A federal district court has ruled that the National Labor Relations Board (“NLRB” or “Board”) lacked a quorum when it held a vote to adopt a rule streamlining its union election procedures. The Board held the vote on December 21, 2011. The rule took effect on April 30, 2012 as reported earlier in this blog.  The court issued its decision on May 14, 2012.

The NLRB conducted a rule making process over a period of months.  On November 30, 2011, the Board held a meeting with a quorum of three members present.  During that meeting, Chairman Mark G. Pearce and Member Craig Becker voted in favor of a resolution to prepare the  final rule.  Member Brian Hayes voted against the resolution.   The same three members conducted an email vote on December 14 and 15, 2011.  Chairman Pearce and Member Becker cast votes supporting an order directing the NLRB’s Solicitor General to publish the final rule in the Federal Register immediately after a Board majority approved the final rule.  Member Hayes cast his vote in opposition to the order.  Drafts of the final rule circulated among the NLRB’s members on December 15 and 16, 2011.  They each received the final version of the rule on December 16, 2011.  Chairman Pearce and Member Becker then voted in favor of the final rule.  Member Hayes never cast his vote on the final rule.  The Solicitor General published the final rule in the Federal Register on December 22, 2011.

The United States Chamber of Commerce and the Coalition for a Democratic Workplace filed a lawsuit in the federal district court in Washington, D.C. on December 20, 2011, challenging the final rule.  They alleged the lack of a quorum for the Board’s vote adopting the final rule among other challenges.  The court’s May 14, 2012 ruling grants their summary judgment motion only on the lack of a quorum issue.

This ruling may only delay the implementation of the streamlined election procedures.  The President appointed three additional members to the NLRB on January 4, 2012.  Those three members and Chairman Pearce and Member Hayes put the Board at full strength.  The Coalition for a Democratic Workplace and other groups, however, filed another lawsuit on January 13, 2012, challenging the President’s authority to make those additional appointments to the NLRB.    That lawsuit remains pending.  If the current Board adopts the new rule streamlining union election procedures, expect another challenge raising substantially the same issues as the pending suit as grounds for the rule’s  invalidation.