The National Labor Relations Board’s so-called “ambush” election rule was struck down by a federal judge on May 14 on a procedural issue – that the NLRB did not have a quorum.
“According to Woody Allen,” wrote Judge James Boasberg in his opinion, “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.”
The U.S. Chamber of Commerce and the Coalition for a Democractic Workplace (CDW) sued the NLRB after the board issued a rule in December 2011 that shortened the period between when an election petition is filed and the election. The rule also limited which election-related issues could be heard by hearings officers and relegated all appeals to be scheduled after elections take place.
[See also: NLRB issues final rule on election procedures.]
The elections rule went into effect on April 30 but was invalidated by Monday’s court decision.
The board needed a quorum – three members – to vote on the election rule but one member – Brian Hayes – did not show up for the vote. The NLRB argued that even though Hayes did not show up for the vote, his earlier participation in rulemaking was enough to satisfy the quorum requirements.
Boasberg, representing the U.S. District Court for the District of Columbia, disagreed. “Two members of the board participated in the decision to adopt the final rule, and two is simply not enough,” Boasberg wrote in his opinion. “Member Hayes cannot be counted toward the quorum merely because he held office, and his participation in earlier discussions relating to the drafting of the rule does not suffice. He need not necessarily have voted, but he had to at least show up.”
“The judge struck the ruling down on procedural grounds. He did not even get to the substantive arguments that were advanced by numerous employer groups,” said G. Roger King, partner at Jones Day, a nationwide law firm. King and Jones Day are representing the U.S. Chamber of Commerce and the CDW in challenging the lawfulness of the recess appointment by President Barack Obama in January of three new members to the NLRB.
Striking down the election rule on procedural grounds does not mean the court found the rule to be unlawful said King, which Boasberg also emphasized in the conclusion of his opinion.
“ . . . (N)othing 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.
The NLRB may decide to go through the rule process again, said King, and now, having the full five members, the issue of a quorum is not likely to come up. But because three of those five appointments are being legally challenged, King said, even if the NLRB went through the rule process again and achieved approval with a quorum, it could all be undone if a court in the future finds the recess appointments unlawful.
While pleased with Monday’s court decision, the Chamber of Commerce and the CDW are preparing for more fights with the NLRB.
“Employers are greatly gratified that the court has overturned a rule that would have been bad for employees and employers and especially hard on small business owners who would have been left with mere days to navigate an often-arcane NLRB process,” said Geoffrey Burr, CDW’s chairman, in a statement.
“While we hope this will be the final word on this particular attack on workplace democracy,” he added, “we know that hope is not a strategy and are keeping our eyes out and litigation ready on a number of fronts.”
In a statement released Tuesday, the NLRB said the board is reviewing the court decision and deciding what its response will be.
“We continue to believe that the amendments represent a significant improvement in our process and serve the public interest by eliminating unnecessary litigation,” said Mark Gaston Pearce, the board’s chairman, in the statement. “We are determined to move forward.”
The NLRB’s statement also noted that about 150 election petitions under the now-invalidated rule had been filed. The parties in those cases will be given the opportunity to continue processing under the election procedure in place prior to April 30.