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Judge Strikes Down NLRB Rule to Streamline Union Elections (Read More…)

By: Cynthia Foster - May 18, 2012

The National Labor Relations Board suffered another setback earlier this week when a federal judge in Washington, D.C., found that a new NLRB rule meant to streamline union representative elections didn’t meet procedural muster. The board announced Tuesday it was suspending the measure while evaluating its appeal options.

The rule, which took effect April 30, eliminated some roadblocks between employees deciding to unionize and the final election of those employees’ union representatives.  Previously, if disputes arose about who could vote in a union election, for example, hearings and briefings before the NLRB could be called. Those hearings could delay the elections for too long, union-side lawyers say, dragging out the process to the point that employees’ rights to unionize could be compromised. The new rule postpones most hearings until after the election, a change in process that management-side lawyers say will cut the time between calling for an election and actually having one in half — not enough time for employers to mount campaigns to address underlying issues that may be prompting the drive to unionize.

In response to a challenge filed by the U.S. Chamber of Commerce, U.S. District Judge James Boasberg ruled Monday that the board didn’t have the necessary quorum to make the decision on the elections — only two board members voted on the rule, and three votes are required.

“At the end of the day, while the court’s decision may seem unduly technical, the quorum requirement, as the Supreme Court has made clear, is no trifle,” Boasberg wrote in Chamber of Commerce v. NLRB, 11-2262. “Regardless of whether the final rule otherwise complies with the Constitution and the governing statute — let alone whether the amendments it contains are desirable from a policy perspective — the board lacked the authority to issue it, and, therefore, it cannot stand.”

In a memo to her union clients, lawyer Sheila Sexton at Beeson, Tayer & Bodine in Oakland called the decision an “insane triumph of form over function.” On Wednesday, she said clients of hers have already suffered because of the court decision.

“I’ve got these workers who had an election on May 31, and now we’ve got to restart everything,” she said.
NLRB Chairman Mark Pearce said in a statement Tuesday the board is “determined to move forward” with the new rule.

This is the second time in two months that an NLRB rule has been struck down by a judge. In April, a district judge in South Carolina ruled that a new NLRB requirement that businesses post a notice of employees’ rights to unionize and bargain collectively overstepped the board’s mandate in the National Labor Relations Act.

Union-side lawyer Caren Sencer, of Weinberg Roger & Rosenfeld, said Tuesday that she felt the suspension of the rule is only a “temporary problem” since the board could reconvene and vote with the required three members.

But reconvening and voting could be problematic in light of the bigger fight over whether the board is properly constituted.  In January, trade groups challenged the legality of President Obama’s so-called “recess appointments” as part of a lawsuit challenging another NLRB measure.  Although the first such attempt was ignored by D.C. U.S. District Judge Amy Jackson, in March the Chamber of Commerce joined a separate action calling for the U.S. Court of Appeals for the D.C. Circuit to rule on the appointments.

Fred Alvarez, the head of Wilson Sonsini Goodrich & Rosati’s employment litigation practice, said the court’s decision and the suspension of the rule mean that the board is being “tied up in knots.” Alvarez, who represents employers, added that the NLRB is “not going to be able to make the drastic changes that they’re trying to make” to unionization in the workplace.

Posted by Admin on 05/18 at 01:53 PM