On May 14, 2012, the U.S. District Court for the District of Columbia invalidated a National Labor Relations Board (NLRB) rule which dramatically changed the procedures for determining whether a majority of employees wish to be represented by a labor organization for purposes of collective bargaining. The court, in an opinion by District Judge James E. Boasberg, voided the rule because it was adopted without the statutorily required quorum of NLRB members.

The rule, which went into effect on April 30 of this year, was designed to speed up the union election process. Conventional wisdom is that quicker elections favor unions, as they are able to campaign in secret for weeks or even months before an employer is aware that an effort to unionize is underway. The new rule substantially reduced the ability of an employer to raise legal challenges pre-election and eliminated certain other time periods, thus making it possible for an election to be held within two weeks after an election petition is filed — a significant reduction from the previous target of 42 days after the filing of such a petition.

The court did not address challenges to the substance of the rule. Rather, it held that because NLRB Board Member Brian Hayes did not participate in the decision on December 16, 2011, to adopt the final rule, the NLRB did not have the required quorum of three members in order to act. On December 16, 2011, only Chairman Mark Pearce and Member Craig Becker participated in the adoption of the rule, and being only two members of a five-member Board, they lacked the authority to effect promulgation of the rule. The court rejected an argument by the NLRB that because Member Hayes’s participation in earlier decisions relating to the drafting of the rule meant that he could be counted towards the quorum requirement; the court found that Hayes’ prior dissents on procedural issues and his previous expression of intent to dissent from the enactment of the rule were not dispositive, as the critical event was the adoption of the final rule on December 16, 2011 — an event in which Hayes did not participate in any capacity.

In the likely event the NLRB chooses to appeal Judge Boasberg’s decision, such an appeal would be heard in the U.S. Court of Appeals for the District of Columbia Circuit. The D.C. Circuit has eight active judges, five of whom were appointed by Republican presidents, with the other three being appointed by President Clinton. Of the five senior judges on the D.C. Circuit, four were appointed by Republican presidents. There are currently three vacancies on the court for which no nominations have been submitted. The D.C. Circuit is no stranger to issues involving actions argued to have been taken without a quorum of the NLRB — it is currently hearing appeals in another case, Noel Canning v. NLRB, Case Nos. 12-1115 and 12-1153, in which Noel Canning is appealing a February 8, 2012, decision of the NLRB, contending that the NLRB lacked a quorum to adjudicate its case because three of its five members were appointed without the advice and consent of the Senate during a time which there was no agreement as to whether the Senate was in recess.

This is a situation that is in flux and may ultimately not be resolved until the U.S. Supreme Court weighs in on the issue. For continuing analysis of the proceedings involving this issue or any other issues involving the NLRB, please contact:

• Sean Beiter (716.566.5409; sbeiter@goldbergsegalla.com)
• Or another member of Goldberg Segalla’s Labor and Employment Practice Group