WASHINGTON – A federal district judge in D.C. has turned down the National Labor Relations Board’s request to reconsider and reverse his prior ruling killing – for now – the board’s planned rule to make union recognition elections fairer and more efficient.

The rejection by District Judge James Boasberg cheered the Radical Right, the Chamber of Commerce – which sued to stop the rule – and anti-worker House Education and the Workforce Committee Chairman John Kline, R-Minn.   And it left the board pondering its next move in the controversy.

Boasberg originally threw out the rule earlier this year because, he decided, the NLRB lacked a quorum when it passed the measure last December 16.  The board’s two Democratic members voted for the rule, but its sole Republican, Brian Hayes neither opposed it nor abstained.  He didn’t vote at all.

The NLRB’s rule would deprive businesses of some of procedural tricks they use to delay and deny workers the right to vote on whether to unionize.  It would consolidate hearings, mandate hearings on eligibility be after the vote, and set a time limit for objecting to election procedures, among other things.

Hayes’ non-vote deprived the NLRB of its needed 3-member quorum for a deci-sion on the rule, Boasberg said before.  He reiterated that in his latest ruling, July 27.

That’s despite new evidence the NLRB introduced at the rehearing about how its electronic “voting room,” involving all three board members, works – and showing that Hayes voted on everything else electronically on Dec. 16.

The board even noted that Hayes wrote a dissent against the rule when it was sent for official publication.  Boasberg noted Hayes, like the other board members, was under the “misimpression” that the rule passed and should be published.  But Hayes didn’t vote on it, so the rule wasn’t legally passed, the judge said.

“Hayes presence for and participation in other votes that day do not necessarily establish his presence for the vote in question,” Boasberg wrote in his latest ruling.  “He must have been present for this vote to count towards this quorum,” the judge said (his emphasis).

The NLRB can still pass the rule, Boasberg reiterated, if it can find a quorum to do so.


Mark Gruenberg
Mark Gruenberg

Mark Gruenberg is the editor of Press Associates Inc. (PAI), a union news service.