[author: Michelle Y. Bush]
On Monday, a federal judge in Washington, D.C. blocked the National Labor Relations Board’s controversial new rules concerning the union representation election process that had gone into effect at the end of April 2012. The judge held that the Board lacked the necessary quorum to act when two of its members voted to pass the rules in December 2011. Absent the statutorily required three-member quorum, the rules are invalid.
The blocked rules had provided for a shorter time period between when the Board orders an election and the election date, thus limiting the time period during which an employer can state its case against a union. Employers had expressed concern that this shorter election period would provide insufficient time for employers to respond to union organization campaigns and effectively communicate to employees. Click here for a link to our prior alert explaining these now invalid rules.
The decision invalidating the rules addressed only the Board’s lack of a quorum. The rules had been passed during a time in which the Board had only three, rather than the usual five, sitting members. Two of those three members supported adoption of the election rules and so voted in December 2011. The third member, Member Hayes, had made his opposition to the rules known throughout the rulemaking process in 2011. When it came time to vote on the final rule, however, Member Hayes did not cast a vote via the electronic voting mechanism the Board employed. The Board argued that Member Hayes’ conduct in opposing the rule throughout the rulemaking process as well as the fact that he received an electronic notification requesting that he vote on the final rule amounted to “participation” in the final adoption of the rule, notwithstanding the fact that he did not actually cast an electronic vote. The court concluded that Member Hayes had not “participated” in the final decision to adopt the rule. The court noted that he need not actually cast a vote – in fact he could have abstained from the vote – but that he needed to have “shown up”, at least in a figurative sense. In other words, Member Hayes needed to have done something in response to the electronic invitation to vote. The absence of any action on his part meant that he did not “participate” in the final vote and the Board lacked a quorum to act.
The decision is good news for employers, but it is likely not the end of the story. The business groups that filed the lawsuit had also challenged the rules on substantive grounds, arguing that regardless of whether the Board had the necessary quorum, the rules are unlawful. The court did not reach the merits of those arguments. Instead, the court noted that there was nothing preventing the Board, which now contains 5 members, from again voting to adopt the rules. If the Board does so, we can expect further challenges to the legality of the rules. In addition, the Board may appeal this decision invalidating the rules. For now, representation elections will continue under the old procedures.
While this decision offers employers a temporary reprieve from the threat of stealth organizing campaigns and snap elections, it is not a reason to be any less vigilant about signs of union activity. If you have any questions, or think your organization would benefit from training on how to prevent union organizing in your workplace, please contact one of our attorneys.