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Judge’s Action Clouds Future of 'Quickie' Union Election Rule
Quorum issue, recess appointments raise doubts on NLRB decision

By Bill Leonard  5/15/2012
 


A federal judge ruled on May 14, 2012, that new regulations governing union representation elections are invalid. Judge James Boasberg with the U.S. District Court for the District of Columbia found that the National Labor Relations Board (NLRB) did not follow proper voting procedures when the board approved the rule revision in December 2011. According to Boasberg, a quorum of at least three NLRB members did not cast votes on the rule change and therefore the rule change could not take effect.

The ruling, combined with challenges to recess appointments that placed three of the five NLRB members on the board, place a “cloud of uncertainty” over its decisions, according to the U.S. Chamber of Commerce, which challenged the board’s new rule expediting union representation elections.

By law, the NLRB is supposed to have five members—three of whom can belong to the same political party as the president. At the end of 2011, the NLRB had been reduced to three members, two Democrats and one Republican. The two Democratic board members, Mark Pearce and Craig Becker, voted in favor of the rule change. After the votes were cast, Pearce, who is the NLRB chairman, declared that the rule change had been approved over the objections of the lone Republican member, Brian Hayes. However, Hayes never voted on the new rule or declared that he was abstaining from the vote.

Because Hayes essentially did not show up for the vote, Boasberg found that the board did not have the quorum needed to approve a new regulation. Some have dubbed Boasberg’s decision “The Woody Allen Rule” because the judge quoted the famous movie director and former comic in his written opinion.

“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,” the judge wrote. “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.”

Judge: Quorum Did Not Exist

Hayes did not cast a vote when the proposal for the rule change was distributed electronically to NLRB members. According to rules governing the NLRB voting procedures, Hayes had until April 30, 2012, the effective date for the rule, to vote. Because he chose not to participate, a quorum of the board did not exist, Boasberg said.

Because the rule had already taken effect, the judge said that the procedures for union representation revert to the regulations prior to April 30, 2012. In addition, the judge indicated that the NLRB was free to reconsider the new regulations and could attempt to approve rule revision again.

“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,” Boasberg wrote.

In response to the court decision, the NLRB suspended implementation of the rule changes to the union election process. NLRB Chairman Mark Pearce said in a written statement that the board was reviewing the court decision and considering its response.

“We continue to believe that the amendments represent a significant improvement in our process and serve the public interest by eliminating unnecessary litigation,” Pearce said. “We are determined to move forward.”

Officials with the NLRB have claimed that the rule change streamlined procedures for a minority of union representation cases in which the parties can’t agree on certain issues—such as the eligibility of some employees to participate in the election. However, business groups and Republicans have vigorously opposed the rules.

Opponents claim that the changes don’t give employers enough time to counter union organizers and that a union representation election could be held in as few as 15 days after an initial notification to unionize is filed. This accelerated timetable led many critics to call the revisions the “quickie election” or the “ambush election” rule.

Organized labor has strongly supported the rule change, saying it would reduce needless and frivolous litigation that some businesses use to stall the election process. In his decision, Boasberg did not address the legality and merits of the rule itself.

“The court does not reach—and expresses no opinion on—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,” Boasberg wrote in his decision.

Recess Appointments at Issue

Sources familiar with the issue said that the board could move quickly to vote again on the rule change. The NLRB has a full contingent of five members. However, three of those members were placed on the board in January 2012 by highly controversial recess appointments. President Barack Obama used the recess appointments to place Democrats Sharon Block and Richard Griffin and Republican Terence Flynn on the board. The president made the appointments at a time when Congress is traditionally in recess for the Christmas and New Year’s holidays. However, the House and Senate were holding short “pro forma” sessions during this recess period as a way to try to prevent the president from making recess appointments.

Several court challenges have been filed to invalidate the president’s appointments to the NLRB. No federal court has ruled on the controversy yet ,and at least two federal judges have declined to consider the recess appointments because they found that the challenges weren’t relevant or were extraneous to the federal labor cases that their courts were deciding.

A new vote on the union election rule by the NLRB could spark a flurry of court challenges to the validity of the recess appointments.

“Any future vote on the rule by the board could be thrown out if a court rules against the appointments," said Sheldon Gilbert, an attorney with the National Chamber Litigation Center, the public policy law firm of the U.S. Chamber of Commerce.

Boasberg’s decision is the latest in a series of court rulings on NLRB rule changes. In March 2012, Judge Amy B. Jackson of the U.S. District Court for the District of Columbia ruled that the NLRB can require employers to display notices regarding worker rights under the National Labor Relations Act, but she invalidated a portion of the new rule that would have made not posting the notice an automatic unfair labor practice.

The U.S. Circuit Court of Appeals for the District of Columbia then blocked the “poster rule” from taking effect by issuing an injunction on April 17, 2012, until an appeal of Jackson’s decision could be made.

The court rulings have provided many opponents of the NLRB’s rule revisions with additional fodder to criticize and complain about the board’s “activist stance” in favor of organized labor. Labor unions and worker advocacy groups say the court decisions have been wrong and will be overturned on appeal.

Bill Leonard is a senior writer for SHRM.

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