days to 10–21 days the average window between union representation petitions and elections; and, b) limit employers’ ability to effectively communicate to workers the impact of unionization.