Judge Strikes Down NLRB "Quickie" Union Election Rule

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On May 14, a federal judge in the District of Columbia struck down the National Labor Relations Board’s new representation election rule, which had gone into effect on April 30. The Court concluded that the NLRB did not have the required quorum to vote on the new rules, therefore lacking authority to adopt it, and consequently found the rule to be “invalid.”

Polsinelli Shughart previously updated employers on the potential requirements and impacts of the proposed so-called “quickie” election rule.

In its ruling this week, the federal court, responding to a suit filed by the United States Chamber of Commerce and another group representing various businesses, ruled that the NLRB’s new rule was adopted without the statutorily required 3-person quorum. Because the NLRB acted without a quorum, the District Court concluded that the new rule was invalid. The Court then enjoined application of the rule. The Court noted that the statute under which the NLRB currently operates is clear: “three members of the Board shall, at all times, constitute a quorum.” The court’s May 14 opinion may be found here.

On December 16, 2011, the final version of the new rule was circulated among NLRB Members Pearce, Becker and Hayes. Although Members Pearce and Becker voted to approve the new rule, Member Hayes did note vote and took no action in response to the new rule’s circulation. He neither expressed an intent to abstain, nor an acknowledgment of receipt of the new rule. He simply did not realize that any further participation on his account was required. Citing Woody Allen’s maxim that “eighty percent of life is just showing up,” the court concluded that the NLRB never convened a quorum; therefore, it lacked the power to put in place the new rule.

The District Court’s ruling may, however, prove to be a short reprieve for employers from the new rule because the court concluded its decision by noting that nothing would appear to prevent a properly constituted quorum of the NLRB from adopting the new rule if it so desired.

Employers should continue to monitor the NLRB’s further efforts to adopt any “quickie” election rule and consult with their labor counsel concerning any impact such a rule could have on their business.