On Monday, a federal judge in Washington, D.C. blocked the
National Labor Relations Board's controversial new rules
concerning the union representation election process that had gone
into effect at the end of April 2012. The judge held that the Board
lacked the necessary quorum to act when two of its members voted to
pass the rules in December 2011. Absent the statutorily required
three-member quorum, the rules are invalid.
The blocked rules had provided for a shorter time period between
when the Board orders an election and the election date, thus
limiting the time period during which an employer can state its
case against a union. Employers had expressed concern that this
shorter election period would provide insufficient time for
employers to respond to union organization campaigns and
effectively communicate to employees. Click
here for a link to our prior alert explaining these now invalid
The decision invalidating the rules addressed only the
Board's lack of a quorum. The rules had been passed during a
time in which the Board had only three, rather than the usual five,
sitting members. Two of those three members supported adoption of
the election rules and so voted in December 2011. The third member,
Member Hayes, had made his opposition to the rules known throughout
the rulemaking process in 2011. When it came time to vote on the
final rule, however, Member Hayes did not cast a vote via the
electronic voting mechanism the Board employed. The Board argued
that Member Hayes' conduct in opposing the rule throughout the
rulemaking process as well as the fact that he received an
electronic notification requesting that he vote on the final rule
amounted to "participation" in the final adoption of the
rule, notwithstanding the fact that he did not actually cast an
electronic vote. The court concluded that Member Hayes had not
"participated" in the final decision to adopt the rule.
The court noted that he need not actually cast a vote –
in fact he could have abstained from the vote – but that
he needed to have "shown up", at least in a figurative
sense. In other words, Member Hayes needed to have done something
in response to the electronic invitation to vote. The absence of
any action on his part meant that he did not
"participate" in the final vote and the Board lacked a
quorum to act.
The decision is good news for employers, but it is likely not
the end of the story. The business groups that filed the lawsuit
had also challenged the rules on substantive grounds, arguing that
regardless of whether the Board had the necessary quorum, the rules
are unlawful. The court did not reach the merits of those
arguments. Instead, the court noted that there was nothing
preventing the Board, which now contains 5 members, from again
voting to adopt the rules. If the Board does so, we can expect
further challenges to the legality of the rules. In addition, the
Board may appeal this decision invalidating the rules. For now,
representation elections will continue under the old
While this decision offers employers a temporary reprieve from
the threat of stealth organizing campaigns and snap elections, it
is not a reason to be any less vigilant about signs of union
activity. If you have any questions, or think your organization
would benefit from training on how to prevent union organizing in
your workplace, please contact one of our attorneys.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Sylvia Dahlby, a "purveyor of talent acquisition, staffing management and recruiting business solutions" in Hawaii, commented below on our posts about "lookism," beauty bias, appearance bias, and obesity.