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Federal Court Tosses NLRB Election Rule

The National Labor Relations Board (NLRB) did not have the legal authority to issue its rule that would speed the process of unionization elections according to a ruling from the United States District Court for the District of Columbia.

The court’s opinion did not weigh the merits of the rule itself, but rather looked to the process by which the NLRB adopted the rule and concluded that its behavior was impermissible for its failure to satisfy the Board’s quorum requirement.

“According to Woody Allen, eighty percent of life is just showing up. 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,” the court stated.

Only two of the three NLRB members serving voted in favor of adopting the rule. A third member did not cast a vote or show up for adoption of the final rule, though he had previously voted against allowing the rulemaking to proceed. The court ruled that his past participation was irrelevant, and did not satisfy the legal requirement to have a quorum of at least three Board members in approving rules.

“Two members of the Board participated in the decision to adopt the final rule, and two is simply not enough,” wrote the court.

The fact that two of the Board’s seats were unfilled at the time, leaving it with only three actual members, did not change the legal requirement for three members to constitute a quorum to promulgate new rules.

The court’s decision is an important check on the Obama administration’s activist labor board, and a significant victory for employers. The suit against the NLRB was led by ARSA’s partners, the Coalition for a Democratic Workplace and the U.S. Chamber of Commerce.



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