By Kevin Bogardus - 05/18/12 10:00 AM EDT
Lawsuits have successfully shut down the only two regulations put forward by the National Labor Relations Board (NLRB) during the Obama administration.
The NLRB has proposed two controversial rules since President Obama took office — one that would require employers to post notices explaining collective bargaining rights to workers, and another that would speed up union elections.
Business groups have supported efforts by Republicans in Congress to challenge the NLRB rules through legislation, but have had more success thwarting the regulations on their own in the courts.
“It does raise the question of agency overreach,” said Robin Conrad, executive vice president of the National Chamber Litigation Center, the litigation affiliate of the U.S. Chamber of Commerce.
“After issuing two rules and seeing them struck down because [of a] lack of authority, I wonder if that doesn’t give the board pause and [cause it to] question what rulemaking authority it does have,” Conrad said. “If agencies are going to engage in rulemaking, they are going to have to know how to dot the I’s and cross the T’s.”
The Chamber and the Coalition for a Democratic Workplace sued the NLRB over the union election rule. On Monday, U.S. District Judge James Boasberg struck the rule down, saying the NLRB lacked a quorum when it voted on the final rule in December.
That followed a decision last month by U.S. District Judge David Norton, who ruled that Congress didn’t give the labor board the authority to issue the notice rule in response to a challenge from the Chamber and the South Carolina Chamber of Commerce.
The NLRB’s notice rule had survived an earlier legal challenge to the notice rule from the National Association of Manufacturers, the National Right to Work Foundation and others. That decision has since been appealed.
In response to the court rulings, the NLRB suspended implementation of the rules until the appeals process is resolved. It’s unclear when, or if, the rules will ever be reinstated.
Congress couldn’t achieve the same result. Legislation passed in the House last year to void the union election rule has gone nowhere in the Senate.
“Those bills have been sent over. They have been passed pretty overwhelmingly,” said Geoff Burr, vice president of federal affairs for the Associated Builders & Contractors. “But they are just gathering dust on [Senate Majority Leader] Harry Reid’s [D-Nev.] desk.”
Burr is chairman of the Coalition for a Democratic Workplace, which includes several business groups. The coalition has grown to more than 600 members and has spent well over $1 million on legal costs in 2011 and 2012 for various legal challenges to the NLRB, according to Burr’s estimates.
“I continue to get people wanting to join the coalition every week,” Burr said. “We know we need to raise between now and the middle of next year another million dollars, at least.”
There is a possibility that the labor board could reissue the union election rule, which worries business groups.
Boasberg said his decision didn’t reflect the merits of the regulation, but rather the fact that only two members voted on its final passage — not the three needed for a quorum, since Brian Hayes, a Republican NLRB member, didn’t participate in that vote. The judge said the NLRB could vote again on the rule if it had a quorum of three members.
The NLRB now has a full allotment of five members, following three recess appointments by President Obama in January. The Chamber, the Coalition and others are challenging those recess appointments in separate cases.
“It would be a vote by the board, and it becomes a question whether it’s a legitimate quorum, whether it’s a legitimate board,” Conrad said.
In the meantime, worker advocates have been left frustrated by the court rulings against the NLRB rules.
“Ultimately, unless these rules are reinstated, workers are left with an unfair process,” said Erin Johansson, research director for American Rights at Work. “It may be a few months more before they get the medicine of these rules.”
Johansson said unions were ready and willing to organize under the new union election rule, but that’s not possible at the moment. She called the challenge to the notice rule “laughable.”
“It’s helping someone learn a right they already have,” Johansson said.
Unions want the election rule in place, and some say they would support the NLRB voting again on the regulation if necessary.
“We want the rule back in place as soon as possible. If that means a revote, we would be supportive of that,” said Tim Schlittner, a spokesman for the United Food and Commercial Workers International Union.
Schlittner added the union believed the rule “was technically sound when it was first voted upon.”
Others in labor have decried the ruling against the union election rule, including the AFL-CIO and the Service Employees International Union.
An AFL-CIO official said the nation’s largest labor federation supports whatever action the board needs to take to ensure the rules get implemented as soon as possible.
Nancy Cleeland, an NLRB spokeswoman, said the agency has not decided on its next step regarding the ruling against the union election rule. The agency has already said it will appeal the decision against the notice rule.