Court disarms ‘ambush’ elections rule for union representation

Responding to Coalition for a Democratic Workplace and U.S. Chamber of Commerce challenges, the U.S. District Court for the District of Columbia 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 Associated Builders & Contractors 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,” countered AFL-CIO General Counsel Lynn Rhinehart.

NLRB Chairman Mark Gaston Pearce said the Board was reviewing the early-May court decision and considering its response, adding, “We continue to believe that the amendments represent a significant improvement in our process and serve the public interest by eliminating unnecessary litigation.”

About 150 election petitions were filed under the new procedures, many resulting in election agreements, others going to hearing, the agency confirmed. All parties involved in those cases were to be afforded opportunity to continue processing at their current stage rather than having to re-initiate proceedings.

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 D.C. Circuit 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.