In light of a federal court ruling, Chamber of Commerce v. NLRB, the National Labor Relations Board (NLRB) has shelved controversial new regulations for determining whether a majority of employees wish to be represented by a union.
U.S. District Judge James E. Boasberg on Monday ruled that the NLRB adopted the procedures without the statutorily required three-member quorum. Though two of the Board’s three members voted in favor of the rule at a meeting last December, the third member, Brian Hayes, did not attend. Hayes had been on record opposing the rule.
The revised representation case regulations were intended to streamline the pre-election procedures for forming a union. The new provisions included:
Limiting the scope of pre-election hearings;
Giving NLRB officers the authority to limit evidence presented at those hearings;
Giving NLRB officers discretion over the filing of post-hearing briefs, including the issues to be addressed and the time for filing;
Eliminating the right for a party to seek Board review of a Regional Director’s pre-election rulings in many instances; and
Eliminating the NLRB’s standing recommendation that the Regional Director should not schedule an election sooner than 25 days after directing an election.
The U.S. Chamber of Commerce challenged the procedures in the District Court for the District of Columbia, arguing, in part, that the NLRB improperly voted without a quorum. The NLRB countered that Hayes had “effectively indicated his opposition” because of his previous votes against the regulations.
Judge Boasberg ultimately declined to bend the quorum requirement:
"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 . . .”
The bottom line for employers is that the new regulations are no longer effective. It is unclear how the NLRB will proceed. An NLRB news release states that the Board is still “reviewing the court decision and considering its response.”
The challenged rule took effect on April 30, 2012. Since then about 150 union election petitions have been filed under the new procedures, many of which resulted in election agreements, according to the NLRB. Despite the court’s ruling, those parties will not be required in re-initiate the process under the prior procedures, according to the NLRB.
NLRB Acting General Counsel Lafe Solomon on Tuesday formally withdrew guidelines he had issued to regional offices about the rule and further advised regional directors to revert to their previous practices for election petitions starting today.
We will follow the NLRB process carefully and keep readers apprised of any developments. Barger & Wolen attorneys are available to discuss any questions you may have about the current state of union election procedures.