On Monday, the NLRB voluntarily dismissed its appeal in Chamber Of Commerce v. NLRB, the case in which the U.S. District Court for the District of Columbia found the Board’s expedited representation election rule invalid because the Board lacked a quorum when it issued the rule in December 2011. In this case, the district court determined that because only two of the three sitting Board members actually cast a vote to adopt the rule – Member Brian Hayes had voted against an earlier version of the rule but declined to participate in the final vote – the agency did not have the authority to act under the U.S. Supreme Court decision New Process Steel.
This voluntary concession is not so much an admission of defeat that the rule was invalidly enacted, but more of a procedural expediency to re-issuing a revised election rule. Initially introduced in June 2011, the NLRB’s “ambush election” rule would make significant changes to pre- and post- union election procedures. A pared-down version of the proposed rule was finalized in December 2011, and eventually stayed due to the aforementioned lawsuit. Now that the Board has effectively acknowledged that the edited rule was improper from a procedural standpoint, it is free to work on a new version, which conceivably could resemble the original, more expansive proposal. Notably, the only item on the Board’s fall regulatory agenda is this rule revising the representation election process. Because the Board is now operating at full capacity, it has the votes necessary to make this rule a reality.
Employers would be wise to pay attention to the Board’s regulatory process and offer input when a new proposed election rule is inevitably issued.