Earlier this week, the National Labor Relations Board (“NLRB” or “Board”) published a “Final Rule” stating that it was officially rescinding its proposed amendments to the representation election procedures that were adopted back in December 2011 and have been the subject of ongoing litigation regarding whether they were properly adopted by the Board.
As we previously reported, on December 22, 2011, the Board announced a set of new rules which set forth various changes to its procedures for processing union representation cases. Most significantly, the rules aimed to shorten the time period between the filing of a petition and the actual election, which was viewed as a “win” for Unions.
Immediately thereafter, several business groups filed suit in federal court alleging that the new rules were invalid on various grounds. As we reported in May 2012, a federal judge in D.C. held that the new rules were invalid because the Board did not have the required 3-member “quorum” required by the U.S. Supreme Court’s decision in New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635 (2010). Then, on December 9, 2013, a federal appellate court dismissed the Board’s appeal based on a stipulation between the parties.
The “Final Rule” filed by the Board on January 22, 2014, simply states that the Board is rescinding the changes in order to “restore[ ] the relevant language . . . , which existed before the Board issued the December 22, 2011 final rule.” That is, the Board has accepted the federal court’s decision that its rules are invalid and has acknowledged that the representation election rules are now the same as they were prior to the now-defunct 2011 amendments.
Bottom Line
The Board has finally recognized that “quicky election” rules were passed without the requisite quorum (3 Board members), and are therefore invalid. That said, because the rules were struck down on procedural grounds, nothing prevents the Board (which now has 5 members) from reissuing and repassing the same (or even more union-friendly) “quickly election” rules.
We will continue to monitor this issue as it develops.