A federal judge in Washington D.C. this week struck down a new rule, which took effect April 30, governing union elections that was meant to streamline union representative elections. The judge ruled that the National Labor Relations Board (NLRB) did not follow proper voting procedures when it approved the rules last year. Following the judge’s decision, NLRB announced on Tuesday it was suspending the measure while evaluating its appeal options.
In response to a challenge filed by the U.S. Chamber of Commerce, U.S. District Judge James E. Boasberg ruled Monday that the board did not have the necessary quorum to make the decision on the elections. When the rules were approved in December 2011, the five-member board had only three members–two Democrats and a Republican. Federal law requires a quorum of at least three members to consider new rules. Judge Boasberg found that the Republican, Brian Hayes, had not technically participated in a final vote on the rule. When the rule was sent to Hayes electronically, he never formally voted because he already had expressed his opposition to it at a public hearing.
“At the end of the day, while the court’s decision may seem unduly technical, the quorum requirements, as the Supreme Court has made clear, is no trifle,” Boasberg wrote. “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, and therefore, it cannot stand,” he said.
“We continue to believe that the amendments represent a significant improvement in our process and serve the public interest by eliminating unnecessary litigation. We are determined to move forward,” NLRB Chairman Mark Gaston Pearce said in a statement. However, another vote by the NLRB could be problematic in that there is a bigger battle regarding whether the board is properly constituted. In January, trade groups challenged the legality of President Obama’s “recess appointments” as part of a lawsuit challenging another NLRB measure. In March, the U.S. Chamber of Commerce joined a separate action calling for the U.S. Court of Appeals for the D.C. Circuit to rule on the appointments.
