Victory: Federal judge strikes down NLRB's rule approving "ambush" union elections

Big win, but it’ll probably take electing President Romney to make sure they don’t make it stick on the second try.

“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.

O’s two Democratic appointees wanted to give unions a shot at quietly gathering the necessary signatures for an election and then dumping the petition on management before the company had a chance to make its case to the employees against unionization. The third member of the NLRB, Republican Brian Hayes, opposed the plan. No problem, though — Dems win 2-1, right? Nope. Not if Hayes doesn’t vote:

When the final rule came up, the NLRB’s lone Republican commissioner, Brian Hayes, did not cast a vote. He was given only a matter of hours on the NLRB’s electronic ballot system before the Democratic majority went ahead and published it that day, without anyone requesting a response.

Mr. Becker claimed that Mr. Hayes had “effectively indicated his opposition” and therefore he was “present” even though he was not, in fact, present. Basically, the NLRB argued that the quorum requirement was satisfied because there were three members in office when the rule was “approved.”

With a final vote of just 2-0 on what’s supposed to be a five-member Board, the court ruled that there was no quorum and therefore the rule was invalid. Think of Hayes’s absence as the anti-union version of those Wisconsin Democrats who fled the Capitol last year in order to deny Scott Walker a quorum to pass his collective bargaining reforms. What happens, though, now that Obama’s gone and dubiously recess-appointed a bunch of new members to the NLRB? Presumably the new members will pass the “ambush” election rule with a quorum and then the next court battle will be over whether those recess appointments were in fact valid. That suit has already been filed, in fact; if the next court throws out the recess appointments then the ambush rule stays blocked. If not, then President Romney’s our only hope.

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