Good news for private employers. Today, May 14, 2012 the U. S. District Court for the District of Columbia ruled that the NLRB lacked a quorum when it took a final vote to issue it’s hotly debated “Quickie Election Rule”. Consequently, the Rule that would have had the effect of drastically speeding up union elections in the private sector has been held to be invalid. The Court in its opening paragraph said it best:
According to Woody Allen, eighty percent of life is just showing up. When it comes to satisfying a quorum requirement, though, showing up is even more important than that. Indeed, it is the only thing that matters – even when the quorum is constituted electronically. In this case, because no quorum ever existed for the pivotal vote in question, the Court must hold that the challenged rule is invalid.
The court traced the history of the NLRB’s rule making process and how in December 2011 there were only three actual members of the NLRB due to the fact that there were two vacant seats on the normally constituted five-member Board. Congress had set the quorum limit for the NLRB as three members “participating” in final action. In December 2011 the rule went through numerous internal revisions following input from a series of public meetings held in November, 2011. Ultimately on December 16 two of the Board members, Becker and Pearce, (both Democrats) voted to issue the rule. But, Member Hayes (a Republican) was not ever actually asked to cast a vote on the final version of the Rule but the two other Members nevertheless went ahead and issued the Rule without Member Hayes’ participation or vote. It is this lack of quorum which led the U.S. Chamber of Commerce and the Coalition for a Democratic Workplace to challenge the Rule in this lawsuit. For now, it is a victory for employers and another loss for the NLRB, having had it Employee Rights Poster struck down by another court decision recently.
The Rule’s effective date was April 30, 2012 but now, as the court said in its conclusion, “representation elections will have to continue under the old procedures.”
Stay tuned, however, because the story is not over. There are currently five members of the NLRB (although the President’s recess appointment of three of the members has been challenged) and a quorum of three members might be assembled for final action on the “Quickie Election Rule” after all. If that happens, it is almost guaranteed that another challenge will be raised over the lawfulness of the Board’s action without a true quorum of three members.
If you have questions or need further information please contact Steve Lyman at slyman@hallrender.com, Bruce Bagdady at bbagdady@hallrender.com or your regular Hall Render attorney.
Reference: Chamber of Commerce of the United States, et al v. National Labor Relations Board, (D.C. D.C. No. 1:11-cv-02262, May 14, 2012)
