Federal Judge Invalidates NLRB Union Election Rule

At our Annual Employment Law Seminar, we discussed the NLRB’s adoption of its so-called “quickie-election” rules, which were adopted in December 2011, following the Obama Administration’s failure to obtain passage of the “Employee Free Choice Act,” a statute designed to promote union organizing by providing for fast elections when a union files a petition for certification.

The new administrative rules are designed to speed the election process. While they are not as draconian as the proposed Employee Free Choice Act, they were intended to, and would have, cut the time from the filing of a petition to an election in half. So-called “quickie elections” favor unions because they limit the time an employer has to respond to union propaganda about the alleged benefit to employees from joining a union.

On Monday, May 14, 2012, a federal judge ruled in favor of the U.S. Chamber of Commerce’s request that the quickie elections rules be invalidated. Although a number of issues were raised in the case concerning the NLRB’s rule making power, the court ruled only on the question of whether a quorum was present when the Board adopted the rules.

The quorum issue is more complex that would appear on its face. The Board sometimes acts through “electronic” proceedings. One Board member, Brian Hayes, the Board’s sole Republican, did not take part in the December 16, 2011 NLRB electronic vote to adopt the final rule. Hayes only had a matter of hours to vote on the rule since it was posted for final action on the day it was adopted. The court ruled that since Hayes did not affirmatively take a position on the proposed rules, nor indicate that he was abstaining, there was no indication that he participated in the decision. Without his participation, the Board lacked the required quorum.

In response to the decision issued, the NLRB has suspended the implementation of the rule changes. NLRB chairman, Mark Gaston Pearce, said the Board is reviewing the Court decision but is “determined” to move forward with the rule changes adopting the “quickie election” process. In a related development, acting General Counsel, Lafe Solomon, withdrew the guidance to regional offices he issued concerning the new election procedures. As a result, the Regional offices will follow the election process and practices prior to the revised rules until further notice. Up to 150 election petitions are affected by the suspension of the quickie election rules.

Surely, this is not the end of the story. We’ll keep you posted as the law continues to evolve.

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