The National Labor Relations Board is not having much luck in court lately. Less than a month after a federal court blocked implementation of the NLRB’s mandatory workplace posting rule, Judge James E. Boasberg (an Obama appointee) of the United States District Court for the District of Columbia ruled that the “quickie elections” rule is invalid because it was promulgated without a quorum of NLRB members.
The Chamber of Commerce v. NLRB Decision
In most situations, the NLRB must have a quorum of three members in order to act. The touchstone of this requirement is that the three members must be present. Two members cannot unanimously issue a rule without the presence of a third member, even though a 2-1 vote would be valid. Even if the third member abstains, the rule is valid. It is only if the third member simply is not there, that the NLRB lacks authority to act. NLRB member Brian Hayes participated in and opposed the quickie elections rule, but he did not participate in the voting on the final rule, which took place electronically. The court held that Hayes was not “present” for the final vote. Therefore, there was no quorum and the rule is automatically invalid. The court did not consider the substantive challenges to the rule.
What This Means for Employers
The quickie elections rule substantially shortened the timeframe between when a union files a recognition petition and when an election is held. The result was that unions could ambush employers and have an election before the employer could express its views to employees. With the rule in abeyance, the regular timelines apply.
Because the court did not rule on the substantive challenges, the NLRB can vote on the rule again, this time with a quorum. If this happens, the rule will likely be challenged again and a court will have to decide whether the substance of the rule is valid.
The NLRB has been extremely active lately, particularly with regard to non-unionized employers. While the posting requirement and the quickie election rules are now on hold, employers must be aware of the NLRB’s recent interest in social media policies and related discipline. If the NLRB suffers more blows in the rulemaking process, it may choose to focus its attention on enforcement instead, taking the lead of the Obama administration!
Brody and Associates regularly advises its clients on union-related matters and provides union-free training. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.
