NLRB's "Quickie Election" Rule Held Invalid on Technical Grounds


Back in December, we posted about the National Labor Relations Board’s (Board) resolution to change union election procedures. Among other things, the pro-union rule shortened the time between the filing of an election petition and the date of the election, thereby making it more difficult for employers to communicate with employees prior to the election. Later that month, two of the Board’s three members voted in favor of adopting the rule. The third member of the Board did not cast a vote or otherwise participate in the voting process. The rule took effect on April 30, 2012.

However, on May 14, 2012, the union election rule was held to be invalid. In Chamber of Commerce v. NLRB (pdf), the US District Court for the District of Columbia held that the Board lacked authority to adopt the final rule because a quorum of its members did not participate. Specifically, under the Labor Management Relations Act, three members of the Board constitute a quorum. However, only two Members were present during the final vote approving the rule.

It is important to note that the court’s ruling addressed only the quorum issue, refusing to reach—or express any opinion on—the merits of the final rule. The court stated that the union election rule could be lawful if issued through a procedurally sound voting process.

While the court’s decision will likely be appealed, the Board issued a press release on May 15, announcing that it has temporarily suspended implementation of the new union election procedures. The Board also directed its regional directors to revert to their prior practices for election petitions and procedures.

We will keep you updated as further developments in this area occur.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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