NLRB Suspends Election Process Changes After Court Decision
Because of Monday’s court decision favoring the Chamber of Commerce in its challenge to the National Labor Relations Board (NLRB)’s new election rules, the NLRB has “temporarily suspended” the rules and withdrawn its instructions on the implementation of these representation case process changes that were effective on April 30. (link). See U.S. Chamber of Commerce et al. v. National Labor Relations Board, No. 11-cv-2282 (D.D.C. May 14, 2012).
The court granted the Chamber’s summary judgment motion because the NLRB’s only Republican board member, Brian Hayes, did not participate in the decision to adopt the final rule. Looking at the differences between an abstaining and absent member, the court held that this electronic vote, where Hayes only had a few hours to weigh in on the decision and had not expressed any intent to abstain, yet was not asked about his failure to vote, meant Hayes was absent, not abstaining. Accordingly, the court ruled the vote invalid and the rule unenforceable.
The court specifically did not decide the legality of the election process changes themselves, noting that the rule could again be adopted with a proper NLRB vote, although political impediments exist because there is a court challenge to the constitutionality of President Obama’s three recess appointments to the NLRB.
Even with the constitutionality of the appointments in question, NLRB Chairman Mark Gaston Pearce has not ruled out “moving forward” on the election procedural changes.