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May 2012
16
May 16, 2012

NLRB Election Rules Invalidated


Much has been reported over the past several months about the National Labor Relations Board’s revised rules for union elections. Under the new rules, many of the pre-election proceedings that used to be mandatory are now discretionary. This could result in elections taking place more quickly than in the past. The new rules were widely criticized by employer groups as favoring unions.

Like the NLRB’s new posting requirement (which is now on hold pending the outcome of various appeals), the election rules were challenged in court by employer groups. The challenges focused not only on the substance of the rules themselves, but also on the procedures used to adopt them. This week, a Federal District Court invalidated the new election rules based on a procedural issue.

When fully staffed, the NLRB has five members. At the time these rules were passed, the NLRB had only three members, and only two of them voted to approve the rules. The third member did not vote. Because the NLRB must have three members to conduct valid business, the court decided the NLRB did not have a quorum so the rules are invalid.

In reaching its conclusion, the court was careful to note that it was not addressing any of the other challenges to the rules. It also noted that nothing in its decision prohibits the NLRB from adopting the rules after assembling the necessary quorum. So while the new rules will not take effect as scheduled, it is quite likely that we will see additional legal developments and challenges.

The Labor and Employment Group of Warner Norcross & Judd LLP will continue to monitor these developments and will report on them as they occur. If you have questions about the NLRB election rules or another labor and employment law matter, please contact us.

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