D.C. Federal Court Finds NLRB Election Rule Invalid for Lack of a Quorum

Posted on May 14, 2012 by Labor Management Relations Practice Group

In a long-awaited ruling, the U.S. District Court for the District of Columbia has found the National Labor Relations Board’s expedited representation election rule invalid because the Board lacked a quorum when it issued the rule in December 2011. Specifically, the court in Chamber of Commerce v. NLRB (pdf) determined that because only two of the three sitting Board members actually cast a vote to adopt the rule – Member Brian Hayes had voted against an earlier version of the rule but declined to participate in the final vote – the agency did not have the authority to act under the U.S. Supreme Court decision New Process Steel. Continue reading this entry at Littler's Labor Relations Counsel. 

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South Carolina Federal Court Finds NLRB Posting Rule Unlawful

Posted on April 16, 2012 by Labor Management Relations Practice Group

A South Carolina federal court has ruled that the National Labor Relations Board lacked the authority to promulgate its notice-posting rule, which is scheduled to take effect on April 30, 2012. This rule mandates that all private sector employers subject to the National Labor Relations Act (NLRA) post a notice informing employees of their rights under the NLRA in a "conspicuous place" readily seen by employees. The rule includes a number of enforcement provisions that have been highly contested. Among other remedies for a posting rule violation, the Board would be permitted to toll the six month statute of limitations for an employee who files an unfair labor practice (ULP) charge. This provision would extend the statute of limitations for all unfair labor practice actions against the employer, not just those ULPs arising from the failure to post the notice. The rule would also deem an employer’s “knowing and willful refusal to comply with the requirement to post the employee notice as evidence of unlawful motive in a case in which motive is an issue,” as well as render a failure to post the required notice a ULP in its own right. Last month, the U.S. District Court for the District of Columbia struck down the enforcement provisions of the rule, but upheld the Board’s authority to issue the rule in the first instance.  Continue reading this entry at Littler's Labor Relations Counsel.

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