Background

Last June, the National Labor Relations Board formally proposed to amend its procedures for resolving disputes about union representation in a Notice of Proposed Rulemaking (NPRM), commonly known as the “quickie” election rule because it would shorten the amount of time between the filing of a representation petition and the election. At that time, the Board had four members and three of the four members voted in favor of publishing the NPRM; Member Hayes dissented. Following publication of the NPRM, a variety of things happened related to revising and finalizing the rule, including the expiration of then-Chairman Liebman’s term, leaving the board with three members. On Dec. 16, 2011, the final version of the rule was circulated via the Judicial Case Management System (JCMS). Chairman Perce and Member Becker voted to approve the rule—Member Hayes did not vote. The Board, however, determined that Member Hayes had “effectively indicated his opposition” because he had previously voted against initiating the rulemaking and against proceeding with the drafting and publication of the final rule. Based on this determination, the Board promulgated and published the final rule on Dec.22, 2011.

Court Invalidates the Rule

Shortly after publication, the Chamber of Commerce of the United States of America and the Coalition for a Democratic Workforce filed suit in the D.C. district court challenging the final rule on numerous grounds.

Ultimately, the court addressed only one question: whether the rule was properly adopted by the statutorily required quorum. The court determined that the December 16th decision to adopt the final rule, and not the earlier votes, was the relevant agency action. A quorum, accordingly, must have participated in that decision. The court found that two members of the Board—Perce and Becker—voted to adopt the final rule. Further, it explained that although Member Hayes need not have voted in order to be counted toward the quorum, he could not be counted merely because he was a member of the Board at the time the rule was adopted—“more was required.” The court concluded that Member Hayes was sent a notification on Dec. 16 that the final rule had been circulated for a vote, but he took no action. “He simply did not show up—in any literal or even metaphorical sense.” Because the final rule was promulgated without the requisite quorum and in excess of the Board’s authority, the court held that the rule was invalid and must be set aside.

NLRB’s Response to Court’s Decision

In response to this decision, the Board posted a notice on its website on May 15 stating the following:

• The NLRB “has temporarily suspended the implementation of changes to its representation case process, which had taken effect April 30.”
• The Board is reviewing the court decision and considering its response.
• Acting General Counsel Lafe Solomon withdrew the guidance to regional offices he issued prior to the effective date and advised regional directors to revert to their previous practices for election petitions starting May 15.
• Approximately 150 election petitions were filed under the new procedures, and all parties involved in those cases will be contacted and given the opportunity to continue processing the case from its current posture rather than re-initiating the case under the prior procedures.

Bottom Line

Although this is a victory for employers, it may be short-lived. Notably, the Court emphasized that its ruling “need not necessarily spell the end of the final rule for all time,” stating further that had a quorum participated in its promulgation, the final rule “may well have been found perfectly lawful.” Since the NLRB can re-promulgate this rule with a quorum, it is likely that the NLRB will take a second run at promulgating this rule. In the meantime, however, representation elections will carry on under the previous rules and procedures.