The National Labor Relations Board has issued its final rulemaking that that would dramatically speed up union elections, reduce the time workers have to decide whether or not to join a labor union and force employers to hand over to union organizers their employees’ private information.
Under the rule, employers could have as little as 10 days to hire a lawyer and prepare for an election hearing, which would give unions a tremendous advantage in their efforts to organize employees. The rule will be published in the Federal Register on December 15, and will take effect on April 14, 2015.
NAHB strongly opposes this controversial “quickie election” rule and will continue to work with Congress to prevent it from going forward. Specifically, NAHB is concerned this rule will make it very difficult for employers to retain counsel and have sufficient time and opportunity to prepare for an election. House bills introduced in the 113th Congress (H.R. 4320 and H.R. 4321) would prevent the NLRB from accelerating the union representation election process.
In addition, NAHB is part of the Coalition for a Democratic Workforce, which has announced that it will sue the NLRB to invalidate the newly released rule that would pave the way for unfair and illegal “ambush” elections.
In a victory for NAHB, the U.S. Court of Appeals for the District of Columbia on May 7 struck down a National Labor Relations Board (NLRB) rule that would have required millions of employers across the nation to place 11-inch by 17-inch posters in a prominent area in their workplace that informs employees of their right to form a union.
The court ruled that the NLRB overstepped its authority when it issued the poster rule, which deemed failure to display the required notice an unfair labor practice. The decision stated that the NLRB lacked authority to promulgate such a rule because Section 8(c) of the National Labor Relations Act provides that the dissemination (or non-dissemination) of non-threatening speech shall not be considered an unfair labor practice.
NAHB is a member of the Coalition for a Democratic Workplace, which was a party to the case. NAHB and other business organizations maintain that the poster rule violated free speech rights and amounted to little more than advertisements for union membership.
When Woody Allen once said that “80% of life is just showing up,” he never dreamed his statement would be the basis for a federal judge to strike down a National Labor Relations Board (NLRB) ruling on union elections.
But that’s exactly what happened last week.
In a victory for NAHB and small businesses across the nation, U.S. District Judge James Boasberg on May 14 declared a new rule put forth by the NLRB to accelerate the union representation process is “invalid.”
At issue is the “ambush” election rule that would dramatically shorten the amount of time for an employer to organize a response to attempts to employees to unionize. Whereas previously an employer would have up to six weeks to prepare for a union election, the NLRB’s new procedure would compress the current average time from moving from petition to organize a union down to as little as 10 days.
The U.S. Chamber of Commerce filed a legal challenge seeking to overturn the NLRB rule, which went into effect on April 30.
Boasberg struck down the rule because only two members of the NLRB participated in the rulemaking vote, which was short of the three-person quorum needed to issue the new regulation.
In his ruling, Boasberg said: “According to Woody Allen, 80% 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.”
Two Democratic NLRB members participated in the decision to adopt the rule but the board’s third member, Republican Brian Hayes, who was adamantly opposed to the rule, did not cast a vote. Since Hayes had previously voted against initiating the rulemaking and against proceeding with the drafting and publication of the final rule, the NLRB nevertheless determined that he had “effectively indicated his opposition.”
Since the court invalidated the rule for a lack of a quorum, it did not reach a decision based on the legality of the rule. So, the NLRB could again consider adopting this rule at a future date.
NAHB, the U.S. Chamber of Commerce and other organizations had previously urged Congress to overturn the rule, arguing that it would deprive employers of proper due process and deny them sufficient time to educate workers about the effects of unionization in the workplace.
Last month, NAHB sent a letter to senators in support of S. J. Res. 36, a resolution introduced by Sen. Mike Enzi (R-Wyo.) that would have prevented the rule from going into effect under the Congressional Review Act. The resolution failed on a near-party line vote.
NAHB will continue to work with Congress and business groups to keep the NLRB rule from going into effect.
To view the resolution, click here and type S. J. Res. 36 in the box in the upper center screen.
For more information on the legal ruling, email David Crump at NAHB or call him at 800-368-5242 x8491.
For more details regarding the congressional outlook on this issue, contact Suzanne Beall at x8407.
NAHB has recently alerted HBA members to a new government rule mandating that most employers prominently display a poster in their workplace that advises employees of their right to unionize.
In a case brought by the National Association of Manufacturers (NAM), the U.S. District Court for the District of Columbia has recently upheld the National Labor Relations Board (NLRB) collective bargaining rights poster rule, but has also held that an employer’s failure to display the poster will not be considered to be an unfair labor practice, nor will it toll the statute of limitations for filing an unfair labor practice complaint.
If the rule lacks these sanctions, it may be unenforceable as a practical matter. However, because there is uncertainty as to whether the NLRB or private parties may assert other enforcement options, NAM has announced its intention to appeal the portion of the court’s decision that upholds the NLRB rule. Read the court’s opinion here
A separate challenge to the NLRB collective bargaining rights poster rule, brought by the U.S. Chamber of Commerce, is currently pending in the U.S. District Court for the District of South Carolina. The NLRB poster rule is scheduled to go into effect on April 30, 2012.
Read our previous coverage on the NLRB poster rule here, here, and here.
The National Labor Relations Board has agreed to postpone the effective implementation date of its employee collective bargaining rights poster requirement — which includes a right to unionize notice — to April 30, 2012, depending upon the outcome of several legal challenges.
The requirement was to go in effect on Jan. 31, 2012, but at least three lawsuits have been filed seeking to block the posting requirement — including one by the U.S. Chamber of Commerce. A federal court in Washington, D.C., has delayed its implementation until after hearing legal challenges to the new rule.
The collective bargaining rights poster is available free for download on the NLRB website. If the rule is implemented, the poster must be hung in a conspicuous place with other workplace rights notices.
The rule will apply to all employers with a gross annual business volume of $500,000 or more, whether or not the employer operates a non-union shop or conducts business in a “right to work” state.
The NLRB has indicated that it will not conduct inspections to determine if the poster is in place, but it may take action if an unfair labor practices complaint is filed. The NLRB states on its website that it expects such complaints to be resolved if the employer subsequently agrees to hang the poster, but the agency could take further action if the employer refuses to hang the poster.
For more information, please visit https://www.nlrb.gov/faq/poster.