NLRB election rule is enjoined for lack of quorum
May 14, 2012 by Ross Runkel at LawMemo
The US District Court for the District of Columbia has ruled that the National Labor Relations Board's December 22, 2011 rule amending its election procedures is invalid because the Board did not satisfy the statutory quorum requirement in adopting the rule.
Chamber of Commerce v. NLRB (Dist DC 05/14/2012)
Two of the Board's three members voted in favor of adopting the final rule. The third member of the Board, Brian Hayes, did not cast a vote.
As the court put it,
"The NLRB's claim that Hayes was part of the quorum that adopted the final rule, then, is based only on the fact that he was a member of the Board at the time the rule was circulated and thus was sent a notification that it had been called for a vote."
"Two members of the Board participated in the decision to adopt the final rule, and two is simply not 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. At the end of the day, while the Court's decision may seem unduly technical, the quorum requirement, as the Supreme Court has made clear, is no trifle."
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