The National Labor Relations Board “quickie election” rule that went into effect on April 30, 2012, is invalid because only two members of the Board, instead of the three needed to make up a Board quorum, participated in the final vote to pass it, a federal district court has ruled. Chamber of Commerce v. NLRB, No. 11-2262 (D. D.C. May 14, 2012). The rule, which the Board rushed to finalize at the end of 2011 (before losing one of its then-three remaining members), eliminates certain pre-election rights of employees and employers, shortening the time before a representation election takes place.
The U.S. Supreme Court decided in New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635 (2010), that a three-member quorum of the Board “must participate for the valid transaction of business.” Moreover, the Supreme Court cautioned, a member may not be counted toward a quorum simply because he or she holds office.
The District Court determined that when the election rule actually was adopted on December 16, 2011, only two members (Chairman Mark G. Pearce and former Member Craig Becker) participated, voting electronically through the agency’s Judicial Case Management System to adopt the rule. District Court Judge James E. Boasberg found that one member (Member Brian Hayes) did not respond to the Board’s electronic invitation. Hayes explained in an affidavit that he thought nothing further was required of him; he had already signaled at an earlier meeting his disagreement with the rulemaking and his intention to issue a dissenting opinion to the final rule at a later date. Therefore, “his failure to be present or participate [in the final electronic vote] means that only two members voted…,” Judge Boasberg explained, which did not satisfy the quorum requirement “for the valid transaction of business.”
Judge Boasberg emphasized that his decision does not “necessarily spell the end of the final rule for all time.” Even though he did not reach the “other procedural and substantive challenges to the rule,” he continued, “it may well be that, had a quorum participated in its promulgation, the final rule would have been found perfectly lawful.”
The Board has not yet commented on the court’s decision, but the agency is likely to comply pending any appeal. As Judge Boasberg suggested, however, the Board can re-issue the rule by voting on it now. In all likelihood, a new vote on the rule will not end the controversy. Renewed legal challenges almost certainly will follow such a re-issuance.
We will keep you apprised of further developments on the election rule. If you have any questions, please feel free to contact the Jackson Lewis attorney with whom you work.
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