The Obama NLRB’s regulatory agenda continues to fare poorly in the federal courts. On the heels of court decisions staying the NLRB’s new “notice” requirement, see previous posts here, the United States District Court for the District of Columbia Circuit has just struck down the NLRB’s new rules designed to speed up union representation elections.
Employers and their representatives have been concerned about the Board’s new election rules since they were issued in September. See our previous posting here. Employers’ concerns were heightened when the Board’s Acting General Counsel issued a “Guidance Memorandum” directing the Board’s Regional Offices on how to implement the new rules. That Guidance Memorandum is available here. That Guidance Memorandum articulated several “best practices” that would further accelerate the election process.
In response to the new rules, the US Chamber of Commerce and other groups sued the Board, citing a number of substantive and procedural objections to the new rules. Judge James Boasberg (an Obama appointee) struck down the Board’s decision solely on procedural reasons: the absence of a quorum. Just two years ago, the United States Supreme Court had emphasized the importance of the Board having a minimum of three members to act. The court had emphasized in New Process Steel that the quorum requirement is not, under the Taft-Hartley Act, a mere “technical obstacle.” Ironically, concern about the then-impending loss of a quorum in December, 2011, caused the Board to rush its normal internal processes. Member Hayes had previously expressed his opposition to the proposed rules. When the final proposed rules were circulated among the three Board members, member Hayes did not participate – but the two member majority adopted the rules anyway. The District Court concluded that the Board thus acted without a quorum:
“According to Woody Allen, 80% of life is just showing up. When it comes to satisfying a quorum requirement, though, showing up is even more important than that.”
In the absence of a lawful quorum, the rules were not properly adopted, and therefore must be struck down. The judge expressly did not reach any of the substantive objections to the rules.
This will likely raise substantial uncertainty in the near term. The Board could attempt to readopt the rules with its current membership – but doing so would only be more controversial: any quorum relying on the President’s “recess” appointments to the Board (made at a time when the Senate was not in recess!) will be subject to further attack. It is also not clear what course Regional Offices will take as to elections that were being handled under the now-stricken rules or what effect will be given to the Acting General Counsel’s “Guidance Memorandum.”
Employers should stay tuned for further developments – and if you receive a union election petition you should call your Stoel Rives labor lawyer immediately!