LABOR LAW UPDATE

Finding inspiration from Woody Allen today, United States District Judge James E. Boasberg issued his decision in Chamber of Commerce of the United States of America and Coalition for a Democratic Workplace v. National Labor Relations Board, finding that the NLRB did not have authority to issue its new representation election rule because the NLRB lacked the statutorily mandated three-member quorum when it adopted the rule. Only two of the then three-member NLRB had voted to adopt the rule. The third member, Member Hayes, refused to participate in the voting process, having earlier voted against initiating the rulemaking that resulted in the rule, and against proceeding with the drafting and publication of the final rule. In defending the validity of the rule, the NLRB argued that the three-member quorum was present when the rule was adopted because Member Hayes had participated “in the relevant sense.” Rejecting this contention, Judge Boasberg opened his decision with the Allen quote:

“According to Woody Allen, eighty 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.”

You can read Judge Boasberg’s full decision here.

The NLRB’s new representation election rule, which would have shortened the time in which union elections are held, had taken effect on April 30, but is now blocked by the Judge’s decision from being applied to any representation petitions filed with the NLRB. (A more thorough discussion of the new rule’s provisions is provided by our previous Balert on this topic.) The current five-member NLRB may not possess the authority to re-vote to adopt the rule. The three new members of the NLRB were “recess” appointments made by President Obama during a time when Congress was not in recess, so their appointments are currently under review by other courts. No doubt the NLRB will appeal this decision to the Court of Appeal for the District of Columbia. We will keep a close eye on this issue and inform you of any developments as they occur.