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While business groups applauded and labor groups decried a federal district court's May 14 decision that National Labor Relations Board changes in election case rules were invalid and unenforceable, the future of the NLRB rules changes remains uncertain.
Judge James E. Boasberg of the U.S. District Court for the District of Columbia said rule changes NLRB implemented April 30 were not properly adopted by a quorum of three board members (Chamber of Commerce v. NLRB, D.D.C., No. 11-cv-2282, 5/14/12) (see article on p. 538). Boasberg said, however, a “properly constituted quorum” might now approve the changes “if it has the desire to do so.”
NLRB Chairman Mark Gaston Pearce (D) said May 15 that the board is “prepared to move forward” on the rule changes, which he called “a significant improvement” in board procedures.
Several business groups acknowledged that the board, now consisting of three Democrats and two Republicans, may simply vote again to adopt the rule changes. However, they noted, three of the current members were recess appointed by President Obama in January, and the constitutionality of those appointments is being questioned. The validity of a new board action on the rule changes could be challenged as well, the groups said.
Acting in a lawsuit brought by the U.S. Chamber of Commerce and Coalition for a Democratic Workplace, Boasberg said the rule changes required action by a three-member quorum of board members but only two members participated in final approval of the rule.
At the time the rules were published in the Federal Register, the board consisted of Pearce and Members Craig Becker (D) and Brian E. Hayes (R). Pearce and Becker favored adoption of the rule changes, which were proposed in June 2011, while Hayes dissented from the rulemaking proposal and later voiced his opposition to adoption of the changes.
Boasberg noted that when Pearce and Becker voted on Dec. 16, 2011, to give final approval to the rule changes, Hayes did not vote and was not contacted about his failure to do so. Under the circumstances, Boasberg concluded, Hayes did not participate in the final vote, resulting in an invalid action being taken by less than a quorum.
The court said NLRB must resume processing representation cases under its pre-amendment procedures.
In a statement May 15, NLRB said it has “temporarily suspended” implementation of the regulatory changes, and Acting General Counsel Lafe E. Solomon has withdrawn instructions (Memorandum GC 12-04) he had sent to regional offices (30 HRR 456, 4/30/12) on implementing the new rules.
NLRB is reviewing Boasberg's decision and considering an appropriate response, the board statement said.
A blog post prepared by the chamber's Senior Vice President Randy Johnson and Robin Conrad, executive vice president of the National Chamber Litigation Center, said that because of doubts about the constitutionality of the recess appointments of current NLRB Members Sharon Block (D), Terence F. Flynn (R), and Richard F. Griffin (D), it is “not entirely clear” the current board would have authority to issue a new rule. The chamber has intervened in an appellate court proceeding in which the recess appointments are being challenged.
Coalition for a Democratic Workplace Chairman Geoffrey Burr commented in a May 15 statement, “Employers are greatly gratified that the Court has overturned a rule that would have been bad for employees and employers.”
Ronald Meisburg, a former NLRB general counsel who also served as a recess-appointed board member and is now a partner at Proskauer Rose in Washington, D.C., predicted there will be continued litigation over the board's representation case rules.
Meisburg told BNA May 15 he considers it “very likely” NLRB will appeal the district court's ruling, and he expects the board's Democratic majority to continue to press for changes in representation case procedures.
“This is just another attack on workers and the American middle class,” said International Brotherhood of Teamsters President James P. Hoffa. “The decision lets anti-worker extremists game the system. It condones the NLRB member's neglect of his duty. It gets in the way of the NLRB's ability to do its job, which is to protect workers' rights.”
Sen. Tom Harkin (D-Iowa), chairman of the Senate Health, Education, Labor and Pensions Committee, made a similar point in his statement on the court decision.
“This decision is deeply troubling--it condones and encourages the kind of political gamesmanship at the NLRB that has undermined the rights of all American workers,” Harkin said.
“Member Hayes's failure to cast a vote on the final rule was perhaps a neglect of his duties, but did not undermine the legitimacy of the Board's actions. The Board had a quorum, and they acted appropriately,” Harkin argued.
Warning that Boasberg's decision “seems to suggest that an individual Board member should have veto power over any NLRB decision,” Harkin said “the ruling sets a dangerous precedent for future partisan efforts to undermine the Board and the workers it protects.”
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