The National Labor Relations Board’s (NLRB or Board) new rule revising election procedures in union representation cases is invalid, the U.S. District Court for the District of Columbia ruled May 14. The rule, often called the “quickie election” or “ambush election” rule because it expedites the election process to unions’ advantage, took effect on April 30. The Board has suspended implementation of the rule and is expected to revert back to procedures in effect before April 30.
The U.S. Chamber of Commerce and the Coalition for a Democratic Workplace (CDW), both of which AGC is a member, brought the lawsuit challenging the rule on several procedural and substantive counts. The court ruled on only one of those counts, finding that the Board lacked the necessary quorum when it voted to adopt the final rule. At the time, in December 2011, three members sat on the five-member Board: Chairman Mark Pearce (D), Craig Becker (D), and Brian Hayes (R). All three participated in earlier stages of the rulemaking process, including a Nov. 30 vote on a resolution to adopt a final rule addressing certain aspects of the proposed rule that did not specify the exact language of the final rule. The vote was two to one, with Hayes voting against proceeding with the rule. After, drafts of the rule were circulated to all Board members. On Dec. 14, all three members voted on a procedural order related to publication of the rule, again with Hayes being the sole dissent. A final draft of the rule was circulated on Dec. 16. Pearce and Becker voted to adopt the rule. Hayes did not vote and was not asked to record a final vote. He later stated that he did not think that any further action was required of him. Apparently, neither did Pearce, as the final draft was submitted for publication in the Federal Register as a final rule that same day, with the preamble noting that Hayes had “effectively indicated his opposition” in the Nov. 30 and Dec. 14 votes.
The National Labor Relations Act provides that three members of the Board constitutes a quorum, and it was undisputed in the case that this quorum requirement applies to rulemaking. The issue was whether Hayes should be counted toward establishing the quorum here. The NLRB claimed that Hayes should be counted because of his participation in the Nov. 30 and Dec. 14 votes and because he was sufficiently “present” for the Dec. 16 final vote. The court disagreed, stating:
The Dec. 16 decision to adopt the final rule, not the earlier votes, was the relevant agency action. A quorum, accordingly, must have participated in that decision. And although Hayes need not have voted in order to be counted toward the quorum, he may not be counted merely because he was a member of the Board at the time the rule was adopted. More was required.
The court discussed what level of “participation” – short of voting – is required to be counted in a quorum. Had Hayes “affirmatively expressed his intent to abstain or even acknowledged receipt of the notification,” or had “someone reached out to him to ask for a response…or had a substantial amount of time passed following the rule’s circulation,” it might have been sufficient. “But none of that happened here,” stated the court. Nor does it matter that Hayes issued a dissenting statement months later.
The court emphasized that its decision “need not necessarily spell the end of the final rule for all time.” The court did not address the plaintiffs’ other procedural and substantive challenges to the rule, and explicitly commented that, had there been a proper quorum, the final rule might have been found to be lawful. The court also acknowledged that a properly constituted quorum of the Board could vote now to adopt the rule.
It remains to be seen whether the Board – which presently has five members (three democrats and two republicans) – will indeed hold a new vote on the rule. However, this would likely spur new legal challenges, since the recess appointments of three current members are arguably invalid and already being challenged in separate litigation. It also remains to be seen whether the Board will appeal the present decision. Such an appeal seems likely, particularly given a recent statement by Pearce that the agency is “determined to move forward” in its efforts to revise representation-case procedures. As the court noted, “In the meantime, though, representation elections will have to continue under the old procedures.”
This case represents a significant victory for AGC-supported CDW and is the second big victory against the NLRB in a month. CDW and co-plaintiffs persuaded the U.S. Court of Appeals for the District of Columbia Circuit to issue an order on April 18 enjoining a rule issued by the Board to require employers to post certain notices of employee rights under the National Labor Relations Act.
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