On May 14 a federal court for the District Of Columbia ruled that the National Labor Relations Board’s new expedited election rules are invalid because the Board did not have a quorum for its final vote on those rules. (Chamber of Commerce v. NLRB, D.D.C., No. 11-cv-2262, 5/14/12).
The U.S. Chamber of Commerce and the Coalition for a Democratic Workplace challenged the fact that NLRB Chairman Mark Gaston Pearce (D) and then-Member Craig Becker (D) used the Board’s electronic case management system to cast final votes for the new rule on December 16, 2011, but Member Brian E. Hayes (R) did not vote or take any action.
Judge Boasberg concluded that the Board lacked a three-member quorum required for action and therefore “representation elections will have to continue under the old procedures.”
The court did not address any of the other challenges argued by the business groups. The ominous news for employers is that Judge Boasburg wrote, “nothing appears to prevent a properly constituted quorum of the Board from voting to adopt the rule if it has the desire to do so.”
There can be no doubt that if the newly constituted NLRB again votes to institute the new election rules, the employer groups will challenge that decision as well. Complicating the matter is that the NLRB now includes new members who sit as result of recess appointments by President Obama. The legality of those appointments is already being challenged by employer groups with support by members of Congress. The Republican leadership contends that Congress was not in recess when the appointments were made.
No matter what happens in the next round of district court challenges, the debate will continue. The lines are drawn—on one side those who believe that unions have been emasculated by aggressive employers using outdated laws and procedures ,against the equally fervent cries of those who contend that unionization has historically hindered American competitiveness and that this is no time to tinker with the system.
This writer’s prediction: stay up for the returns on election night, November 6, 2012. The results will largely determine the trajectory of U.S. labor relations.