Try as they might, the NLRB can't seem to get any of its new rules past the federal courts in Washington D.C. On May 14, the United States District Court for the District of Columbia struck down the NLRB's new "quickie election" rules. As we noted last June, the NLRB's "quickie election" rules would have sped up the normal representation election process and would have given employers less time to educate their employees about the risks and downsides of unionization. The proposed rules would have also limited an employer's ability to seek redress from the government on certain pre and post election issues. For the time being - and as the District Court expressly held this week - "representation elections will have to continue under the old procedures."
District Court's Decision
The Court's decision was straight forward. For the NLRB to make new election rules, no less than three members needed to participate in approving the new election rules. In this case, only two NLRB members participated. Accordingly, the NLRB did not satisfy the quorum requirements under Section 3(b) of the NLRA and, therefore, the election rules were invalid.
Critically, however, the Court noted that its "ruling need not necessarily spell the end of the final rule for all time . . . [N]othing appears to prevent a properly constituted quorum of the Board from voting to adopt the rule if it has the desire to do so." Whether the NLRB - which currently consists of three Democrats and two Republicans - will attempt to reissue the quickie election rules remains to be seen.
What Does This Mean For Employers
At this point, it means that employers do not have to worry about the new election rules. However, employers should be proactive in educating their workers about union issues, including issues relating to payment of dues and collective bargaining. Similarly, employers should take the time to train and educate supervisors on best practices for promoting positive employee relations. A happy workforce (that is treated with respect) is less likely to seek out union representation.