In Chamber of Commerce v NLRB, decided may 14, 2012, a U.S. District Court for the District of Columbia invalidated the National Labor Relations Board new expedited election process because the Board decided the issue without the required number of members. “Two members of the Board participated in the decision to adopt the final rule, and two is simply not enough.” Plain and simple, the court ruled that with only 2 out of 3 sitting members casting a vote at that time, the Board lacked the statutorily required quorum and thus proper authority to issue the sweeping changes (“He need not necessarily have voted, but he had to at least show up”).
With the enactment of the Taft-Hartley Act in 1947, the Board’s membership was increased from three to five and the quorum requirement was increased – “three members of the Board shall, at all times, constitute a quorum.” See 29 U.S.C. § 153(b). see also New Process Steel, 130 S. Ct. at 2638. Thus, it takes three members for the Board to do business.
Given the court decision, “elections will have to continue under the old procedures” until and if the Board properly reconvenes (now with five members) and votes again.
Robert Alex Fleming is a corporate and trial attorney with over 35 years of experience advising and representing clients in Puerto Rico. He leads Fleming Law Offices, LLC, where his practice is informed by decades of experience in commercial matters, litigation, governance, and dispute resolution. Mr. Fleming is admitted to practice before the courts of Puerto Rico, several federal courts, and the state courts of New York and Texas. He holds an LL.M. in Commercial Law and an MBA from the Kelley School of Business at Indiana University.