Call us: (414) 276-2850
NLRB’S QUICKIE ELECTION RULE FOUND INVALID
In a previous post, we discussed the NLRB pushing ahead on the “Quickie Election” rule, despite protests and opposition of Board member Brian Hayes. At the November 30, 2012 public meeting and voting for the final rule Hayes did not participate in the vote. The other two members voted to approve the rule and as such on December 22, 2011, the NLRB published the Quickie Election rule.
To recap, the Quickie Election rule decreased the amount of time between when a petition for recognition is filed by a union and when the election is held. As such, critics of the rule found that elections would be held before the employer had an opportunity to address its views on the unionization of the workforce to its employees.
A lawsuit was filed by the United States Chamber of Commerce, alleging, among other arguments, that because Hayes was not present for the final vote, there was no quorum, and as such the rule was invalid. A quorum of three members is required for the NLRB to act. Thus even though the anticipated 2-1 vote in favor of the rule would have been valid, the United States District Court for the District of Columbia ruled by there not being a third member present for the vote, the rule was promulgated improperly and as such is invalid. The court did not consider any of the substantive challenges to the rule in issuing its decision.
The NLRB can vote again on the rule with a quorum of all of its members, and with an anticipated 2-1 vote, the rule will be again promulgated and then subject to presumably the same substantive challenges.
In the meantime, the NLRB has suspended the new process it had implemented just 15 days prior, on April 30, 2012, for handling the representation process. In the fifteen days that the new process had been in place 150 unions had filed election petitions; these petitions will now need to be re-implemented under the former procedure, unless the parties involved consent to moving forward under the process implemented as of April 30th.
The NLRB states that it is considering a response to the District Court decision and remains in favor of seeing the new process into implementation, as it believes it is an improvement from the former (now reinstated) process.