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National Restaurant Association - NLRB ambush-election rule still invalid, judge affirms

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NLRB ambush-election rule still invalid, judge affirms

The National Labor Relations Board hasn't given up on trying to force faster union elections in workplaces, but hasn't had a lot of success lately.

A federal district court in Washington, D.C., this month ruled for the second time that the agency's 2011 regulation to speed up the time frame between a union petition and a union vote was not valid. The reason: The agency's board lacked the three-person quorum required to enact a final regulation, the court said. Of the three Board members serving at the time the regulation was passed, only two members voted on the final regulation, the court noted.

The NLRB has been trying for several years to tighten the timetable for union elections to as short as 10 days from the time a petition is filed to the time employees vote on it, among other changes to the union-election process. Although the agency originally intended the so-called "ambush-election" regulation to take effect April 30, the U.S. Chamber of Commerce challenged the rule. In mid-May the district court halted the rule because of the lack of a quorum.

The NLRB asked the court to reexamine its ruling and presented additional evidence to argue that the third Board member simply failed to vote because he didn't think he was required to do so. However, the court said again this month that the required quorum was missing and that any new information the Board provided was "too little too late."

The court reiterated that the NLRB was free to go back to the drawing board and enact the regulation with a sufficient quorum. 

The National Restaurant Association opposes the ambush-election regulation, and filed extensive comments in August 2011 asking the NLRB to withdraw its proposal. As a member of the Coalition for a Democratic Workplace, the NRA in January also joined in the U.S. Chamber of Commerce's lawsuit against the regulation.

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