Remember in 2010 when President Obama imposed a moratorium on all offshore drilling in Gulf of Mexico waters deeper than 500 feet following the Deepwater Horizon oil spill? U.S. District Court Judge Martin Feldman struck it down as overly restrictive, but Ken Salazar, who was then Obama's secretary of the Interior, changed a few words here and there, then reissued the regulations implementing the moratorium. In striking it down the second time, Feldman observed in 2011 that “such dismissive conduct, viewed in tandem with the re-imposition of a second blanket and substantively identical moratorium, and in light of the national importance of this case, provide this court with clear and convincing evidence of the government's contempt.”
It seems the Obama appointees running the National Labor Relations Board either didn't hear about the Feldman ruling or don't care because they are now following a path that recalls the administration's conduct following the Deepwater Horizon disaster. The NLRB announced this week that it is taking another run at a regulation it adopted last year, only to see it struck down by U.S. District Court Judge James Boasberg on a procedural issue. Only two board members voted on the proposal, rather than the three required for a quorum.
Critics call the proposed regulation the “ambush election” rule because it compresses the time between the start of a union organizing effort in a workplace and when a representation election must be held among employees. It also requires management to give union organizers private contact information for all employees and allows only one opportunity to challenge the results before the board certifies the vote.
The proposal might make sense if unions were having to endure long waiting periods and losing most of the representation elections. But, as Associated Builders and Contractors Vice President Geoff Burr points out, the opposite is the case: “Unions already are winning 64 percent of elections, and more than 94 percent of those elections occur within 56 days, exceeding the NLRB’s own goals related to election timeframes.”
Such facts suggest the real purpose of the rule, according to Fred Wszolek of the Workforce Fairness Institute, is to “deprive employees the opportunity to hear all views related to unionization, while also denying employers the chance to express their point of view to workers. The only story the government and labor bosses want employees to hear is the union story. Consequently, the union will be able to make pie-in-the-sky promises and mislead employees in order to get their vote.”
The proposal prompted more than 70,000 comments last year, and that total may be exceeded this time around. A legal challenge is a near-certainty as well, even though Judge Boasberg emphatically said his decision did not concern the rule’s merits. This time around, the contempt being shown is for the constitutional rights of employers and employees. A judge had the last word on the Gulf moratorium and likely will on the ambush election rule as well.