WDMA Update

Employer Headaches
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 creation."

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 days).

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.

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