On May 14, 2012, United States District Court Judge James E. Boasberg held that the National Labor Relations Board (“NLRB” or “Board”) “Speedy Election Rule” (sometimes “Rule”) was not properly adopted because the Board lacked a quorum when the final vote on the Rule was taken. The Rule was “adopted” December 21, 2011, went into “effect” April 30, 2012, and, on May 14, 2012 found void. Unless there is a successful appeal or the rule is repromulgated, it will remain unenforceable. This ruling affects more than 150 NLRB representation cases presently pending before the NLRB. Despite this NLRB setback, it is strongly recommended that employers remain vigilant and prepare themselves for the Board’s lawful implementation of this Rule.

As a matter of law, the Board is made up of five (5) Members appointed by the President, subject to the advice and consent of the Senate. The National Labor Relations Act (“NLRA”) states that the Board must maintain a threeMember quorum “at all times” (to retain its authority to act). When the Board voted December 21, 2011 whether to adopt, in final form, the Speedy Election Rule, it had only three (3) members. Member Hayes neither was present nor made an attempt to vote. Before the final vote, neither Chairman Pearce nor Member Becker made an attempt to either obtain Hayes’ “vote” or to locate him. Without laying blame, Judge Boasberg concluded the Board acted without a lawful quorum when the vote was taken. Although Judge Boasberg found the actions of the Board could not be thwarted by a purposeful failure to appear, he also held it irrelevant that Member Hayes, at intermediate stages of the Speedy Election Rule rulemaking procedure, had voted against adoption of a Rule. Because he determined the Board lacked a quorum and the Rule void, Judge Boasberg did not find it necessary to address the substantive legality of the Rule. He then invited the Board to lawfully adopt the Rule. Chamber of Commerce of the United States of America et al. v. NLRB, USDC District of Columbia Civil Action No. 11-2262 (JEB) (May 14, 2012).

As of this date, the NLRB has not filed an appeal nor has the NLRB made a decision whether to re-promulgate its Speedy Election Rule. Nonetheless, it is strongly recommended that employers use this time to develop, with counsel, a crisis management plan to address union organizing and the NLRB’s complex representation rules and procedures. While the fate of the Rule remains in doubt, and the Speedy Election Rule is not in effect and is void, the NLRB’s goal of a Speedy Election Rule remains alive.