Just two weeks after the April 30, 2012 effective date of the National Labor Relations Board’s (“NLRB”) controversial new rule changing some of the procedures that agency follows in determining union representation status, the U.S. District Court for the District of Columbia has struck down that rule. (The rule was described in our December 2, 2011 Legal Alert.) In Chamber of Commerce of the United States of America v. NLRB, the court held that the NLRB lacked a quorum when it voted to adopt the new rule, thus rendering the rule invalid. At the time of the vote to adopt the rule on December 16, 2011, the NLRB had three members – the minimum number for a quorum of the normally five-member administrative body. However, the court concluded that one member, Brian Hayes, was not “present” for the vote (which was conducted electronically) because he took no action in response to the electronic notification that the rule was up for a vote.

As a result of the court’s decision, the NLRB will have to follow the procedures that were in effect before the April 30, 2012 rule change in processing cases raising representation issues until such time as the NLRB may validly change those procedures. With the NLRB now at its full five-member strength, it may not take that agency long to re-adopt the rule changes with an unquestionable quorum. Kilpatrick Townsend will continue to report on this matter as it develops.