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Technicality Snarls Fairer NLRB Union Election Rules

Based on a technicality, a federal judge today rejected commonsense rules making National Labor Relations Board (NLRB) union elections fairer.

U.S. District Judge James Boasberg said the NLRB did not technically have a quorum when it adopted the rules last year. The NLRB had three members at the time; two approved the rules and the third, Republican Brian Hayes, took no action.

Had Hayes voted or indicated his choice to abstain, that could have signified a quorum, according to the judge.

"We think the judge’s ruling is flat-out wrong,” says AFL-CIO General Counsel Lynn Rhinehart. “Brian Hayes was a sitting, working, paid member of the NLRB when the rule was adopted, and remains so today….The judge’s ruling, while in our view incorrect, is solely based on technical issues that speak to the procedure of the board and not the rule itself.”

The court was clear it was ruling on a procedural technicality and not the substance of the rule:

The court does not reach—and expresses no opinion on--Plaintiffs’ other procedural and substantive challenges to the rule, but it may well be that, had a quorum participated in its promulgation, the final rule would have been found perfectly lawful.  As a result, nothing appears to prevent a properly constituted quorum of the Board from voting to adopt the rule if it has the desire to do so.  In the meantime, though, representation elections will have to continue under the old procedures.

Rhinehart says the NLRB rules are “much needed to update and streamline the election process, and we hope this procedural roadblock does not unduly delay their implementation.”

The court challenge to the NLRB rules was brought by the U.S. Chamber of Commerce.

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Brian Hayes

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