Wyatt Employment Law Report


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Federal Judge Overturns NLRB’s New Rules Regarding Union Representation Elections

By Edwin S. Hopson

A federal judge in Washington, D.C. has ruled in Chamber of Commerce of the United States, et al. v. National Labor Relations Board that the NLRB lacked a quorum when it approved new rules governing union representation elections and that therefore the rules are invalid.  In his May 14, 2012 decision, U.S. District Judge James Boasberg found that NLRB Member Brian Hayes did not participate in the vote on the new rules, and that only Chairman Pearce and Member Becker actually were present for quorum purposes.  Under the Supreme Court’s decision in New Process Steel, it is clear the NLRB cannot effectively act with only two members as a quorum.  The Court pointed out that the NLRB could take up the rules again and consider their passage with a proper quorum.  The decision may be viewed at:

http://www.laborrelationscounsel.com/Chamber%20of%20Commerce%20v.%20NLRB.pdf


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Senate Rejects Resolution That Would Have Nullified the NLRB’s Revised Election Rules

By Edwin S. Hopson

According to a press release issued today by U.S. Senator Mike Enzi (R-Wyo.), the ranking member of the Senate Health, Education, Labor and Pensions Committee, the Senate rejected a resolution that would have nullified the NLRB’s revised union representation rules set to go into effect April 30, 2012.  The vote was reportedly 54 to 45 against adotption of the resolution. These changes will speed up the NLRB’s election process by which unions gain the certification to represent private sector employees.

Enzi stated, in part: “The NLRB will be tipping the scale with this ambush elections rule, which will go into effect next week.”


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Joint Resolutions Proposed in the House and Senate to Overrule NLRB’s New Election Rules

By Edwin S. Hopson

On February 16, 2012, the U.S. House Education and the Workforce Chairman John Kline (R-MN), joined by Rep. Phil Gingrey (R-GA) and Rep. Phil Roe (R-TN), introduced H.J. Resolution 103 under the Congressional Review Act (5 U.S.C. §§801-808) that would block the National Labor Relations Board’s December 21, 2011, new representation election rules intended to speed up and streamline the Board’s union representation election process, to be effective April 30, 2012. Sixty-five House members as of now support the resolution.

A companion resolution (S. J. Res. 63) was also introduced in the U. S. Senate by Senator Mike Enzi (R-WY) and Senator Johnny Isakson (R-GA).  S. J. Res. 63 has the support so far from 44 Senators.

The December 2011 rules were only a portion of proposed changes announced in June, 2011.  Since December, NLRB Chairman Pearce has indicated he intended to bring up for consideration later this year the remaining proposals designed to speed up the election process. 

At a press conference on February 16, Chairman Kline stated: “With the addition of these three non-recess ‘recess’ appointees [to the NLRB], it’s very clear to us that Chairman Pearce from the NLRB intends to go back and pick up some of those provisions that were left out from the rule passed last year. We are very concerned about this board and its agenda. We’re pleased the Senate is going forward with this resolution of disapproval and we look forward to being right there with them.”

The Congressional Review Act was enacted by the Congress as a part of the Contract with America Advancement Act of 1996 and is also known as the Small Business Regulatory Enforcement Fairness Act of 1996. The law permits the Congress to review, on an expedited basis, new federal regulations issued by government agencies and, by passage of a joint resolution, overrule the regulations.  It would appear that the Republicans in the House may be able to pass the resolution, but it would seem more doubtful in the Democrat-controlled Senate.


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Chamber of Commerce Files Suit Challenging the NLRB’s New Rules on Union Elections

By Edwin S. Hopson

On December 20, 2011, the U.S. Chamber of Commerce filed a suit in the U.S. District Court for the District of Columbia challenging the NLRB’s amendments to its regulations governing union representation elections and seeking injunctive relief to stop the Board’s enforcement of the new rules.

The suit claims that the amendments violate the Administrative Procedure Act, the Regulatory Flexibility Act and the National Labor Relations Act, as well as the First and Fifth Amendments to the U.S. Constitution. The Chamber also alleges that:

 “The Board rushed through the rulemaking process because it was committed to put the Rule in place before the end of Member Becker’s recess appointment, following which there would be no majority support among Board members in favor of the Resolution or the Final Rule and the Board itself would be reduced to two members, rendering it incapable of further action.”

As to many of its claims and bases for relief, the Chamber relies upon statements made by Republican Member of the Board, Brian Hayes, in his dissent to the proposed rule making.

The following is a link to the lawsuit: 

http://www.chamberlitigation.com/sites/default/files/cases/files/2011/Chamber%20of%20Commerce,%20et%20al.%20v.%20NLRB%20(Ambush%20Election%20Rule)%20Complaint).pdf