Attorney: Legal issues involving NLRB are complicated

Michael P. Tremoglie May 23, 2012, 12:45pm


WASHINGTON (Legal Newsline) - The reactions to a court ruling invalidating the National Labor Relations Board's implementation of new procedures for conducting votes for union elections were predictable. Unions reviled it and business praised it.

But what is next?

International Brotherhood of Teamsters President James Hoffa said the court made "just another attack on workers and the American middle class." But others made more measured comments.

Seth Borden is a partner in McKenna Long & Aldridge's New York office and is a member of the firm's Employer Services Group. He specializes on labor relations, collective bargaining, labor arbitration, NLRB investigations and litigation.

He observed that the quorum issue and other legal issues involving the NLRB are complicated. He noted that there are only two sitting Board Members whose seats are beyond legal challenge.

"The other three members -- two Democrats and one Republican -- are serving pursuant to questionable 'recess' appointments," he said. "Those appointments are being challenged right now in court insofar as the Congress was in pro forma session at the time they were announced. It may be months until that issue is resolved via litigation -- perhaps not until after the 2012 Presidential election.

Borden speculated that the re-election of President Barack Obama or a resolution of the NLRB quorum issue by a more union-sympathetic majority means the new election procedures would almost certainly be re-implemented. He mentioned the NLRB "only took action on a limited number of the proposed rule's elements."

According to Borden, the NLRB did not implement the "more aggressive provisions." The NLRB deferred in these. He feels these will be revisited and this time the NLRB "will be extra attentive" to ensure that it follows all the procedures.

"I would still expect the same employer groups to file legal challenges," Borden added. "Judge Boasberg's decision was clear that it did not address the merits -- only unique procedural flaws. Of the various elements originally proposed by the Board, there are some -- like limiting pre-election hearings and postponing requests for review until after the election -- that arguably run afoul of the National Labor Relations Act's express provisions."

He said that the U.S. Chamber of Commerce's argument was well articulated in its motion, but not addressed by the court. But there are other elements -- like electronic filing and quicker provision of voter lists to the petitioning union - that he thinks "may be more likely to survive legal challenge."

There are also legislative challenges that are contingent upon what happens in November. He mentioned that U.S. Sen. Jim DeMint, R-S.C., and Rep. John Kline, R-Minn., have introduced bills to reverse certain elements of the proposed rule.

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