NLRB’s “Quickie Election” Rule Struck Down by District Court

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May 16, 2012

On Monday, May 14, 2012, the United States District Court for the District of Columbia struck down the National Labor Relations Board’s published rule implementing “quickie elections.” As we discussed in January (blog post link), the “quickie election” provisions were designed to make union avoidance a more challenging proposition for private-sector employers. The recent decision comes as a welcome sign for employers.
On December 22, 2011, the National Labor Relations Board published a rule that amended the procedures for determining whether a majority of employees wish to be represented by a labor organization for purposes of collective bargaining. Two of the Board’ s three members voted in favor of adopting the rule. The third member did not vote, however, the Board determined that because he had previously voted against the rule and against proceeding with the drafting and publication of the rule, he effectively indicated his opposition.
The Chamber of Commerce of the United States of America and the Coalition for a Democratic Workforce challenged the final rule on a number of grounds, but most importantly, that the rule was adopted without the statutorily required quorum. The Board argued that it reached its quorum because all three members “participated in the rulemaking in the relevant sense.”
The Court ruled that two members of the Board participated in the decision to adopt the final rule, and that two members is simply not enough to reach the requisite quorum. Member Hayes, who did not vote, could not be counted toward the quorum simply because he held office and he participated in earlier discussions relating to the rule. The Court ruled that while each member need not necessarily vote, each member must be present at the vote to reach the required quorum. The decision turns on somewhat of a technicality, however, it can be viewed in the broad spectrum as the federal court system keeping the NLRB, currently known as an aggressive administrative body, in check with regards to its rulemaking powers. Nothing in the recent decision prevents a properly constituted quorum of the Board from voting to adopt the rule in the future. If you have questions regarding the above, please contact any of the attorneys in the Employment, Benefits & Labor Relations Practice Group of Ruder Ware.

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