On Monday, May 14, 2012 a federal court in Washington, D.C. issued an Order invalidating the NLRB's controversial "ambush election" rules which took effect on April 30, 2012, on grounds that the rules were not properly adopted by a quorum of Board Members.
The rules at issue amended the Board's longstanding procedures for processing petitions in representation cases ("R" cases), i.e., cases involving elections to determine whether employees desire union representation. When the Board issued its Notice of Proposed Rulemaking (NPRM) in this area in June 2011, business groups panned the proposed changes, which would have the effect of reducing the time between the filing of an election petition and the date of the election itself.
Following various procedural machinations and modifications to the scope of the proposed amendments, on December 16, 2011, the final version of the rule was circulated electronically to the three sitting Board Members for final approval. The substance of this resolution was addressed in our previous Alert, which can be found here. Chairman Pearce and Member Becker, who was anxious to vote before his recess appointment expired, voted electronically to approve the rule and it was forwarded by NLRB's Solicitor for publication in the Federal Register the same day. Member Hayes did not vote or otherwise respond before the rule was sent for publication, nor was he expressly requested to do so.
The District Court found that Member Hayes did not "participate" in the Board's decision on December 16 for purposes of determining whether the NLRB had a proper quorum. In New Process Steel L.P. v. NLRB (2010), the Supreme Court ruled that the NLRB could not delegate its decision-making authority to two members, and that for quorum purposes three members must participate in a decision. Noting the challenges attendant to determining whether a quorum is present when voting is conducted remotely, via computer, the District Court concluded that since Member Hayes had only several hours to respond to the circulation of the final rule, during which time he did not respond in any way, he did not "participate" in the proceeding for purposes of establishing a quorum. The court went on to hold that since the final rule was promulgated without the requisite quorum, it was invalid.
What This Means for Employers
As a result of the District Court's actions, the NLRB's proposed amendments to its procedures for processing petitions in representation cases are without force, and elections will continue to be conducted under the rules in place before April 30, 2012. However, nothing in the court's decision would prevent the Board from re-issuing the rule with a proper quorum, and on May 15, 2012, Chairman Pearce expressed his continued support for the rule and his determination to "move forward." Given that the Board is at full strength now, with a 3-2 Democratic majority, Chairman Pearce should have no problem mustering a quorum in support of the rules. At that point, however, it is likely that the District Court would be called upon to evaluate other legal challenges to the rule, so at this point, the ultimate fate of the NLRB's "ambush election" rules remains unsettled.