U.S. Court strikes down NLRB rule to speed union elections due to no quorum of rulemakers
A federal judge ruled this week that the controversial union election rule proposed recently by the National Labor Relations Board (NLRB) is invalid.
In an 18-page opinion, Judge James Boasberg of the U.S. District Court for the District of Columbia struck the regulation down, saying the labor board only had two members when it voted on the final rule in December, 2011. Boasberg said the agency needed at least three members to have a quorum for action on the rule.
According to Woody Allen, 80 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 vote in question, the Court must hold that the challenged rule is invalid, Boasberg wrote. Boasberg said his ruling was not made on the merits of the union election rule and noted the NLRB could vote again to pass it.
Nothing appears to prevent a properly constituted quorum of the Board from voting to adopt the rule if it has the desire to do so, Boasberg wrote. In the meantime, though, representation elections will have to continue under the old procedures.
The NLRB rule, which speeds up union elections, went into effect on April 30, 2012. The U.S. Chamber of Commerce and the Coalition for a Democratic Workplace challenged it in court.
Today’s ruling is a win for employers and employees, given the threat it posed by limiting employees’ opportunity to hear from employers and make an informed choice, said Jay Perron, vice president for government relations and public policy for the International Franchise Association (IFA). IFA is a member of the aforementioned coalition. The NLRB declined to comment on the ruling.
Two NLRB members Chairman Mark Pearce and then-Member Craig Becker, both Democrats participated in adopting the rule. The labor boards third member at the time, Republican Brian Hayes, did not participate.
Two members of the Board 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, Boasberg wrote.
The judge said the decision by the U.S. District Court for the District of Columbia may seem unduly technical, but cited a 2010 Supreme Court ruling that the NLRB needs a quorum of three members to issue regulations and make rulings.
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