When the NLRB loses its quorum, there are significant implications for employers. (See “Quorum Call – Will the NLRB Continue to Function After 2011?” and “If the NLRB Lacked a Quorum, Did 2012 Really Happen?"). One very significant implication is that any union election occurring after Jan. 4, 2012, and before early August 2013 may be void because the NLRB lacked the quorum needed to certify the election result.

The NLRB is supposed to have five members. A quorum consists of three members. Without a quorum, the NLRB is unable to exercise its statutory powers.

At the end of 2011, the NLRB’s membership was about to drop to two members. On Jan. 4, 2012, the president purportedly made three recess appointments to the NLRB to try to bring the NLRB back up to five members. In June 2014, the Supreme Court unanimously found these recess appointments were unconstitutional.

So, the NLRB lacked a quorum from Jan. 4, 2012, until the Senate confirmed NLRB nominees in early August 2013. As a result, all NLRB decisions between those dates (including a number of controversial decisions that overruled prior NLRB decisions) are void. That is settled law. What is not settled is what other NLRB functions are paralyzed in the absence of a quorum.

In a case of first impression litigated by Taft, the United States Court of Appeals for the District of Columbia Circuit is about to address whether the NLRB can certify union election results in the absence of a quorum. In this case, the union filed an election petition in March 2013. The employer stipulated to the election, which was held in April 2013. The union narrowly won the election and the employer did not file objections to the result. The employer then refused to bargain with the union, arguing that the lack of a quorum prevented the NLRB from certifying the election result.

In the resulting litigation, the NLRB argued that: (1) the employer waived its right to challenge the NLRB’s quorum by not raising the issue until after the union had been certified; and (2) the NLRB had delegated its authority to certify the union to the regional director, which enabled the regional director to certify the union in the absence of a quorum. The employer argued that the NLRB had no authority to delegate in the absence of a quorum and that the regional director could not perform a task the NLRB itself could not perform without a quorum.

After the NLRB ruled against the employer, it appealed to the D.C. Circuit. The D.C. Circuit held oral argument on Feb. 18, 2015, and a decision is expected in a few months. Another case raising similar issues was orally argued in the D.C. Circuit on Feb. 24, 2015.

If the D.C. Circuit accepts the employer’s position, then all union elections held between Jan. 4, 2012, and early August 2013 will be void. Furthermore, the court will have rejected the NLRB’s waiver arguments. Such a decision would be particularly significant because employers can always appeal adverse NLRB decisions to the D.C. Circuit, regardless of the employer’s location.

Accordingly, all employers who lost union elections in this time period should consider whether to challenge the union’s certification due to the absence of an NLRB quorum even if the employers did not raise the quorum issue at the time of the election. There could be practical problems depending on the facts of a particular case. For example, it is unclear what would happen if the union election was void, but in the meantime the employer negotiated a contract with its union. If employers are interested in challenging an election held while the NLRB did not have a quorum, they should consult with counsel as soon as possible to review these issues.