As we previously reported in an earlier Obermayer Alert (http://www.obermayer.com/whatsnew.php?action=view&id=409), the National Labor Relation Board’s (“NLRB” or “Board”) “quickie election” rules became effective on April 30, 2012. Two weeks later, on May 14, 2012, the U.S. District Court for the District of Columbia declared the rules invalid. The Court held that the rules are invalid because, when passed, they were voted on by only two (2) of the three (3) then-serving Board members -- so there was no required quorum. As you may recall, the “quickie election” rules effectively expedite the union election process, which limits an employer’s opportunity to communicate with employees about the negative implications of union representation.
In rendering the decision, the Court instructed the NLRB to rescind the new rules and resume processing representation cases under the pre-existing rules. Following the Court’s direction, on May 15, 2012, Acting General Counsel Lafe Solomon instructed all NLRB Regional Offices to follow the pre-existing rules when processing representation cases. (https://www.nlrb.gov/news/nlrb-suspends-implementation-representation-case-amendments-based-court-ruling)
Although Acting General Counsel Solomon is complying with the Court’s directive, it is anticipated that the NLRB will appeal the decision to the U.S. Circuit Court of Appeals. There is also speculation that, since the NLRB now consists of five (5) members -- three (3) Democrats and two (2) Republicans -- it will simply convene a quorum and vote to adopt the rules changes. However, three (3) of the current Board members are “recess” appointments made by President Obama in January 2012, which were not required to be confirmed by Congress. The propriety of the President’s recess appointments is under attack from several groups. As such, any rules passed by the current Board may be questioned and ultimately invalidated via challenges to the constitutionality of those recess appointments.
For now, employers should be aware that the NLRB’s “quickie election” rules are not in effect but their status could change in the very near future. Stay tuned. In the meantime, for more information on how the “quickie election” rules could impact your business and what you should be doing to ensure that your company is prepared when/if the rules become effective, please contact our office.
The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.