In a long-awaited ruling, the U.S. District Court for the District of Columbia has found the National Labor Relations Board’s expedited representation election rule invalid because the Board lacked a quorum when it issued the rule in December 2011. Specifically, the court in Chamber of Commerce v. NLRB (pdf) determined that because only two of the three sitting Board members actually cast a vote to adopt the rule – Member Brian Hayes had voted against an earlier version of the rule but declined to participate in the final vote – the agency did not have the authority to act under the U.S. Supreme Court decision New Process Steel. The federal court opinion explained:

Two members of the Board participated in the decision to adopt the final rule, and two is simply not enough. Member Hayes cannot be counted toward the quorum merely because he held office, and his participation in earlier decisions relating to the drafting of the rule does not suffice. He need not necessarily have voted, but he had to at least show up. At the end of the day, while the Court’s decision may seem unduly technical, the quorum requirement, as the Supreme Court has made clear, is no trifle. Regardless of whether the final rule otherwise complies with the Constitution and the governing statute – let alone whether the amendments it contains are desirable from a policy perspective – the Board lacked the authority to issue it, and, therefore, it cannot stand.

The court noted, however, that nothing prevents the Board – which currently operates with five sitting members – from voting on the rule again. In the interim, however, “representation elections will have to continue under the old procedures.”

For the time being, based upon the Court’s decision, it would appear that the new rules, which went into effect on April 30, 2012, will no longer apply to representation cases, and the Board will have to return to the previous system. That said, it is likely this decision will be appealed.

The Board may also opt to conduct another vote on the election rules with its current composition. Pursuit of this option, however, is no guarantee that the rules would pass judicial muster under New Process Steel. As we indicated in an earlier posting, there are significant questions surrounding the legal authority of President Obama to make the three “recess” appointments he made in January of this year. Therefore, any decision made by a Board consisting of those members is subject to being overturned because it lacks a quorum.

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