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NLRB’s “quickie election” rule struck down

Judge says rule is invalid because of board’s voting procedure

A federal judge has struck down the National Labor Relations Board’s (NLRB) controversial “quickie election” rule.

The rule—which went into effect just two weeks ago when a district court rejected the U.S. Chamber of Commerce’s request to issue a temporary injunction until after a final ruling on the election changes—shortened the time frame for union representation elections. The NLRB claims the shortened election cycle would minimize unnecessary litigation, but businesses contended that it gave unions an unfair advantage.

On Monday, in Chamber of Commerce v. NLRB, District of Columbia District Judge James Boasberg ruled that the “quickie election” rule is unenforceable because only two board members participated in the final vote to pass it. In December 2011, the then two Democratic NLRB members—Chairman Mark Pearce and Craig Becker—approved the election changes. In his decision, Boasberg said a minimum of three board members is required to participate in a final vote, and that “because no quorum ever existed for the pivotal vote in question, the Court must hold that the challenged rule is invalid.”

“The judge’s decision is a setback for the NLRB, but it is also an incentive for the board to consider the rule in its entirety and not piecemeal as it did,” says Littler Mendelson Partner Michael Lotito.

Barnes & Thornburg Partner Keith Brodie told InsideCounsel that while the decision only affects enforceability in the near term, it could ultimately delay the rule’s final implementation.

For now, union representation elections must continue under the old procedures. However, Boasberg did emphasize that his decision doesn’t “necessarily spell the end of the final rule for all time,” because the board could revote on the “quickie election” rule with the proper quorum.

For more analysis on the recent ruling, see legal updates from Baker Hostetler, Jackson Lewis, Ogletree Deakins, Reed Smith and Winston & Strawn.

For more InsideCounsel coverage on the NLRB’s “quickie election” rule, read:

NLRB’s “quickie election” rule in effect

NLRB shortens the union election time frame

Ashley Post

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