A federal judge in the Washington D.C. circuit issued an order yesterday finding that the National Labor Relations Board (NLRB) lacked the necessary quorum when it voted to pass its new Quickie Election Rule. The court's order was filed in response to a motion for summary judgment filed in a lawsuit against the NLRB by the United States Chamber of Commerce and the Coalition for a Democratic Workforce. Prior to the Final Rule, which drastically shortens the time period that employers have to prepare for an election deciding union representation at its workplace, all three then-acting members of the Board voted on the proposed amendments to the election procedures, which resulted in a consistent 2-1 passage of the amendments.
In voting on the Final Rule, however, Member Brian Hayes was not present and therefore did not cast a vote, and the other two members sent the Final Rule to be published after casting their two votes in favor of the Rule. The court found that "two is simply not enough" to satisfy the Board's three-member quorum requirement for voting, even though the lone dissenting Member had voted consistently prior to the Final Rule's vote. The NLRB passed a Final Rule amending its representation election procedures on December 16, 2011, which became effective on April 30, 2012. While the D.C. court's ruling will likely be challenged on appeal, the judge further stated that because the Board amended its rules in an unlawful manner, "representation elections will have to continue under the old procedures."