Another day, another NLRB development. April 30, 2012 was
supposed to be a big day for the NLRB. Both the poster
rule and the new election rules were to take effect. After some litigation
woes, the NLRB
put the poster rule on ice. Now, the election rule may be in trouble.
of Commerce v. NLRB (also embedded below), the D.C. District Court held
that the election rule was invalid. Following the Supreme
Court's New Process Steel decision, the NLRB needs three members to have a
quorum to take official action. The NLRB adopted the election with 2 members
voting in favor of the rule . . . and one member did not vote at all.
The Court's opinion opens with a colorful and succinct description of the
According to Woody Allen, eighty percent of life is just
showing up. When it comes to satisfying a quorum requirement, though, showing
up is even more important than that. Indeed, it is the only thing that matters
- even when the quorum is constituted electronically. In this case, because no
quorum ever existed for the pivotal vote in question, the Court must hold that
the challenged rule is invalid.
This certainly make sense . . . but now, any time
somebody is outvoted 2-1, they can just abstain and somehow the "1"
beats the "2". Of course, if we keep a fully stocked 5-member NLRB,
that won't be an issue (because any majority vote would necessarily be a
the court's opinion
(an enhanced version of this opinion is available to lexis.com subscribers) at or read other
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Image: NLRB logo used in commentary on the
NLRB. Not official use.