In a decision issued a few minutes ago, the United States District Court for the District of Columbia struck down the NLRB’s new election rules because the Board lacked a quorum when it attempted to adopt the final rule. On December 16, 2011, Chairman Pearce and then-Member Becker voted to approve the final version of the rule. However, Member Hayes did not vote, nor was he asked to record a vote. The Board majority took the position that, because Member Hayes had previously voted against initiating the rulemaking at issue, he had “effectively indicated his opposition.”

Applying the Supreme Court’s holding in New Process Steel, L.P. v. NLRB, the court held that the failure to include Hayes in the adoption of the final rule ran afoul of the Board’s quorum requirement. Because the Board lacked a quorum when it attempted to adopt the final rule, the final rule is not effective and representation cases will “continue under the old procedures.”

We will continue to follow this important development as it unfolds.

Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Justin Keith Justin Keith

Justin F. Keith represents employers in all areas of labor and employment law—including reductions in force, litigation of discrimination, harassment, whistleblower, and retaliation claims, and numerous other personnel and workplace issues—before state and federal agencies and in courts throughout the country.

Justin Co-Chairs

Justin F. Keith represents employers in all areas of labor and employment law—including reductions in force, litigation of discrimination, harassment, whistleblower, and retaliation claims, and numerous other personnel and workplace issues—before state and federal agencies and in courts throughout the country.

Justin Co-Chairs the firm’s Labor & Employment Practice’s Labor-Management Relations group and advises clients in all areas of traditional labor law, including union organizing campaigns, collective bargaining negotiations, unfair labor practice charges and representation case proceedings before the NLRB, union avoidance strategy and training, strike response and contingency planning, grievance arbitration proceedings, and appellate litigation before the NLRB and the Courts of Appeals. Justin was co-counsel to New Process Steel in the landmark Supreme Court case, New Process Steel v. NLRB, 560 U.S. 674 (2010). He is also a contributing editor of The Developing Labor Law, the leading treatise on U.S. labor law, and a frequent speaker to legal and industry groups on labor and employment issues.

Justin has litigated dozens of wage and hour class actions brought under the Massachusetts Wage Act and nationwide collective actions under the Fair Labor Standards Act. He represents employers across a broad spectrum of industries, including retail, transportation, delivery services, and telecom services in nationwide class and collective actions brought throughout the country.

Justin regularly provides counsel to senior management and human resource personnel on employment law compliance matters, such as reductions in force, leaves of absence, exempt status classification under the FLSA and state law, employee discipline, sexual harassment, discrimination and retaliation, and restrictive covenant agreements.