In an important victory for employers and proponents of individual freedom, U.S. District Judge James Boasber threw out a recent NLRB “Snap” election mandate.
Woody Allen and the Quorum Requirement
“According to Woody Allen, eighty percent of life is just showing up,” Boasberg wrote in an opinion issued today. “When it comes to satisfying a quorum requirement, though, showing up is even more important than that.”
In this case, Boasberg held that only two of the three members of the Board actually voted on the rule—3 members are required to constitute a quorum. Although the Board claimed its "snap" election rule was based on a 2-1 vote, the Board’s sole Republican member, Brian Hayes, was not able to cast his vote, as he was given only a few hours notice via the NLRB’s electronic ballot system. Boasberg ruled that, despite the Board’s claims to the contrary, Hayes’ inability to vote did not constitute a vote. Therefore, with a final vote of just 2-0 on what’s supposed to be a five-member Board, the court ruled that there was no quorum and therefore the rule was invalid.
As a result, representation elections will continue under previously established procedures unless the board votes with a proper quorum.
Bottom Line for Employers
Boasberg’s decision is, most likely, a temporary reprieve for employers. Given that Obama has (through dubious recess maneuverings) appointed new members to the Board, the passage of yet another Snap election rule seems likely—as does the another battle over whether a quorum exists. Until the President stops playing games with recess appointment—or a more business friendly President is elected—employers should expect uncertain regulatatory climates to persist.