John Toner and Marshall Babson Quoted in The Hill
"Republican Wild Card in NLRB Vote"

Seyfarth Shaw Labor & Employment attorneys John “Jack” Toner and Marshall Babson were quoted in the Capitol Hill newspaper The Hill for their takes on the National Labor Relations Board's (NLRB) vote to move forward on a contentious union election rule. As a result of the vote, lone Republican board member Brian Hayes is threatening to resign or withhold his participation, hoping to stop or delay a rule which would allow a union to hold an organizing vote as soon as 10 days after filing a petition.

“This is uncharted territory for the board when it comes to rulemakings,” said Jack, a former executive secretary for the NLRB and now senior counsel at Seyfarth. “I think there is an argument that the failure of the third member to participate in a rulemaking would not necessarily invalidate the rulemaking,” Jack said.

Marshall likewise believes that it’s unlikely Hayes can do anything to stop the implementation of the regulations.

“Internal rules don’t trump the statute,” said Marshall, a Seyfarth partner and former member of the NLRB. “The board derives its power from the statute.”

Marshall pointed to a 2010 Supreme Court case in which he represented the U.S. Chamber of Commerce where the court ruled that the NLRB needs at least three of its five seats filled to act. However, no justices during oral arguments agreed with assertions that a board member could disable the board, simply by not showing up or resigning.

“My recollection is that every justice agreed that they would not have the power to disable the board,” Marshall said.