WASHINGTON – Unionists, led by Teamsters President James Hoffa and AFL-CIO General Counsel Lynn Rhinehart, blasted a May 14 ruling by a federal judge in D.C., throwing out the union election rules changes the National Labor Relations Board (NLRB) recently implemented.

The changes, which the NLRB said would help consolidate election-related hearings and litigation and lessen delays in certifying vote results, took effect on April 30.  But James Boasberg, a federal district judge in D.C., halted the rules and rolled their impact back, because the NLRB did not have a legal quorum when it passed them.

The U.S. Chamber of Commerce and an allied anti-union right wing group sued to stop the union election rules.  Boasberg said he wasn’t ruling on the substance of the rules, only that the NLRB didn’t have the required three-member quorum to act.

The NLRB had three members when it voted on the rules: Two Democrats and Republican Brian Hayes.  That’s enough for a quorum on what would ordinarily be a five-member NLRB.  But Hayes refused to vote at all.  Result, Boasberg said: No quorum.

Hayes opposed the new rules in prior ballots.  The NLRB argued that showed his intent, and should count.  Boasberg said there must be three actual votes on the new rules, even if one was “no” or “abstain.”  The Democrats voted for the new rules.

“The judge based his ruling on a technicality, saying the NLRB didn’t have a quorum when it approved the reforms,” Hoffa said.  “A Republican member sat out the vote on the proposed reform, though he had publicly and stridently opposed it, and was in office when the regulations were adopted.

“This is just another attack on workers and the American middle class.  The decision lets anti-worker extremists game the system.  It condones the NLRB member’s neglect of his duty.  It gets in the way of the NLRB’s ability to do its job, which is to protect workers’ rights.

“The board and the courts must reconsider this issue as soon as possible so the board can do its job,” Hoffa concluded.

Rhinehart made the same points Hoffa did.  She added the AFL-CIO thinks Boasberg’s ruling “is flat-out wrong.”

“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,” Rhinehart added.

NLRB Chairman Mark Gaston Pearce said the board is reviewing Boasberg’s decision and considering its response.  “We continue to believe that the amendments” – the new rules – “represent a significant improvement in our process and serve the public interest by eliminating unnecessary litigation,” he said. “We are determined to move forward.”

And the judge said his ruling isn’t the end of the story.

“The court emphasizes its ruling need not necessarily spell the end of the final rule for all time,” Boasberg wrote.  “The court does not reach – and expresses no opinion on – plaintiffs’ (the Chamber of Commerce’s) other procedural and substantive challenges, 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,” the judge said.  Pierce said Boasberg’s ruling would affect about 150 elections.


Mark Gruenberg
Mark Gruenberg

Award-winning journalist Mark Gruenberg is head of the Washington, D.C., bureau of People's World. He is also the editor of the union news service Press Associates Inc. (PAI). Known for his reporting skills, sharp wit, and voluminous knowledge of history, Mark is a compassionate interviewer but tough when going after big corporations and their billionaire owners.