Hunton Employment & Labor Perspectives

Late yesterday afternoon, Judge James Boasberg of the U.S. District Court for the District of Columbia struck down the National Labor Relations Board's recently passed "quickie" election rule. The Board's rule, published in December 2011 and purportedly effective as of April 30, 2012, amended election case procedures to significantly reduce the time between the filing of a union election petition and the holding of a representation election.

In striking down the rule, Judge Boasberg held that the Board failed to obtain a proper quorum of at least three Board Members when it "passed" its rule in December 2011.  During the final rulemaking process, Democratic Members Becker and Pearce voted in favor of the rule.  The lone Republican member at the time, Brian Hayes, never voted on the final rule.  Judge Boasberg ruled that Hayes' mere involvement in the rulemaking process -- during which he adamantly protested the proposed rule and voted against several draft versions that later were revised -- was not enough to count Hayes for purposes of finding a quorum. 
 
The Court's decision may prove to be a hollow victory for the employer community.  Judge Boasberg's analysis is highly technical.  He did not address the Board's ultimate authority to pass rules amending the representation election process in the first place.  Tellingly, however, he noted that the Board may indeed have the authority to pass its "quickie" election rule provided it musters a legally recognized quorum the next time around: "The Court does not reach -- and expresses no opinion on -- Plaintiffs' other procedural and substantive challenges to the rule, but it may well be that, had a quorum participated in its promulgation, the final rule would have been found perfectly lawful.  As a result, nothing appears to prevent a properly constituted quorum of the Board from voting to adopt the rule if it has the desire to do so."
 
With a full panel of five Members, three of whom are Democrats, the Board may well revisit its "quickie election" rule and pass it again, even if both Republican members refuse to vote.  While the employer community likely would challenge that action on the grounds that at least three of the current Board members were not properly appointed, the rule is far from dead yet.  Moreover, many of the Acting General Counsel's new election guidelines, which he detailed in a May 2012 memorandum to the Board's Regional Directors, do not necessarily depend upon the validity of the rule itself.  Thus, if the Board is inclined to speed up the union election process, it can probably do so even without the rule.  Accordingly, employers that have begun preparing for a new world of "quickie" union elections should not alter or abandon that preparation. 

Those that have not should still consider making such preparations.  We will continue to monitor this litigation and opine on its implications for the employer community as new developments emerge.