Court declares NLRB speedy election rule invalid

Michael P. Tremoglie May 15, 2012, 8:00am

WASHINGTON (Legal Newsline) - The U.S. District Court for the District of Columbia on Monday ruled invalid a controversial rule proposed by the National Labor Relations Board.

The rule amended the procedures for determining whether a majority of employees wish to be represented by a labor organization for purposes of collective bargaining.

The rule allowed votes by employees for union representation to be accelerated. Unions loved the idea, but it has been vehemently opposed by business organizations, nonprofits and some members of Congress.

The court issued its opinion in U.S. Chamber of Commerce and Coalition for a Democratic Workplace v. National Labor Relations Board, stating the rule is invalid because the NLRB did not have the necessary quorum to have a vote to approve the rule.

Judge James E. Boasberg wrote, "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, who was appointed by President Barack Obama, noted that the NLRB seems to have included board member Brian Hayes as part of the quorum. Hayes neither voted nor attended the meeting.

As Boasberg wrote, "Plaintiffs are correct. 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 shown 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.

"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..."

He later repeated this theme during the final paragraphs, noting that the NLRB and others may be disillusioned that his opinion did not address the merits of the rule itself. Boasberg reiterated:

"In the end, the Court recognizes that its decision not to reach the merits here may be unsatisfying to the NLRB, as well as to the many employers and employees who are affected by the rule's provisions. But to do so would degrade the quorum requirement... The NLRB is a "creature of statute" and possesses only that power that has been allocated to it by Congress... As the final rule was promulgated without the requisite quorum and thus in excess of that authority, it must be set aside.

"The Court emphasizes that its ruling need not necessarily spell the end of the final rule for all time. The Court does not reach -- and expresses no opinion on -- Plaintiffs' other procedural and substantive challenges to the rule, but it may well be that, had a quorum participated in its promulgation, the final rule would have been found perfectly lawful. As a result, 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. In the meantime, though, representation elections will have to continue under the old procedures."

John Raudabaugh, a former member of the NLRB who now teaches labor law at Ave Maria School of Law in Naples, Fla., noted that since the courts have ruled against this election rule and another controversial NLRB policy requiring employers to post notices of some of the rights of employees, the relevancy of this current NLRB has been greatly diminished.

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