HR Management & Compliance

NLRB Union Election Rule Struck Down

Foes of the National Labor Relations Board’s (NLRB) rule to shorten the process required to hold a union representation election scored a win when a court invalidated the rule on May 14, but the final outcome of the fight isn’t yet clear.

The U.S. District Court for the District of Columbia ruled that the NLRB didn’t have a quorum when it approved the rule, which went into effect April 30.

At the time of the vote — December 21, 2011 — the normally five-member NLRB had just three members because terms had expired for two others and no replacements had been confirmed. In addition, the term of another of the three members was to expire at the end of the year, making it necessary to vote on the issue before the end of 2011 when the Board was expected to be left without the three members necessary to constitute a quorum.

Republican member Brian Hayes opposed the rule but didn’t actually cast a vote or participate in the December 21 meeting. Therefore, U.S. District Judge James Boasberg said Hayes’ lack of participation meant the NLRB lacked a quorum in approving the rule even though it had three sitting members.

“According to Woody Allen, eighty percent of life is just showing up,” Boasberg wrote in the court’s opinion. “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.”

The judge went on to write: “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. At the end of the day, while the Court’s decision may seem unduly technical, the quorum requirement, as the Supreme Court has made clear, is no trifle.”

In filing the suit, the U.S. Chamber of Commerce and the Coalition for a Democratic Workplace raised multiple challenges, but the district court dealt with just the question of a statutorily required quorum. “Regardless of whether the final rule otherwise complies with the Constitution and the governing statute — let alone whether the amendments it contains are desirable from a policy perspective — the Board lacked the authority to issue it, and, therefore, it cannot stand,” the judge wrote.

Since the NLRB’s vote in December, the term of member Craig Becker expired at the end of 2011. President Barack Obama used recess appointments to appoint three new members, who were sworn in on January 9, 2012.

So it’s possible that the rule can be voted on again by a full five-member NLRB. In the event of a new vote, it’s likely the election rule will pass. But the validity of the three recess appointments has been challenged, raising the possibility that even a new vote won’t settle the issue.

The court’s ruling is bringing praise from foes of the election rule change. The National Right to Work Legal Defense Foundation issued a statement hailing the judge’s decision.

“Today’s decision prevents implementation of a rule that deprives employees of hearing both sides of the story about unionization and is a victory for workers,” said National Right to Work President Mark Mix. “However, despite this decision, a secret ballot election can’t prevent the fundamental violation of individual rights that occurs under union boss monopoly bargaining.”

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