Court strikes down NLRB rule to speed up union elections

A federal judge ruled Monday that a contentious union election rule proposed by the National Labor Relations Board (NLRB) is “invalid.”

In an 18-page memorandum opinion, U.S. District Judge James Boasberg 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.

The NLRB rule would speed up union elections and has been criticized by Republican lawmakers and business groups.

Two NLRB members — Chairman Mark Pearce and then-Member Craig Becker, both Democrats — participated in adopting the rule. The labor board’s third member at the time, Republican Brian Hayes, did not participate. 

ADVERTISEMENT
“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.

Last year, Hayes threatened to resign because of his opposition to the union election rule. That would have left the NLRB with just two members, not enough to form a quorum. Hayes decided to stay on, but his non-participation in the rule’s final proceedings meant the NLRB lacked a quorum, according to Boasberg.

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.

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.

“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,” Boasberg wrote.

The union election rule went into effect on April 30. With the support of business groups, the U.S. Chamber of Commerce and the Coalition for a Democratic Workplace challenged it in court.

ADVERTISEMENT
Trade associations praised the court ruling Monday.

“In their rush to conclude their rulemaking before the end of Board Member Becker’s recess appointment, the board took shortcuts in the process, and the court rightly ruled that the rule is invalid because the board lacked the necessary quorum to conduct business,” said David French, senior vice president for government relations for the National Retail Federation (NRF), in a statement.

“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 as well as diminishing employers' due process,” said Jay Perron, vice president for government relations and public policy for the International Franchise Association (IFA), in a statement. 

NRF and IFA are both members of the Coalition.

A NLRB spokeswoman declined to comment on the ruling.