- The Washington Times - Tuesday, May 15, 2012

The National Labor Relations Board said it is studying its options on how to “move forward” after a court struck down the agency’s controversial rule to speed up union-representation elections earlier this week, because of what unions are calling a technicality.

U.S. District Judge James Boasberg’s ruling invalidating the rule clearing the way for what critics call “quickie” union votes was the latest in a string of setbacks for the agency, but the fight might not be over.

“We continue to believe that the amendments represent a significant improvement in our process and serve the public interest by eliminating unnecessary litigation,” NLRB Chairman Mark Gaston Pearce said in a statement Tuesday. “We are determined to move forward.”

The court effectively killed the rule after it determined the NLRB did not have a quorum when it originally voted on the union-election policy, with fewer than three board members in place and voting.

But Judge Boasberg did not question the validity of the rule itself.

“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,” wrote Judge Boasberg, a 2011 appointee of President Obama.

The NLRB’s two Democratic members, Mr. Pearce and then-member Craig Becker, voted for the union-election rule in December. But the judge ruled Brian Hayes, the board’s lone Republican member at the time, did not participate. He didn’t vote, or even show up to the meeting at which the vote took place.

“Two members of the board participated in the decision to adopt the final rule, and two is simply not enough,” Judge Boasberg wrote.

But Teamsters President James P. Hoffa called the court decision “just another attack on workers and the American middle class.”

“The decision lets anti-worker extremists game the system,” Mr. Hoffa said.

That same problem might not be an issue going forward. The agency now has a full five-member board with three Democrats and two Republicans — in part because Mr. Obama made recess appointments to fill the vacancies.

But Ronald Meisburg, a former board member and general counsel, said the NLRB still will have a “cloud” hanging over any new decisions it makes, with the way Mr. Obama made his recess appointments. If the new board members are found to be invalid appointments, it could invalidate any rulings the current board makes.

“The NLRB could vote on this rule again,” Mr. Meisburg said. “The issues there are the current NLRB is operating under a cloud that they weren’t properly appointed. So if they were to vote again, you’d have the argument that they didn’t have a quorum at all.”

The union-election rule went into effect on April 30. Since then, about 150 petitions have been filed under the new procedures, many of which have already resulted in election agreements, the agency announced.

But NLRB acting General Counsel Lafe Solomon was forced on Tuesday to tell his regional offices to revert to their previous practices starting immediately.

Mr. Meisburg said NLRB officials cut corners in an effort to implement pro-labor rules before Mr. Becker lost his post at the end of 2011.

“It’s more a reflection of the fact that the board rushed to get these done,” he said. “They were very concerned that [Becker’s appointment] was going to expire at the end of the year. In rushing to get them done, they left themselves open to some legal challenge.”

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