On May 14, 2012, a federal court struck down the National Labor Relations Board’s new election rules because the NLRB issued the final rules without a participating quorum. This decision is a major setback to the NLRB’s effort to make it easier for unions to win elections.
The NLRB’s proposed new election rules are summarized here. On December 16, 2011, the NLRB tried to finalize some of these new rules, including rules that would have significantly altered how the NLRB processes union election petitions. The new rules were designed to speed up elections. Unions control when a petition for election is filed and will only file the petition when they have a substantial advantage. Faster union elections maximize the unions’ advantage by preventing employers from communicating the many disadvantages of unions to their employees in time to affect the election.
The NLRB needs three members to have a quorum. The NLRB had three members on December 16. The NLRB tried to finalize the new election rules through a December 16 electronic vote. Two members voted to finalize the new rules, but the third member took no action (either for or against the new rules). The NLRB published the final rules on December 16 without waiting for the third member to vote or confirming that the third member was abstaining.
The court found that although the NLRB had a quorum of three members, the December 16 vote to finalize the new rules was invalid because all three members did not participate in the vote. The court emphasized that it was not ruling on the merits of the new rules and that the NLRB could readopt the rules after fixing the quorum problem. But the NLRB may not currently have a quorum as there are court challenges attacking three recent recess appointments to the NLRB. If these recess appointments are struck down, the NLRB would only have two members.
The NLRB will almost certainly appeal the court’s decision. In the meantime, employers facing union election petitions should insist that the petitions be processed under the old rules. We will pass on further developments.