For the second time in less than a month, the National Labor Relations Board (NLRB) has come up empty in court trying to argue that one of its latest initiatives should stand.

A few weeks ago, the D.C. Circuit Court of Appeals rebuked the NLRB when it issued an opinion granting a temporary injunction to the National Association of Manufacturers (and others), stating that the NAM demonstrated a strong likelihood of proving that the Board’s promulgation of a rule requiring that employers post a notice advising all employees of their rights to unionization under the National Labor Relations Act exceeded its authority.  Our summary of that story can be found here.

Yesterday, Washington D.C. Federal District Court Judge James Boasberg issued a decision in favor of the U.S. Chamber of Commerce (and others) that one of the Board’s other seemingly pro-employee initiatives – their revised election rules – were invalid because they were approved as a final rule without a vote from the Board’s sole Republican member, Brian Hayes.  Because Mr. Hayes did not participate in that vote, the Board lacked the required full 3-member quorum at the time the agency finally approved them.  The new rules had been in effect since April 30, 2012.

We previously talked about these rules for the first time here.  As our loyal readers know, the rules drastically shortened the period for certain labor union elections after a Petition for an election is filed, and adopted other procedures which would defer certain challenges to the scope of the bargaining unit until after the election, among other changes.  While the rules taken together negatively affected employers in several respects, the most significant impact they had was to limit an employer to a much shorter window in which to share its point of view on the need for a union in the workplace.  Unions were very happy to spring a Petition for Election on employers and leave the employer with a much shorter time to spread its own message.

Interestingly, because Judge Boasberg’s ruling yesterday came largely on procedural grounds (the lack of quorum), what remains undecided is whether the rules violated the Constitutional rights of employers to free speech, or exceeded the Board’s authority – arguments which the Chamber of Commerce also advanced in their suit.

Judge Boasberg’s decision also leaves open the possibility that the Board may just go ahead and try to re-issue the final rule with the appropriate quorum to get over the procedural roadblock now on the ground.  Of course, only time will tell if the Board goes to the well again in an effort to push this initiative through now that President Obama has since made 2 recess appointments to the Board (giving it 5 members).  Even if the Board goes that route, however, the effectiveness of the election rules will remain up in the air as long as a legal challenge to the propriety of the appointments remains.  That is still pending, as we first discussed here.

Visit the Employment Essentials blog regularly for future developments on this critical employer issue.

Mario Bordogna represents clients in all aspects of labor and employment law in state and federal courts. Mr. Bordogna concentrates his practice in the areas of employment litigation, employment discrimination, workers’ compensation, employment counseling, and labor–management relations.
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