Tuesday, May 15, 2012

Federal Court Makes Quick Work of NLRB’s “Quickie” Election Rules

It must be tough working for the NLRB these days.  Seems like every time we turn around lately, another court is raining on the parade of the agency that some have accused of celebrating Labor Day every day.[1]  This time, it was the federal district court in Washington, D.C.

At issue was whether the Board’s new “quickie” election rules, universally panned by employers as a government-sponsored tool to limit their ability to tell workers what having a union really means, were lawfully implemented.  Specifically, the U. S. Chamber of Commerce challenged the legality of the rules on the basis that only two of the agency’s five members took part in the vote to pass them.

From the opening sentence of the court’s opinion (here), we knew it was going to be another bleak day for the Board:  “According to Woody Allen, eighty percent of life is just showing up.”  The court went on:

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 bottom line:  it takes at least three members for the Board to do business.  That’s not even a new concept, actually.  The U. S. Supreme Court said exactly the same thing two years ago in another case in which the NLRB overstepped its authority.  This time, because the Board had only two members participating in the vote to approve the final version of the rules, the rules don’t count.

We'll keep you updated with further developments as they occur.

[1]  To be fair, there are some very fine people employed by the NLRB and, as some of you know, Your Humble Blogger is an alumnus of that oft-maligned institution.

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