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Appeal of Decision Invalidating NLRB’s ‘Quickie Election’ Rule Withdrawn

By Howard M. Bloom & Philip B. Rosen on December 13, 2013
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The National Labor Relations Board, the United States Chamber of Commerce and the Coalition for a Democratic Workforce have stipulated to voluntarily dismiss the NLRB’s appeal to the United States Court of Appeals for the District of Columbia Circuit of a district court ruling invalidating the NLRB’s “quickie election rule.”  This paves the way for the NLRB, which is at full strength with appointees confirmed by the Senate, to reissue the controversial rule or to issue a revised rule which will pass legal muster.  Indeed, the rule is the sole item on the NLRB’s November 26, 2013, semiannual regulatory agenda.

On December 2, 2011, the NLRB published a rule amending agency procedures for elections to decide whether employees wished to be represented by a labor organization for purposes of collective bargaining.  Two of the NLRB’s three members (members Mark Gaston Pearce and Craig Becker) voted in favor of the adopting the final rule.  The third member, Brian Hayes, did not cast a vote.  Because the full NLRB consists of five members, three votes were necessary for a quorum.  Nevertheless, the NLRB decided that a quorum existed because Member Hayes had participated in two earlier decisions relating to the publication of the final rule and therefore, it determined, the vote on the final rule was valid.  The Chamber of Commerce and the Coalition for a Democratic Workforce challenged the final rule on a number of grounds, including that the rule was adopted without a statutorily required quorum.  The United States District Court for the District of Columbia decided that only two Members had participated and granted the Chamber’s and Coalition’s motion for summary judgment, invalidating the rule.  Subsequently, the Court of Appeals in a different case also ruled that recent recess appointments to the Board, such as Becker’s, were unconstitutional.  For more on the rule, see NLRB Acts on Quickie Election Proposal and Labor Board’s Quickie Election Rule Effective April 30, 2012; Implementation of Notice Posting Rule Postponed to April 30, 2012.

Photo of Howard M. Bloom Howard M. Bloom
Read more about Howard M. BloomEmail
Photo of Philip B. Rosen Philip B. Rosen

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing…

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.

Read more about Philip B. RosenEmail
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  • Posted in:
    Employment & Labor
  • Blog:
    Labor & Collective Bargaining
  • Organization:
    Jackson Lewis P.C.

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