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D.C. Circuit Puts the Kybosh on the NLRB’s Ambush Election Rule Quipping that "Eighty Percent of Life is Just Showing Up"

By: Kara M. Maciel and Elizabeth Bradley

The U.S. Court of Appeals for the D.C. Circuit is rapidly becoming the champion of employers in the fight against the National Labor Relations Board’s (the “Board”) attempt to implement radical new rules governing the workplace.

Last month, on April 17, 2012, the D.C. Circuit enjoined the implementation of the Board’s rule requiring that employers post a notice informing employees of their right to join or form a union. Yesterday, the D.C. Circuit struck another blow to the Board by holding that its proposed union election rules are invalid. The Court reasoned that the Board did not have authority to issue the rule because it lacked the required three-member quorum when it was enacted.

In its opening sentences, the Court’s decision aptly quipped, “According to Woody Allen, eighty percent of life is just showing up. When it comes to satisfying a quorum requirement, though, showing up is even more important than that. Indeed, it is the only thing that matters – even when the quorum is constituted electronically.”

Although the National Labor Relations Act provides that “three members of the Board shall . . . constitute a quorum,” the December 16, 2010 final rule revising union election procedures was only voted on by Chairman Pearce and Member Becker. Member Hayes did not vote; nor did he affirmatively abstain from voting. In its decision, the Court held that Member Hayes could not be counted toward the quorum requirement because he took no affirmative action in response to his receipt of the final rule. Because the final rule was not acted upon by three members of the Board, the quorum requirement was not met and the Court held that the rule is invalid.

The Court declined to address the other procedural and substantive challenges to the rule. While this decision does not prohibit the Board from properly constituting a quorum and voting on the proposed rule; for now, representation election will continue to proceed under the old procedures.

In response, earlier today, the NLRB suspended the implementation of changes to its election representation case process, which had taken effect April 30.  The Board also withdrew the guidance to regional offices issued prior to the effective date and advised regional directors to revert to their previous practices for election petitions starting today.  About 150 election petitions were filed under the new procedures. Many of those petitions resulted in election agreements, while several have gone to hearing.