Earlier this month, an Obama-appointed federal judge tossed out on procedural grounds the National Labor Relations Board's latest power grab that would have shortened the period for collective bargaining elections from about 40 days to a union-friendly 10-21 days.
There were only three active Board members on the five-member Board at the time the rule was "enacted," and Republican Brian Hayes did not log in to the NLRB's electronic network or cast a vote in the proceeding.
The judge, James Boasberg, determined that there was no quorum and therefore the Board lacked the legal authority to go forward with the rule. Boasberg declined to address the merits of the rule, however. For now the rule is not in effect.
The Brody and Associates law firm explains:
The quickie elections rule substantially shortened the timeframe between when a union files a recognition petition and when an election is held. The result was that unions could ambush employers and have an election before the employer could express its views to employees. With the rule in abeyance, the regular timelines apply.The NLRB could appeal Boasberg's finding or revote on the rule now that the Board is up to full strength. The problem there is that Obama's three NLRB recess appointments were made when the Senate was not in recess in January 2012, and as a result the appointments themselves are being challenged on constitutional grounds in federal court.
In April, after two conflicting lower court decisions, the U.S. Court of Appeals put on hold another NLRB rule that would have required virtually all employers to hang a placard about employee rights to unionize. The rule is in limbo until the D.C. Circuit rules on the appeal, which is expected this fall. The rule would have gone into effect on April 30.
One of the plaintiffs, the National Federation of Independent Business, had this to say:
By delaying the poster rule until the appellate court has time to consider the merits of NFIB’s appeal, small-business owners can breathe a temporary sigh of relief. Of course, real relief will not come until the court rules that NLRB does not have the power to issue edicts empowering Big Labor and hurting small business