The failure to pass better rules for forming labor unions during the 2009-2010 period has now shown its full costs. Yesterday, a federal appeals court blocked the more modest union election rules approved by the National Labor Relations Board, on the grounds that the NLRB did not have a quorum when it approved the rules.
U.S. District Judge James Boasberg said the NLRB did not technically have a quorum when it adopted the rules last year. The NLRB had three members at the time; two approved the rules and the third, Republican Brian Hayes, took no action.
Had Hayes voted or indicated his choice to abstain, that could have signified a quorum, according to the judge.
“We think the judge’s ruling is flat-out wrong,” says AFL-CIO General Counsel Lynn Rhinehart. “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.”
This was certainly a technicality, not a ruling on the merits. And there is now a full complement of members on the NLRB, including three appointed by Democrats, thanks to recess appointments. The NLRB could re-approve the rules after the fact, if this ruling isn’t overturned on appeal.
However, that would run into another problem, the controversy over the recess appointments themselves. Some corporate-backed group would almost certainly sue – indeed, the lawsuits have already been put into motion – over any ruling made by an NLRB member installed at the end of last year in a recess appointment. The theory goes that the recess appointments were unconstitutional because the Senate was engaged in pro forma sessions at the time. This is a bit of uncharted territory for the legal community, so we don’t quite know how it will turn out, though the Administration has a passel of lawyers lined up to say that the recess appointments were perfectly legal.
But there are plenty of conservative judges scattered through the federal judiciary willing to say otherwise. And this drags out and delays the modestly improved election rules for unions. The obviously better solution to the problems of union intimidation and needless foot-dragging on the part of management was the Employee Free Choice Act. But not only did it not pass when Democrats had large majorities, it didn’t even come close to getting a vote. And these are the consequences.