Court to NLRB: No “Quickie” (Election) For You

Earlier this week, a DC federal judge voided the National Labor Relations Board’s ambush elections rule, putting an end – likely temporary – to the Board’s efforts to speed up the union election process.

For your perusal, a roundup of legal advisories on the ruling:

NLRB Ambush Elections: More Than Just Showing Up (Siegel, O’Connor, O’Donnell & Beck, P.C.)

“In an important victory for employers and proponents of individual freedom, U.S. District Judge James Boasber threw out a recent NLRB ‘Snap’ election mandate… As a result, representation elections will continue under previously established procedures unless the board votes with a proper quorum.” Read on>>

Court Strikes Down NLRB “Quickie Election” Rules (Epstein Becker & Green, P.C.)

“The Court’s decision arises from a lawsuit filed on December 20, 2011, by the U.S. Chamber of Commerce and the Coalition for a Democratic Workplace arguing that the Board’s amended election rules, which took effect on April 30, 2012, were unlawful in part because they deprived employers of their free speech rights to speak out against unions and because they were procedurally flawed.” Read on>>

Court Invalidates Ambush Election Rule; Board Suspends Implementation (Ford & Harrison LLP)

“’According to Woody Allen, eighty percent of life is just showing up.’ This is Judge Boasberg’s introductory line in his May 14th decision invalidating the Board’s December 22, 2011 election procedure rulemaking on grounds that the Board failed to meet the Act’s quorum requirement (a technicality).” Read on>>

NLRB Election Rules Invalidated (Warner Norcross & Judd)

“When fully staffed, the NLRB has five members. At the time these rules were passed, the NLRB had only three members, and only two of them voted to approve the rules. The third member did not vote. Because the NLRB must have three members to conduct valid business, the court decided the NLRB did not have a quorum so the rules are invalid.” Read on>>

D.C. Federal District Court Overturns NLRB Quickie Election Rule; Leaves Questions for Employers (Franczek Radelet P.C.)

“The Court noted that while Member Hayes had participated in earlier votes on drafts of the final rule, Member Hayes did not vote or even participate in the Board’s vote on the final version, depriving the Board of a quorum. Judge Boasberg held that ‘Member Hayes cannot be counted toward the quorum merely because he held office, and his participation in earlier decisions relating to the drafting of the rule does not suffice.’” Read on>>

Court Strikes Down NLRB “Quickie Election” Rule (Fisher & Phillips LLP)
“The court was quick to point out that it saw no need to rule on the merits of the plaintiffs’ contentions. Moreover, it suggested that, ‘it may well be that, had a quorum participated in its promulgation, the final rule would have been found perfectly lawful. As a result, nothing appears to prevent a properly constituted quorum of the Board from voting to adopt the rule if it has the desire to do so. In the meantime, though, representation elections will have to continue under the old procedures.’” Read on>>

Federal Court Invalidates Ambush Election Rules, Dealing NLRB Yet Another Setback (Proskauer Rose LLP)

“Will there be appeals? Almost certainly. The Board has little to lose and much to gain in an appeal. If it were to win, the rules would be in place – if it were to lose, then the Board would have to re-vote to promulgate, with the attendant legal risks. It is possible, of course, that the Board will do both, although it is unclear whether that might render an appeal moot.” Read on>>

Judge Rules NLRB’s Fast-Track Election Rule Invalid (Bracewell & Giuliani LLP)

“Although a victory for employers, most of whom oppose the NLRB’s efforts to fast-track union elections, it may be short-lived. Judge Boasberg did not address the multiple other grounds on which the plaintiffs challenged this rule, so in order to reinstate the rule, the NLRB likely needs only to hold another vote at a meeting with at least three board members present.” Read on>>

NLRB Notice Posting Requirement and New Representation Election Rules (Miller Canfield)

“It is anticipated that the NLRB may re-vote on implementing the rule in the future, although there is litigation pending on the validity of the recent recess appointments to the NLRB which further complicates future action regarding the rule changes.” Read on>>

Court Rejects the NLRB’s Quickie Election Rule on Technical Grounds (Miller & Martin PLLC)

“Various legal questions will still exist if the current Board re-adopts the rule. Most notably is a challenge by various business groups to President Obama’s use of the recess appointment procedure to ignore the Senate confirmation process and appoint members to the NLRB. If that challenge is successful, everything the Board has done, or will do, since January 3, 2012 will be invalid due to a lack of quorum.” Read on>>

NLRB Union Election Rule Found Invalid (Varnum LLP)

“Having gone into effect on April 30, 2012, the rule’s primary objective was to substantially reduce the period of time between the filing of a union representation petition and an election. Under the rule, employers would no longer be entitled to a hearing before the election on most issues, and even in cases where a hearing took place, the election would take place more quickly after the hearing than under the prior system.” Read on>>

Federal Judge Invalidates NLRB “Hurry Up” Election Rules (Dickinson Wright)

“The importance of the issue is highlighted by a February Bloomberg Government report finding that unions win 89% of elections held within 15 days of the filing of an election petition, but only 58% of elections held within 36 to 40 days after an election request. The invalidated rules could have allowed union elections to occur within 15 days of a union filing, by significantly limiting procedural protections for workers and the employer which had been developed by the NLRB over decades.” Read on>>

Federal District Court Rules NLRB Too “Quick” In Voting On Election Rule Changes Allowing For Quickie Elections (Thompson Coburn LLP)

“Approximately 150 election petitions were filed under the new election rules. The Board will contact all parties involved in these cases to determine whether the parties will agree to continue processing the case from its current posture, or whether the cases will instead be re-initiated under the prior procedures.” Read on>>

NLRB Suspends New Election Rules After Court Ruling (Pullman & Comley, LLC)

“… the NLRB itself reviewed the ruling and its rule and yesterday suspended implementation of the new rule. As reported by Labor Relations Today, ‘The Board just announced it has temporarily suspended the implementation of changes to its representation case procedures. While Board Chairman Mark Gaston Pearce reiterated his support for the rule changes, pending review of legal options, the Board will continue to process representation petitions under the previous, long-standing guidelines.’” Read on>>

NLRB Suspends Implementation Of Representation Case Process Changes (Akerman Senterfitt)

“Further, Acting General Counsel, Lafe Solomon, withdrew the guidance to regional offices that he had issued on the new procedures and advised regional directors to revert to previous practices governing election petitions.” Read on>>

Employers Relieved From Posting NLRB’s Notice (Dickinson Wright)

“In other news, Senate and House Republicans have introduced bills in each chamber to prevent the NLRB from implementing its new rules limiting the opportunities for Pre-Election Hearings and expediting Elections.” Read on>>

The Case Of The Board Member Who Didn’t Show Up – Or Did She? (Allen Matkins Leck Gamble Mallory & Natsis LLP)

“While there are significant differences between corporate law and the National Labor Relations Act, the issues raised in the case should be of interest to corporate practitioners. First, the NLRB argued that the board member’s opposition on preliminary matters sufficed to constitute participation in the decision… Second, the NLRB argued that mere “presence” was sufficient to constitute a quorum.” Read on>>

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