A federal judge in Washington, D.C. ruled Monday that the National Labor Relations Board's ("NLRB" or "Board") controversial rule aimed at streamlining union elections is invalid because it was enacted without the required three-member quorum. (Chamber of Commerce v. NLRB, D.D.C., No. 11-cv-2262, 5/14/12). In ruling, U.S. District Judge James Boasberg stated that only "[t]wo members of the Board participated in the decision to adopt the final rule" that speeds up the pace of union representation elections and "two is simply not enough." The new rule went into effect April 30.
Since the Board's adoption of the new rule in December, business groups have vigorously challenged the rule claiming that it exceeded the Board's statutory authority, did not give employers enough time to counter union organizers and was contrary to the First and Fifth Amendments guaranteeing the rights to free speech and due process. In addition, business groups argued that by issuing a final rule on the signature of just two members, the Board's actions were "arbitrary, capricious, and an abuse of discretion."
At the time the change to the Board's representation case rules was approved, the five-member Board only had three members – two Democrats and one Republican. Federal law requires a quorum of at least three Board members to consider new rules. The two Democrat members of the Board used the NLRB's electronic case management system to cast final votes in support of the new rule. Brian Hayes, the lone Republican member, however, did not vote or take any action. Member Hayes had previously voiced his opposition to the election rule. Judge Boasberg found that because Member Hayes did not take any action he did not technically participate in a final vote on the rule and thus did not satisfy the strict requirements of federal law with regards to a quorum. Under the decision, the new rule is invalid and the old election rules still apply.
The court's decision is a positive one for employers and employees alike because it stops the Board from rushing the election process in a way that would be harmful to the ability of employees to have time to consider the question of unionization and employers' ability to communicate with them. That being said, Judge Boasberg's decision in Chamber of Commerce v. NLRB focuses only on a technical problem. Judge Boasberg did not address the merits of the rule and, in fact, he specifically stated that the NLRB could simply take a new vote to approve it. While employers can breathe a sigh of relief for the time being, we likely have not seen the last of the Board's "quickie" election rule.
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