Yesterday, the U.S. District Court for the District of Columbia invalidated the National Labor Relations Board's ("NLRB") election rule that went into effect on April 30, 2012. The election rule limited representation hearings to the issue of whether an election should take place, decreased the amount of time between when a union files a petition for an election and when the election takes place, limited the appeals process and increased discretion of the NLRB Regions during representation hearings.
The district court struck down the rule because the NLRB did not have the necessary quorum when it voted on the final rule in December 2011. The National Labor Relations Act requires a quorum of at least three members of the NLRB's five-member board before it can validly conduct business for the agency.
When the NLRB published the final rule that amended the election procedures, only two of its members voted in favor of adopting the rule. At the time, there were two vacant seats. The NLRB's third seated member, Brian Hayes, did not cast a vote. Hayes had voted against the initial rulemaking and against proceeding with the drafting and publication of the final rule. However, he did not participate in the vote on the final rule. He received a notification that the final rule had been circulated for a vote, but he took no action in response. Nevertheless, the NLRB determined he had "effectively indicated his opposition."
The court's ruling found that member Hayes "cannot be counted toward the quorum merely because he held office, and his participation in earlier decisions relating to the drafting of the rule does not suffice. He need not necessarily have voted, but he had to at least show up." The adoption of the rule by only two board members was insufficient. There was no quorum. Without it, the NLRB was without power to issue rules for the agency.
The court's invalidation of the new election rule is one of a series of recent federal court decisions that have invalidated new, recently published rules by the NLRB. The court's holding is welcome news to employers, given that the rule would have limited the opportunity to communicate with employees after a union has filed an election petition with the NLRB.
Patrick McCarthy and Christopher Stracco are scheduled to speak on Friday, February 10, at the New Jersey Institute of Continuing Legal Education's Annual 2017 Redevelopment Law Institute at the Renaissance Woodbridge Hotel in Iselin, New Jersey.
Day Pitney Alert
Rachel Gonzalez, Mary Rogers and Patrick McCarthy wrote an article "NLRB Eases Organizing of Temporary Workers" for CBIA’s H&R Safety Newsletter on the impact of the recent decision of the National Labor Relations Board (NLRB).
On May 13, Francine Esposito will give an Employment Law Update presentation to the HR Committee of the NJ Bankers Association. She will discuss the latest developments in employment law, including but not limited to paid sick leave requirements, EEOC initiatives, recent case law and pending legislation affecting employers.
On April 13, Day Pitney will hold a CLE that will cover two topics at Quest Diagnostics Incorporated, at 3 Giralda Farms in Madison, New Jersey. Benjamin E. Haglund, John W. Cerreta, Thomas A. Zalewski and Sylvia–Rebecca Gutierrez will teach a course on Contract & Tort Law Update for the Health Care Practitioner. The course will cover contract and tort issues for health care practitioners with special emphasis on genetic testing in tort litigation and potential pitfalls regarding provisions contained in contracts with hospitals, health plans, and suppliers. Theresa Kelly and Rachel Gonzalez will also teach a course on Employment Law, which will cover employment law issues with special emphasis on recent National Labor Relations Board activities and the Family and Medical Leave Act.
Rachel Gonzalez was mentioned in an article, "Unions set to begin voting on NJ Transit rail contract," in NJ.com. Gonzalez provided an explanation of the approval process concerning union agreements in connection with the NJ Transit rail unions voting on the proposed settlement to avert a strike.
Kate Coffey, Rachel Gonzalez and Peter Wolfson were mentioned in the "New Partners Yearbook 2016" in New Jersey Law Journal. This is the Law Journal's annual yearbook devoted to recognizing both newly promoted partners and newly hired lateral partners at law firms in New Jersey.
Patrick McCarthy was quoted in an article, “Former exec's conviction puts spotlight on safety for high-risk industries; Deadly mine explosion resulted in underwriting rethink by insurers,” in Business Insurance. McCarthy was quoted in connection with the significance of a case, in which Don Blankenship, the former CEO of Massey Energy Co., was acquitted of all felony charges, but convicted of a misdemeanor conspiracy charge for willfully violating U.S. mine health and safety standards that resulted in a 2010 explosion that killed 29 coal miners in West Virginia.
The Day Pitney alert, "Federal Contractors Must Provide Paid Sick Time in the Future," authored by Francine Esposito and Arielle B. Sepulveda was referenced in a Staffing Industry Analysts article, "New Bill Would 'Ban the Box' for Federal Contractors." In addition to the Fair Chance Act, the article discusses the executive order signed by President Obama that requires federal contractors to provide paid sick time leave. Esposito and Sepulveda noted that the requirement applies to all federal contracts awarded on or after January 1, 2017.
Stamford, Conn., August 24, 2015 - Day Pitney is pleased to announce that 68 attorneys have been selected for inclusion in the 2016 Best Lawyers in America. Best Lawyers ranks lawyers through peer-review surveys, and has been published annually since 1983.