March 16, 2018

New NLRB Rule Speeding Up Union Election Process is Suspended

In what is becoming a recurring theme, a federal court has once again put the brakes on a new National Labor Relations Board rule.  On April 17, 2012, the D.C. Circuit Court of Appeals prevented the NLRB from instituting its requirement that would have required most private sector employers to post a notice informing employees of their rights under the National Labor Relations Act.

This time, the United States District Court for the District of Columbia found that the NLRB lacked authority to issue a new rule that would amend the procedure for determining whether employees wanted to be represented by a labor union.  The new rule, which was published on December 22, 2011, and took effect on April 30, 2012, would result in most union elections taking place far more quickly than had previously been the case – reducing the period in some cases to only three weeks or less.

At the time the final rule was passed, the NLRB had three members (the NLRB is supposed to have five members, but that is an issue for another blog).  Two of the members voted in favor of the rule.  The third member, who had previously voted against initiating the rulemaking process and clearly would have voted against the final rule, did not vote or even show up.  Because the NLRB needed a quorum of three members to act, the Court concluded that the NLRB did not have authority to promulgate the new rule.  As stated by the Court: “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.”  The court’s opinion can be found here.

As a result of the Court’s decision, on May 15, 2012, the NLRB suspended the new rule.

Of course, the Court’s decision was not based on whether the rule itself is legal or desirable from a public policy perspective.  It was, as some would say, based on a technicality.  As such, the new rule is by no means dead and will likely be reinstated once the NLRB satisfies the quorum requirement.