In previous Compliance Matters, we discussed the NLRB's new election rules, which took effect April 30, 2012, and the Memorandum issued by the NLRB's General Counsel to advise the Board's Regional Offices on implementing them. Those rules are now on hold because a federal judge in Washington, D.C. ruled on May 14 that the Board did not have the three-member quorum required to adopt the rules because one member did not participate in the vote.   

              The judge's decision may only be a temporary setback to the NLRB. While the judge did not consider other arguments that were raised against the new election rules, he did state that "nothing appears to prevent a properly constituted quorum of the Board from voting to adopt the rule if it has the desire to do so."    

            However, the NLRB must win another legal battle before it can re-adopt the new election rules. On January 4, 2012, the President made three recess appointments to the Board - one Democrat and two Republicans, restoring the Board to five members - even though the Senate had voted officially to remain in session during its recess. If the President's recess appointments are found unconstitutional, leaving the Board with only two lawfully-appointed members, all Board rulings issued since January 4 will likely be invalidated because the Supreme Court ruled in 2010 that the Board cannot decide cases with only two members. And with only two lawful members, the Board could not re-adopt the new election rules.   

            For now, the NLRB has temporarily suspended the new election rules and returned to the previous process.     

            BRGS lawyers collectively have over 100 years of experience in labor relations. We would welcome the opportunity to discuss how your business can navigate this challenging environment. Contact one of our partners to discuss how the evolving NLRB may affect your business.  

Sincerely,    

Richard S. Rosenberg  

Partner   

BRG&S, LLP