Monday, May 14, 2012

Court Strikes Down the NLRB's New Election Rules


[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


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This is the first decision to address the election rules. The other two cases were challenges to the notice-posting rule. As you point out, there is a split on that issue, with the USDC for the District of Columbia upholding the Board's notice-posting requirement (but striking down the punitive pieces of the rule), and the USDC for the District of South Carolina striking down the rule in its entirety. Neither of those cases involved the quorum issue.

Posted by: Justin F. Keith | May 15, 2012 5:14:19 AM

Jeff, I think the count on the election rulemaking is now 0-1. The other two courts (DDC and DSC) split on the notice posting rule, not the election rule.

Posted by: Fred | May 15, 2012 6:34:19 AM

2-1? This is the first case I'm aware of. Maybe you're thinking of the two notice-posting cases?

Posted by: Dave | May 15, 2012 6:47:01 AM

You all, of course, are correct. Thanks. I keep noting the dangers of late-night blogging, but never seem to follow my own advice . . . .

Posted by: Jeff Hirsch | May 15, 2012 7:40:51 AM

Of course, a new "vote" will be subject to challenge based upon the illegal "recess appointments."

Posted by: James Young | May 15, 2012 1:16:08 PM

I don't understand this ruling at all. Section 3(b) of the statute states the following:

"The Board is authorized to delegate to any group of three or more members any or all of the powers which it may itself exercise...[irrelevant stuff about delegation to Regional Directors]... three members of the Board shall, at all times, constitute a quorum of the Board, except that two members shall constitute a quorum of any group designated pursuant to the first sentence hereof."

In plain English, this says that three is enough and two is a quorum of three. This is why a 2-0 Board decision with a recusal (note that the third member in such a case is doing far less than someone who merely abstains from casting a final vote; he or she isn't even participating in deliberations) is fine, unlike a 2-0 decision with no third member sitting.

In fact, New Process Steel, at page 4 of the slip opinion, explicitly distinguishes those two situations. The dissenting opinion goes even further, paraphrasing the majority (accurately, as far as I can tell) as follows: "The Court would hold that two members of a group can act as a quorum so long as the third’s absence is not due to a vacancy."

Yet this opinion says only that the proviso allowing a two-member quorum operates in "circumstances that neither side argues obtain here," and proceeds to ignore it for the entire rest of the opinion. Well, Member Hayes's metaphorical "absence" from the final vote certainly wasn't because of a vacancy. It wasn't even because of a recusal-- he participated fully (albeit in dissent) in the decisionmaking process right up to the final vote!

Anyone have some insight into this issue? Why is the two-member quorum a "circumstance" that does not "obtain here"?

Posted by: Anonymous | May 15, 2012 10:24:47 PM

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