On May 14, 2012, a federal district court in Washington, D.C. struck down the NLRB’s new Quickie Election (or “Ambush Election”) procedures based on the conclusion that the the NLRB failed to assemble a quorum of members when it made its “final vote” on the proposed new rules.
Under the National Labor Relations Act and a Supreme Court case called New Process Steele, three (or more) members of the Board are required to constitute a quorum for Board action. In this case, only two Board members participated in the final vote to approve the new Quickie Election procedures. Therefore, the D.C. court concluded, the final vote on the new Quickie Election procedures was made without a quorum.
In creating the “Woody Allen Rule,” the D.C. court noted:
According to Woody Allen, eighty percent of life is just showing up. When it comes to satisfying a quorum requirement, though, showing up is even more important than that. Indeed, it is the only thing that matters – even when the quorum is constituted electronically. In this case, because no quorum ever existed for the pivotal quote in question, the Court must hold that the challenged rule is invalid.
Following the court’s decision, the NLRB issued a press release stating that it will temporarily suspend the new Quickie Election procedures. The Acting General Counsel has also instructed regional directors to revert to the old representation election procedures.
It will be interesting to see whether the NLRB appeals the court’s decision, or just tries to establish a quorum now that it has five sitting members, and vote again on the new representation election procedures. Either way, the legal battles are sure to continue.