The National Labor Relations Board, the United States Chamber of Commerce and the Coalition for a Democratic Workforce have stipulated to voluntarily dismiss the NLRB’s appeal to the United States Court of Appeals for the District of Columbia Circuit of a district court ruling invalidating the NLRB’s “quickie election rule.” This paves the way for the NLRB, which is at full strength with appointees confirmed by the Senate, to reissue the controversial rule or to issue a revised rule which will pass legal muster. Indeed, the rule is the sole item on the NLRB’s November 26, 2013, semiannual regulatory agenda.
On December 2, 2011, the NLRB published a rule amending agency procedures for elections to decide whether employees wished to be represented by a labor organization for purposes of collective bargaining. Two of the NLRB’s three members (members Mark Gaston Pearce and Craig Becker) voted in favor of the adopting the final rule. The third member, Brian Hayes, did not cast a vote. Because the full NLRB consists of five members, three votes were necessary for a quorum. Nevertheless, the NLRB decided that a quorum existed because Member Hayes had participated in two earlier decisions relating to the publication of the final rule and therefore, it determined, the vote on the final rule was valid. The Chamber of Commerce and the Coalition for a Democratic Workforce challenged the final rule on a number of grounds, including that the rule was adopted without a statutorily required quorum. The United States District Court for the District of Columbia decided that only two Members had participated and granted the Chamber’s and Coalition’s motion for summary judgment, invalidating the rule. Subsequently, the Court of Appeals in a different case also ruled that recent recess appointments to the Board, such as Becker’s, were unconstitutional. For more on the rule, see NLRB Acts on Quickie Election Proposal and Labor Board’s Quickie Election Rule Effective April 30, 2012; Implementation of Notice Posting Rule Postponed to April 30, 2012.