Court Nixes New NLRB Rule for Lack of Quorum

(CN) - A federal judge in Washington, D.C. nixed a new National Labor Relations Board rule designed to speed up union elections because the NLRB board did not have a quorum when the rule was approved.

The U.S. Chamber of Commerce and Coalition for a Democratic Workplace sought to enjoin the final rule that took effect April 30, claiming the signatures of two NLRB board members did not establish the required quorum.

The final draft of the proposed regulation was sent to Chairman Pearce, Member Becker and Member Hayes via email on December 16, 2011.

Brian Hayes did not cast a vote or acknowledge the email. Hayes had previously voted against publishing the new rule, leading the board to believe that he had "effectively indicated his opposition."

U.S. District Court Judge James E. Boasberg invalidated the regulation, holding that "Two members of the Board participated in the decision to adopt the final rule, and two is not simply enough."

"Member Hayes cannot be counted toward the quorum merely because he held office, and his participation in earlier decisions relating to the drafting of the rule does not suffice. He need not necessarily have voted, but he had to at least show up," Judge Boasberg wrote.

"According to Woody Allen, eighty percent of life is just showing up," he continued. "When it comes to satisfying a quorum requirement, though, showing up is even more important than that. Indeed, it is the only thing that matters - even when the quorum is constituted electronically. In this case, because no quorum ever existed for the pivotal vote in question, the Court must hold that the challenged rule is invalid."

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