On Wednesday the National Labor Relations Board formally rescinded its "quickie election" rule "consistent with the district court’s decision in Chamber of Commerce of the U.S. v. NLRB setting aside that rule." The Board rule, published in the Federal Register on Thursday, December 22, 2011, amended its election case procedures to shorten the time between the filing of a petition and the conduct of a union representation election. The rule went into effect on April 30, 2012.
In May 2012 a federal district court invalidated the rule because it was promulgated without a proper quorum of three Board Members:
Two members of the Board [(Chairman Pearce and Member Becker)] participated in the decision to adopt the final rule, and two is simply not enough. Member Hayes cannot be counted toward the quorum merely because he held office, and his participation in earlier decisions relating to the drafting of the rule does not suffice. He need not necessarily have voted, but he had to at least show up.
The NLRB appealed the district court’s decision invalidating the new election rules, but the U.S. Court of Appeals for the District of Columbia Circuit issued an order holding the case in abeyance pending the Supreme Court’s decision in Noel Canning. The NLRB then ultimately decided to drop its appeal.
Although the Board has rescinded the "quickie election" rules, the Board still intends to streamline and shorten its election procedures. In an interview with Law360, Chairman Pearce said that the Board is "assessing its next move," and hinted that new rules could be published by this time next year:
Unlike the litigation over the poster rule, the election rule decision did not address the substance of the regulations themselves, so the board is free to repropose them. Without stating what steps the board will ultimately take, Pearce reaffirmed his commitment to the rule and said he would like to see it done within the year.