A National Labor Relations Board rule to speed up elections on whether to form a union, thrown out on a technicality yesterday by a federal judge, could be quickly reinstated, according to labor lawyers.
U.S. District Judge James Boasberg ruled yesterday that the NLRB lacked a quorum when it approved the measure in December. In response, the board today “temporarily suspended” the rule and pledged to “move forward” on the issue. Only two members voted when three are needed for a quorum.
Jesse Choper, a law professor at the University of California at Berkeley, said the judge’s legal reasoning constituted a “technicality” and can be easily resolved.
“The worst that can happen is they go back and have a meeting of three or five,” Choper said. “They can make their quorum.”
In his decision, Boasberg said representation elections will have to continue under previously established procedures unless the board votes with a proper quorum. The rule went into effect on April 30.
“According to Woody Allen, 80 percent of life is just showing up,” Boasberg wrote in an opinion. “When it comes to satisfying a quorum requirement, though, showing up is even more important than that.”
Republican board member Brian Hayes didn’t cast a vote on the final rule when agency acted in December.
Two of the three members, both Democrats, voted to adopt the rule. Because he had previously voted against the standard, the board held that Hayes had “effectively indicated his opposition,” Boasberg wrote.
“Two is simply not enough,” Boasberg wrote. “The board lacked the authority to issue it, and therefore it cannot stand.”
The labor board held hearings on the proposals in July and began taking final action in November. Hayes dissented on two procedural votes and didn’t cast a ballot when the final rule was circulated to the board members on Dec. 16.
“We continue to believe that the amendments represent a significant improvement in our process and serve the public interest by eliminating unnecessary litigation,” NLRB Chairman Mark Gaston said in a statement today.
The rule change, supported by labor and challenged in court by the U.S. Chamber of Commerce, simplified and shortened balloting at a time when the unionized share of the workforce is falling. The compressed schedule could have cut the time permitted for voting in half to as few as 15 days, labor relations consultant Phillip Wilson said.
Unions win 87 percent of elections held 15 days or less after a request, a rate that falls to 58 percent when the vote takes place after 36 to 40 days, according to a February report by Bloomberg Government.
In January, President Barack Obama appointed three more members to the board, assuring a quorum, bypassing Senate confirmation. Opponents have filed lawsuits challenging the legality of those appointments. That case is unrelated to the issue decided yesterday.
‘Cloud of Uncertainty’
The U.S. Chamber of Commerce said the Boasberg’s decision puts a “cloud of uncertainty” over the NLRB due to the challenges over the recess appointments. Any future vote on the rule could be thrown out if courts rule against the appointments, said Sheldon Gilbert, an attorney with National Chamber Litigation Center.
“The board and the courts must reconsider this issue as soon as possible so that the board can do its job of protecting workers’ rights,” Teamsters General President Jim Hoffa said in a statement today.