In a sharp setback for the National Labor Relations Board (the “Board”), a federal district court in Washington, D.C. (the “Court”), struck down the Board’s election rules, which took effect on April 30, 2012, on technical grounds, holding that the Board did not have a properly constituted quorum of three members when it voted to change its election rules and procedures. See Chamber of Commerce v. NLRB, No. 11-2262 (JEB), Slip Op., 2012 WL 1664028 (D.D.C. May 14, 2012). This decision comes less than a month after a federal appeals court struck down the Board’s notice-posting rule that would have required employers to advise employees of their rights under the National Labor Relations Act, and less than two years after the Supreme Court of the United States in New Process Steel LP v. NLRB, 130 S. Ct. 2635, 560 US __ (2010), held that the Board, which is traditionally comprised of five members, must have a quorum of three members to lawfully issue its decisions.
The Court’s decision arises from a lawsuit filed on December 20, 2011, by the U.S. Chamber of Commerce and the Coalition for a Democratic Workplace (collectively, the “Plaintiffs”) arguing that the Board’s amended election rules, which took effect on April 30, 2012, were unlawful in part because they deprived employers of their free speech rights to speak out against unions and because they were procedurally flawed. The Plaintiffs sought to enjoin the rules before they took effect and asked the Court to issue a temporary restraining order, which request the Court denied last month. The U.S. Senate rejected a joint resolution that would have blocked the rules.
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