Federal Court Strikes Down NLRB Election Rule Changes

On May 14, 2012, a federal district court in Washington D.C. struck down the National Labor Relations Board’s recently adopted election rule changes. These changes were designed to shorten the period of time from the filing of the election petition until the actual vote is held, thereby making it easier for unions to win elections and more difficult for employers to communicate with employees prior to the vote. The reforms took effect on April 30, 2012.

The judge based his ruling on a technicality, saying the NLRB failed to assemble a quorum when it approved the reforms last year. Acting on a challenge to the rule brought by U.S. Chamber of Commerce, the judge said that because only two of the three board members voted on the final rule, the Board lacked the three-member quorum required for action. For this reason, the judge ruled that “representation elections will have to continue under the old procedures.”

The court did not reach any of the other substantive challenges argued in the case, and said “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.” 

Responding to the decision, the Board said it will “temporarily” suspend implementation of the rule and the acting general counsel withdrew guidance on the new rule and instructed offices to follow the old election rules for now. But Chairman Mark Gaston said “[w]e are determined to move forward.” 

This ruling brings to the forefront another legal challenge faced by the Board, namely the constitutionality of President Obama’s recess Board appointments. For this reason it may be some time before the Board is able to hold another vote on its changes to the election procedure.