Monday, May 14, 2012
[UPDATE: In light of this decision, the Board is temporarily suspending application of the new rules.]
It's now [ahem, 0-1] against the NLRB's new election rules, courtesy of Judge Boasberg in the D.C. federal district court (who was an Obama appointee). The grounds of this decision are different, however, as the judge held only that the NLRB's voting was improper. This was because Member Hayes never formally made a dissenting vote. According to the judge, this means the Board acted with only two members, which deprived it of a quorum.
As I noted when this argument was first made, I don't think it has any merit. The judge agreed that an abstention could not deprive the Board of a quorum, which is the main point I had focused on. Instead, the judge rejected the Board's argument that Hayes had "electronically" abstained by refusing to issue a formal vote once the rule was circulated ("The NLRB’s claim that Hayes was part of the quorum that adopted the final rule, then, is based only on the fact that he was a member of the Board at the time the rule was circulated and thus was sent a notification that it had been called for a vote."). I'm still not buying that argument, but I'll concede that it's not totally laughable. But the decision itself shows at least one of the problems with this holding when it states that Hayes' lack of action would've counted for the quorum if more time had passed between the rule's circulation and its adoption. How long is long enough? And, if remaining silent is enough to deprive the Board of a quorum in this short term, why should it matter if the silence lasts longer? Either way, if this is how the rule falls, it's easy enough to fix wiht a new vote.
Hat Tip: Patrick Kavanagh & Paul Secunda