NLRB Rule Speeding Union Elections Thrown Out by Judge

May 15, 2012
Bloomberg News
Sara Forden

A rule change by the National Labor Relations Board that allows for faster votes on union elections was thrown out by a federal judge who said the agency lacked a quorum when it approved the measure.

U.S. District Judge James Boasberg said only two of the three members of the board required to constitute a quorum actually voted on the rule. He 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, eighty percent of life is just showing up,” Boasberg wrote in an opinion issued today. “When it comes to satisfying a quorum requirement, though, showing up is even more important than that.”

The rule change, 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, according to labor relations consultant Phillip Wilson. The compressed schedule could have cut the time permitted for voting in half to as few as 15 days, 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.

Two of the board’s three members voted in favor of adopting the new rule, according to the opinion. A third member of the board didn’t cast a vote. Because he had previously voted against the rule, the board held that he had “effectively indicated his opposition,” Judge Boasberg wrote.

“Two is simply not enough,” Boasberg wrote. “The board lacked the authority to issue it, and therefore it cannot stand.”

The case is Chamber of Commerce v. National Labor Relations Board, 11-2262, U.S. District Court, District of Columbia (Washington).

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