NLRB “Quickie” Elections?—Not So Fast!

In late December, 2011, the National Labor Relations Board (NLRB) issued its so-called “Quickie” or “Ambush” Elections Rules, which modified the union representation election process in several respects. Under the new “quickie” elections rules, union representation elections were scheduled to occur much more quickly, employers had fewer opportunities to challenge issues raised in the election process, and in general, the entire election process was modified to speed up union elections and limit the employer opportunities to meaningfully participate in that process. The new union election rules were implemented and took effect on April 30, 2012.

On May 14, 2012, United States District Court Judge James Boasberg, of the United States District Court for the District of Columbia, ruled the NLRB did not have the authority to issue or adopt the new union election rules. (Chamber of Commerce of the United States of America and Coalition For A Democratic Workplace v National Labor Relations Board, Civil Action No. 11-2262 (JEB)).

The Court found that while two of the NLRB’s three members voted in favor of adopting the final rule, the third member of the Board, Brian Hayes, did not cast a vote. The Court held that the Rule was adopted without the statutorily required quorum. The Court found that the NLRB must take action through a quorum of three members in order to act, and due to the fact that Member Hayes did not participate in the decision to adopt the final rule, the other two members of the Board lacked the authority to effect the promulgation of the new process. The Court solely based its decision on the fact that the Board lacked the property authority to issue the rules in the manner it did.

Thus, the Court’s decision does not address what action the NLRB might take going forward with respect to modifying the union election process. For now, the NLRB’s pre-April 30 rules and procedures are in place. It is suspected that the NLRB will “correct” its procedural error and continue to "adjust" the election process to favor union organizational efforts.

For more information about the "Quickie" Elections Rules, please feel free to contact Martin Jay Galvin at 313-568-6912, any member of the Dykema Labor & Employment practice, or your Dykema relationship attorney.