T. S. Eliot famously wrote that "April is the cruelest month." That certainly proved to be the case for labor unions and the National Labor Relations Board ("NLRB") this year. At the start of the month, it seemed likely that the two most visible elements of the unions' wish list—the mandatory notice-posting rule and the "quickie" election rules—would both be effective on April 30, presumably resulting in more union-organizing activity and more unionized workplaces. Barely six weeks later, both of those rules have been invalidated by federal courts, and the NLRB itself has shelved them for the foreseeable future.
The final shoe dropped on Monday, May 14, when a federal district judge in the District of Columbia ruled that the NLRB did not lawfully adopt the "quickie" election rules because there was not a quorum present when the vote was taken. Three members are required for a valid quorum, the court held, and only two Democrat members were at the meeting when the vote was taken. The lone Republican member at the time did not attend, preventing a quorum. Quoting Woody Allen, the judge said, "'Eighty percent of life is just showing up.' When it comes to satisfying a quorum requirement, though, showing up is even more important than that. Indeed, it is the only thing that matters . . . ."
This decision was especially disruptive to the NLRB's operations, since the new election rules had already gone into effect on April 30, and the NLRB's General Counsel had issued a guidance to the Board's regional offices detailing how to process cases under the new rules. In fact, according to the NLRB, about 150 election petitions were filed under the new procedures during the two weeks they were effective. Now that the new rules have been invalidated, the General Counsel has withdrawn the guidance to the regional offices and advised the regional offices to revert to their previous practices for election petitions, starting immediately. The parties involved in the 150 cases filed while the rule was in effect will be given the opportunity to reinitiate the cases under the prior procedure, if they wish.
What to Expect Now
It is a safe bet that employers have not heard the last of proposals for "quickie" election rules. In the official NLRB response to the court decision, Chairman Mark Gaston Pearce stated his view that the amendments adopted by the Board "represent a significant improvement in our process" and declared, "We are determined to move forward." This could mean that the current Board, now at full strength of five members and with a Democrat majority, will move to readopt the same rules, or they could propose and vote on a new set of rules with even more dramatic changes. Given the fact that this is an election year, this issue will likely not be dormant for long. We recommend that employers still plan for the possibility of shorter election periods than are currently allowed.