Judge Blocks NLRB's Union Election Rules

by Pierce Atwood LLP

[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.


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.

© Pierce Atwood LLP | Attorney Advertising

Written by:

Pierce Atwood LLP

Pierce Atwood LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.