NLRB speedy election rule struck down

The Hill:

A federal judge ruled Monday that a contentious union election rule proposed by the National Labor Relations Board (NLRB) is “invalid.”

In an 18-page memorandum opinion, U.S. District Judge James Boasberg struck the regulation down, saying the labor board only had two members when it voted on the final rule in December 2011. Boasberg said the agency needed at least three members to have a quorum for action on the rule.  

“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. 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,” Boasberg wrote.

The NLRB rule would speed up union elections and has been criticized by Republican lawmakers and business groups.

Two NLRB members — Chairman Mark Pearce and then-Member Craig Becker, both Democrats — participated in adopting the rule. The labor board’s third member at the time, Republican Brian Hayes, did not participate. 

 “Two members of the Board participated in the decision to adopt the final rule, and two is simply not enough. Member Hayes cannot be counted toward the quorum merely because he held office, and his participation in earlier decisions relating to the drafting of the rule does not suffice. He need not necessarily have voted, but he had to at least show up,” Boasberg wrote....

If the current NLRB tries to reinstate the rule it will likely be challenged because some of the appointees were not approved by the Senate.   The House has been attempting to cut off funding to the NLRB on enforcing the rule.