Two out of three ain’t bad, but it ain’t enough

Forming a union involves two initial steps: a petition and an election. To cut the time between the two, and make it slightly easier for workers to engage in their right to unionize, the National Labor Relations Board (NLRB) issued New Representation Case Procedures. Before the new rule could take effect, the US Chamber of Commerce sued, together with the Coalition for a Democratic Workplace, arguing that the NLRB had exceeded its authority. The United States District Court for the District of Columbia granted their motion. Why?

Although the NLRB should have five members, at the time it adopted the new rules it only had three. Because the governing statute sets the quorum at three, all current members would have to participate in adopting the final rule. Voting on the final rule took place electronically, and only two of the three members voted. The third member, who opposed the measure, had voted against previous versions but did not e-mail his opposition/abstention with regard to the final version. So the judge held that the third member had not “participated” in the vote, meaning that the NLRB lacked a quorum when it adopted the rule.

Will the fully-quorate NLRB readopt the rule? Let’s wait and see.

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