Labor and Employment - Court Invalidates NLRB’s Representation Election Regulation

May 15, 2012

In this issue:

Court Invalidates NLRB's Representation Election Regulation

April 30, 2012 was the effective date for the National Labor Relations Board's regulation to streamline representation election procedures - the so-called "ambush" or "quickie" election regulation.

On May 14, 2012, however, a federal court invalidated the NLRB's regulation on the ground that a quorum of NLRB members did not exist when the NLRB voted to adopt the final rule in December 2011. Three members are required for a quorum of the NLRB. Member Hayes did not vote on the final rule, while Chairman Pearce and Member Becker voted to adopt it. The court stated: "Two members of the Board participated in the decision to adopt the final rule, and two is simply not enough." Because there was not a quorum, the NLRB "lacked the authority" to issue the regulation, which "cannot stand." Consequently, "representation elections will have to continue under the old procedures" that were in effect before April 30, 2012.

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