The good news: A district court judge in Washington, D.C. has blocked the National Labor Relations Board’s new “quickie election” rules. The bad news: The reprieve is probably only temporary.
As you remember, the NLRB regs went into effect April 30.
The rules were designed to streamline the union election timeline by postponing arguments over voter-eligibility issues until after the balloting and included:
- new powers for hearing officers, including the ability to limit evidence presented at pre-election hearings and denying an employer’s request to submit a post-hearing brief
- a new prohibition on employers’ filing requests for Board review challenging a regional director’s decisions and directions until after an election is concluded
- the elimination of 25-day period between the issuance of a decision and direction of election by a regional director, and
- a clause allowing the Labor Board to refuse to review a regional director’s resolution of post-election disputes.
The quorum question
The D.C. case, which was brought by the U.S. Chamber of Commerce and a coalition of other labor groups, was decided on a technicality: whether or not the Labor Board had a legal quorum when the vote on final passage of the rules was held.
Federal law requires a quorum of at least three members to vote on final rules. At the time of the vote, the NLRB had three members — two Democrats and one Republican.
The lone Republican, Brian Hayes, had received the final rule via email. He had earlier voiced his opposition to the “streamlined” voting regs and didn’t formally cast a vote.
The NLRB argued that Hayes was technically present for the final vote because of his participation in two earlier decisions relating to the new rules, and his public announcement of opposition in the hearing.
The judge wasn’t buying it. “The NLRB’s suggestion that the quorum requirement was satisfied on the ground that three members held office when the rule was approved … contradicts [earlier rulings from] the Supreme Court as well as common practice (and common sense),” the judge wrote.
So for now, the rule’s suspended. But the court pointed out that had the rule been voted on by a proper quorum, it could be “found perfectly lawful.”
Plus, “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,” the judge wrote.
So what’s the bottom line? You’ve at least got some breathing room to review and refresh your employee relations programs to make sure you’re as prepared to deal with whatever union organizing efforts that may pop up.
The case is Chamber of Commerce of the U.S. et al. v. NLRB. To read the full decision, go here.