As we previously reported, on December 22, 2011, the National Labor Relations Board (“NLRB”) announced a final rule (“the Rule”) which set forth various changes to its procedures for processing union representation cases. Most significantly, the Rule aimed to shorten the time period between the filing of a petition and the actual election, which was viewed as a “win” for Unions.
The Chamber of Commerce of the United States of America and the Coalition for a Democratic Workforce (collectively “Chamber of Commerce”) filed suit in the United States District Court for the District of Columbia, challenging the Rule on various legal theories. On May 14, 2012, federal judge James E. Boasberg ruled in the Chamber of Commerce’s favor and held that the Rule is invalid on procedural grounds. Chamber of Commerce v. NLRB, No. 11-cv-02262 (D.D.C. May 14, 2012). Specifically, Judge Boasberg found that a three-member quorum of the NLRB did not participate in the Rule’s vote, meaning the NLRB lacked authority to issue it: “Two members of the Board participated in the decision to adopt the final rule, and two is simply not enough.” Accordingly, Judge Boasberg did not reach the Chamber of Commerce’s substantive arguments. However, the Court wrote: “[I]t may well be that, had a quorum participated in its promulgation, the final rule would have been found perfectly lawful. As a result, nothing appears to prevent a properly constituted quorum of the Board from voting to adopt the rule if it has the desire to do so. In the meantime, though, representation elections will have to continue under the old procedures.” (Emphasis added).
On May 15, 2012, the NLRB announced that it “has temporarily suspended the implementation of changes to its representation case process, which had taken effect April 30.” The Acting General Counsel advised Regional Offices to “revert to their previous practices for election petitions starting today.”