NLRB rescinds stricken union rule

The National Labor Relations Board is formally rescinding a rule meant to speed up union elections, more than a year after a federal court deemed the regulation invalid.

The action closes the book on just one of a series of contentious legal fights pitting the embattled labor board against employers.

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Unions heralded the 2011 rule, contending technical changes in election proceedings would cut back on delays for workers who want to organize. But business groups mounted intense legislative and legal efforts to void the regulations, arguing that it would limit workers' opportunity to hear from employers before unionizing, diminishing employers’ due process rights.

An April 2012 Senate vote on a motion to block the rule from taking effect fell several votes short.

But the following month, U.S. District Judge James Boasberg struck the regulation down, finding that the labor board lacked a quorum when it voted to adopt the rule.

Only two NLRB members — Chairman Mark Pearce and then-member Craig Becker, both Democrats — participated in adopting the rule. The labor board’s third member at the time, Republican Brian Hayes, did not participate.

Boasberg concluded that Hayes’ absence invalidated the rule, writing in the opinion that he “need not necessarily have voted, but he had to at least show up.”

The labor board appealed, but the Court of Appeals for the District of Columbia Circuit dismissed the appeal in December. The decision forced the NLRB to draft a new final rule reverting regulatory language about union elections to its previous form. 

“Now that the district court’s decision is no longer subject to appellate review, this final rule restores the relevant language in the (Code of Federal Regulations) to that which existed before the Board issued the December 22, 2011 final rule,” the labor board said in a notice to be published in Wednesday’s Federal Register.

Under the Obama administration, the little-known labor department has been at the center of numerous high-profile court cases.

Earlier this month, the NLRB gave up its fight in support of a contentious regulation that would have required most businesses to display posters about union rights.  

Two federal appeals courts struck down the regulations in separate cases last year, ruling that they amounted to an overreach from the labor rights agency.

The Supreme Court is currently weighing the validity of a trio of President Obama’s recess appointments to the board, following a challenge from business groups who argue that the positions were filled without proper Senate confirmation proceedings.

During arguments last week before the high court, nearly every justice appeared to question the constitutionality of the appointments.