NLRB Union Election Rule Held Invalid

May 15, 2012

On Monday, May 14, the U.S. District Court for the District of Columbia held that the NLRB union elections rule that took effect April 30 is invalid because it was adopted without the statutorily required quorum. The lawsuit challenging the rule was filed by the Coalition for a Democratic Workplace (CDW) and the U.S. Chamber of Commerce. NSBA is a member of the CDW.

Only two members of the five member board were present at the meeting when the rule was adopted, which was the basis of the court’s decision.

Per the Court decision:

“According to Woody Allen, eighty percent of life is just showing up. When it comes to satisfying a quorum requirement, though, showing up is even more important than that. Indeed, it is the only thing that matters – even when the quorum is constituted electronically. In this case, because no quorum ever existed for the pivotal vote in question, the Court must hold that the challenged rule is invalid.”

The NLRB may adopt the rule again if a quorum is present. President Barack Obama recently made three recess appointments to the NLRB, the legality of which also is being challenged since the Senate was arguably in session. It is not clear whether the NLRB will appeal the District Court decision or simply re-adopt the rule with a quorum made up from the new, contested appointees.

In response to the District Court decision, the NLRB on Tuesday temporarily suspended the implementation of changes to its representation case process, which had taken effect April 30.

Board Chairman Mark Gaston Pearce said the Board is reviewing the court decision and considering its response. “We continue to believe that the amendments represent a significant improvement in our process and serve the public interest by eliminating unnecessary litigation,” he said. “We are determined to move forward.”

Please click here to read the full ruling.