Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Anticipating the loss of a quorum next week, the National Labor Relations Board has issued a final rule (pdf) revising its representation case certification process. Specifically, the Board is amending its rule requiring the automatic impoundment of representation election ballots when a party files a request for review.
In last year’s New Process Steel opinion, the Supreme Court held that the National Labor Relations Act requires that the Board operate with at least three members in order to exercise its full authority. When Member Craig Becker’s term expires this week, the Board will be left with Chairman Mark Gaston Pearce (D) and Member Brian Hayes (R), assuming the Senate does not confirm additional members and the President is unable to make any recess appointments by that time.
Under current Board rules and regulations, if a party files a request for review with the Board, the ballots cast in the representation election are impounded until the Board acts on that pending request. Since a two-member Board does not have the authority to consider such requests for review, the election results would be suspended until the Board’s authority is fully restored. The new rule would revise the automatic impoundment of ballots by adding the following section to its current regulations:
§ 102.182 Representation Cases Should Be Processed to Certification
During any period when the Board lacks a quorum, the second proviso of § 102.67(b) regarding the automatic impounding of ballots shall be suspended. To the extent practicable, all representation cases should continue to be processed and the appropriate certification should be issued by the Regional Director notwithstanding the pendency of a request for review, subject to revision or revocation by the Board pursuant to a request for review filed in accordance with this subpart.
The full practical implications of this change remain unclear. Regional Directors will be able to avoid impounding ballots in every election where a request for review has been filed during the period of time that the Board lacks a quorum. As such, during this period, the Regional Directors will be able to count the ballots and certify the results of an election even though a request for review of the election results may be pending. In light of the unresolved issues involving the impact of Specialty Healthcare on representation cases, this may be a significant development.
Earlier this month, the Board issued a separate rule outlining special procedures governing the filing of certain motions and appeals in the event the Board loses its quorum. The more recent revision is an addendum to the prior rule.
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