The United States District Court for the District of Columbia voided the NLRB’s so-called “quickie election” rules because the NLRB lacked the quorum necessary when it adopted its Amended Election Rules to expedite the current union election process. See Chamber of Commerce, et al v. NLRB. Our more in-depth analysis of those amended rules is in our earlier post at here. As noted there, the United States Chamber of Commerce and several trade organizations sought to invalidate the rules on several legal grounds, including lack of quorum.
In the Court’s decision, Judge James Boasberg ruled that Republican Brian Hayes’ refusal to participate in the final vote to adopt the new Rules, despite still holding office and participating in earlier steps of the rulemaking process, did not count toward the three-Member quorum required for formal NLRB action. In what undoubtedly will be the most quoted line from his decision, Judge Boasberg remarked, “According to Woody Allen, 80 percent of life is just showing up. When it comes to satisfying a quorum requirement, though, showing up is even more important than that.” Judge Boasberg. declining to address other Chamber arguments, relied exclusively on the Board’s lack of a quorum to invalidate the Rules.
We anticipate the Board will seek an emergency appeal of the Court’s ruling and/or revote to adopt the new Rules. With Member Harper no longer in office, the current makeup of the Board is likely to adopt the Rules with the necessary quorum, and without opposition.
UPDATE: In response to the Court's decision, the Board temporarily suspended the implementation of its quickie election rules. Acting General Counsel Lafe Solomon instructed the Board's regional offices to revert to their previous election practices effective immediately.