News & Publications

Not So Fast—National Labor Relations Board's Quickie Election Rules Continue to Be Blocked by Federal Court

Submitted By Firm: Miller Nash LLP

Contact(s): Michael Porter, Susan Stahlfeld

Author(s):

Wayne Landsverk

Date Published: 8/23/2012

Article Type: Legal Update

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We reported in May that the National Labor Relations Board's "quickie" or "ambush" election rules were declared invalid by a federal district court because the Board did not have a quorum at the time the rules were adopted. (Click here to read our May 18, 2012 News You Can You Use article.) If the changes contained in the rules had gone into effect, they would have drastically reduced the time for employers to react to union election petitions and for employees to get "the rest of the story."  Much to employers' relief, the Federal District Court for the District of Columbia held that three members of the Board must participate in a vote to adopt a rule. Since Board member Brian Hayes was not present and did not participate in the vote, the court held that the rule had been improperly adopted.

After the court's ruling in May, the Board's Acting General Counsel filed a motion essentially asking the court to change its mind. The Acting General Counsel's argument was that the missing Board member was not missing at all—the Board claimed that he was "virtually" present in the Board's "electronic voting room" and actively voted on other matters that day. The federal district court was not persuaded and denied the Acting General Counsel's motion. Among the choice comments in the court's opinion are the following:

"[T]he Board has neither adequately explained why it could not have presented this evidence at the summary-judgment stage nor established that the Court's contrary finding was ̔clear error.̕  As a result, the Court will deny [the Board's] Motion.

* * *

    "But where was this evidence and corresponding argument at summary judgment time?  The newly presented facts about the electronic voting room were not previously unavailable. [The Board] simply chose not to include them. [Emphasis in original.] * * *

* * *

    "In the end, the NLRB has offered too little, too late. * * *As the Court has previously stated, ‘[N]othing appears to prevent a properly constituted quorum of the Board from voting to adopt the rule if it has the desire to do so.’  [Citation omitted.]  Until then, the Court cannot reinstate a rule that was promulgated without the requisite quorum and, accordingly, in excess of the agency's congressionally delegated power."

The federal district court's decision is narrow. It does not hold that the Board lacks the authority to shorten the time between a union petition and the election date. It holds only that this particular rule was improperly adopted. The Board could conceivably adopt the same rule—or even a different rule with a shorter time period—at any time with a proper quorum. In the months before national elections, however, it may not be politically palatable to enact rules that are unfriendly to important business interests.

Regardless of whether the Board shortens the election time frame, there is no denying that union organizing activity is on the rise and unions are currently winning some 70 percent of elections. Employers need to determine what their strategy and approach will be if they find themselves targeted by a union organizing campaign.

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