The National Labor Relations Board’s recent attempt to change its union election rules has been halted by a federal district court in Washington, D.C. The Court ruled that the attempted changes were not valid because the vote to approve the rules occurred when the Board did not have a quorum (Chamber of Commerce v. NLRB, D.D.C., No. 11-cv-2262, 5/14/12).
Interestingly, the decision hinged on what is sufficient “participation” in an electronic vote to satisfy quorum requirements. Board member Brian E. Hayes did not vote or take any action in the December 16, 2011 electronic vote. Is that like being present but abstaining, and thus counting toward a quorum? No, said the Court. Hayes was only sent the notification calling for a vote; he did not vote or even abstain. His silence was as if he was not in attendance at an in-person meeting, and thus, no quorum was present for the election rules to have been properly adopted.
Employers should note:
- The “old” election rules remain in effect;
- But, Board agents and hearing officers can still push to limit issues for hearing and tightening timelines between a petition’s filing and the scheduled election;
- The Board likely will attempt to cure these procedural deficiencies, but there will be more “political discourse” over these issues; and
- The Court noted that a “valid quorum” of the Board could still adopt the same rule but the Court did not answer the other pressing legal questions about what constitutes a “valid quorum” especially in light of President Obama’s recent appointments.