Labor board suspends implementation of new rule

By Michael P. Tremoglie | May 21, 2012


WASHINGTON (Legal Newsline) - The National Labor Relations Board announced Tuesday that it will suspend implementation of its controversial new unionization election rule.

The rule was being opposed as being too accommodating to unions and deleterious to employers. The NLRB took this action the day after the U.S. District Court for the District of Columbia determined that it was invalid in U.S. Chamber of Commerce and Coalition for a Democratic Workplace v. National Labor Relations Board.

The NLRB rule amended the procedures for determining whether a majority of employees wish to be represented by a labor organization for purposes of collective bargaining. It accelerated the process of unionization votes. While labor union leaders welcomed the new procedure, it was fervently resisted by business organizations, nonprofits and some members of Congress.

The court stated the NLRB did not have the necessary quorum to have a vote to approve the new rule. Judge James E. Boasberg, an appointee of President Barack Obama, wrote, "... because no quorum ever existed or the pivotal vote in question, the Court must hold that the challenged rule is invalid."

The NLRB responded in its communique by saying, "In response to a District Court decision issued late Monday, the National Labor Relations Board has temporarily suspended the implementation of changes to its representation case process, which had taken effect April 30."

NLRB Chairman Mark Gaston Pearce said the court decision is being reviewed. "We continue to believe that the amendments represent a significant improvement in our process and serve the public interest by eliminating unnecessary litigation," he said. "We are determined to move forward."

The NLRB also said that Acting General Counsel Lafe Solomon withdrew the guidance to regional offices he issued prior to the effective date and advised regional directors to revert to their previous practices for election petitions starting today.

There approximately 150 election petitions filed using the new procedures, according to the NLRB. The parties involved in those 150 cases will be contacted and given the opportunity to continue following the new rule or redo the case under the prior procedure.

Prof. John Raudabaugh of Ave Maria School of Law in Florida is a former member of the National Labor Relations Board. He has been critical of the current NLRB.

"The court's decision, undoubtedly an embarrassment to the NLRB, will result in a new, more robust rule to include provisions left out of the original rule," he said. "However, any new rule will be challenged on the grounds that the current Board is without a legitimate quorum based on the Jan. 4, 2012 recess appointments of Griffin, Block and Flynn."

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