On Monday, May 14, 2012, a federal judge in Washington, D.C., struck down a controversial rule issued by the National Labor Relations Board (NLRB) intended to streamline the union election process. Granting a motion for summary judgment filed by the United States Chamber of Commerce filed in February, Judge James Boasberg ruled that because NLRB member Brian Hayes, then the Board’s only Republican, did not take part in the decision to adopt the union election rule, the NLRB lacked a necessary quorum when it voted to issue the rule. At the time the election rule was approved by the NLRB in December 2011, the Board had only three members; federal law requires a quorum of at least three members to consider new Board rules.
The Chamber of Commerce and other business groups had filed a lawsuit challenging the NLRB’s rule, which had taken effect on April 30, 2012, claiming that the rule was unconstitutional, exceeded the NLRB’s authority and failed to give employers sufficient time to counter union organizing drives. However, Judge Boasberg did not resolve the substantive issues presented by the lawsuit, and ruled only on the procedural issue of the vote to authorize the rule itself. According to the judge, although Hayes had previously expressed his opposition to the rule at a public hearing, he was not legally “present” and technically did not take part in the vote on the rule, which occurred electronically.
“According to Woody Allen, eighty percent of life is just showing up,” Judge Boasberg wrote. “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 – even when the quorum is constituted electronically.” Judge Boasberg’s decision continued by noting that if “someone reached out to [Hayes] to ask for a response, as is the agency’s usual practice where a member has not voted,” or had taken any additional steps to attempt to ascertain Hayes’ vote, circumstances might have been different. However, the court noted, “none of that happened here.”
While Judge Boasberg noted that he was not weighing in on the merits of the case or the Board’s election rule, he stated that “nothing appears to prevent a properly constituted quorum of the Board from voting to adopt the rule if it has the desire to do so.” Following the court’s ruling, the NLRB “temporarily suspended” the union election rule in question and indicated that it is considering its response.
Employers’ relief from the NLRB’s “quick pitch” election rules may be short-lived. Nothing in the court’s decision prevents the NLRB from reintroducing the controversial rule at a meeting with an appropriate quorum and passing it again. Accordingly, while union representation elections will proceed under the old rules and timelines for the time being, employers should continue to conduct supervisory training and to take other appropriate steps in anticipation of change in organizing procedures.
