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NLRB's "Quickie Election" Rule Struck Down By Federal Court

Volume 11, Issue 4
May 15, 2012

Yesterday, May 14, 2012, the U.S. District Court for the District of Columbia ruled that the National Labor Relations Board (NLRB) did not have a lawful quorum at the time it passed its new expedited union representation election rule.  The court's summary judgment ruling was issued in a case brought by the U.S. Chamber of Commerce and the Coalition for a Democratic Workforce.  Effective as of April 30, 2012, the NLRB's new union representation election rule was designed to shorten and streamline the procedures it uses to process union representation petitions, effectively making it easier and faster for labor unions to organize the workforces of private employers under the guise of "reducing unnecessary litigation and delays," thereby overturning decades worth of prior NLRB case precedent.  See KZA's December 21, 2011 Employer Report.  At the time the new rule was passed, the five-member NLRB had only three members -- two Democrats and one Republican. Federal law requires a quorum of at least three members for the NLRB to take official action.  However, in December 2011, the NLRB rushed to finalize its new union representation election rule before then-Democrat NLRB Chairman Becker's recess appointment expired.  Shortly thereafter, the Democrat NLRB Members voted to approve the final rule by a margin of 2-0, without any formal participation from Republican NLRB Member Hayes, who was sent the rule electronically, but never formally voted.  It was this hastily orchestrated vote that the court found violated the NLRB's quorum requirement.  Unfortunately, the court declined to take a position on the legitimacy of the substantive aspects of the new union representation election rule and suggested that, had a quorum participated in its promulgation, it was entirely possible the rule could be found lawful.  Thus, nothing appears to prevent the current NLRB from voting to readopt the rule. Nevertheless, earlier today, the NLRB announced the temporary suspension of its union representation election rule and the withdraw of its Acting General Counsel's guidance released last month governing union representation election procedures.  Additionally, parties to an estimated 150 election petitions filed under the NLRB's new union representation election rule will be contacted and given the option of continuing their cases or having them reinitiated under the NLRB's prior procedures.  However, in the same NLRB announcement, Democrat NLRB Chairman Pearce vowed the NLRB remains determined to move forward with modifying its current union representation election rule as such a change is in the public's best interest.  Thus, it appears that the Obama NLRB remains undeterred from advancing its radical, pro-union agenda.

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