Federal Judge Strikes Down NLRB Expedited Union Elections Rule:
On Monday, May 14, a federal judge struck down a rule issued by the National Labor Relations Board (NLRB) that is designed to speed up union representation election procedures. In an 18-page memorandum opinion, U. S. District Judge James Boasberg ruled the NLRB only had two Board members when it voted to approve the final so-called “quickie/ambush” election rule. He noted a quorum of at least three members is needed in order to take action on the rule.
“Two members of the Board participated in the decision to adopt the final rule. Board Member Brian Hayes (R) cannot be counted toward a quorum merely because he held office, and his participation in earlier decisions relating to the drafting of the rule does not suffice. He need not necessarily have voted, but he had to at least show up,” Judge Boasberg wrote. In striking down the “quickie/ambush” election rule, the judge said union representation elections will continue under previously established procedures unless the Board votes with a proper quorum.
The Board’s rule, which went into effectApril 30, 2012, was successfully challenged by the U.S. Chamber of Commerce and the Coalition for a Democratic Workplace (CDW), of which FMI is a member. It should be noted that that the NLRB now has a full contingent of five Board members resulting from President Barack Obama’s controversial “recess” appointments of Sharon Block (D), Terence Flynn (R) and Richard Griffin (D) to the Board in early January even though the Senate was still in session. The U.S. Chamber of Commerce and CDW have filed a motion to intervene in a constitutional challenge ofPresidentObama’s “recess” appointments. The Chamber and CDW seek to intervene in the case of Noel Canning v. National Labor Relations Board, which is before the U.S. Court of Appeals for the District of Columbia. Noel Canning, a small business in Washington State, has raised the issue of whether the Board has the authority to act when it lacks a quorum of constitutionally appointed Board Members. The intervention by the Chamber and CDW would accelerate the legal effort to resolve for employers and employees the uncertainty created by a potentially invalidly constituted NLRB issuing important and precedent-setting decisions.
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