Federal Judge Strikes Down “Ambush” Union Election Rule

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.