As previously discussed on the Employment Law Alert, the National Labor Relations Board (the “Board” or the “NLRB”) recently implemented a rule that could speed up the union election process and, in turn, leave employers with less time to communicate their positions on unions to employees. Yesterday, the United States District Court for the District of Columbia declared the rule invalid because only two Board members were “present” when the NLRB passed the rule last December. The Court explained that the Board did not satisfy the National Labor Relations Act’s requirement that the NLRB have a quorum (typically the presence of three Board members) to conduct business when it voted on the rule. “According to Woody Allen, eight percent of life is just showing up,” wrote the Court. “When it comes to satisfying a quorum requirement, though, showing up is even more important than that.”
The Board was comprised of three members when it voted on the final rule, but one of the three Board members, Brian Hayes, took no action whatsoever regarding the adoption of the final rule. The Court noted that Member Hayes merely received electronic notification that the final rule had been circulated for a vote. It did not find his earlier votes against prior versions of the rule and a vote regarding a procedural issue surrounding the final rule sufficient to constitute his presence at the vote on the final rule.
Significantly, the Court did not opine on the legality of the substance of the rule. We must wait to see whether the current Board will try to adopt the rule, and, if so, whether the rule will survive additional legal challenges. In addition to challenges to the rule’s substance, business groups may challenge the current Board's authority to adopt the rule in the first place. On January 4, 2012, President Obama appointed three new members to the Board as "recess" appointments, but it is not clear that the Senate actually was on recess at the time. There, of course, remains the possibility that the Board will appeal the Court’s ruling as well. We will keep you posted.
Employers potentially subject to union organizing should speak with a lawyer in Gibbons Employment & Labor Law Department about measures they can take to insulate themselves from unionization, and minimize the chances that their workers look outside their organizations to resolve workplace issues.
James J. La Rocca is an Associate in the Gibbons Employment & Labor Law Department.