In a decision issued a few minutes ago, the United States District Court for the District of Columbia struck down the NLRB’s new election rules because the Board lacked a quorum when it attempted to adopt the final rule. On December 16, 2011, Chairman Pearce and then-Member Becker voted to approve the final version of the rule. However, Member Hayes did not vote, nor was he asked to record a vote. The Board majority took the position that, because Member Hayes had previously voted against initiating the rulemaking at issue, he had “effectively indicated his opposition.”
Applying the Supreme Court’s holding in New Process Steel, L.P. v. NLRB, the court held that the failure to include Hayes in the adoption of the final rule ran afoul of the Board’s quorum requirement. Because the Board lacked a quorum when it attempted to adopt the final rule, the final rule is not effective and representation cases will “continue under the old procedures.”
We will continue to follow this important development as it unfolds.