On May 14, a federal district court in the District of Columbia held that the National Labor Relations Board ("NLRB" or "Board") lacked the requisite authority when it adopted a rule designed to shorten the time for union representation elections. (Chamber of Commerce v. NLRB, Case No. 1:11-cv-02262-JEB (D.D.C. May 14, 2012)). Specifically, U.S. District Judge James E. Boasberg concluded that the rule was invalid because less than three members of the statutorily-constituted five-member Board voted on the adoption of the final rule.
As stated in our December 1, 2011, and December 22, 2011, Executive Alerts, the Board published a final rule in December 2011 that amended procedures for union representation elections, effective April 30, 2012, so as to speed up the time frame for when elections take place and preempt many pre-election challenges by employers. The U.S. Chamber of Commerce and the Coalition for a Democratic Workplace filed this lawsuit in the United States District Court for the District of Columbia shortly before the adoption of the rule seeking to invalidate it on a number of grounds. Both the Plaintiffs and the Board subsequently filed motions seeking summary judgment in their favor. Judge Boasberg ultimately granted the Plaintiffs' motion and denied the Board's motion.
While noting that the Plaintiffs had challenged the rule's validity on a myriad of procedural and substantive grounds, Judge Boasberg focused on the Board's lack of a quorum when it voted to adopt the final rule. Specifically, he noted that only two of the three members then on the Board actually voted on the rule. The third member, Brian Hayes, while indicating his opposition to the rule throughout the Board's rulemaking process, never voted for or against formal adoption of the final rule, nor did he affirmatively abstain from the vote or otherwise indicate that he had considered the rule when it was circulated electronically for vote immediately prior to being published. (Ironically, in his declaration submitted on behalf of the NLRB, Member Hayes stated that he did not address the vote because he did not believe any further participation was necessary after participating in two prior procedural votes clearing the way for the rule's adoption.) The court viewed Member Hayes' failure to indicate any consideration of the request to vote on adoption of the final rule as a failure to—as the court phrased it—"show up" for the vote, thus invalidating the vote.
Judge Boasberg rejected the Board's argument that Member Hayes' two prior votes relating to procedural issues regarding the final rule could be relied upon to establish a quorum for the vote actually adopting the rule. The court also rejected the Board's argument that Member Hayes should be counted toward meeting the Board's quorum requirement because the Board had circulated the final rule to him for a vote electronically. Lastly, the court found that Member Hayes' issuance of a dissenting statement months later did not cure the failure to have a proper quorum at the time of the vote.
The court recognized that the narrow procedural ruling might be "unsatisfying" to the NLRB as well as to employers and employees who may be affected by the new rule, and it emphasized that the ruling "need not necessarily spell the end of the final rule for all time." It concluded, however, that "as the final rule was promulgated without the requisite quorum and thus in excess of [the Board's] authority, it must be set aside."
As stated in our prior Executive Alerts, the so-called "Quickie Election" rule was enacted hastily before the term of one of President Barack Obama's recess appointments to the Board expired. In January 2012, President Obama made three new recess appointments to the Board to bring the Board to its full compliment of five members; however, the validity of those appointments remain an issue of contention (see January 5, 2012, Executive Alert). As a result, even if the current Board were to attempt to re-promulgate the new election rule, there remain a variety of procedural and substantive issues that may hold up the rule going into effect any time soon.
One can expect the Board to appeal the district court's decision and possibly seek a stay of the court's order pending the appeal. However, barring a stay or reversal, employers should be able to rely upon the court's decision to argue that elections should be conducted under the previous, less-streamlined election rules.
If you have any questions about the material or information contained in this alert, please contact any member of Baker Hostetler's Labor Relations Team.
Authorship Credit: Patrick M. Muldowney
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