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.
On January 7, Francine Esposito presented a live webinar, "FMLA Leave Is Exhausted: How to Address Transfer and ADA Accommodation Requests, Fitness-for-Duty Exams, and More," sponsored by BLR.
On July 11, partner Francine Esposito will present a live webinar, "FMLA Leave Is Exhausted: How to Address Transfer and ADA Accommodation Requests, Fitness-for-Duty Exams, and More," sponsored by BLR.
On May 31, Francine Esposito will serve as the moderator and speak on a multi-national panel of attorneys on the topic of "Unions in the Workplace," at the 2019 Lex Mundi Labor and Employee and Employee Benefits and Pension Joint Practice Group Global Meeting in Boston.
Day Pitney Alert
Day Pitney Alert
October 4, 2019 – Day Pitney LLP is pleased to announce that partner Rachel A. Gonzalez has been named to the inaugural "Nation's Best" list for the Eastern Region by Lawyers of Color.
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.