Concern Grows Over New NLRB Rules
by Ben Gann
Employers are growing increasingly concerned with the actions
of the National Labor Relations Board (NLRB) over the past two years.
Decisions to implement a quickie election rule and require employers to
display a poster of informing workers of their right to unionize have
increased tension between employers and the agency charged with investigating
unfair labor practices.
Court Overturns Union Election Rule
On April 30, NLRB’s expedited-election rule took effect, better known
as the “quickie election” rule that substantially reduces the period between
the filing of a representation petition and a union election. Prior to
the rule’s enactment, these petitions would trigger a hearing designed
to resolve any voting eligibility issues long before the ballots were
cast. However, under the new rule it defers most eligibility determinations
until after the votes have already been cast by the employees whom the
union seeks to represent.
"WDMA is concerned
about NLRB’s aggressive agenda and its threat to economic growth and job
On May 14, however, employers were granted a reprieve from
the rule when the U.S. District Court for the District of Columbia overturned
it because the NLRB Board lacked a quorum when it approved a faster union
election process. The U.S. Chamber of Commerce and the Coalition for a
Democratic Workplace (CDW) brought a suit against the NLRB arguing the
rule was issued without a legal quorum as two Board members denied the
third member from fully participating in the rulemaking. In his written
opinion, Judge James Boasberg stated, “In this case, because no quorum
ever existed for the pivotal vote in question, the Court must hold that
the challenged rule is invalid.”
The NLRB Board now has five members and could reinstate the rule if a
quorum is reached at a meeting where a majority of the Board votes to
approve it. For their part, employer groups are happy about the recent
court decision but have vowed to continue their challenge of the rule.
Under the rule, NLRB regional directors have newfound discretion to schedule
hearings within seven days of the petition. Even if such hearings are
granted, the new rule allows hearing officers to cut them short, reject
evidence, and to issue rulings without the benefit of briefs. The new
rule also allows hearing officers to schedule an election within two weeks
of issuing a ruling. The election would take place within three weeks
of the petition date (currently the average election takes place in 42
Employer groups have pointed out that in 2011 the union win rate for elections
was 71 percent making the need for such a rule unnecessary. An analysis
by Bloomberg in February showed that unions win 87 percent of elections
held 15 days or fewer after they are called, but it drops to 58 percent
after 36 to 40 days.
Poster Rule Halted
The news is also improving for employers concerning the NLRB’s union poster
rule. On April 17, the U.S. Court of Appeals for the D.C. Circuit issued
an emergency injunction delaying the rule, which would have required employers
to post an 11-by-17 inch notice regarding employee rights to unionize
under the National Labor Relations Act. The rule was set to take effect
on April 30 but has been delayed indefinitely.
The decision by the D.C. Circuit Court follows a decision by the U.S.
District Court for South Carolina, stating that the NLRB does not have
the statutory authority to require business owners to post the notice.
In a March ruling at odds with the decision in South Carolina, the District
Court for D.C. found the NLRB rule acceptable, but limited how the agency
could enforce it.
The National Association of Manufacturers (NAM) and other business groups
have appealed the rule, stating the NLRB overstepped its legal authority
when issuing the requirement. The Window and Door Manufacturers Association
(WDMA) is a proud member of the NAM and supports the lawsuit. The rule
will remain suspended until the appeal the case is decided. If enacted
the rule would affect more than six million employers who otherwise would
not be subject to the NLRB regulation.
Ben Gann is director of legislative affairs and grassroots activities
for the WDMA.
© Copyright 2012 Key Communications Inc. All rights reserved.
No reproduction of any type without expressed written permission.