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.
The saga of the on again, off again NLRB Poster Rule has taken another turn, and this time South Carolina businesses played an active role.
The controversial rule requires employers to prominently display a poster advising workers of their right to unionize. It was set to go into effect on April 30 after a brief delay resulting from previous court challenges. But a challenge in U.S. District Court for South Carolina has resulted in suspension of NLRB’s controversial proposed rule.
On Friday, April 13, 2012, the U.S. District Court for South Carolina, in a case brought by the U.S. Chamber of Commerce, ruled that the National Labor Relations Board (NLRB) exceeded its authority in adopting a rule requiring employers to post an employee notice of collective bargaining rights.
Judge David C. Norton held that the NLRB’s authority is limited to adjudicating unfair labor practices, and that Congress did not impart the agency with authority to compel employers to post labor rights notices.
This decision has created a split among jurisdictions, as just last month, the U.S. District Court for the District of Columbia ruled in a case brought by the National Association of Manufacturers (NAM) that the NLRB had the authority to promulgate the rule, but that failure to comply with the rule did not by itself constitute an unfair labor practice or serve to toll the statute of limitations for filing an unfair labor practice complaint. NAM has filed for appeal in this case.
Following on the heels of the South Carolina decision, on Tuesday, April 17, the United States Court of Appeals for the District of Columbia granted a temporary injunction blocking implementation of the rule pending the appeal filed by NAM. The poster rule had been scheduled to go into effect on April 30, 2012, but this is no longer the case.
The injunction stays the implementation, and employers nationwide will not have to post the collective bargaining rights poster, pending the outcome of this appeal.
NAHB continues to monitor all events concerning the poster rule and provide notification to HBA members regarding future rulings. For more information about the poster rule, visit http://www.nlrb.gov/poster.
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.
Beginning on Jan. 31, 2012, all employers with more than $500,000 in annual gross business volume — including home builders and remodelers — will be required to post an official notice advising employees of their collective bargaining rights under the National Labor Relations Act. The law applies to all companies that meet the gross business volume threshold, including those who have non-union shops or whose business is located in a right-to-work state. According to the National Labor Relations Board (NLRB), the notice must be 11 inches by 17 inches and displayed in a conspicuous location where other workplace notices are regularly posted. Companies can download instructions and notification posters, available in more than 20 languages, free of charge from the NLRB website. A company that does not display the required poster as of Jan. 31, 2012 may be subject to an unfair labor practices complaint.