Easy Come, Easy Go: Court Invalidates New NLRB Election Rule

Easy Come, Easy Go: Court Invalidates New NLRB Election Rule

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.

The Opinion

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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