UPDATE - Chamber of Commerce Lawsuit Challenges New NLRB Election Rules: Did the Board Have a Quorum?
In June of 2011, a board majority consisting of then-Chairman Wilma B. Liebman (D) and Members Mark Gaston Pearce (D) and Craig Becker (D) proposed rule changes to the procedures for union elections. Member Brian Hayes (R) disagreed with the rest of the board when the rule changes were proposed, and spoke out against a later proposal to immediately adopt the rules. In the end, the board went ahead and gave final approval of the modified rule changes. The rule changes went into effect on April 30, 2012. (See New NLRB Election Procedures.)
Almost as soon as the rules were approved, the U.S. Chamber of Commerce and Coalition for a Democratic Workplace filed a lawsuit in federal court challenging the board’s authority to enact the rule changes. The business lobby groups argued that the changes violated the Constitution, and failed to consider their impact on small businesses. The complaint also claimed that the board went too far in enacting changes approved by just two board members.
The judge found that it was unnecessary to address all of the issues raised in the lawsuit, but finally ruled, on May 14, 2012, that, since Hayes was not present when Pearce and Becker gave the final approval for the rule changes, the board lacked a quorum and, therefore, did not have the authority to approve the rule changes.
To challenge the court’s ruling, the NLRB went back to the judge and asked him to change his ruling. The board argued that the court acted on a “mistaken understanding” about the voting procedure the board members used. The board pointed to records showing that Pearce had circulated the latest version of the rulemaking proposal by email and that Hayes had reviewed the matter “on line” so he was really present and there was a quorum.
“While the voting was occurring on this rule,” the board argued in support of its motion, Hayes “simultaneously participated in the votes taken on other matters, and deliberately abstained from voting on this rule. He opened, but did not act upon, the voting task in this rule,” the board argued in support of its motion.
On June 27, the Chamber and CDW filed opposition papers with the court, urging it to reject the NLRB’s request to change the court's ruling. The chamber and CDW argued that the information cited by NLRB was previously available and should have been submitted before the court ruled. The business groups also claimed that the NLRB's evidence contradicted statements by Hayes that he failed to vote on the final rule because he did not realize that his participation was required. While NLRB regional offices implemented the new election rules as of April 30, further implementation has been suspended in the wake of the court’s ruling on May 14. In the meantime, private sector unions and employers monitor the continuing developments in the district court, as its decision on the NLRB’s pending motion will, at least for the time being, determine the fate the NLRB’s latest modifications to its election procedures.
Adam J. Luetto