The U.S. District Court for the District of Columbia ruled yesterday that the NLRB’s “quickie election” rule is invalid because it was passed without a quorum of Board members being present. As you may recall, the rule was passed by a 2-0 vote of the two Democratic members of the Board back in December. Member Hayes, the lone Republican member, did not vote or register an abstention. The rule was adopted and became effective on April 30, 2012.
The U.S. Chamber of Commerce and the Coalition for a Democratic Workplace immediately challenged the rule in court under a variety of theories. The ruling by District Judge James E. Boasburg was based only on the lack of a quorum. It is a technical, procedural ruling that in the long term may be inconsequential, as the NLRB is at full strength at the present time and is still controlled by a Democratic majority that is generally viewed as pro-labor. Nothing in the district court opinion would preclude the currently-composed Board from re-passing the controversial election rule.
An effort in Congress to block the new rule recently failed when the Senate could not muster enough votes to block enactment. Various legal questions will still exist if the current Board re-adopts the rule. Most notably is a challenge by various business groups to President Obama’s use of the recess appointment procedure to ignore the Senate confirmation process and appoint members to the NLRB. If that challenge is successful, everything the Board has done, or will do, since January 3, 2012 will be invalid due to a lack of quorum.
We will, of course, keep you posted through future alerts as further developments in this area occur.