Lawyer games hamper NLRB effort to fulfill its mission

The new rules were supposed to take effect April 30.

A 1935 federal law known as the National Labor Relations Act is supposed to encourage collective bargaining. It says workers have the right to form unions, and it sets up the National Labor Relations Board (NLRB) to administer the law. But employers long ago learned to use a variety of legal maneuvers to delay the NLRB’s bureaucratic process for conducting union elections. That delay gives union-busting consultants more time to sow doubt, division and fear in workplaces where the employers have total control, and unions — even pro-union workers off the clock — can be forbidden from entering.

In December, the NLRB announced new rules would limit those employer legal maneuvers. As Lafe Solomon, the NLRB top lawyer put it: “these guidelines … provide opportunities for us to fully effectuate the policies and purposes of the Act, as they relate to the representation process.”

But the anti-union U.S. Chamber of Commerce howled in outrage, calling it an “ambush rule” which would “greatly shorten the time an employer had to defend against an effort to unionize his business, from 42 days to 10 days.” [Wait, doesn’t the law say it’s workers’ decision whether to unionize?] Outlined in a 24-page memo only a lawyer could love, the rules themselves contain no specific timeline. However, it’s true that eliminating irrelevant post-hearing briefs and other delaying tactics would result in quicker elections.

Luckily for the Chamber, its lawyers found a technicality by which to overturn the rule cutting down on technicalities. When the National Labor Relations Board approved the rule change, its Republican member Brian Hayes (an Obama appointee) had refused to vote. Thus, Chamber lawyers argued in federal court, the NLRB had no quorum when it approved the rule change, and therefore the change was unlawful. On May 14, U.S. District Court Judge James Boasberg (an Obama appointee) agreed with the Chamber that there was no quorum: a win for legal delaying tactics, and a loss for workers trying to get a union in their workplace.

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