By Nelson Cary and Michael Shoenfelt
Earlier this week, the NLRB voluntarily dismissed its appeal of a 2012 decision invalidating a rule designed to “streamline” union elections.
Commonly known as the “ambush” or “quickie” election rule, the rule would have significantly decreased the amount of time between the filing of a petition to unionize with the NLRB and the employee’s secret ballot vote. It also limited the scope of the pre-election hearing and reduced employers’ ability to file post-hearing briefs and appeals.
A federal district court initially invalidated the rule because the NLRB lacked a quorum when it issued the rule. In December 2011, when the NLRB voted to adopt the rule, the NLRB had only three of its five seats filled. Only two of those three members took part in the electronic vote on the rule. While the two votes would have been enough to pass the rule, the district court held that the absence of the third member was fatal for purposes of establishing quorum.
The NLRB appealed that decision to the court of appeals. The appeals court had placed the case on hold in light of the dispute over the NLRB recess appointees. The NLRB got out of that waiting game by voluntarily dismissing its appeal Monday.
The NLRB’s decision to drop the appeal, however, is not a victory for employers. Instead, it merely sets the stage for the next act in this drama. The NLRB has five members now for the first time in more than a decade, and is expected to re-issue the rule, or a similar rule. Labor professionals should keep an eye on that process, as the NLRB is free to act on its previously-expressed intent to implement changes that go even further in “streamlining” elections that the rule that was the center of this dispute.