In an important victory for employers and proponents of individual freedom, U.S. District Judge James Boasber threw out a recent NLRB “Snap” election mandate.
Woody Allen and the Quorum Requirement
“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.”
In this case, Boasberg held that only two of the three members of the Board actually voted on the rule—3 members are required to constitute a quorum. Although the Board claimed its “snap” election rule was based on a 2-1 vote, the Board’s sole Republican member, Brian Hayes, was not able to cast his vote, as he was given only a few hours notice via the NLRB’s electronic ballot system. Boasberg ruled that, despite the Board’s claims to the contrary, Hayes’ inability to vote did not constitute a vote. Therefore, with a final vote of just 2-0 on what’s supposed to be a five-member Board, the court ruled that there was no quorum and therefore the rule was invalid.
As a result, representation elections will continue under previously established procedures unless the board votes with a proper quorum.
Bottom Line for Employers
Boasberg’s decision is, most likely, a temporary reprieve for employers. Given that Obama has (through dubious recess maneuverings) appointed new members to the Board, the passage of yet another Snap election rule seems likely—as does the another battle over whether a quorum exists. Until the President stops playing games with recess appointment—or a more business friendly President is elected—employers should expect uncertain regulatatory climates to persist.Read More
The National Labor Relations Board (NLRB) might not accomplish much in 2012—and for employers across the nation, that’s probably good news.
Current NLRB Member Craig Becker’s term expires on December 31, 2011. Given that NLRB Chairperson Wilma Liebman departed from the board earlier this year, the NLRB is already down to three members; Becker’s departure would leave the Board with only two members.
Toothless in 2012
Based on the recent U.S Supreme Court decision New Process Steel L.P. v. NLRB, Becker’s departure could leave the Board powerless. The New Process Steel court held that the NLRB must have a “quorum of three members” in order to fully exercise its powers. Given the current Board’s ideological activism, its unlikely Republicans will approve another Obama nominee. Consequently, the Board would remain at two members—one member short of a quorum—until after the 2012 presidential elections. Of course, the President could nominate a moderate candidate capable of winning approval from both sides of the aisles. But as the President moves to lockdown his political base in time for the 2012 elections, such compromise seems unlikely.
While the President could fill the vacancy through another recess appointment—Becker was also a recess appointment—the new Republican majority in the House would in turn use pro-forma sessions to keep Congress “technically in session,” thereby preventing “the Obama administration from making any recess appointments.”
So what’s the upshot of all this Beltway brew-ha-ha?
On January 01, 2010, the NLRB will—most likely—be weakened. And given the decisions handed down by the Board since President Obama took office, a toothless NLRB might not be such a bad thing. After spending much of the past three years struggling to respond to newly imposed rules and regulations, the looming Board vacancy will give American businesses a chance to focus on doing what they do best: creating jobs and growing the economy.
Bottom Line for Employers
- Be prepared for some uncertainty regarding the NLRB until after the 2012 presidential elections
- Use the NLRB’s reduced activity to make sure company policies and regulations are in full compliance with the recent deluge of labor-friendly Board decisions.