NLRB Quickie Election Rules? Never Mind – For Now

A federal judge has now held the National Labor Relations Board’s regulatory attempt to speed up the procedure for union elections is void because the regulations were issued without a quorum of the Board participating. The new election regulations became effective on April 30, 2012, but the court’s decision states they are invalid and elections will continue under the prior election rules. In response to the decision, the Board temporarily suspended the new election rules.

In late 2011, as NLRB Member Becker’s recess appointment was nearing an end, Chairman Pearce and Member Becker pushed through regulations to amend representation election procedures. Among other things, the amendments limited the use of a pre-election hearing and also limited pre-election review of the results of a hearing. The intent of the regulatory amendments was to shorten the time from the filing of a representation petition to the election. The shortened timeframe for the election would provide an advantage to the union attempting to organize the employees and a disadvantage to the employer.

On December 16, 2011, the date that Chairman Pearce and Member Becker voted in favor of the quickie election regulations, the third member of the Board at that time, Member Hayes, did not participate. Chairman Pearce and Member Becker stated that Member Hayes had effectively indicated his opposition through his previous votes against initiating the rulemaking and against proceeding with the drafting and publication of the final rule. The final rule was published on December 22, 2011 with an effective date of April 30, 2012.

The U.S. Chamber of Commerce and the Coalition for a Democratic Workplace sued to challenge the new regulations. On May 14, 2012, the United States District Court in the District of Columbia held that Member Hayes’ nonparticipation meant that no quorum of the Board had considered the regulations and therefore the new election procedures were never properly adopted. By neither voting nor abstaining, Member Hayes could not be counted toward a quorum in the efforts by Chairman Pearce and Member Becker to rush to regulate.

This particular victory for employers may be short lived, but the controversies concerning the Board are far from over. The Board now has a full complement of five members (three are Democrats and two are Republicans, two have been confirmed by the Senate and three are recess appointments). The full Board could again consider the quickie election regulations and adopt them in the same form that Chairman Pearce and Member Becker previously approved or even with additional anti-employer amendments. However, the District Court of the District of Columbia did not consider many additional challenges posed to the regulations by the plaintiff employer associations. In other words, attempts by the Board to rectify its quorum issue on these regulations will likely be met with further litigation, including a possible challenge based on whether the three recess appointments are valid and whether the current Board has a quorum.

Spencer Fane will continue to monitor this issue and keep you posted.