DC Court invalidates NLRB expedited election process

In Chamber of Commerce v NLRB, decided may 14, 2012,    a U.S. District Court for the District of Columbia  invalidated the National Labor Relations Board new expedited election process  because the Board decided the issue without the required number of members. “Two members of the Board participated in the decision to adopt the final rule, and two is simply not enough.” Plain and simple, the court ruled that with only 2 out of 3 sitting members casting a vote at that time, the Board lacked the statutorily required  quorum and thus proper authority to issue the sweeping changes (“He need not necessarily have voted, but he had to at least show up”).

With the enactment of the Taft-Hartley Act in 1947,  the Board’s membership was increased from three to five and the quorum requirement  was increased – “three members of the Board shall, at all times, constitute a quorum.” See 29 U.S.C. § 153(b).   see also New Process Steel, 130 S. Ct. at 2638. Thus, it  takes three  members for the Board to do business.

Given the court decision,  “elections will have to continue under the old procedures” until and if the Board properly reconvenes (now with five members) and votes again.