Jottings By An Employer's Lawyer

Monday, May 14, 2012

NLRB Enjoined, Again

Earlier it was the NLRB's posting regulations, see post here, which were enjoined. Today it's the regulations regarding the conduct of elections (sometimes referred to as the ambush election rule) which was the subject matter of yet another injunction.

District Judge James E. Boasberg of the District of Columbia, has enjoined the rule because of a lack of a quorum. This one does not have anything to do with the last recess appointments to the Board which are under challenge, but to the fact that Member Brian Hayes, did not participate in voting on the passage of the final rule.

In Chamber of Commerce et al v. NLRB  (D.D.C. 5/14/12) the Court noted that
At the end of the day, while the Court’s decision may seem unduly technical, the quorum requirement, as the Supreme Court has made clear, is no trifle.
This was after he had cited an even better known authority:

According to Woody Allen, eighty percent of life is just showing up. When it comes to satisfying a quorum requirement, though, showing up is even more important than that.
Undoubtedly this is not the last chapter in the litigation or the rule for that matter. Even if the Board is able to overcome the lack of quorum on its initial rule making, there will still be the substantive challenges which were not addressed.

And, if the Board should choose to re-enact the legislation, the new vote will include members whose recess appointment is being challenged and that of course will result in another hurdle, even before the challenges on the merits of the rule are addressed.
For those ready to decry this as a partisan gesture, Judge Boasberg was nominated by President Obama and at least according to Wikipedia, was recommended by Delegate Eleanor Holmes Norton, the non-voting member of the House of Representatives from the District of Columbia and the former Chair of the EEOC.

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