In May 2012 a federal district
court held the new NLRB election rule to be invalid because the Board lacked a
quorum when it purported to adopt it. Although the Board has temporarily
suspended the implementation of the rule, which had gone into effect on April
30, 2012, the future implications of the court's decision are unclear. This EIA
includes analysis of the court's decision and discussion of what may lie ahead.
On May 14, 2012, the United
States District Court for the District of Columbia, Judge James E. Boasberg,
held that the National Labor Relations Board's new rule ("Rule"),
modifying the procedures used by the Board to process petitions seeking to
resolve questions concerning representation, is invalid. The court's conclusion
hinged on its finding that only two of the Board's three members participated
in the decision to adopt the Rule and that the Board, therefore, lacked a
quorum at the time it purported to adopt the Rule. This Emerging Issue Analysis
traces the route used by the court to reach its conclusion.
Crucial to the court's decision are the events of December 14, 15 and 16, 2011.
Prior to December 14, changing drafts of the Rule had been circulated to the
Board, which, at the time, consisted of three members, Chairman Pearce and
Members Becker and Hayes. On December 14, Chairman Pearce e-mailed a draft
Order, which directed the Board's Solicitor to publish the final rule in the
Federal Register "immediately upon approval of a final rule by a majority
of the Board." The Order provided that any concurring or dissenting
statements would be published in the Federal Register after the publication of
the final rule itself, and it also stated that the Order would "constitute
the final action of the Board in this matter." All three members voted on
this procedural Order by email, with Chairman Pearce and Member Becker voting
in its favor and Member Hayes voting against.
On December 15, Chairman Pearce circulated a modified, but not yet final, draft
of the Rule to the Board members via the Board's internal Judicial Case
Management System ("JCMS"). Later that day, Chairman Pearce's Chief
Counsel e-mailed Member Hayes' Chief Counsel asking whether Hayes wished to
include a dissenting statement in the final rule. Later that day, Hayes
"authorized [his] Chief Counsel to advise that [he] would not attach any
statement to the Final Rule" so long as, consistent with the Board's
Order, he would be able to add a dissent later on.
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