On December 22, 2011, the National Labor Relations Board (“NLRB”) published a highly controversial new rule significantly reducing the time between the filing of a representation petition and the holding of an election, giving employers little time to educate employees about their rights and the possible risks of unionization. The new rule also brought about other union-friendly changes, including considerably changing the procedure for challenging the voting unit. The new rule went into effect on April 30, 2012. Employers have now been given a (likely brief) respite from the implementation of the new rule on May 14, when the United States District Court for the District of Columbia held that the new rule is unenforceable. IT NOW APPEARS THAT THE NLRB’S ENFORCEMENT OF THE NEW RULE WOULD VIOLATE THE D.C. DISTRICT COURT’S ORDER.
On May 14, in Chamber of Commerce v. NLRB, No. 11-cv-2262, the D.C. district court held that the NLRB’s new “quickie” election rule is unenforceable. The district court reasoned that the procedure used by the NLRB in promulgating the new rule was improper and that, as a result, the NLRB issued the new rule without satisfying the three-member quorum requirement. Because the NLRB lacked the quorum required to issue the new rule, the district court held that the new rule is unenforceable. The district court made clear, however, that its decision “need not necessarily spell the end of the final rule for all time” and that a validly constituted quorum of the NLRB may decide to adopt the same “quickie” election rule.
The D.C. district court’s invalidation of the new rule is a big win for employers. However, the win may very well be short-lived. The NLRB is free to re-issue the same “quickie” election rule after properly constituting a valid quorum. Even if the NLRB were to properly re-issue the same rule, however, the rule would still likely face challenges to its enforceability and, indeed, to its constitutionality. Accordingly, employers should stay informed of similar court decisions. One thing remains clear: the NLRB’s “quickie” election rule will continue to be the subject of much litigation, and employers are well-advised to stay informed of such developments and to prepare their workplace for a potential increase in union activity.© 2013 Neal, Gerber & Eisenberg LLP.