The PJ Tatler

Victory, For Now, Over the NLRB's Ambush Rule

A federal court has thrown out the ambush union election rule that was approved by two NLRB members:

U.S. District Judge James Boasberg said only two of the three members of the board required to constitute a quorum actually voted on the rule. He said representation elections will have to continue under previously established procedures unless the board votes with a proper quorum. The rule went into effect on April 30.

“According to Woody Allen, eighty percent of life is just showing up,” Boasberg wrote in an opinion issued today. “When it comes to satisfying a quorum requirement, though, showing up is even more important than that.”

The rule change, challenged in court by the U.S. Chamber of Commerce, simplified and shortened balloting at a time when the unionized share of the workforce is falling, according to labor relations consultant Phillip Wilson. The compressed schedule could have cut the time permitted for voting in half to as few as 15 days, Wilson said.

Unions win 87 percent of elections held 15 days or less after a request, a rate that falls to 58 percent when the vote takes place after 36 to 40 days, according to a February report by Bloomberg Government.

The NRLB only had three members (out of a possible total of five) when the vote occurred. The two Democrat members voted for the ambush rule, but the lone Republican, Brian Hayes, did not vote. The Democrat members ambushed him, claiming that because his opposition to the rule was known, he effectively voted against it, providing the quorum to make the vote legal. The judge didn’t buy that, ruling that the board did not have a quorum. Which, obviously, it didn’t. The Senate could have taken up the NLRB’s actions, but it is controlled by the Democrats, so it didn’t.

Since the time of the two-member sham vote, Obama ambushed the Senate and recess appointed two new members to the board despite the fact that the Senate was not in recess. Those appointments are also being challenged in court.

h/t Hot Air