The National Labor Relations Board’s new elections procedures have been a concern for many employers and, despite going into effect on April 30, 2012, have been the subject of an ongoing legal challenge. While the D.C. District Court refused to issue an injunction prior to April 30, 2012 to prevent the new rules from going into effect, the Court indicated a decision on the current legal challenge would be rendered before any representative elections using the new procedures could be conducted.
On May 14, 2012, Judge James E. Boasberg granted Summary Judgment in favor of the Chamber of Commerce of the United States of America and Coalition for a Democratic Workplace finding that the NLRB lacked the authority to issue the new election procedures that took effect on April 30, 2012. Finding that three members of the Board are required for a quorum and that Member Hayes failed to show up to the final vote, the D.C. District Court ruled that representative elections must proceed under the old procedures.
Although the Plaintiffs challenged the final rule on a various grounds, the Court relied upon their first contention: that the rule was adopted without the statutorily required quorum. The NLRB argued that all three members participated in the rulemaking in the relevant sense; thereby establishing the requisite quorum. The Court ultimately found that only two members of the Board participated in the decision to adopt the final rule, and “two is simply not enough.”
Additional challenges to actions taken by the Board are likely to continue with new challenges focused on President Obama’s use of recess appointments to name three new Board members. Employers should consult with their labor counsel to determine how the Court’s ruling and other NLRB actions will affect their individual circumstances.
By: Justin A. Morocco